This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-01-15

 

Kara Jane Lundy,

Relator,

 

vs.

 

Commissioner of Minnesota Department of

Human Services, Licensing Division,

Respondent.

 

Filed June 26, 2001

Affirmed

Lansing, Judge

 

Minnesota Department of Human Services

Agency File No. 468449131

 

Daniel A. Tollefson, White & Associates, 19230 Evans Street, Suite 109, Elk River, MN 55330 (for relator)

 

Mike Hatch, Attorney General, Kerri Stahlecker Hermann, Assistant Attorney General, 900 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2127 (for respondent)

 

            Considered and decided by Lansing, Presiding Judge, Amundson, Judge, and Shumaker,  Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            Kara Lundy appeals by writ of certiorari from an order of the Commissioner of Human Services upholding her disqualification from a position allowing direct contact with persons receiving services from a daycare facility licensed by the Minnesota Department of Human Services (DHS).  Lundy argues that the finding of serious maltreatment of a minor is procedurally flawed because the commissioner failed to consider all the information Lundy provided, and the disqualification is substantively flawed because the commissioner failed to consider all relevant statutory factors and that the maltreatment was neither intentional nor recent.  Because the record demonstrates that all submitted material was considered and the evidence legally and factually supports the commissioner’s determination, we affirm.

FACTS

In 1998, Kara Lundy was employed at Children’s World Learning, a daycare facility licensed by the DHS.  On July 28, Lundy dislocated a four-year-old child’s elbow when she grabbed her by the wrist and pulled her off the floor while trying to get her to go to another room. 

            Following an investigation, the DHS’s licensing division concluded that Lundy had committed maltreatment.  The licensing division notified Lundy of its determination and of her right to seek reconsideration.  Because at the time Lundy was no longer employed in a DHS-licensed facility, the DHS did not disqualify her.  Instead, it advised Lundy that if she were to apply for a position allowing direct contact with persons served by a DHS-licensed facility, she would be disqualified from that position.  Lundy did not seek reconsideration of the maltreatment determination.

            In May 2000, in response to a request from a licensed daycare facility, the DHS performed a background study of Lundy.  Based on the study, the DHS disqualified Lundy because of serious maltreatment of a child.  Lundy requested reconsideration, claiming that she did not pose a risk of harm to children and the maltreatment was accidental and not serious.  The DHS invited Lundy to submit additional information in support of her reconsideration request, but she submitted no further information.

            In November 2000, the commissioner denied Lundy’s reconsideration request, reasoning that the information the licensing department had relied on in disqualifying Lundy was correct and that Lundy had failed to show that she did not pose a risk of harm to persons served by DHS-licensed programs or facilities.  The commissioner based his determination that Lundy posed a risk of harm on the recency and serious nature of the maltreatment, the vulnerability of the victim, the vulnerability of the people Lundy now wished to serve, and the similarity between the victim of the maltreatment and the people Lundy wished to serve.  This appeal followed.

D E C I S I O N

            The Commissioner of Human Services may set aside a decision disqualifying an individual from a position allowing direct contact with persons served by a DHS-licensed program or facility if he determines that (1) the information the DHS relied on in disqualifying the person is incorrect or (2) the person disqualified poses no risk of harm to individuals served by a licensed program or facility.  Minn. Stat. § 245A.04, subd. 3b(b) (2000).  Unless it results from a contested hearing, the commissioner’s decision to grant or deny a reconsideration request is a final administrative decision subject to certiorari review.  See Minn. Stat. § 245A.04, subd. 3b(e) (2000).

            In reviewing quasi-judicial agency decisions not subject to the Administrative Procedure Act, we must determine “questions affecting the [agency’s] jurisdiction, the regularity of its proceedings, and, as to the merits of the controversy, whether the order or determination in a particular case was arbitrary, oppressive, unreasonable, fraudulent, decided under an erroneous theory of the law, or without any evidence to support it.”  Rodne v. Commissioner of Human Servs., 547 N.W.2d 440, 444-45 (Minn. App. 1996) (quotations omitted).  In our review, we defer to the agency’s fact-finding process and are careful not to substitute our judgment for that of the agency.  Dokmo v. Independent Sch. Dist. No. 11, 459 N.W.2d 671, 674 (Minn.1990).  In considering factual determinations, we determine whether substantial evidence in the record as a whole supports the commissioner’s findings.  Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 826 (Minn. 1977).

Lundy first argues that her disqualification must be reversed because the commissioner did not consider all the information she provided in support of her reconsideration request.  The record shows otherwise.

            In the letter notifying Lundy that her reconsideration request had been denied, the commissioner stated he had reviewed Lundy’s request, the information accompanying her request, and the information the licensing division had relied on in disqualifying her.  In his findings of fact and conclusions, the commissioner found that Lundy had submitted a request for reconsideration and cited to that document.  The commissioner next found that the DHS had invited Lundy to submit additional information in support of her request, but that “[n]o additional information was received from [Lundy].”  (Emphasis added.)  Lundy interprets this last statement to mean that the commissioner did not consider all the information she submitted.  Read in its entirety, however, the record unequivocally demonstrates that the commissioner considered all the information Lundy submitted.  The “additional information” to which the commissioner alluded in his finding refers, not to the information Lundy attached to her reconsideration request, but to the absence of information submitted after the commissioner’s invitation to submit additional evidence.  The record does not support Lundy’s argument that the commissioner failed to consider information that she submitted in support of her reconsideration request.

            Lundy next argues that the commissioner’s determination that she poses a risk of harm is unreasonable because the commissioner did not consider all relevant factors in arriving at his determination and the maltreatment was neither intentional nor recent. Again, the record shows otherwise.

            First, a worksheet completed by the commissioner’s staff demonstrates that, in evaluating whether Lundy posed a risk of harm, the commissioner considered all the risk-of-harm factors listed in Minn. R. 9543.3080, subp. 3(B) (1999).

            Second, although Lundy may not have intended to dislocate the child’s elbow, her act of forcefully pulling the child off the floor by one arm in the face of the child’s mother’s repeated requests to let go of the child demonstrated intent. An independent witness stated that the child’s mother, who was also a worker at CWL and was present when the incident occurred, told Lundy several times to let go of the child.  Although Lundy claims that the child caused her elbow to dislocate by jerking back as Lundy was lifting her off the floor, the record does not support this claim.  A health-care professional told a DHS investigator that in the absence of previous injuries or double joints, it would have taken a significant amount of pulling to cause the elbow to dislocate whether or not the child jerked.  The evidence shows that the child had no previous injuries or double joints. 

Given the extreme vulnerability of infants in a daycare setting, the absence of additional maltreatment incidents in the past two years does not eliminate or diminish the potential for harm.  By concluding that Lundy posed a risk of harm notwithstanding recent good behavior, the commissioner, in conformity with Minnesota law, properly gave preeminent weight to the safety of the persons to be served over Lundy’s interests.  The commissioner’s determination that Lundy poses a risk of harm is reasonable under the relevant statutory factors and the evidence in the record.

            Affirmed.