This opinion will be unpublished and

may not be cited except as provided by

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






Robin Forsberg,


Hennepin County Human Services Department,

Commissioner of Human Services,


Filed December 28, 2004

Reversed and remanded; motion granted

Wright, Judge


Hennepin County District Court

File No. WA 03-014194


Mike Hatch, Attorney General, Cynthia Jahnke, Assistant Attorney General, 900 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101 (for appellant Commissioner of Human Services)


Amy Klobuchar, Hennepin County Attorney, Julie K. Harris, Assistant County Attorney, Health Services Building, 525 Portland Avenue, Suite 1210, Minneapolis, MN  55415 (for appellant Hennepin County Human Services Department)


Louise Anne Bruce, 204 Highland Office Center, 790 Cleveland Avenue South, St. Paul, MN  55116-1958 (for respondent)


            Considered and decided by Lansing, Presiding Judge; Kalitowski, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

After appellant Hennepin County Human Services Department (HCHS) denied respondent Robin Forsberg’s claim for foster care payments, Forsberg requested an administrative hearing from the Appeals Department of the Minnesota Department of Human Services (Appeals Department).  The Appeals Department held that it lacked authority to hear the claim.  The district court reversed and ordered foster care payments and attorney fees.  On appeal, HCHS asserts that the district court erred in relevant part because (1) the Appeals Department lacked statutory authority to hear Forsberg’s claim; (2) the district court considered issues not preserved on appeal; (3) the district court’s award of certain foster care payments was contrary to law and unsupported by the evidence; and (4) the district court relied on 42 U.S.C. § 1988(b) (2000) to award attorney fees without legal authority to do so.  HCHS also moves to strike documents from the appendix to Forsberg’s brief.  We reverse and remand to the Appeals Department, and we grant the motion.



            M.S. and M.T. divorced in October 1994.  In accordance with the dissolution judgment, M.T. received sole physical custody of the parties’ children, K. and M.

M.S. filed a petition for an order for protection against M.T. in September 1997.  The record does not include a transcript from the domestic abuse proceeding.  But there is evidence that M.T.’s ability to care for K. was compromised.  As a result, M.S. requested temporary physical custody of K., and the parties were referred for a custody evaluation.

While the custody evaluation was pending, M.T. and M.S. agreed that Robin Forsberg, one of K.’s teachers, would take temporary custody of K.  K. began residing with Forsberg in January 1998.  At this time, Forsberg did not receive financial support from Hennepin County.[1]  But Forsberg paid for K.’s psychotherapy and later began hosting M. for overnight visits.

The custody evaluation completed in July 1998 found that M.T. was verbally and emotionally abusive toward K. and M.  Although there were subsequent efforts to proceed with custody hearings in family court throughout 1998, the record indicates that no substantive action was taken until a hearing on February 23, 1999.  The district court order of March 2, 1999, established that Forsberg would continue to have temporary custody of K.  Finding that neither M.T. nor M.S. had the capacity to parent and that K. is “endangered in the physical custody of [M.T.],” the district court further directed the guardian ad litem for K. and M. to initiate a child protection proceeding in juvenile court.

            The guardian ad litem brought a child protection action in April 1999.  Following an initial hearing, the juvenile court ordered custody of K. to remain with Forsberg.  Child protection assessments were performed, and in July 1999,
legal custody of K. was transferred to the Hennepin County Department of Children and Family Services (CFS).  Because the ensuing foster placement orders directed Forsberg to provide foster care, K. continued to reside with Forsberg during this period.   K. remained in the foster placement with Forsberg until mid-December 1999, when Forsberg’s health prevented her from providing K. additional foster care.

            Forsberg requested reimbursement in January 2002 from HCHS for the expenses she incurred while K. was in her custody.  HCHS denied Forsberg’s claim, and Forsberg elected to pursue the matter through the Appeals Department in April 2002.  Due to ongoing disputes and settlement efforts, consideration of this matter was postponed several times.

            A hearing was held before the Appeals Department on May 7, 2003.  In its order of June 19, 2003, the Appeals Department found that K.’s foster placement did not arise out of a “child protection assessment.”  Relying on Minn. Stat. § 256.045, subd. 3(a)(5) (2002), the Appeals Department thus concluded that it lacked authority to hear Forsberg’s claim.

Forsberg petitioned for judicial review in district court, challenging the Appeals Department’s decision.  At the review hearing, Forsberg also renewed her claims for foster care reimbursement and attorney fees.  The district court received testimony on these issues.

            The district court held that it had broad authority in equity to craft relief for Forsberg and ordered payment of foster care maintenance[2] (referred to by the district court as “room and board” payments) for the period of January 12, 1998, to May 20, 1999; difficulty of care payments based on a difficulty of care rating of 70 points for the period of January 12, 1998, to December 10, 1999; “respite care” payments arising out of 20 overnight visits with M.; and $3,500 in reimbursements for K.’s psychotherapy in 1998 and 1999.  In a subsequent order, the district court awarded Forsberg $12,517 in costs and attorney fees.  This appeal followed.





            HCHS contends that the Appeals Department lacks authority under its enabling statute to consider Forsberg’s claims.  Statutory interpretation poses a question of law, which we ordinarily review de novo.  In re Application of N. States Power Co. for Approval of its 1998 Res. Plan, 604 N.W.2d 386, 390 (Minn. App. 2000), review denied (Minn. Mar. 28, 2000).  But when a government agency is charged with the administration of a statute, we will accord deference to the agency’s interpretation of that statute.  Estate of Atkinson v. Minn. Dep’t of Human Servs., 564 N.W.2d 209, 213 (Minn. 1997).

            The jurisdiction of an administrative agency is entirely controlled by its enabling statute.  McKee v. County of Ramsey, 310 Minn. 192, 195, 245 N.W.2d 460, 462 (1976).  The enabling statute for the Appeals Department is Minn. Stat. § 256.045, subd. 3(a) (2002 & Supp. 2003), which provides in relevant part that state agency hearings are available when “any person whose claim for foster care payment according to a placement of the child resulting from a child protection assessment under section 626.556 is denied or not acted upon with reasonable promptness, regardless of funding source[.]”  Id. at subd. 3(a)(5).

            The Appeals Department based its conclusion entirely on this clause, finding that K.’s foster placement with Forsberg did not result from “a child protection assessment under section 626.556.” 

Section 626.556 provides in relevant part:

(a)       A person who knows or has reason to believe a child is being neglected or physically or sexually abused . . . or has been neglected or physically or sexually abused within the preceding three years, shall immediately report the information to the local [social services agency] or the county sheriff if the person is:

(1)       a professional or professional’s delegate who is engaged in the practice of the healing arts, social services, hospital administration, psychological or psychiatric treatment, child care, education, or law enforcement[.]


Minn. Stat. § 626.556, subd. 3(a)(1) (2002 & Supp. 2003).  Thus, if a person has knowledge of a child’s circumstances and makes a professional judgment that the child is neglected or abused, that person has a duty to report these facts to an appropriate agency.  S.L.D. v. Kranz, 498 N.W.2d 47, 52 (Minn. App. 1993).  The allegations are assessed, and if they are substantiated, the relevant government agency proceeds with a child protection action that may later result in a foster placement.  See Minn. Stat. § 626.556, subd. 10e (2002 & Supp. 2003); see also Minn. Stat. § 260C.201, subd. 1(a)(2) (2002) (supplying dispositional options in child protection action); Zahler v. Minn. Dep’t of Human Servs., 624 N.W.2d 297, 301-03 (Minn. App. 2001) (outlining procedures under Minn. Stat. § 626.556 (2000)), review denied (Minn. June 19, 2001).

            In a dissolution or child custody proceeding, a family court may appoint a guardian ad litem to represent the interests of a child.  Minn. Stat. § 518.165, subds. 1, 2 (2002).[3]  The guardian ad litem has a duty to provide an independent assessment of the child’s circumstances, and if necessary, “advocat[e] for appropriate community services.”  See id., subd. 2a(1), (2) (2002).  Professional judgment is inherent in the execution of these duties.  See In re Welfare of R.T., 364 N.W.2d 884, 887 (Minn. App. 1985) (allowing expert testimony from guardian ad litem in neglect proceeding).  We conclude that a guardian ad litem, when on notice that a child is neglected or abused, is required to report to relevant authorities in accordance with Minn. Stat. § 626.556, subd. 3(a)(1).

            If it is alleged that a child is in need of protection or services, the juvenile court must assess whether these allegations are proven by clear and convincing evidence or dismiss the action.  Minn. Stat. § 260C.163, subd. 1(a) (2002).  To evaluate these allegations, the juvenile court may order an investigation from a social services agency.  Minn. Stat. § 260C.157, subd. 1 (2002).  If the juvenile court finds that the child is in need of protection or services, it may either place the child within the protective supervision of a social services agency or it may grant legal custody of the child to a social services or foster placement agency.  Minn. Stat. § 260C.201, subd. 1(a).  Thus, a child protection action, when based on substantiated allegations of neglect or abuse, will ordinarily involve immediate participation by relevant social services agencies.

            Here, the family court’s order of March 2, 1999, found that K. was endangered in the custody of M.T.  Based on this finding, K.’s guardian ad litem commenced a child protection action.  Relevant social services agencies were notified, and they subsequently investigated the allegations of neglect and abuse and performed child protection assessments.  Custody of K. was transferred to CFS with a foster care placement in Forsberg’s home, notwithstanding the prior voluntary custodial arrangement.  We conclude that, in accordance with Minn. Stat. § 256.045, subd. 3(a), this course of action, set in motion by the findings accompanying the March 2, 1999, order, resulted in a foster care placement arising from a “child protection assessment under section 626.556.”  Accordingly, the Appeals Department has authority to consider claims for foster care payments that arise out of a foster placement following the initiation of a child protection proceeding.


            HCHS also contends that the district court erred when exercising its powers of judicial review by considering issues that were not decided by the Appeals Department.  Because Forsberg did not litigate certain issues before the Appeals Department, HCHS argues, Forsberg did not preserve these issues for review by the district court.  In effect, HCHS urges adoption of a rule equivalent to that applied in other forms of appellate review.  Cf. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding that matters not litigated before the district court are waived on appeal).  Because this issue presents a question regarding court procedure, our review is de novo.  Modrow v. JP Foodservice, Inc., 656 N.W.2d 389, 393 (Minn. 2003).

In St. Paul Cos. v. Hatch, the Minnesota Supreme Court promoted a limited approach to judicial review, applying separation-of-powers principles to determine whether a district court could exercise de novo review of an administrative agency’s decision.  449 N.W.2d 130 (Minn. 1989).  Cautioning against unbounded review, the Hatch court observed that administrative functions belong to the executive branch, and judicial review cannot supplant those functions; “[a] ‘review’ of a decision ordinarily contemplates something less than an outright trial de novo.”  Id. at 137-38.  Consistent with these notions, we reaffirm the principle that failure to litigate an issue that could have been raised in an administrative proceeding precludes its consideration on judicial review.  See State ex rel. Quiring v. Bd. of Educ., 623 N.W.2d 634, 638 (Minn. App. 2001) (holding that matters not raised before hearing board are not reviewable on certiorari appeal), review denied (Minn. May 29, 2001); see also In re REM-Canby, Inc. v. Minn. Dep’t of Human Servs., 494 N.W.2d 71, 76-77 (Minn. App. 1992) (concluding that matters not raised before administrative law judge are not reviewable), review denied (Minn. Feb. 25, 1993).

            Here, the record from the hearing before the Appeals Department establishes that only a few issues were in dispute at the time of the hearing.  HCHS challenged the Appeals Department’s authority to consider Forsberg’s claims.  And Forsberg challenged HCHS’s denial of reimbursement for K.’s psychotherapy, reimbursement for M.’s overnight visits, and attorney fees.[4]  Forsberg did not raise the issue of foster care maintenance before the Appeals Department because the record reflects that the parties had agreed that foster care maintenance payments would cover the period between May 20 and December 13, 1999.  These issues, therefore, were not preserved for the district court’s review. 

            Advancing the district court’s rationale, Forsberg counters that the district court, exercising its powers in equity, has broad discretion to fashion its own disposition on judicial review.  The district court reasoned that its powers in equity were derived in part from Minn. Stat. § 256.045, subd. 8 (2002), which provides that, on judicial 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.”

            A district court’s powers in equity operate in conjunction with its powers at law.  Where legal interests or defective pleadings cause an unfair result, equity may restore the wronged party.  See Prince v. Sonnesyn, 222 Minn. 528, 537, 25 N.W.2d 468, 473 (1946) (observing that, where wronged party fails to state an action at law, equity may provide relief).  But administrative proceedings originate in the executive branch and are not incident to the powers of courts at law.  When a district court uses its powers in equity to substitute its judgment for that of an administrative agency, it encroaches on constitutional separation of powers.  See Hatch, 449 N.W.2d at 137-38.

            As a result, the district court’s reliance on Minn. Stat. § 256.045, subd. 8, is misplaced.  This provision only allows, when “necessary for a more equitable disposition of the appeal,” the district court to take additional evidence.  It does not authorize the district court to expand the issues on judicial review.  We, therefore, hold that the district court erroneously relied on its powers in equity to consider issues not preserved for its review.

We conclude that it was error for the district court to consider issues not raised before the Appeals Department.  To the extent that the district court ruled on these matters, we reverse.



            We next consider the status of the remaining issues presented to the district court.  HCHS first challenges the district court’s award of reimbursement for K.’s psychotherapy and M.’s overnight visits.  Because the Appeals Department held that it lacked authority to consider these issues, the Appeals Department did not address these issues on the merits.

            If an administrative forum erroneously denies relief as a matter of law and therefore does not address other controversies, it is appropriate to remand for further proceedings in that forum.  See Marsolek v. George A. Hormel Co., 438 N.W.2d 922, 924 (Minn. 1989) (vacating legally erroneous administrative decision and remanding to administrative factfinder for further proceedings); see also Nat’l Audubon Soc’y v. Minn. Pollution Control Agency, 569 N.W.2d 211, 216 (Minn. App. 1997) (holding that, in context of environmental evaluation, when district court finds factual defects on judicial review, “proper function” of reviewing court is to remand).  Because the Appeals Department held that it lacked statutory authority to proceed, it did not consider other legal or factual issues related to Forsberg’s claims.  Thus, we remand to the Appeals Department for consideration of Forsberg’s claims for reimbursement for K.’s psychotherapy and M.’s overnight visits. 

            HCHS contends that, because the parties reached an agreement regarding difficulty of care payments, the district court was precluded from considering this issue.[5]  The record indicates, and Forsberg concedes, that the parties reached such an agreement.  But the record does not disclose the precise terms of this agreement; and whether the agreement had been complied with was disputed before both the Appeals Department and the district court.  On remand, therefore, we direct the Appeals Department to consider the scope and operation of this agreement and order relief, if any, accordingly.

HCHS also challenges the district court’s award of attorney fees.  Based on its determination that the Appeals Department violated Forsberg’s constitutional right to due process, the district court concluded that attorney fees were available under 42 U.S.C. § 1988(b) (2000).  We review this award of attorney fees for an abuse of discretion.  Auto-Owners Ins. Co. v. NewMech Cos., 678 N.W.2d 477, 485 (Minn. App. 2004), review denied (Minn. June 29, 2004).

             42 U.S.C. § 1988(b) provides in relevant part that “in any action or proceeding to enforce a provision of [42 U.S.C. § 1983 (2000) or other enumerated federal civil rights legislation,] the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs . . . .”  This provision does not authorize an award of attorney fees in all proceedings in which a constitutional violation is established.  Rather, its operation is limited to an action or proceeding to enforce specific civil rights legislation.  N.C. Dep’t of Transp. v. Crest St. Cmty. Council, Inc., 479 U.S. 6, 12, 107 S. Ct. 336, 340 (1986). 

In an administrative proceeding, if the complaint is later amended to include a claim under 42 U.S.C. § 1983, then the prevailing party may seek attorney fees under 42 U.S.C. § 1988(b).  Maine v. Thiboutot, 448 U.S. 1, 9-10, 100 S. Ct. 2502, 2507 (1980).  But section 1988(b) does not supply a general right to attorney fees in an administrative proceeding, even if a party prevails by proving a constitutional violation.  Webb v. Bd. of Educ., 471 U.S. 234, 241, 105 S. Ct. 1923, 1927 (1985).  Here, Forsberg did not bring an action under a federal civil rights statute.  As a result, the district court was without legal authority to award Forsberg attorney fees under 42 U.S.C. § 1988(b).  Accordingly, we reverse the district court’s award of attorney fees.  On remand, the Appeals Department may consider the merits of Forsberg’s attorney fees claim arising from other statutory authority if properly preserved.


            HCHS moves to strike several documents from the appendix to Forsberg’s brief.  Under Minn. R. Civ. App. P. 110.01, the record on appeal consists solely of “[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings.”  If documents are included in appellate briefs that are not part of this record, the adverse party may move to strike them from the record on appeal.  Davis v. Davis, 631 N.W.2d 822, 826 (Minn. App. 2001).

            The controverted documents are assorted letters, dated from April 25, 2002, to December 30, 2003, which counsel for Forsberg wrote and received during the course of the litigation.  Some of these documents have been incorporated into the record.  With respect to those documents that are not part of the record, we grant HCHS’s motion to strike.

            Reversed and remanded; motion granted.

[1] In late 1997 and early 1998, Forsberg made a series of inquiries with the Hennepin County Department of Children and Family Services (CFS) about foster care.  According to Forsberg, officers at CFS characterized her relationship with K. as that of a relative, concluding that the voluntary placement did not qualify as a foster care placement.  Child protection statutes define “relative” to include “an individual who is an important friend with whom the child has resided or had significant contact.”  Minn. Stat. § 260C.007, subd. 27 (2002).

[2]  In accordance with the nomenclature employed by HCHS in its foster care regulations, we describe the payments made by a social services agency to a foster care provider as follows: “Foster care maintenance” is the baseline payment for the basic care of children’s needs.  Minn. R. 9560.0650 (2003).  “Difficulty of care payments” are additional payments for the care of children “with mental, physical, or emotional handicaps who require additional supervision or assistance.”  Minn. R. 9560.0653 (2003).


[3] Because K.’s guardian ad litem was appointed prior to commencement of the child protection action, we presume that this appointment was pursuant to the family court’s authority under Minn. Stat. § 518.165 (2002).  However we observe that, whether appointed in a dissolution or child protection proceeding, a guardian ad litem has identical duties.  See Minn. Stat. § 260C.163, subd. 5(b) (2002 & Supp. 2003).

[4]  At the hearing, Forsberg advised the administrative law judge that the parties had reached a settlement as to the difficulty of care payments.


[5] Based on our previous holding, we reiterate that difficulty of care payments were not substantively litigated before the Appeals Department.  Thus, Forsberg waived review regarding the basis for, and amount of, these payments.