This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-99-1373

 

 

In the Matter of the Revocation

of the Family Day Care License of

Mary Schneider.

 

 

Filed April 25, 2000

Affirmed

Halbrooks, Judge

 

Department of Human Services

File No. 11-1800-11866-2

 

 

Douglas Peine, 2600 Firstar Center, 101 East 5th Street, St. Paul, MN 55101 (for relator Mary Schneider)

 

Douglas Johnson, Washington County Attorney, Susan Harris, Assistant County Attorney, 14949 62nd Street North, Stillwater, MN 55082 (for respondent Dep’t of Human Services)

 

 

            Considered and decided by Willis, Presiding Judge, Kalitowski, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Relator Mary Schneider seeks review of a decision by the Commissioner of the Department of Human Services revoking relator’s license to provide family daycare.  Relator argues that the alleged violations of the rules governing the operation of her family daycare did not justify revocation of her license.  We affirm the commissioner’s decision.

FACTS

            Mary Schneider has been a child-care provider for 22 years.  She was licensed by Washington County Community Services (WCCS) for 17 years.  Her license permitted her to provide care for up to 14 children.  Prior to July 2, 1998, Schneider was cited on three occasions for having too many children in her care.  Schneider admitted the previous violations at the time they occurred and claimed that she exceeded capacity only when she accepted children on a “drop-in” basis.  She claimed that she had a difficult time saying no to these requests.

            On July 2, 1998, two children reported to the Cottage Grove police that Schneider’s husband had physically abused them.  The police contacted WCCS and the incident was immediately investigated.  The two boys showed no visual signs of abuse, and it was ultimately determined that the allegation of abuse was fabricated.  The boys also told the employee of WCCS that Schneider regularly had 20-30 children at the daycare. 

The police and the WCCS employee escorted the two boys back to Schneider’s home.  When they arrived, the WCCS employee told Schneider that she was conducting an investigation regarding possible physical abuse.  In the presence of the children who had made the allegations, Schneider and her husband said they were troublemakers and liars and that it was ridiculous that child protection could come and question them.

The WCCS employee advised Schneider that, as a part of the investigation, she was required to conduct face-to-face interviews with all the children in Schneider’s care.  Schneider initially refused to allow WCCS access to the children.  Eventually Schneider told the WCCS employee that the children were playing downstairs.  On the way to that area, the WCCS employee witnessed three children strapped in highchairs in the kitchen.  She saw and talked with five children downstairs in a play area.  When she asked to see the rest of the children, Schneider refused and stated that they were sleeping.  The WCCS employee insisted that she be permitted to see the rest of the children and Schneider showed her three in the television room. 

Based on verbal estimates from the children that there were 20-30 children in the home, the WCCS employee asked Schneider four more times whether there were any other rooms where children slept.  Schneider denied the presence of any additional children and said that any child who said anything to the contrary was lying.  Returning to the living room, Schneider was asked for a list of the children registered in her care.  She refused to give it, and was told the WCCS would return at 3:00 p.m. for the information.

Two hours later, two licensing workers of WCCS arrived at Schneider’s home to investigate the overcapacity problem.  Schneider again attempted to prevent the WCCS employees access to certain rooms in her home, claiming invasion of privacy, and lied about the number of children present and where they were located.  Despite Schneider’s repeated attempts to cover up the scope of the problem, the WCCS employees discovered two children in cribs with plastic gates covering the tops of the cribs and a third child in an uncovered crib in a room locked from the inside by one of the children.  Three other children in cribs were found in another room.  Another three children were found in Schneider’s master bedroom strapped into car seats. 

In their effort to search the house thoroughly, the licensing workers asked Schneider to see her teenage son’s room.  Schneider tried to discourage them, claiming it was messy.  When Schneider finally opened the door about 12 inches, the room was dark and Schneider stood in the doorway, stating that no children were in there.  However, when a licensing worker later returned on her own, she found a child sleeping on the floor behind the door.

Similarly, Schneider resisted the workers’ efforts to look in closets.  When finally allowed access, the licensing workers found two children sleeping in separate closets with closed doors.

In total, WCCS found that Schneider had 27 children in her care on July 2, 1998, although Schneider’s list contained only 19 names.  Although the overcapacity was found to be the most significant violation, numerous additional violations of the rules regulating family-daycare facilities were found. 

Schneider offered several explanations for the overcapacity.  Two of the boys had only parked their bicycles at the Schneiders’ home and walked to a nearby park from the Schneiders’ home.  When they returned for their bicycles, the WCCS employees would not permit them to leave until their parents were contacted.  Three other children were dropped off by their father who had a medical appointment.  He indicated that their mother would pick them up within one-half hour.  She picked them up 20 minutes after they were dropped off.  Four of the children were Schneider’s nieces and nephews taken in due to medical emergencies experienced by her sister and her father-in-law.  Schneider also claims that two of the children were former clients for whom a “going-away” party had been scheduled.  The mother of two other boys found to be in Schneider’s care testified at the hearing that they were actually not in her care and had been at the park when the allegation of abuse had been made.  They went to Schneider’s home following that allegation.  The ALJ noted that these were “mitigating factors” that should be considered in determining the final sanction.

One of the licensing workers was called back to Schneider’s home on July 2, 1998, to conduct another assessment.  The worker spoke with each of the parents as children were picked up, interviewed Schneider’s helper, and photographed and diagramed the multiple-level home.  Schneider repeatedly told parents that the children who made the allegations were troublemakers and liars and were responsible for WCCS’s involvement.

Based on her overall assessment of the daycare, the licensing worker determined that maltreatment had occurred based on Schneider’s neglect due to lack of supervision.  The worker found that neglect occurred as it related to the three children sleeping in a locked room and the two children in closets behind closed doors.  She further determined that Schneider was using restraint of the children rather than human supervision and that the use of covered cribs for children without developmental need constituted physical abuse.

A correction order was issued to Schneider.  The violations were later documented in a letter to the Department of Human Services recommending license revocation.

All of the children’s parents were contacted on July 2, 1998, regarding the problem and later received a letter explaining the county’s determination that maltreatment had occurred.  None of the parents expressed any concern over the care their children were receiving from Schneider.  In fact, six of the parents testified in support of Schneider at the hearing challenging the revocation.  The parents testified that their children enjoyed being cared for by Schneider and that Schneider treated the children like her own.

The county conducted another unannounced drop-in inspection on July 9, 1998.  When the licensing worker arrived, Schneider was again in violation of her license’s capacity limitation.  Although she was caring for fewer children than her license permitted, she had one more child than she was allowed to have without another caregiver present.  Schneider informed the licensing worker that her assistant was late.  Before the licensing worker left Schneider’s home that day, one child left, bringing Schneider back within her capacity limit.  The ALJ found that Schneider’s assistant did arrive shortly after the licensing worker left.  The licensing worker issued a correction order relative to the July 9, 1998 capacity violation.

Following a three-day contested hearing, the ALJ issued findings of fact, conclusions of law, and a recommendation on April 29, 1999.  Although she recommended that the initial order revoking Schneider’s license be affirmed, she concluded her memorandum with a suggestion that the commissioner consider alternative sanctions.  The commissioner issued a final order revoking Schneider’s license on July 12, 1999.

Schneider petitioned for and received a writ of certiorari from this court.  She appeals from the commissioner’s final order and contends that the sanction imposed was too severe. 

D E C I S I O N

            The standard for reviewing agency decisions is set out at Minn. Stat. § 14.69 (1998).  Decisions of administrative agencies enjoy a presumption of correctness and will only be set aside when they reflect an error of law, if the findings are arbitrary or capricious, or if the decision is unsupported by substantial evidence.  Id.; see also Cable Communications Bd. v. Nor-West Cable Communications Partnership, 356 N.W.2d 658, 668 (Minn. 1984).  If an agency engaged in reasoned decision-making, we will affirm the decision even though we may have reached a different conclusion.  State by Khalifa v. Hennepin County, 420 N.W.2d 634, 639 (Minn. App. 1988), review denied (Minn. May 4, 1988).

            An agency’s decision regarding the penalties or sanctions it chooses to impose is “an exercise of its discretionary power.”  In re Henry Youth Hockey Assoc., License No. 02795, 511 N.W.2d 452, 456 (Minn. App.), modified in part, 559 N.W.2d 410 (Minn. 1994).

A reviewing court, therefore, may not interfere with the penalties or sanctions imposed by an agency decision unless a clear abuse of discretion is shown by the party opposing the decision.

 

Id.  But an agency’s discretion as to the sanctions it imposes “is not unfettered and if the discretion is abused, the sanctions will be set aside on appeal.”  In re Insurance Agent’s License of Kane, 473 N.W.2d 869, 878 (Minn. App. 1991) (citing In re Real Estate Salesperson’s License of Haugen, 278 N.W.2d 75, 80 n.10 (Minn. 1979)), review denied (Minn. Sept. 25, 1991). 

The statute providing the penalties and sanctions available to the commissioner in this case requires the commissioner to

consider the nature, chronicity, or severity of the violation of law or rule and the effect of the violation on the health, safety, or rights of persons served by the program.

 

Minn. Stat. § 245A.07, subd. 1 (1998).  Therefore, although the commissioner has discretion to choose the appropriate sanction in each case, the commissioner is not free to do so absent consideration of the factors set forth in the statute.

            The department’s licensing supervisor’s initial order revoking Schneider’s license concludes by stating:

Due to the repeated and serious nature of the above rule violations, the potential of harm to children in your care, and your disregard for the family child care rule, your license to provide family child care is being revoked.

 

This statement meets the requirements of Minn. Stat. § 245A.07.  The conclusion contains a determination that the violations were severe, repeated, and posed harm to the children.  Following the contested hearing, the ALJ recommended affirming this initial order, and the commissioner’s final decision adopted the ALJ’s findings and conclusions with one amendment.  The requirements of the statute were met in this case.

            Schneider contends that the revocation of her license is disproportionate to the violations that occurred.  She admits that she violated rules and that some type of sanction is appropriate, but she argues that the sanction of revocation was too severe. 

Although revocation of one’s license is a “drastic sanction,” Kane, 473 N.W.2d at 878, our standard of review is clear.  The imposition of sanctions is a discretionary act by the agency.  Henry Hockey Assoc., 511 N.W.2d at 456.  We will not set that decision aside unless the agency clearly abused its discretion.  Id.  There is certainly substantial evidence to warrant the imposition of a sanction in this case.  Minn. Stat. § 245A.07, subd. 3, provides that a licensee’s failure to comply fully with the rules and the law is a ground for sanctions, including revocation.  Therefore, the only question is whether the agency clearly abused its discretion in imposing revocation rather than a less severe sanction.

This court is not permitted to substitute its judgment for that of the agency on a sanctions determination unless the agency abused its discretion.  Henry Hockey Assoc., 511 N.W.2d at 456.  We cannot say that the commissioner abused his discretion by imposing a sanction of revocation in this case.  Schneider was found to have violated the capacity rules on five occasions.  She also failed to cooperate with WCCS during the July 2, 1998 investigation and repeatedly lied to the WCCS employees regarding the number of children actually in her care.  Finally, the commissioner found that Schneider had violated several other family-daycare rules on July 2, 1998.  The statute clearly indicates that revocation is an available sanction if the licensee “fails to comply fully with applicable laws or rules * * * .”  Minn. Stat. § 245A.07, subd. 3.

Given the evidence in the record regarding the serious violations on July 2, 1998, and the fact that this was not an isolated incident, we do not find that the commissioner abused his discretion when he revoked Schneider’s license.

Affirmed.