This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1536

 

 

In the Matter of the Temporary Immediate Suspension

of the Family Child Care License of Tatiana Bullock.

 

 

Filed June 8, 2004

Affirmed

Robert H. Schumacher, Judge

 

Department of Human Services

File No. 7-1800-15505-2

 

 

Marc G. Kurzman, Kurzman Grant & Ojala Law Office, 219 Main Street Southeast, Suite 403, Minneapolis, MN 55414 (for relator Tatiana Bullock)

 

Mike Hatch, Attorney General, 1100 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Susan Gaertner, Ramsey County Attorney, David F. MacMillan, Assistant County Attorney, 560 RCGC-WEST, 50 West Kellogg Boulevard, St. Paul, MN 55102-1556 (for respondent Commissioner of Human Services)

 

 

            Considered and decided by Kalitowski, Presiding Judge; Schumacher, Judge; and Huspeni, Judge.*

 

U N P U B L I S H E D   O P I N I O N

ROBERT H. SCHUMACHER, Judge

In this certiorari appeal from the commissioner's order suspending relator Tatiana Bullock's license to provide child care, Bullock argues respondent Commissioner of Human Services violated her due-process rights.  We affirm.

FACTS

Bullock holds a license to provide child care.  In July 2003, an incident occurred at Bullock's home-based program involving her 13-year-old son, K.B., and a seven-year-old girl in her child-care program.  Afterwards, Bullock called Kristin Vorpahl, a Ramsey County social worker, and reported the details of the incident.

According to Vorpahl's testimony, Bullock heard someone go down the hall, the bathroom door close, and a lock click.  Bullock has a rule against locking doors in her home, and she immediately went to the bathroom and asked for the door to be opened.  Inside she found K.B. and a seven-year-old girl.  The girl told Bullock that K.B. had inappropriately touched her.  K.B. denied that anything had happened.  After Bullock's reporting of the incident, Ramsey County proceeded with an investigation.

On July 22, 2003, Bullock received an order for temporary, immediate suspension of her license under Minn. Stat. § 245A.07, subd. 2 (2002), and Minn. Stat. § 245A.04, subd. 5 (2002).  The order stated that "[d]ue to the serious nature of the violation under investigation, and due to [Bullock's] failure to cooperate . . . during the course of [the] investigation" the commissioner could not ensure the safety of the persons served in Bullock's program and Bullock's child care license was therefore suspended.  Bullock appealed the suspension.

At the hearing before the administrative law judge (ALJ), both parties focused their arguments on section 245A.04, presenting evidence on the issue of whether Bullock failed to cooperate with the county's investigation.  Neither party addressed the issue of whether, under section 245A.07, Bullock's actions or failure to comply with applicable law or rules posed an imminent risk of harm to children in her care.  After the hearing, the ALJ determined the Minnesota Department of Human Services had not established reasonable cause to believe Bullock "failed to cooperate with the investigation" and had not established by a preponderance of the evidence that Bullock "interfered with the County Agency's efforts to interview her son."  For these reasons, the ALJ recommended the suspension of Bullock's license be rescinded and no disciplinary action be taken.

The commissioner rejected the ALJ's findings and conclusions regarding Bullock's cooperation with the county's investigation.  Without determining the issue of cooperation, the commissioner affirmed the suspension of Bullock's license under section 245A.07, subdivision 2, noting the "temporary immediate suspension must remain in effect because of the serious nature of the alleged maltreatment, and the risk of harm to persons served by the program."

D E C I S I O N

1.         Bullock argues the commissioner's order violated her due process rights.  See U.S. Const. amend. XIV § 1 (stating no state shall “deprive any person of life, liberty, or property without due process of law"); Sartori v. Harnischfeger Corp., 432 N.W.2d 448, 453 (Minn. 1988) (stating that Minnesota’s due-process protections are identical to those under United States Constitution).

  The commissioner is not contesting Bullock's assertion that she, as a family child-care licensee, has a protected interest in retaining her license and therefore has a right to procedural due process.  See Fosselman v. Comm’r of Human Servs., 612 N.W.2d 456, 461 (Minn. App. 2000) (concluding that where administrative action deprives person of license that is essential to his or her livelihood, agency’s action must adhere to requirements of procedural due process).

The fundamental requirement of procedural due process is the opportunity to be heard at a meaningful time and in a meaningful manner.  Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 902 (1976).  These principles require that a petitioner receive notice and an effective opportunity to defend by confronting any adverse witnesses and by presenting his or her own arguments and evidence orally.  Goldberg v. Kelly, 397 U.S. 254, 267-268, 90 S. Ct. 1011, 1020 (1970); see also Fosselman, 612 N.W.2d at 463.

Here, Bullock duly received the order for temporary, immediate suspension of her child-care license.  The order provided two bases for the license suspension.  First, the order cited Minn. Stat. §  245A.07, subd. 2, which provides for the temporary, immediate suspension of a child-care license when the licensee's "actions or failure to comply with applicable law or rule poses an imminent risk of harm to the health, safety, or rights of persons served by the program."  Second, the notice cited Minn. Stat. § 245A.04, subd. 5, which provides for the immediate suspension of a child-care license when the licensee fails or refuses to comply with a commissioner's investigation of maltreatment.


After receiving this notice, Bullock appeared before an ALJ and presented evidence and argument regarding whether she cooperated with the county's investigation; thus, Bullock focused her presentation on the elements of section 245A.04.  Ultimately, the commissioner affirmed the license suspension under section 245A.07 without determining the issue of whether Bullock cooperated with the county's investigation.  Bullock contends that this constitutes a violation of procedural due process.  We disagree.  Bullock received notice citing section 245.07 as one of the bases for suspending her license, and she was not precluded from offering evidence or argument or confronting the witnesses against her on this issue.  There was no due process violation.

            2.         Bullock's brief purports to raise additional legal issues beyond the due process claim.  In the body of her brief, Bullock notes the rule stated by this court in Malloy v. Comm'r of Human Services, but beyond this provides no legal analysis.  657 N.W.2d 894, 896 (Minn. App. 2003) (holding section 245A.04 does not authorize commissioner's reversal of disqualification set aside).  In the conclusion to her brief, Bullock contends that "there was nothing in the record below that establishes that any inappropriate sexual touching ever occurred," which suggests a claim that the commissioner's order was not supported by sufficient evidence.  Bullock's brief provides no additional argument or citation to legal authority to support this contention.  We decline to reach these issues in the absence of adequate briefing.  See  Ganguli v. Univ. of Minn., 512 N.W.2d 918, 919 n.1 (Minn. App. 1994) (declining to reach issue appellant failed to support with legal analysis or citation).

            Affirmed.



            * Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.