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OAH 8-1800-22057-2 |
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 JoAnn
Steingraber |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
This matter came before Administrative
Law Judge Eric L. Lipman upon an appeal by the Licensee, JoAnn Steingraber,
from an Order imposing a Temporary Immediate Suspension of her family day care
license.
Kirsten A. Simonds, Assistant Sterns
County Attorney, appeared on behalf of the Sterns County Human Services and the
Minnesota Department of Human Services (County and Department). Kristine A. Peterson-Lahr, Peterson Law Firm
LLC, appeared on behalf of JoAnn Steingraber, the Licensee.
An evidentiary hearing was in Room 207 of
the
STATEMENT OF THE ISSUES
1. 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?
2. If
the Department did establish reasonable cause, did Ms. Steingraber
establish that, at the relevant times, she was in full compliance with
applicable statutes and rules?
The Administrative Law Judge concludes that
the Department did show reasonable cause that Ms. Steingraber’s lack of proper supervision on March 8, 2011 posed an imminent risk of harm to the health or safety of eight
young children. Ms. Steingraber did
not establish that at the relevant times, she was in full compliance
with applicable statutes and rules.
Based upon the hearing record, the Administrative
Law Judge makes the following:
FINDINGS OF FACT
1.
Ms.
Steingraber operates a family day care out of her home in
2.
Ms.
Steingraber holds DHS License Number 115723-3-FCC. Under the terms of that license, with two
adult caregivers present, Ms. Steingraber is permitted to provide day care for
no more than 14 children at any one time.
Additionally, the license limits the total number of children who have
not reached school age that may be under care.
Of the ten children authorized, no more than of these 4 may be infants
or toddlers, and no more than 3 of those children may be infants.[2]
3.
Ms.
Steingraber first obtained licensure for her family day care approximately 29
years ago.[3]
4.
The
Steingraber family has made considerable investments in the family home so as
to make it functional and useful as a family day care. The day care operations are undertaken on the
ground floor of the home – which is accessible from a set of dual entryways on
either side of the home. There are
stairways leading down into the licensed areas from both entry ways. Within the licensed spaces there is a large
play area and several adjacent rooms for other daycare uses – such as a
changing room, a bathroom and spaces for children to nap.[4]
5.
Above
the ground floor, accessible by stairs from the two entryways is the main floor
of the Steingraber home. On this main
floor, there is a kitchen in which the meals for children under care are
prepared and the non-licensed, family living spaces for the Steingrabers.[5]
6.
The
Licensee is assisted in the daycare operations by her daughter, Sara.[6]
7.
At 8:30
a.m. on March 8, 2011, Ms. Steingraber had 8 pre-school children under
care. The children ranged in ages from a
few months old to five years old.[7]
8.
At
about this time, Ms. Steingraber left the ground floor of the day care home,
for the kitchen on the level above, to prepare a bottle for one of the children
under care. While she was in the
kitchen, Ms. Steingraber had an attack of acute abdominal pain – and believed
that she might soil herself. She went immediately to the bathroom.[8]
9.
At this
time, Sara Steingraber, the Licensee’s helper, was
sleeping in an adjacent bedroom. While
seated on the toilet, the Licensee called out to her daughter, but Sara did not
respond to her mother’s call.[9]
10.
While
Ms. Steingraber was in the main floor bathroom, Mr. Kurtz, the father of two of
the children under care arrived at the day care home. Mr. Kurtz recalled that upon his arrival the
clock in the daycare entryway read 8:40 a.m.[10]
11.
Mr. Kurtz
lingered for a few moments in the foyer, hoping that the Licensee or some other
adult might greet him; and bring his children to the entryway so that he would
not need to remove his winter clothes.
Seeing no one, he took off his snow boots and snowmobile suit and
proceeded down to the main play area where his children were seated – Brant in
a high chair and Caleb in a baby jumper.[11]
12.
For
approximately 20 minutes, Mr. Kurtz visited with his sons and waited in the day
care for the Licensee or some other caregiver to return. At or around 9:00 a.m., Mr. Kurtz telephoned
his wife to tell her that their children were unattended in the day care and
that he was returning home with them.[12]
13.
Mr.
Kurtz dressed again in his snowmobile suit and boots, tucked his one-year old
son, Caleb, into the torso portion of the suit, and boarded a snowmobile with
the boys for the 2 and ˝ block ride home.[13]
14.
The
Licensee emerged from the bathroom in enough time to see the trio board a
snowmobile at the end of her driveway and make their way down the street.[14]
15.
The
Licensee concedes that she was in the bathroom for approximately 20 minutes, no
other caregiver was supervising the children at this time, and she does not
deploy monitoring devices that would permit her to listen to events occurring on
the ground floor while she is on the main floor of the day care home.[15]
16.
Angry
that their children, and other children under care, were left for such long
periods without supervision, the Kurtzs cancelled their enrollment in the
Licensee’s day care on that same day.[16]
17.
The
Kurtzs’ low opinion of the Licensee’s attentiveness and skills as a caregiver,
however, is not shared by all of the day care parents. Several of the day care parents testified at
the evidentiary hearing to the effect that Ms. Steingraber is an excellent
caregiver and that they are very eager to have their children cared for by the
Licensee.[17]
18.
Following
an investigation into the events of March 8, 2011, Sterns County Licensing
Supervisor Paul Weinmann urged the Department to issue an Order of Temporary
Immediate Suspension. The Department
issued the Order of Temporary Immediate Suspension on April 29, 2011.[18]
19.
Ms.
Steingraber timely appealed the Order of Temporary Immediate Suspension.[19]
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, 245A.07 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. Steingraber 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.”[20]
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.”[21]
6.
The 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.”[22]
7.
The Department demonstrated reasonable cause for
the temporary immediate suspension order by showing that Ms. Steingraber failed
to sufficiently supervise eight children under care so as to prevent injury to
these children.
8.
The
Department has demonstrated reasonable cause to believe that the
Licensee’s inability, or unwillingness, to provide more thorough supervision of
the children under care presents an imminent risk of harm to the health,
safety, or rights of persons served by the program.
9.
Ms. Steingraber 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 JoAnn Steingraber’s license to provide family child care.
Dated: July 22, 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.[23] 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.”[24]
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.[25]
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.[26]
II. Analysis
In this case, the temporary suspension should be maintained pending a final determination of the appropriate licensing sanction.
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.” The Licensee’s failure to engage her daughter in the care of the children while she was attending to her stomach pain, and her lack of appreciation then, or still, that leaving 8 young children unattended for 20 minutes was potentially very dangerous, satisfies the standards for present risk to persons served by the program. Given that an adult entered the day care home, remained for such a long time, and left the premises with two children under care before being observed, highlights just one of the many risks to the persons served by the program.
In light of the
Licensee’s skills, considerable experience, 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 a different
staffing and coverage plan. 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 JoAnn Steingraber; Exhibit 7.
[2] Exhibit 7.
[3] Test. of J. Steingraber.
[4]
[5] Test. of J. Steingraber; Testimony of
[6] Test. of P. Acheson; Test. of J. Steingraber.
[7] Test. of P. Acheson; Ex. 8
[8] Test. of J. Steingraber.
[9] Testimony of Mark Kurtz.
[10] Id; compare also, Ex. 2.
[11] Id; Ex. 2.
[12] Test. of M. Kurtz.
[13]
[14] Test. of J. Steingraber.
[15]
[16] Testimony of Andrea Kurtz; Test. of M. Kurtz.
[17] See, Testimony of Kurt Niemeyer; Testimony of Jessica Patrick; Testimony of Michelle Pogatchnik; Testimony of Karen Warner; Testimony of Valerie Partrick; see also, Exs. 16 through 20.
[18] Exs. 1 and 6; Testimony of Paul Weinmann.
[19] Notice and Order for Hearing, OAH Docket No. 8-1800-22057-2 at 2.
[20]
[21]
[22] See,
[23] Compare, e.g., State v. Florence,
239 N.W.2d 892, 903-04 (
[24] 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).
[25] See,
[26] 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).