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OAH 8-1800-21959-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF HUMAN SERVICES
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In the Matter of the
Temporary Immediate Suspension of the Family Child Care License of |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
This matter came before Administrative
Law Judge Eric L. Lipman upon an appeal by the Licensee,
Michelle W. Lawson, Chief Assistant
Clay County Attorney, appeared on behalf of the Clay County Social Services and
the Minnesota Department of Human Services (County and Department).
An evidentiary hearing was held by way of video
conference between the
STATEMENT OF THE ISSUE
Did the Department demonstrate that
reasonable cause exists to believe that the Licensee’s actions pose an imminent
risk of harm to the health, safety or rights of persons served by her child care
program?
Based upon the hearing record, the
Administrative Law Judge makes the following:
FINDINGS OF FACT
1.
Ms. Hoban
operates a family day care out of her home in
2.
Ms.
Hoban holds DHS License Number 1054340-R02.
She obtained licensure for her family day care approximately 2 and ˝
years ago.[2]
3.
Kathleen
Cardinal is the licensing official for Ms. Hoban’s day care.[3]
4.
Ms.
Hoban holds a “C-1 license” – a reference to the applicable subparagraph of
Minn. R. 9502.0367. Under the terms of
that license, Ms. Hoban is permitted to provide day care for no more than 8
children at any one time. Additionally,
the C-1 license limits the total number of children who have not reached school
age that may be under care. Of the eight
children authorized, no more than of these 3 may be infants or toddlers, and no
more than 2 of those children may be infants.[4]
5.
With
the exception of those occasions in which Ms. Hoban’s day care programming
involves another adult, she is the only adult in the day care home.[5]
Injuries to M.W.
6.
In June
of 2010, M.W. was a 7-month old boy enrolled in Ms. Hoban’s day care.[6]
7.
On June
3, 2010, M.W.’s parents, noticing that he cried when lifted or held, brought
him to the emergency room for an examination.
Following a series of tests and Magnetic Resonance Imaging, M.W.’s
doctors determined that the boy had a fractured forearm and chip fractures in
his shoulders.[7]
8.
Ms.
Hoban testified as to two events in the spring of 2010 that may have occasioned
these injuries. The first occurred in
the middle of May of 2010. Ms. Hoban
recalls that M.W.’s older brother, D.W., (then age 3) picked up his infant
brother while M.W. was sitting in a bouncy chair, and in a quick motion,
released the smaller boy. Additionally,
Ms. Hoban recalls that a few weeks later, she laid M.W. down at the bottom of
the staircase in her home while she went to an adjacent room to change another
child’s diaper. She speculates that during
the interval in which she was changing a diaper, one of the older children
under care may have stepped on M.W.’s forearm while traversing the stairs.[8]
9.
Ms.
Hoban did not report D.W.’s dropping his younger brother to licensing
authorities in May of 2010. Ms. Hoban
did inform licensing officials of these events after M.W.’s mother took the boy
to a local hospital for evaluation.[9]
10.
Glyndon
Police Chief Michael Cline undertook an investigation of M.W.’s injuries. Neither M.W.’s physicians nor local law enforcement
have identified a source for those injuries.[10]
Injuries to A.T.
11.
In September of 2010, while Ms. Hoban and the
day care children were visiting a park near the day care, A.T., a 2 year-old girl
under care, dislocated her elbow while climbing on the park’s playground
equipment.[11]
12.
Ms.
Hoban did not promptly report A.T.’s injuries to licensing authorities.[12]
Injuries to K.A.C. and K.C.
13.
In
December of 2010, K.A.C., a 7-month old infant, and his older brother, K.C.,
then 2 years old, were both enrolled in the Hoban day care.[13]
14.
On December
31, 2010, K.A.C.’s mother brought the infant to the emergency room because he
had bruised and blue lips. An
examination of K.A.C. revealed a linear bruise along his lips that his
physician speculated might be from a frost injury.[14]
15.
A part
of the clinic visit with K.A.C., it was noted that his older brother, K.C., likewise
had a bruised nose.[15]
16.
It was later
determined that earlier that week, while K.C. was entering the Hoban day care
through a garage door into the house, K.C. fell on the stairs and injured his
nose.[16]
17.
Ms.
Hoban did not promptly report K.C.’s injuries to licensing authorities.[17]
Injuries to K.T.
18.
In
March of 2011, K.T., a 4 ˝ month-old infant, was enrolled at the Hoban day
care.[18]
19.
On March
18, 2011, K.T.’s mother brought K.T. to be examined by local pediatricians. The infant had a swollen bruised area,
approximately an inch in diameter, on the side of her head. Following a Computer Tomography scan (“CT
scan”), it was determined that K.T. had a suffered calvarial skull fracture.[19]
20.
In the
view of K.T.’s physicians, the infant was too young for such an injury to have
been occasioned by the child’s own choices or movements.[20]
21.
Chief
Cline undertook an investigation of K.T.’s injuries. Neither K.T.’s physicians nor local law
enforcement have identified a source for those injuries.[21]
22.
Upon
learning that K.T. had been seen by doctors at the Sanford Clinic in
23.
On the
recommendation of Clay County Licensing Supervisor,
24.
Ms.
Hoban timely appealed the Order of Temporary Immediate Suspension.[24]
Based upon the Findings of Fact, the
Administrative Law Judge makes the following:
CONCLUSIONS
1.
The
Administrative Law Judge and the Commissioner of Human Services have
jurisdiction over this matter pursuant to Minn. Stat. §§ 14.50 and 245A.08.
2.
The County
and the Department have complied with all of the substantive and procedural
requirements of law and rule.
3.
At all
times relevant to these proceedings, Ms. Hoban was a licensed family child care
provider.
4.
The
Commissioner of Human Services shall impose a temporary immediate suspension of
a child care license “[i]f the license holder’s actions or failure to comply
with applicable law or rule . . . pose an imminent risk of harm to the health,
safety, or rights of persons served by the program.”[25]
5.
The
temporary immediate suspension shall “remain in effect pending the
commissioner’s final order under section 245A.08, regarding a licensing
sanction issued under subdivision 3 following the immediate suspension” if the Commissioner
demonstrates “that reasonable cause exists to believe that the license holder’s
actions or failure to comply with applicable law or rule poses . . . an
imminent risk of harm to the health, safety, or rights of persons served by the
program.”[26]
6.
The supervision rules for a licensed child care
facility require that a caregiver be “within sight or hearing of an infant,
toddler or preschooler at all times so that the caregiver is capable of
intervening to protect the health and safety of the child.”[27]
7.
The Department demonstrated reasonable cause for
the temporary immediate suspension order by showing that Ms. Hoban failed to
sufficiently supervise M.W., A.T. and K.T. so as to prevent injury to these
children.
8.
The
Department has demonstrated reasonable cause to believe that the
combination of Ms. Hoban’s limited experience as a day care provider, her
assumption of all of the supervision functions, the number of children under
care, and the needs of those children under care, all combine to present an
imminent risk of harm to the health, safety, or rights of persons served by the
program.
9.
Ms. Hoban did not establish that, at the
relevant times, she was in full compliance with applicable statutes and rules.
Based upon the Conclusions, and
for the reasons explained in the accompanying Memorandum, the Administrative
Law Judge makes the following:
RECOMMENDATION
The Administrative Law Judge respectfully recommends that the Commissioner of Human Services AFFIRM the Order for Temporary Immediate Suspension of Darcy Hoban’s license to provide family child care.
Dated: April 25, 2011
___s/Eric
L. Lipman___________________
ERIC L. LIPMAN
Administrative
Law Judge
Reported: Digitally
recorded.
NOTICE
This report is a
recommendation, not a final decision.
The Commissioner of Human Services (the Commissioner)
will make the final decision after a review of the record. The Commissioner may
adopt, reject or modify these Findings of Fact, Conclusions, and
Recommendations. The parties have 10 calendar days after receiving this report
to file Exceptions to the report. At the
end of the exceptions period, the record will close. The Commissioner then has 10 working days to
issue his final decision. Parties should
contact Lucinda Jesson, Commissioner of Human Services,
If the Commissioner fails to issue a final decision within 90 days of the
close of the record, this report will constitute the final agency decision
under Minnesota Statutes § 14.62 (2a).
The record closes upon the filing of exceptions to the report and the
presentation of argument to the Commissioner, or upon expiration of the
deadline for doing so. The Commissioner must notify the parties and the
Administrative Law Judge of the date on which the record closes. Under Minnesota Statutes § 14.62 (1), the
agency is required to serve its final decision upon each party and the
Administrative Law Judge by first class mail or as otherwise provided by law.
MEMORANDUM
I. Regulatory
Standards
Minn. Stat. § 245A.07, subdivisions 2 and 2a establish the standard of proof that must be met to sustain a temporary immediate suspension order. The statute reads in pertinent part:
If the license holder's actions or failure to comply with applicable law or rule, or the actions of other individuals or conditions in the program pose an imminent risk of harm to the health, safety, or rights of persons served by the program, the commissioner shall act immediately to temporarily suspend the license.
….
The scope of the hearing shall be limited solely
to the issue of whether the temporary immediate suspension should remain in
effect pending the commissioner's final order under section 245A.08, regarding
a licensing sanction issued under subdivision 3 following the immediate
suspension. The burden of proof in expedited hearings under this subdivision
shall be limited to the commissioner's demonstration that reasonable cause
exists to believe that the license holder's actions or failure to comply with
applicable law or rule poses, or if the actions of other individuals or
conditions in the program poses an imminent risk of harm to the health, safety,
or rights of persons served by the program. "Reasonable cause" means
there exist specific articulable facts or circumstances which provide the
commissioner with a reasonable suspicion that there is an imminent risk of harm
to the health, safety, or rights of persons served by the program.
These are modest standards; intended to assure that children are protected until there can be a more complete evaluation process, a more detailed hearing and a final determination.
Indeed, this risk of harm analysis has been likened to the burden to establish probable cause in a criminal proceeding.[28] The analysis begins with a presumption of innocence and requires the admission of probative evidence to overcome that presumption. At a minimum, an order of temporary immediate suspension must be supported by some substantial evidence of “imminent harm.”[29]
While the term “imminent harm” is not defined in either statute or rules, the Commissioner has defined the term “imminent danger” in the Family Day Care and Foster Care rules. This definition is instructive. “Imminent danger” includes circumstances in which a child is threatened with immediate and present neglect that is likely to result in serious physical injury.[30]
The Administrative Law Judge must also determine if the evidence shows that the license holder’s actions, at the time of the hearing, continue to pose an imminent risk of harm. This determination is made so as to inform the Commissioner as to whether the suspension should continue pending final determination of any appropriate licensing sanction.[31]
II. Analysis
In this case, the temporary suspension should be maintained pending a final determination of the appropriate licensing sanction. In the view of the Administrative Law Judge, Ms. Hoban is simply overmatched when trying to provide care to so many young children and to keep those children safe from the kind of serious injuries that have occurred over the past year. It is reasonable to conclude that if Ms. Hoban were to resume operations, without significant changes in her supervision and staffing approaches, another serious injury would soon follow.
Ms. Hoban’s proposed remedy – namely, to purchase a portable play pen for use with the infants under care (see, Exhibit J) – is a helpful suggestion, but it is not sufficient to address the supervision failures in this case. In the view of the Administrative Law Judge, deploying such a play pen would not remove the imminent risk of future serious injury.
On this record, there are “specific articulable facts or circumstances which provide the Commissioner with a reasonable suspicion that there is an imminent risk of harm to the health, safety, or rights of persons served by the program.”
In light of the
Licensee’s skills, and strong support from some of the families for whom she
provides care, it may be that it is appropriate for her to resume providing day
care under certain conditions – such as those obliging specific training or employing
additional staff for her day care operation.
Yet, until the County’s investigation is completed, and the possibility
of appropriate licensing conditions can be thoroughly evaluated, it would not
be prudent to lift the suspension of her license.
E. L. L.
[1] Testimony of
[2] Test. of K. Cardinal;
[3] Test. of K. Cardinal;
[4] Test. of K. Cardinal;
[5] Test of D. Hoban.
[6] Exhibit 7.
[7] Ex. 8.
[8] Test. of D. Hoban; see also, Exs. 3, 6 and 7.
[9] Ex. 6.
[10] See, Ex. 8; Test. of Michael Cline.
[11] Ex. 4; Test. of D. Hoban.
[12] Test. of K. Cardinal.
[13] Ex. 9.
[14]
[15]
[16]
[17] See, Ex. 12.
[18] Ex. 4.
[19] Exs. 4 and 5.
[20] Ex. 5.
[21] See, Ex. 8; Test. of Michael Cline.
[22] Ex. 4.
[23] Ex. 1; Test. of K. Cardinal.
[24] Ex. 2.
[25]
[26]
[27] See,
[28] Compare, e.g., State v. Florence,
239 N.W.2d 892, 903-04 (
[29] See generally, Minn. Stat. § 14.69 (e) (2006); In the Matter of the Temporary Immediate Suspension of the License of Laura Ellingson to Provide Family Child Care, OAH Docket No. 3-1800-15905-2 (2004) (http://www.oah.state.mn.us/aljBase/180015905.rt.htm).
[30] See,
[31] See, In the Matter of the Temporary Immediate Suspension of the License of Sandra Julkowski, OAH Docket No. 6-1800-21321-2 (2010) (http://www.oah.state.mn.us/aljBase/180021321%20rt%20bjh.htm).