This opinion will be unpublished and

may not be cited except as provided by

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






Kelle Kulsrud,


Commissioner of Human Services,


Filed November 12, 2002


Minge, Judge


Dakota County District Court

File No. C3019203


Cynthia Marie Klaus, 1500 Wells Fargo Plaza, 7900 Xerxes Avenue South, Bloomington, MN 55431-1194 (for appellant)


Mike Hatch, Attorney General, Sara DeSanto, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, MN 55101-2127 (for respondent)


            Considered and decided by Toussaint, Chief Judge, Klaphake, Judge, and Minge, Judge.



U N P U B L I S H E D   O P I N I O N


MINGE, Judge


Appellant challenges the decision of the district court affirming the Commissioner of Human Services’ determination that appellant maltreated a child and was disqualified from providing direct contact services.  Because there is substantial support in the record to find that appellant caused the injuries on a child’s arm, we affirm.




            Appellant Kelle Kulsrud was employed at the New Horizon daycare facility in Apple Valley as a teacher and staff member when allegations arose that she maltreated a five-year-old child.  Appellant holds a certificate from a two-year technical college program in child development.  She began working at the New Horizon childcare facility in January 1999.  Appellant received an excellent written performance evaluation in December 1999 from the daycare facility administrator, Amy Anderson.

            The incident in question occurred on May 18, 2000.  The child was in a different teacher’s classroom on a cot during naptime.  The child was making noises that disturbed the other children.  Appellant recalls that as she was leaving on her break another teacher, Tara Krier, asked appellant to speak with the child.  Appellant admits to speaking sternly to the child and covering him with his blanket.  After appellant left the room, the child began crying.  Krier then walked over to the child and observed three red, crescent-shaped marks on the child’s arm; there was no blood.  Krier testified that the child told her that appellant pinched him.  Krier did not witness appellant pinching the child and appellant denied pinching him.  Krier called another teacher into the room to look at the child’s arm.  The child told that teacher that appellant pinched him.  Krier reported the incident to facility director Anderson.  About two hours later, director Anderson interviewed the child, and he told the director that appellant pinched him.  Appellant denied touching the child but said he began to cry when she reprimanded him.  Appellant’s employment was terminated the following day.

            Following an investigation, the licensing division of the Minnesota Department of Human Services (DHS) issued a report concluding that maltreatment had occurred.  Thereafter, appellant requested a hearing pursuant to Minn. Stat. § 256.045, subd. 3 (2000).  An evidentiary hearing was conducted by the agency referee where several witnesses testified, including appellant. 

            Another employee, Pam Tschida, a part-time teacher’s aide, testified at the hearing that she clearly saw what appellant had done but did not tell anyone for more than a year after the incident.  Tschida could not recall other details about other occurrences that day, and her recollection of the classroom setting and other persons in the room does not match the testimony of other individuals.  No one else testified that Tschida was present in the room. 

At the hearing, appellant again denied pinching the child saying he began to cry when she reprimanded him and that she may have touched the child as she tried to quiet him.  She added that he was an “over-exaggerated crier” and that he was “uppity” and “disturbed.”  The child’s mother and other teachers disagreed.  There was conflicting testimony over the working relationship between appellant and other teachers.  There was also substantial conflicting evidence over the length of appellant’s fingernails.  This is summarized below.

Following the hearing, the referee issued her report and recommendation upholding the DHS’s finding of maltreatment of a minor.  The commissioner of human services adopted the referee’s findings of fact, conclusions of law and order.  Appellant then filed a request for reconsideration with the DHS.  Finding no factual or legal errors, the DHS affirmed the commissioner’s decision.  Appellant sought judicial review of the commissioner’s decision pursuant to Minn. Stat. § 256.045, subd. 7 (2000). 

The district court reversed the commissioner’s determination as to a playground supervision incident involving appellant and the same child that occurred on May 12, 2000, but affirmed the commissioner’s determination with respect to the May 18, 2002 incident.  Appellant challenges that portion of the district court’s order affirming the commissioner’s determination that maltreatment of a child occurred on May 18, 2000.  The DHS does not appeal, nor did it file a notice of review, concerning the May 12, 2000 incident.  The May 12, 2000, incident is not before this court.


Review of the Minnesota Commissioner of Human Service’s orders relating to maltreatment determinations is governed by Minn. Stat. § 256.045 (2000).  The statute sets forth the procedure for both administrative and judicial review of human services matters.  Following an agency hearing, a recommendation is made by the hearing officer or referee.  Id., subd. 3b.  After considering the referee’s recommendation, the commissioner issues a final order.  Id.  A party aggravated with the commissioner’s decision may appeal to the district court.  Id., subd. 7.  On review, the district court “shall take no new or additional evidence unless it determines that such evidence is necessary for a more equitable disposition of the appeal.”  Id., subd. 8.  A party dissatisfied with the district court’s order “may appeal the order as in other civil cases.”  Id., subd. 9.

Notwithstanding the district court’s review of an agency’s decision, the court of appeals independently reviews an agency’s decision.  Hazelton v. State, Comm’r of Dep’t of Human Servs., 612 N.W.2d 468, 470 (Minn. App. 2000).  Because the district court is engaged in appellate review when judicial review is authorized under Minn. Stat.             § 256.045, this court gives no deference to the district court’s review.  Zahler v. State, Dep’t of Human Servs., 624 N.W.2d 297, 301 (Minn. App. 2001), review denied (Minn. June 19, 2001).

As a contested case, this court reviews the agency’s decision under the Administrative Procedure Act.  Id. at 300-01.  That act provides that this court’s role is to review the commissioner’s decision to determine if the decision was:

(a) In violation of constitutional provisions; or

(b) In excess of the statutory authority or jurisdiction of the agency; or

(c) Made upon unlawful procedure; or

(d) Affected by other error of law; or

(e) Unsupported by substantial evidence in view of the entire record as submitted; or

(f) Arbitrary or capricious.


Minn. Stat. § 14.69 (2000).  Substantial evidence is defined as:


1.  Such relevant evidence as a reasonable mind might accept as adequate to support a conclusion;

2.  More than a scintilla of evidence;

3.  More than some evidence;

4.  More than any evidence; and

5.  Evidence considered in its entirety. 


Cable Communications Bd. v. Nor-West Communications P’ship, 356 N.W.2d 658, 668 (Minn. 1984) (citation omitted). 

If an administrative agency engages in reasoned decision making, this court will affirm, even though it may have reached a different conclusion had it been the factfinder.  Id. at 669.  This court presumes the agency’s decision to be correct and shows deference to the agency’s conclusions within its area of expertise.  Id. at 668.  This court will reverse only where

there is a combination of danger signals which suggest the agency has not taken a hard look at the salient problems and the decision lacks articulated standards and reflective findings.

Id. at 669 (quotations and citation omitted). 


            Appellant argues that there is insufficient evidence to support a finding that she committed an act of maltreatment of a minor.  Appellant’s argument is based on two assertions.  First, that the commissioner failed to consider all of the relevant evidence in arriving at its decision.  Second, appellant argues that the DHS failed to meet its burden of proof.


            Appellant first argues that the commissioner failed to consider evidence that she did not have fingernails long enough to inflict the May 18, 2000 injury.

Appellant’s argument is based on the commissioner’s finding concerning the incident that occurred on May 12th (which is not before this court), which states that it was “not necessary to consider whether * * * [appellant] was wearing long fingernails.”  In re Kelle Kulsrud, MDHS Docket No. 63970 (June 16, 2001).  Appellant argues that because the commissioner did not address the issue of appellant’s fingernails pertaining to the May 18th incident (the incident on appeal), that the decision is without adequate support.

Appellant testified that she was a habitual nail biter and introduced into evidence photographs of her fingernails allegedly taken around the time of the incident.  However, there was also testimony that appellant had fingernails long enough to inflict the type of injury present here.  The facility director, Amy Anderson, testified that when she spoke with appellant the day after the injury occurred, she made a point of looking at appellant’s nails.  Anderson testified that appellant’s nails “were longer at that time” and were painted pink.

The commissioner concluded that appellant maltreated the child because (a) the child had marks of a type which could be expected to result from the grasp of an adult hand; (b) appellant had contact with the minor not long before the injury was discovered; and (c) the minor told the facility director that appellant pinched him. 

Simply because the commissioner did not make a specific finding relating to the length of appellant’s fingernails at the time of the May 18th incident, does not mean the commissioner did not consider the evidence.  Rather, the lack of a finding goes to the weight or relevance of the evidence.  See In re Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 278 (Minn. 2001) (stating appellate courts defer to an agency’s conclusions regarding conflicts in testimony, the weight given to expert testimony, and the inferences drawn from testimony).  Further, because none of the witnesses testified that the injury broke the child’s skin, an inference could be drawn that the length of appellant’s fingernails is irrelevant.  Indeed, the commissioner found that the injury consisted of “three crescent indentations * * * on the minor’s arm;” there is no mention of fingernail marks.  In re Kelle Kulsrud, MDHS Docket No. 63970 (June 16, 2001).  Because the commissioner’s findings are supported by substantial evidence in the record and adequately explain a reasonable conclusion, we affirm.

Appellant also argues that because the testimony of four key witnesses was conflicting, the commissioner was required to address the credibility of each of the witnesses.  Appellant contends that in failing to do so, the commissioner ignored relevant evidence and improperly narrowed what evidence was considered.

            Appellant’s argument miscomprehends the commissioner’s findings of fact and conclusions of law.  While the record consists of conflicting testimony, the commissioner’s findings and conclusions imply that the appropriate credibility determinations were made.  See Vang v. A-1 Maint. Serv., 376 N.W.2d 479, 482 (Minn. App. 1985) (stating that an actual determination regarding credibility is necessarily implicit in the commissioner’s decision when there is conflicting witness testimony).  For example, the commissioner explicitly stated that the conclusion that appellant maltreated a child was not based upon the testimony of Tschida, the teacher’s aide, nor on the testimony of Krier, who was found to have “had a circumstantial opportunity to inflict the injury.”  In re Kelle Kulsrud, MDHS Docket No. 63970 (June 16, 2001).  In essence, appellant’s argument simply challenges the weight she believes the commissioner should have given to the testimony presented and ignores the deference accorded a factfinder’s weight and credibility determinations.  See In re Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d at 278 (stating appellate courts defer to an agency’s conclusions regarding conflicts in testimony, the weight given and the inferences drawn from such testimony).


Appellant also argues that the DHS failed to meet its burden of proof.  The standard of evidence for maltreatment of a minor is a preponderance of the evidence.  Minn. Stat. § 256.045, subd. 3b (2000).  Preponderance of the evidence means the greater weight of the evidence; that it is more likely true than not true.  4 Minnesota Practice, CIVJIG 14.15 (1999).  The preponderance-of-the-evidence standard is less than the clear-and-convincing standard and less than proof beyond a reasonable doubt.  State v. Shamp, 422 N.W.2d 520, 525 (Minn. App. 1988) (citing Weber v. Anderson, 269 N.W.2d 892, 895 (Minn. 1978), review denied (Minn. June 10, 1988).

Appellant argues that because of the finding that she and another teacher both had an opportunity to inflict the injury, essentially two people had an equal opportunity to injure the child and therefore the finding does not equate to a preponderance of the evidence.  However, appellant’s argument fails to consider the other findings and conclusions.  Specifically, the commissioner found that the minor had marks of the type consistent with the tight grasp of an adult hand; that appellant had contact with the minor immediately preceding the discovery of the injury; and that the minor told the facility director that appellant had pinched him.  The commissioner weighed the credibility of the child’s report against the appellant’s testimony.  The commissioner concluded that a preponderance of evidence supported the determination that appellant inflicted the injury.  Because the record supports the commissioner’s findings and conclusions that appellant inflicted the injury, we affirm.