4-1800-6000-2

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE MINNESOTA DEPARTMENT OF HUMAN SERVICES

In the Matter of the Denial FINDING$ OF FACT,

of the License of Cherry Kay CONCLUSIONS AND

DeMarais to Provide Family RECOMMENDATIQN

Day Care under Minn. Rules,

Parts 9502.0300 to 9502.0445.

The above-entitled matter came on for hearing before Administrative Law

Judge Peter C. Erickson at 10:00 a.m. on Monday, December 16, 1991 at the

Wright County Government Center, Buffalo, Minnesota. The record on this matter

closed on December 23, 1991, the date of receipt of the last post-hearing

submission.

Bri an J. As Ie son, Assist ant Wright County Attorney, Cour thou se, Buff aIo,

Minnesota 55313, appeared on behalf of Wright County Human Services. Cherry

Kay DeMarais, Box 642, 1017 Seventh Avenue, Howard Lake, Minnesota 55349,

appeared, pro se-

Notice is hereby given that, pursuant to Minn. Stat. 14.61 the final

decision of the Commissioner of Human Services shall not be made until this

Report has been made available to the parties to the proceeding for at least

ten days, and an opportunity has been afforded to each party adversely affected

to file exceptions and present argument to the Commissioner. Exceptions to

this Report, if any, shall be filed with Natalie Steffen, Commissioner of Human

Services, Second Floor Human Services Building, 444 Lafayette Road, St. Paul,

Minnesota 55155.

STATEMENT OF ISSUE

The issue to be determined in this proceeding is whether the denial of Ms.

DeMarais' application for a family day care license should be upheld.

Based upon all of the proceedings herein, the Administrative Law Judge

makes the following:

FINDINGS OF FACT

1. Cherry Kay DeMarais is a 44-year-old female who resides with her

three-year-old son, Gregory, in Howard Lake, Minnesota. Ms. DeMarais was

divorced in December 1986 and has remained single since that time. In addi tion

to Gregory, Ms. DeMarais has a son, Dennis, age 26; a daughter, Shelly, age 22;

and a daughter, Janelle, age 17. Both Dennis and Shelly are married and live

with their spouses and Janelle has been living with her father since age I?.

2. Ms. DeMarais' marriage to her ex-husband, Duane DeMarais, was quite

volatile and there were many instances of physical abuse committed by each upon

the other. Duane DeMarais seriously injured Cherry on several occasions and

life became quite unbearable for her. During this period of time, the entire

DeMarais family, including in-laws, were experiencing continual conflict which

oftentimes resulted in physical confrontations.

3. On October 11, 1981, Cherry and Duane DeMarais were visiting in-laws,

Cindy and Duane Hickman, in Waverly, Minnesota. At that time, Dennis DeMarais

was residing with the Hickmans because of problems he was causing at home. An

argument arose concerning appropriate care for Dennis, and Cherry DeMarais

assaulted Cindy Hickman. As a result, Ms. DeMarais was charged with fourth

degree assault and arrested by a Wright County Deputy Sheriff. She later plead

guilty to this charge.

4. In August of 1982, when Shelly and Janelle were still residing at

home, Ms. DeMarais reacted to a problem that Shelly was causing with Janelle by

striking Shelly on the arm four or five times with a curling iron she had been

using. Shelly sustained bruises and cuts as a result of being hit with the

curling iron. As a result of this incident, Shelly was placed in a foster home

for approximately one year. Shelly was 13 years old at this time.

5. In May of 1985, Cherry DeMarais could not take any move abuse from

her husband and contacted the father of a friend to arrange for Duane's

murder. The friend's father called the Minnetonka Police Department who sent a

decoy killer to meet with Cherry DeMarais. When the two met, Ms. DeMarais gave

$200 to the decoy as a downpayment for her husband's murder and agreed on a

total price of $1,000. Ms. DeMarais told the decoy that she would give him an

additional $300 the following week along with a picture of her husband. Based

upon this transaction, Cherry DeMarais was charged with attempted murder in the

first degree and conspiracy to commit murder, both felonies. Both of these

charges were dismissed, however, in November of 1985.

6. Cherry DeMarais is a certified nurses aide, an occupational license

issued to her by the Minnesota Board of Nursing in 1980. In 1986, Ms. DeMarais

was employed by Optional Care Systems in St. Paul, Minnesota, doing home-care

nursing for elderly recipients. In addition, from July of 1988 to July of

1989, Ms. DeMarais worked as a night-time security guard at a residential

facility for senior citizens in Minneapolis. Ms. DeMarais' employment with

Optional Care Systems was terminated in August of 1991 and she quickly found

part-time employment as a nurses aide at the Delano Nursing Home. At the

present time, Ms. DeMarais works approximately 21 hours per week and receives

reduced AFDC benefits based upon her monthly income.

7. In late 1990, Cherry DeMarais applied for a family day care license

with Wright County so she could be employed on a full-time basis and remain at

home with her toddler son. Ms. DeMarais suffers from a bladder disease which

requires that she work in the general proximity of a bathroom.

8. Ms. DeMarais has engaged in counseling and therapy sessions in the

past. The last counseling she received was in 1986 and 1987 after her arrest

for attempted murder, Since her divorce from Duane in 1986, the DeMarais

family has had much less friction and there has been no physical abuse by any

family member in the last three years. Ms. DeMarais is now experiencing a

harmonious family life and feels she is ready to assume the responsibilities of

a family day care provider.

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9. On January 9, 1991, Keith Gilbertson, Wright County day care

coordinator, sent a letter to the Commissioner of Human Services recommending

that Ms. DeMarais' application for a family day care license be denied. This

recommendation was based upon the physical abuse which had occurred in the

DeMarais family as documented in Wright County social service records, the

foster placement of Shelly and Dennis, the assault arrest in 1981, and the

felony arrest in 1985. On August 19, 1991, the director of the licensing

division at the Department of Human Services sent a letter to Cherry DeMatais

informing her that her application to provide family day care was denied, This

denial was based on the reasons set forth in Mr. Gilbertson's letter and the

licensing standards set forth in Minn. Rule 9502.0335, subpart 6E. and F

Cherry DeMarais filed a timely appeal of this denial.

10. The Department of Human Services adopted new rules governing

disqualifying factors on March 11, 1991. 15 State Register 2043. These rules,

codified as Minn. Rules 9543.3000 to 9543.3090, and the repealer accompanying

these rules became effective March 29, 1991. 15 State Register 2048. The new

rules were in effect when the Department of Human Service's Notice of Hearing

was served on Ms. DeMarais.

Based upon the foregoing Findings of Fact, the Administrative Law Judge

makes the following:

CONCLUSION$

I. The Administrative Law Judge and the Commissioner of Human Services

have jurisdiction over this matter pursuant to Minn. Stat. 14.50 and 245A.01

to 245A.16,

2. The Notice of Hearing in this matter cited rules which had been

superceded or repealed as the basis for this action, but was proper in all

other respects and both Wright County and Department have complied with all

substantive and procedural requirements of law and rule.

3. Pursuant to Minn. Stat. 245A.08, subd. 3, an applicant for a

license bears the burden of proof to demonstrate by a preponderance of the

evidence that all applicable laws have been complied with and that the

application should be approved and a license granted.

4. Minn. Rule 9502.0335, subp. 6 requires that an applicant be denied a

license if the applicant is disqualified under Minn. Rule 9543.3070.

5. A person is disqualified under Minn. Rule 9543.3070 if that person is

convicted of an assault under Minn. Stat. 609.2231; or murder, attempted

murder, or conspiracy to commit murder under the Minnesota Criminal Code,

Minn. Rule 9543.3070, subp. 1(A).

6. A person is disqualfied under Minn. Rule 9543.3070 if that person

"has admitted or a preponderance of the evidence indicated the individual has

committed an act which meets the defintion of a crime" listed as a

disqualification factor. Minn. Rule 9543.3070, subp. l(B).

7. Any person "identified as the perpetrator in a determination that

maltreatment of minors has occurred" which meets the statutory definition of

maltreatment committed by that person which is recurring or serious is

disqualified under Minn. Rule 9543.3070, subp. 1(C).

8. A disqualification may be set aside if the information relied upon to

disqualify the person is incorrect, or the person does not pose a risk of harm

to those in her care. Minn. Rule 9543.3080, subp. 3.

9. Cherry Kay DeMarais has not proved by a preponderance of the evidence

that she is in full compliance with the rule provisions set forth above. The

Findings of Fact contained herein show clearly that Ms. DeMarais has physically

abused her daughter in the past and she has admitted arranging for her

husband's death in 1985. Additionally, a preponderance of the evidence shows

that she committed an assault upon her sister-in-law in 1981. Ms. DeMarais has

not shown that she poses no risk of harm to any person under her care.

10. Citing out-of date rule provisions does not violate Ms. DeMarais'

right to due process in this proceeding, since the underlying basis for denial

of her application is identical under either rule. The old and new rules are

virtually the same and the Judge would reach the same result under either rule.

Based upon the foregoing Conclusions, the Administrative Law Judge makes

the following:

RECOMMENDATION

IT IS HEREBY RECOMMENDED that the Commissioner of Human Services affirm

the decision to DENY Ms. DeMarais' application for a family day care license.

Dated this 26 day of December, 1991.

PETER C. ERICKSON

Administrative Law Judge

NOTICE

Pursuant to Minn. Stat. 14.62, subd. 1, the agency is required to serve

its final decision upon each party and the Administrative Law Judge by first

c Iass mail .

Reported: Taped, No Transcript Prepared.

MEMORANDUM

The record in this matter shows quite clearly that Cherry DeMarais does

not meet the necessary qualifications to be licensed as a family day care

provider. However, all of the disqualifying events took place prior to 1986

and Ms. DeMarais went through counseling subsequent to that time. There is

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nothing in the record to show that, at the present time, her life has not

changed as she asserts. The disqualifying characteristics shown by Ms.

DeMarais prior to 1986 are quite serious. However, the Judge believes that

most of these "problems" were the direct result of a very abusive husband.

The Judge suggests that the Commissioner and Wright County may want to

reconsider Ms. DeMarais' application if she can obtain a satisfactory

evaluation from a mutually agreed-to counselor or psychologist. The Judge is

convinced that Ms. DeMarais went through an unbearably stressful period during

her marriage and suffered serious physical injury and mental anguish as a

result. It has been several years since those problems have subsided and Ms.

DeMarais appears to be leading a norma I life with her remaining f amily. She

should be entitled to show, by the report of a psychologist or counselor, that

she is now able to perform the responsibilities of a family day care provider.

The Notice of Hearing contained superceded rule provisions and purported

to rely upon those provisions in this action. The cited rule provisions are

virtually identical to the new provisions with respect to this proceeding.

Were there any mean ingfu I di f fey ences between the provisi ons , however, this

erroneous citation may have constituted a lack of notice and thereby violated

Ms. DeMarais' constitutional right to due process.

P.C@ E.

I/ Minn. Rule 9502.0335, subp. 6.E. specifically lists as a

"disqualification factor" that the Applicant "has admitted to, or there is

substantial evidence indicating - . . physical abuse . . . Minn. Stat.

626.556, subd. 2(d) defines "physical abuse" as "any physical or mental

injury, or threatened injury, inflicted by a person responsible for the

child's care on a child other than by accidental means . . . ." Minn. Rule

9502.0335, subp. 6.F. lists as a "disqualification factor" that an applicant

"has admitted to, or there is a preponderance of the evidence indicating the

commission of any crime listed in . . . sections 609.18 to 609.21 or 609.221

to 609.378 These include the crimes of murder and assault.

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