This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






River Oaks Health Care Center, petitioner,





State of Minnesota, Department of Health,



Filed June 24, 2003


Gordon W. Shumaker, Judge


Wabasha County District Court

File No. C800406


Patrick A. Lowther, Pat Lowther Law Firm, PLC, 134 2nd Avenue Southeast, P.O. Box 366, Sleepy Eye, MN 56085-0366 (for appellant)


Mike Hatch, Attorney General, Jennifer Beens Harper, Assistant Attorney General, 445 Minnesota Street, Suite 1200, St. Paul, MN 55101-2130 (for respondent)


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

U N P U B L I S H E D  O P I N I O N


            Appellant challenges the department of health’s determination that it neglected a vulnerable adult when it failed to attempt preventive measures after the mentally impaired adult announced her intention on two occasions to elope from appellant’s facility.  Because there is substantial evidence to support the department’s determination, we affirm.


            The issue on appeal is whether the record supports the department of health’s (DOH) finding that appellant, a health-care facility, neglected one of its vulnerable adult residents in 1997.  The dispositive facts are undisputed.

            In 1997, 60-year-old S.J.H., a vulnerable adult, resided at appellant River Oaks Health Care Center.  S.J.H. was under guardianship and had a “history of bipolar vs. schizophrenia greater than 20 years.”

            River Oaks is a licensed health-care facility that offers both skilled nursing care and boarding and lodging services to its residents.  S.J.H. began living at River Oaks in July 1996, after her discharge from a hospital.  The plan was to provide S.J.H. with boarding, rather than nursing, services on a trial basis, with the goal of eventually enabling her to develop the ability to live more independently.

            The plan did not work.  S.J.H. stopped taking her psychotropic medicines and became increasingly paranoid and aggressive until the River Oaks staff was unable to manage her.  In late November 1997, she was admitted to the Mayo Psychiatric and Psychology Treatment Center.  While there, S.J.H. exhibited agitation, suspicion, aggression, and confusion.  She apparently responded to medication and was discharged from Mayo on December 4, 1997, with the recommendation that she be given skilled nursing care and close supervision of her medication compliance.

            S.J.H. returned to River Oaks as a nursing-care resident.  The facility did not place her in a security unit or prepare a special care plan for her.  After her return, S.J.H. eloped from River Oaks three times.

            At 5:30 a.m. on Sunday, December 7, S.J.H. complained to River Oaks staff of pain in her breasts and bottom.  The staff did not act on those complaints, other than to dissuade S.J.H. from calling 911.  Later that morning, she left the facility to attend church services in Red Wing.  Instead of returning after church, S.J.H. went to a hospital emergency room where she restated her earlier physical complaints.  At 12:15 p.m., the hospital notified River Oaks and requested that someone pick up S.J.H.

            On December 9, S.J.H. came to the River Oaks nurses’ station at 1:30 a.m. dressed in a nightgown, slippers, and a jacket.  She told a nurse and an aide that she had to take her daughter to school.  The employees told her that it was late and dark and was cold and snowing.  Despite this information, S.J.H. walked out the facility’s back door.  By the time the nurse went to the back door to see where S.J.H. was, she was out of sight.  The nurse called 911.  The police found her 45 minutes later and returned her to River Oaks.  While she was out she scraped her knee.

            S.J.H. eloped a third time on December 12.  At 9:30 a.m., she told staff that she was going to church.  Staff indicated that it was Friday and not Sunday and that there were no church services that day.  S.J.H. accused staff of lying and left the facility carrying a Bible.  Staff members did not follow her but made telephone calls to try to locate her and reported her absence to the police at 1:40 p.m.  The police found her at 4:15 p.m., hiding underneath a pew in a church.

            When the police complained about River Oaks’ possible neglect of S.J.H., the DOH investigated and concluded that the facility had neglected S.J.H. by failing to supervise her.  After a hearing on that determination, a referee recommended that the DOH’s conclusion be reversed.  The DOH did not reverse, and River Oaks appealed to the district court.  The district court affirmed, and this appeal followed.


“Notwithstanding the district court’s review of this matter, this court independently reviews the agency’s decision.”  J.R.B. v. Dep’t of Human Servs., 633 N.W.2d 33, 37 (Minn. App. 2001) (citation omitted), review denied (Minn. Oct. 24, 2001).  Our scope of review is defined by Minn. Stat. § 14.69 (2002), which provides criteria for overturning an agency decision.  The criterion that River Oaks urges as the basis for reversing the decisions of the DOH and the district court is that the determination of neglect “is unsupported “by substantial evidence in view of the entire record as submitted.”  Minn. Stat. § 14.69(e).

The DOH argues that the record establishes that River Oaks failed to supervise S.J.H. in a manner that would reasonably ensure her safety.  In particular, the DOH contends that River Oaks failed to take steps to try to prevent S.J.H.’s elopements; that the facility’s elopement policy was deficient; and that the facility failed to devise an appropriate care plan for S.J.H.

River Oaks counters by arguing that the law permitted S.J.H. to leave the facility whenever she chose; the DOH had never previously objected to the facility’s long-standing elopement policy; the staff acted promptly and reasonably in responding to S.J.H.’s elopements; and the law did not require River Oaks to have a comprehensive care plan for S.J.H. as of the dates of her elopements.

Although River Oaks does not dispute S.J.H.’s classification as a “vulnerable adult,” our analysis begins with a recognition of how that label applies to her.  By statute, S.J.H. is considered a vulnerable adult because she has a chronic mental illness that impairs her ability, without assistance from others, to provide for her own care and to protect herself from maltreatment.  Minn. Stat. § 626.5572, subd. 21(4) (2002).  Maltreatment includes a failure to supply services reasonable and necessary for the vulnerable adult’s safety.  Id., subd. 17 (2002).

One known purpose for S.J.H.’s residency at River Oaks was to obtain assistance from skilled personnel for her own care and safety.  River Oaks, a caregiver, was required to provide that assistance.  See id., subd. 4 (2002) (providing that a caregiver is a facility that has assumed responsibility for the care of a vulnerable adult by contract or agreement).  In statutory terms, River Oaks was required not to neglect S.J.H.  Id., subd. 17.  Neglect results when a caregiver fails to supply a vulnerable adult with supervision that, considering the adult’s mental capacity or dysfunction, is “reasonable and necessary to obtain or maintain the vulnerable adult’s * * * safety.”  Id., subd. 17(a)(1).

The crux of the DOH’s determination is that River Oaks did not take reasonable and necessary steps to try to prevent S.J.H.’s elopements on December 9 and 12, 1997, and thereby neglected a vulnerable adult in violation of the law.  This court is required to decide whether there is substantial evidence in the record to support that determination.  In reaching that decision, we are guided by caselaw in three respects.  First, “decisions of administrative agencies enjoy a presumption of correctness, and deference should be shown by courts to the agencies’ expertise.”  Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 824 (Minn. 1997).  This presumption requires us to affirm, even though we might have reached a different conclusion, if the agency took a “hard look” at the issues and followed reasoned decision-making.  Id. at 825.

Our second guiding principle is the definition of “substantial evidence.”  It is

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.


Id. (citation omitted).

Finally, we ordinarily leave credibility determinations to the agency that conducted the proceeding or review from which the agency’s decision came.  Turnquist v. Amoco Oil Co., 397 N.W.2d 442, 444 (Minn. App. 1986).

The evidence contains an opinion by a DOH investigator with nursing-home-practice expertise that it is standard procedure to attempt to redirect “elopement-prone and confused” residents through diversionary and distraction techniques that do not involve physical restraint.  The evidence shows that the River Oaks staff members made no redirection efforts on the two occasions that S.J.H. announced her intention to leave the facility.  The staff opted instead to notify the police so S.J.H. could be apprehended and returned to the facility.

River Oaks emphasizes that S.J.H. was free to leave the facility and that the DOH had never objected to the facility’s long-standing policy of taking an after-the-fact approach to elopements.  Furthermore, River Oaks cites to the record of letters by a psychologist and S.J.H.’s treating psychiatrist to the effect that it is best to not try to restrain or interfere with an aggressive patient, but instead to allow law-enforcement officers to deal with the situation.

The DOH found those opinions to be overly broad, ignoring both the specific facts of S.J.H.’s elopements and the issue of the possibility of redirection.  The DOH, making a credibility assessment, gave minimal weight to the opinions.

We are not persuaded by River Oaks’ arguments as to S.J.H.’s legal right to leave the facility whenever she chose and that the staff’s compliance with an ostensibly approved elopement policy is evidence that neglect was not substantiated.

It is precisely the impairment of S.J.H.’s ability to choose conduct that will reasonably ensure her own safety that is at issue.  A literal application of River Oaks’ contention as to S.J.H.’s freedom of movement negates the caregiver’s duty to provide reasonable supervision.  When a vulnerable adult, whose capacity for rational choice is impaired, announces an intention to make a choice that will subject her to a potentially harmful situation, the duty a caregiver is required to satisfy to keep the vulnerable adult safe overrides the notion that the adult’s legal right of choice is unfettered.  Thus, River Oaks had a duty to act when S.J.H. announced her intention to elope.

Was it sufficient for River Oaks to take after-the-fact action, albeit immediate, as its own policy provided?  The evidence on which the DOH relied compels a negative answer.  Solely relying on an after-the-fact approach, the facility shifted the responsibility for S.J.H.’s ultimate safety to the police.  But between S.J.H.’s elopement to places unknown and her apprehension by the police, her safety was in jeopardy.  Thus, the evidence supports a finding that River Oaks, in the discharge of its duty as a caregiver to a vulnerable adult resident, was required to at least attempt proper and legally permissible preventive steps.  The evidence shows that redirection is a known nursing-home practice, and there is no evidence that the River Oaks professional staff was incapable of attempting to redirect S.J.H.  Although the success of redirection efforts is not predictable, the omission of these or other permissible preventive measures is predictable: the vulnerable adult will leave the facility and will, if not immediately apprehended, likely jeopardize her own safety.

We hold that there is substantial evidence in the record that River Oaks failed to take reasonable action to maintain S.J.H.’s safety and thereby neglected her.