HS-86-008-RL
7-1800-225-2
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE MINNESOTA DEPARTMENT OF HUMAN SERVICES
In the Matter of the Family FINDINGS OF FACT,
Day Care License of Corrine CONCLUSIONS AND
and Paul Abraham. RECOMMENDATION
The above-entitled matter came on for hearing before Richard C. Luis,
Administrative Law Judge, on November 15 and 19, 1985 at the Conference Room
of the Anoka County Courthouse in Anoka, Minnesota.
Marcy S. Crain, Assistant Anoka County Attorney, Anoka County Attorney
Office, Anoka County Courthouse, Anoka, Minnesota 55303, appeared on behalf of
the Anoka County Community Health and Social Services Department (hereinafter
"Agency"). Patrick W. Ledray, Katz, Lange, Davis and Manka, Ltd., 555 Peavey
Building, 730 Second Avenue South, Minneapolis, Minnesota 55402, appeared on
behalf of Paul and Corrine Abraham (hereinafter "Licensees"). The record in
this matter closed on February 12, 1986, after receipt of post-hearing
memoranda from the parties.
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 of Human
Services. Exceptions to this Report, if any, shall be filed with Leonard W.
Levine, Commissioner, Minnesota Department of Human Services, 4th Floor,
Centennial Office Building, 658 Cedar Street, St. Paul, Minnesota 55155.
STATEMENT OF ISSUE
The purpose of the hearing is to determine whether Licensee Paul Abraham
violated the provisions of Minn. Rules part 9545.0340 (1983), and if so,
whether the Licensees' Family Day Care (FDC) License should be revoked.
Based upon all of the proceedings herein, the Administrative Law Judge
makes the following:
FINDINGS OF FACT
1. Paul and Corrine Abraham were first licensed in 1981 to provide family
day care. There have been no complaints filed regarding the quality of day
care that has been provided.
2. L.N., born December 22, 1967, lives next door to the Abrahams in
Columbia Heights. In 1982, she began babysitting for the Abrahams' two young
children on a regular basis.
3. on November 18, 1983, L.N. went to the Abrahams' home at about 8:30
p.m. Corrine Abraham had already left with a friend, and did not return until
about 12:30 a.m. She did not call home during the course of the evening to
check on her children, because no plans had been made to have a babysitter
come in. Paul Abraham was going to spend the night with their children.
L.N.'s mother, J.E., noted that Paul Abraham was at the home at 9:30 p.m., so
she called L.N. to ask why she was still in the Abraham home. Paul Abraham
answered the phone and L.N. then spoke with her mother. Mr. Abraham left the
home shortly after the phone call and returned to the house between 10:30 and
11:00 P.M.
4. On November 18, 1983, L.N. and Paul Abraham participated in a sexual
encounter in which Mr. Abrahams' finger penetrated L.N.'s vaginal area. L.N.
was 15 years old and Mr. Abraham was 30 years old on that date. Paul Abraham
was born December 22, 1952, exactly 15 years earlier than L.N. At all times
relevant herein, Paul Abraham was aware of L.N.'s age.
5. On the morning of December 23, 1983, Corrine Abraham went to a
Christmas party for day care children at a meeting hall in Columbia Heights.
John Banker (Licensees' witness), Paul Abraham and L.N, were all at the
Abrahams' home on the same morning.
6. On December 23, 1983, the day after L.N.'s sixteenth (and Mr.
Abraham's thirty-first) birthday, she and Paul Abraham engaged in an act of
sexual intercourse with each other in the Abraham house.
7. On November 12, 1984, D.E., L.N.'s stepfather, read her personal
diary, and was concerned with two different entries that indicated that his
stepdaughter might have a sexual relationship with Paul Abraham. J.E. and her
husband asked Corrine Abraham to come over, and they confronted her with the
diary information.
8. Later on November 12, 1984, Paul Abraham and D.E. got into a physical
fight regarding the entries in L.N.'s diary. The Columbia Heights police were
called to break up the fight.
9. On November 14, 1984, Shirley Rose reported suspected child abuse in
accordance with the Minnesota Mandatory Child Abuse Reporting Act, Minn. Stat.
626.556 (1984). Corrine Abraham had seen Shirley Rose on a professional
basis for therapy. During the lone session between the two, Mrs. Abraham told
Ms. Rose that she suspected her husband had a sexual relationship with L.N.
after Mr. and Mrs. E. showed her their daughter's diary.
10. L.N. did not voluntarily approach the police with a report of sexual
abuse. The report was made as a result of the Minnesota Mandatory Child Abuse
Reporting Act, and the subsequent action of the police.
11. On November 20, 1984, Detective Dan Cooper and Investigator G. Kreyer
of the Anoka County Major Crime Inspections Unit went to L.N.'s high school to
question her about the suspected child abuse. L.N. stated to the
investigators that she had been "talked into" two sexual ercounters with Paul
Abraham on November 18 and December 23, 1983.
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12. On February 10, 1984, L.N. was babysitting for the Abrahams. The
Licensees returned home unexpectedly, found L.N. under a blanket on the couch,
and a boy hiding elsewhere in the room. L.N. was not allowed to babysit for
them after this date because she did not inform her parents of the incident as
the Abrahams insisted that she must.
13. At a Prehearing Conference on October 1, 1985, conducted by
Administrative Law Judge Peter C. Erickson, the parties stipulated that the
rule alleged to have been violated is found at Minn. Rule 9545.0340 (1983
Codification). Judge Erickson noted this Rule in his Prehearing Order issued
on October 2, 1985.
14. Two pages from L.N.'s diary were copied by the Administrative Law
Judge and admitted into evidence (Respondent's Ex. 11 and 12). The entry for
November 18, 1983 reads, in its entirety:
Dear diary, tonight I had to babysit the Abrahams next
door, Paul came home at 10:37, for the first time we made
love. Yes, it was my first time. He knew that and said he
would go slow. I was absolutely beautiful.
15. The entry in L.N.'s diary for December 23, 1983 reads, in its
entirety:
Dearest D, today, (actually night), I truly made love.
Last time was the same way, just a sample of it. This was
the whole package. It felt so good to have him against me
like that. Also, I got my ears pierced. But the best part
of today was making love to P.C.
16. L.N., concerned that her step-father might read her diary, used the
notation "P.C." to conceal the actual initials of the person referenced in the
above Finding.
17. On June 5, 1985, Anoka County notified the Abrahams of the pending
revocation of their day care license by the Minnesota Department of Human
Services, pursuant to Minn. Stat. 245.801, subd. 4 (1984). The Licensees
duly appealed and this hearing process followed.
Based upon the foregoing Findings of Fact, the Administrative Law Judge
makes the following:
CONCLUSIONS
1. The Administrative Law Judge and the Commissioner of Human Services
have jurisdiction in this matter and authority to take the action proposed
pursuant to Minn. Stat. 245.801, subd. 4 and 14.50 (1984), and Minn. Rule
9545.0340A (1983).
2. The Notice of and Order for Hearing in this case was proper, and all
relevant substantive and procedural requirements of law or rule have been
satisfied except that there was an error in Exhibit A as attached to the
Notice concerning the burden of evidence required and the cited rule section
A stipulation was arrived at at an October 1, 1985 Prehearing Conference, and
Administrative Law Judge Peter C. Erickson issued a Prehearing Order stating
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that the rule alleged to be violated by the Licensees was Minn. Rule 9545.0340
(1983), requiring substantial evidence of child abuse for a Family Day Care
License not to issue.
3. Minn. Stat. 245.801, subd. 4 (1984), provides that upon a
demonstration by a local welfare agency that reasonable cause exists to take
the action proposed with respect to a Family Day Care License, the burden of
proof then shifts to the Licensees to demonstrate compliance with the rule by
a preponderance of the evidence; the local agency demonstrated reasonable
cause to revoke the Abrahams' license because of non-compliance with Rule
9545.0340 (1983) because there is substantial evidence of child abuse or child
molesting. Upon that demonstration of reasonable cause, the burden of proof
shifted to Licensee to demonstrate compliance with the Rule by a preponderance
of the evidence.
4. The Licensees have not shown by a preponderance of the evidence that
there was not an incident of child abuse or child molesting on November 18,
1983, in violation of Minn. Rule 9545.0340 (1983).
Based upon the foregoing Conclusions, the Administrative Law judge makes
the following:
RECOMMENDATION
IT IS HEREBY RECOMMENDED that the Commissioner of Human Services revoke
the Family Day Care License of Paul and Corrine Abraham.
Dated this day of March, 1986.
RICHARD C. LUIS
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
class mail.
Reported: Taped
MEMORANDUM
This action arises under Minn. Rule 9545.0340 (1983), which provides, in
part, as follows:
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I
FDC applicants should be kind and responsible people with a
genuine liking for children. They shall possess consistent
and healthy methods for handling the life style unique to
their families . . .
Satisfactory Compliance:
An FDC license shall not be issued where any person living
in the household has any of the following characteristics:
A. a conviction for, admission of, or substantial evidence
of child battering or child abuse or child molesting;
Under Minn. Stat. 626.556, subd. 2(a) (1983):
Sexual abuse means the subjection to any act which
constitutes a violation of sections....... 609.344, or
609.345 - - -
Minn. Stat, 609.344 (1982) defines criminal sexual conduct in the third
degree:
A person is guilty of sexual criminal conduct in the third
degree....... if he engages in sexual penetration with
another person and any of the following circumstances
exists:
(b) The complainant is at least 13 but less than 16 years
of age and the actor is more than 24 months older than the
complainant. In any such case it shall be an affirmative
defense, which must be proved by the preponderance of the
evidence, that the actor believes the complainant to be 16
years of age or older.
Sexual penetration as defined in Minn. Stat. 609.341 (1982) means:
. . . any intrusions, however slight, into the genital or
anal opening of the complainant's body of any part of the
actor's body or object used by the actor for this purpose
. . where the act is committed without the complainant's
consent, except in those cases where consent is not a
defense. . . .
Minn. Stat. 609.345 (1982) defines criminal sexual conduct in the fourth
degree:
A person is guilty of criminal sexual conduct in the fourth
degree....... if he engages in sexual contact with another
person and if any of the following circumstances exist:
(b) The complainant is at least 13 but less than 16 years
of age and the actor is more than 48 months older than
complainant or in a position of authority over the
complainant and uses this authority to causes the
complainant to submit. In any such case, it shall be an
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affirmative defense which must be proved by a preponderance
of the evidence that the actor believes the complainant to
be 16 years of age or older, . . .
Sexual contact as defined in Minn. Stat. 609.34 (1982) means:
Subd. 11 . . . any of the following acts committed without
the complainant's consent, if the acts can reasonably be
construed as being for the purpose of satisfying the
actor's sexual or aggressive impulses, except in those
cases where consent is not a defense:
(i) The intentional touching by the actor of the
complainant's intimate parts, or
(ii) The touching by the complainant of the actors, the
complainants, or anothers intimate parts effected by
coercion or the use of a position of authority, or
(iii) The touching by another of the complainant's intimate
parts effected by coercion or the use of a position of
authority, or
(iv) In any of the cases above, of the clothing covering
the immediate area of the intimate parts,
The Administrative Law Judge found that there is substantial evidence of
child abuse or child molesting, a violation of Minn. Rule 9545.0340. Criminal
sexual conduct is child abuse. See, State of Minnesota v. Danielson, 377
N.W.2d 59 (Minn.Ct.App. 1985). Minnesota's Sentencing Guidelines also
recognize that criminal sexual conduct is one of the "conviction offenses most
frequently found in domestic abuse and child abuse cases", Minnesota
Sentencing Guidelines and Commentary, II.F.06 (Rev. Eff. 11/l/83). The
definition of "molest" is: (1) To annoy, disturb or persecute, (2) to make
annoying sexual advances to. Websters New Collegiate Dictionary (1979).
"When the words annoy or molest are used in reference to offenses against
child, there is a connotation of abnormal sexual motivation on the part of the
offender". Application of Sheridan, 40 Cal. Rptr. 894 (1964). Because L.N.
was 15 years old on November 18, 1983, and did not participate willingly in
the sexual encounter, but was "talked into" the encounter, the acts of Paul
Abraham constitute the "molestation" contemplated by the statute.
The Legislature has stated a strong public policy of protection of
children ". . . whose health or welfare may be jeopardized through physical
abuse, neglect or sexual abuse . . .". See, Minn. Stat. 626.556 (1984).
Consistent with this policy, the Legislature requires the reporting of
suspected sexual abuse of child by health care providers. To protect
maltreated children from injury, the Child Abuse Reporting Act narrowly
abrogates the statutory medical privilege. One such form of injury is sexual
abuse. See, State v. Odenbrett, 349 N.W.2d 265 (Minn. 1984).
Paul Abraham has not been convicted of, nor has he admitted to, any crime
of child abuse. However, the Local Agency has come forward with substantial
evidence that multiple incidents of child abuse did occur. The Licensees did
not then demonstrate compliance with the rule by a preponderance of the
evidence.
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Substantial evidence is generally thought of as a standard for appellate
review of any agency decision. Because a reviewing court may impose this
burden, to avoid a potential challenge, the evidence which supports the
findings must meet the requirement of substantiality. Evidence which is
"substantial", creates more than a suspicion of the fact to be established.
32A C.J.S. Evidence, 1016.
Reasonable cause exists when such facts exist as would lead a person of
ordinary care and prudence to believe and conscientiously entertain honest and
strong suspicions that an act or crime occurred. Blacks Law Dictionary, 5th
Ed., p. 1138. The Local Agency does not have to prove a violation by a
preponderance of the evidence (over 50%) - a lower burden is sufficient. The
statutory requirement of "reasonable cause" to find "non-compliance with rules
promulgated by the commissioner" varies depending upon the facts in each
case. The "reasonable cause" standard is one usually utilized in criminal
proceedings to determine whether or not sufficient cause exists to issue an
indictment or a warrant. "Reasonable cause" is synonymous with "probable
cause". Probable cause exists where all circumstances provide reasonable
grounds for suspicions sufficient to cause a cautious man to believe the
suspect commented a wrongful act. Steinberg v. Department of Public Safety,
357 N.W.2d 413 (Minn.Ct.App. 1984).
L.N. did not instigate the investigation into her alleged abuse. If there
had been no report of suspected abuse by Shirley Rose, the hearing process
would not have started. L.N.'s description of the events of November 18 and
December 23, 1983 is consistent in her diary, depositions, police reports and
hearing testimony. John Banker, testifying for the Respondents, stated that
Corrine Abraham was shopping on the morning of December 23, 1983 and L.N.
stated the same.
Mr. Banker's veracity is questionable. He has been convicted of receipt
and concealment of stolen property. His testimony is weighted by a 17-year
friendship with Paul Abraham, and yet conflicts with the Abrahams' testimony.
The Abrahams denied that Corrine went shopping on the morning of December 23,
1983 in direct conflict with their witnesses's statements. The Administrative
Law Judge can observe the demeanor of the witnesses and is able to assess the
consistency and inherent probability of their testimony. Much of the
testimony from the parties to this hearing is in direct conflict. In
addition, there is conflict with the testimony of each party. But evidence
which is material to the Findings and Conclusions of this case is consistent.
The evidence indicating sexual abuse of L.N. by Paul Abraham is substantial.
The Licensees argue that there is ambiguity between the diary connotations
and L.N.'s hearing testimony. L.N. explained that her diary entries were not
always made on the day of occurrence, but were made several days later. The
inconsistency in the diary is reasonable where an entry is made where this one
was, several days after the recorded event. It is not critical, in assessing
whether or not there is substantial evidence of abuse, to prove an error-free
entry in the diary.
The Licensees argue that there is no evidence other than L.N.'s sworn
testimony to support her allegations. Where the burden shifts, as it does in
this case, the Respondent has the burden of coming forth, with a preponderance
of the evidence, that the allegations are not true. L.N. and her mother both
testified that on November 18, 1983, L.N. was babysitting for the Abrahams.
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Whether she was actually babysitting or not is in dispute, but J.E. (L.N.'s
mother) testified that L.N. was at the Abrahams' home that night. There was
testimony at the hearing that L.N. was at the Abrahams' home, with Paul
Abraham, after Corrine Abraham had left for the evening. Because of these
circumstances, the opportunity for sexual abuse was presented, and the
Licensees have not shown otherwise. The Judge observed that L.N. was a very
credible witness. The Abrahams' denial of her sex encounter allegations is
not convincing. Mrs. Abraham was not present at the times of the encounters,
and there is no evidence to deny that fact. And, Mr. Abraham's demeanor while
testifying as he denied L.N.'s recollection of the events of November 18 and
December 23, 1983, did not persuade the Judge to believe him. The Licensees
have not carried their burden of showing by a preponderance of the evidence
that the allegations of abuse during this time did not occur.
The Licensees argue that there is no substantial evidence to revoke this
license under Minn. Rule 9502.0335, subd. 6E (1985). This is an incorrect
statement of the burden under this rule, and as stated in the Prehearing Order
of October 2, 1985, Minn. Rule 9545.0340 (1983) is to be applied to this case.
Pursuant to the Repealer published at 9 State Register 2)18 on March 25,
1985, most provisions of Minn. Rules Chapter 9545 were repealed as of April
12, 1985, except for providers who were already licensed under Chapter 9545.
As to those providers, the provisions of Chapter 9545 are not repealed
until one year after the Notice of Adoption of Chapter 9502 was published in
the State Register, Since the Abrahams were so licensed at the time of
repeal, the "old" rules still applied to them at the time the Local Agency
notified them of proposed revocation (June 5, 1985).
Pursuant to the effective date explanation on the same State Register
page, the effective date for Chapter 9502 shall be eight days after Notice of
Adoption is published in the State Register, except for providers licensed
under Chapter 9545. As to those providers, Chapter 9502 shall take effect six
months after Notice of Adoption is published in the State Register, or the
first date the provider's license is renewed after Notice of Adoption,
whichever is later. Under this enactment, the "new" rules do not apply to the
Abrahams until January 1, 1986 (the date their license was up for renewal).
Notice of the revocation in this matter was on June 5, 1985. The Notice of
and Order for Hearing was issued on July 7, 1985. All of those dates are
prior to any possible effective date of Chapter 9502, as it applies to the
Abrahams. Therefore, only Chapter 9545 (1983) violations apply to the
Abrahams.
It is concluded that revocation of the Family Day Care License in this
case is necessary to insure the safety of child who would otherwise be in the
Abrahams' care.
R.C.L.
'The reader will find all rules listed at 9 State Register 2118 labeled
9545 . . ., not 9502 . . . . The "new" rules were renumbered from 9545 . . .
to 9502 . . . pursuant to a renumbering instruction issued by the Revisor of
Statutes subsequent to March 25, 1985.
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