This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Minnesota Department of Human Services,
Hennepin County Human Services Department,
Filed June 14, 2005
Hennepin County District Court
File No. 03-007106
Mike Hatch, Attorney General, 1100
Amy Klobuchar, Hennepin County Attorney, Julie Harris, Senior Assistant County Attorney, 525 Portland Avenue, Suite 1210, Minneapolis, MN 55415 (for respondent Hennepin County Human Services Dep’t)
Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Minge, Judge.
Appellant challenges an order of the commissioner of human services affirming the administrative-appeal referee’s determination that appellant maltreated children by failing to protect them from sexual abuse when he was reasonably able to do so. Appellant argues that the commissioner’s decision was biased, arbitrary and capricious, unsupported by the evidence, based on false information, and affected by procedural error and alleges that the agency failed to disclose relevant evidence and that new evidence is now available. Because (1) there is substantial evidence supporting the commissioner’s decision; (2) appellant does not demonstrate that the decision was biased, arbitrary, capricious, or affected by procedural error; and (3) appellant has raised on appeal an issue that was not considered by the district court, we affirm.
Matt Kneen challenges an order of the commissioner of human services
(commissioner) affirming a determination of maltreatment from the
In October 1999, the agency filed a petition with the juvenile court alleging that C.F., A.F., and A.K. were children in need of protection or services (CHIPS petition), due to the inappropriate sexual behavior of C.F. The juvenile court ordered that C.F. be placed in protective custody. After hearings in December 1999 and February 2000, C.F. was ordered to remain in protective custody, but A.F. and A.K. (collectively, the girls) remained in the home with appellant and Lori Fields. The juvenile court also ordered A.F. and A.K. to undergo psycho-sexual evaluations.
Julia Davis, Ph.D., a licensed psychologist, met with the girls a number of times from March through May 2000. At these sessions, the girls alleged that C.F. had engaged in inappropriate sexual behavior and that Chris Kneen had been physically abusive to them. According to Dr. Davis, the girls “were consistent and very clear that Chris was physically rough with them when he was left babysitting.”
In July 2000, after another hearing regarding the CHIPS petition, the juvenile court concluded that the children were in need of protection or services because of the sexual abuse. The court ordered that A.F., A.K., and C.K. remain in the custody of Fields under the protective supervision of the agency so long as Fields and appellant complied with the case plan, including the requirement that “[A.F.], [A.K.] and [C.K.] are not to be left in the care and supervision of Chris Kneen.”
On September 26, 2000, Dr. Davis provided the agency with an update based on several meetings with A.F. and A.K. She noted that “the girls continue[d] to consistently identify ongoing issues with their step-brother, Chris, in that he ‘beats us up’ and ‘isn’t nice’ or ‘chokes [C.K.]’ when he is left in charge of them.” Dr. Davis wrote another letter to the agency in October, in which she stated that A.F. had alleged that Chris had engaged in inappropriate sexual behavior, including exposing himself to the girls and masturbating in their presence. According to Dr. Davis, both appellant and Fields were aware of this behavior and reprimanded Chris, but took no further action.
On November 1, 2000, the agency sent appellant a written notice of its determination of maltreatment pursuant to Minn. Stat. § 626.556, subd. 10f (2000). Appellant requested reconsideration and the agency upheld its determination in a letter dated November 30, 2000. Appellant then requested a hearing pursuant to Minn. Stat. § 256.045, subd. 3(8) (2004). The appeal process was suspended on January 8, 2001, because the matter was the subject of the ongoing juvenile-court proceeding involving Chris Kneen.
The appeal process resumed on January 10, 2002. A hearing was held over three days and the record was closed on February 27, 2003. On March 18, the commissioner issued a decision upholding the agency’s determination. Appellant requested reconsideration and on April 2, the chief appeals referee for the commissioner affirmed the decision.
Appellant subsequently requested judicial review of the commissioner’s decision pursuant to Minn. Stat. § 256.045, subd. 7 (2004). On June 16, 2004, the district court filed an order affirming the commissioner’s decision, concluding that “[t]he [c]ommissioner’s [o]rder affirming the [agency’s] maltreatment determination was not arbitrary, capricious, or contrary to law.” This appeal follows.
contends that the commissioner’s decision was biased, arbitrary and capricious,
unsupported by the evidence, based on false information, and affected by
procedural error. Decisions of administrative
agencies are presumed to be correct, and reviewing courts must defer to an
agency’s expertise. In re Appeal of O’Boyle, 655 N.W.2d 331, 334 (
After conducting an investigation, the administrative-appeal referee determined that maltreatment had occurred and that child protective services were needed pursuant to Minn. Stat. § 626.556, subd. 10e (2004). “Maltreatment” includes neglect. Minn. Stat. § 626.556, subd. 10e(a)(2) (2004). “Neglect” includes the “failure to protect a child from conditions or actions that seriously endanger the child’s physical or mental health when reasonably able to do so.” Minn. Stat. § 626.556, subd. 2(c)(2) (2004). After the appeal hearing, the referee concluded that the agency had shown by a preponderance of the evidence that appellant had neglected the girls “by failing to protect them from sexual abuse by their older half brother, Chris.”
contends that this conclusion is unsupported by the evidence. “Substantial evidence” has been 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; or (5) the evidence considered in its
Appellant next contends that the referee’s decision was arbitrary and capricious. This contention is apparently based on appellant’s disagreement with the referee regarding the credibility of witnesses and other pieces of evidence. As we have previously stated:
An agency’s decision is arbitrary or capricious if the agency relied on factors the legislature never intended it to consider, if it entirely failed to consider an important aspect of the problem, if it offered an explanation for the decision that runs counter to the evidence, or if the decision is so implausible that it could not be ascribed to a difference in view or the result of agency expertise. If the agency’s decision represents its will, rather than its judgment, the decision is arbitrary and capricious. A reviewing court will intervene only where there is a combination of danger signals [that] suggest the agency has not taken a hard look at the salient problems and has not genuinely engaged in reasoned decision-making.
County Mothers v. Minn. Pollution Control Agency, 594 N.W.2d 233, 236
(Minn. App. 1999) (emphasis added) (alteration in original) (citation and
quotation omitted). A referee’s decision
is not rendered arbitrary or capricious by virtue of making assessments of
credibility. “It is within the referee’s
province to determine credibility and such decisions should not be reweighed.” Zahler
v. Minn. Dep’t of Human Servs., 624 N.W.2d 297, 303 (
likewise argues that the referee at his administrative hearing was biased. Parties to an administrative proceeding are
entitled to a decision by an unbiased decisionmaker. See Urban Council on Mobility v. Minn. Dep’t of
Natural Res., 289 N.W.2d 729, 736 (
At the appeals hearing, the referee attached great importance to a letter from Dr. Davis in which she expressed concern about “ongoing issues” involving Chris Kneen’s physical abuse of A.F., A.K, and C.K., despite the fact that the district court previously ordered that the children were “not to be left in [his] care and supervision.” The referee noted that Dr. Davis’s letter “is compelling because Dr. Davis is a disinterested party, it is closer in time to the activities it reports [than was appellant’s testimony], and it was created in the course of regularly conducted activity.”
Again, appellant’s argument is based primarily on the fact that the referee made credibility assessments and found appellant’s testimony to be less credible than Dr. Davis’s report because appellant was not a disinterested party. But as we have previously noted, credibility assessments are within the province of the referee. Blue Cross & Blue Shield, 624 N.W.2d at 278; Zahler, 624 N.W.2d at 303. A review of the record does not disclose any bias on the part of the referee.
Appellant further argues that Dr. Davis’s reports are not reliable because she “never made her appearance to support her record” despite being issued a subpoena. But the record indicates that Dr. Davis was not issued a subpoena to appear in court; instead, she received a subpoena duces tecum requiring her to “[p]rovide [appellant with] any documents in [her] possession, including tapes, photos, interviews, etc., relating to [appellant, A.K., or A.F.].” In response to the subpoena duces tecum, Dr. Davis contacted the hearing referee by phone regarding the requested records. She followed up this phone call with a letter summarizing the telephone conversation. In the letter, Dr. Davis stated that she “respectfully declined to release [the subpoenaed] records to Mr. Kneen” and set forth the reasons for doing so. She noted:
1. I had been advised, by . . . the Hennepin County Attorney’s office, that anything pertinent to the appeal has already been released to [appellant] in the [c]ounty’s records and [c]ourt documents of this case, in which I testified. Release of my records is therefore both redundant, and arguably not specified in the materials covered by the subpoena.
2. The ethical guidelines of my profession, as I understand them, limit to whom I may release confidential information about my clients, and specify that I am required to release sensitive information to appropriate third parties or to another psychologist. In the case of a minor child, I understand . . . that I am obligated to safeguard their best interests even when faced with parent requests. This is especially germane to this case. . . .
Dr. Davis then proceeded to discuss how releasing the records might affect the best interests of A.F. and A.K. There is no indication in the record of whether the referee excused Dr. Davis from providing the records.
Appellant subsequently sought a new subpoena duces tecum to obtain “documents” from Dr. Davis. The referee declined to issue a new subpoena, noting that appellant “ha[d] not described the information in the person[’s] possession and how it is relevant to the issue in [appellant’s] appeal.”
Dr. Davis’s letter of September 26, 2000, the referee stated that “[t]he fact
that Dr. Davis was issued a subpoena but did not appear does not detract from
the reliability of the document because the appellant knew [that] she was not
going to appear and could have requested a court to compel her appearance but
he did not.” Appellant contests this
assertion, arguing that he “wrote letters to six district court [j]udges to
Appellant further argues that the agency’s maltreatment investigation was flawed because the child-protection investigator, Paul Lennander, “decided not to ask for the appellant’s side of the story.” But Lennander testified at the appeal hearing that he “offered to interview [appellant] to get any input that he had regarding the investigation, regarding information, and [appellant] declined to be interviewed.” Lennander also indicated that appellant never initiated further contact with him “to be allowed to tell [appellant’s] side of the story.” Resolution of this question involves an assessment of witness credibility by the referee. Appellant had ample opportunity to contest the agency’s allegations, challenge Lennander’s credibility, and put forth his version of events during three days of hearings. Here, it is apparent that the referee believed Lennander’s account, and we will not reweigh such an assessment. Zahler, 624 N.W.2d at 303; see also Vang v. A-1 Maint. Serv., 376 N.W.2d 479, 482 (Minn. App. 1985) (stating that an actual credibility determination is necessarily implicit in the commissioner’s decision when there is conflicting witness testimony).
Appellant next challenges the referee’s determination that the agency did not intentionally withhold information. As part of discovery, appellant had requested photos of the children which had been taken at the time of their out-of-home placement in October 2000. But the agency had been unable to locate the photos. At the appeal hearing, Lennander stated that he had recently seen the photos. Counsel for the agency asked to make a record and stated:
I am aware that [appellant] had made specific requests for pictures. I repeatedly asked my client to do a search of the files and to produce all discovery that was available to the [a]gency.
I was informed on multiple . . . occasions that all documentation had been provided to [appellant]. And I have never seen pictures. . . .
Mr. Lennander, upon questioning, indicated to me that he just looked at the pictures a couple days ago. And I have a copy of a case file with me that includes those pictures. I have no explanation for you where they were previously. . . .
I apologize to [appellant.] . . . I’m as surprised as [they are] that I have the pictures. . . .
Appellant was then provided with a copy of the photos and granted a continuance.
Appellant also requested documents allegedly generated by a child-protection worker with whom he had contact between late 1997 and 1999. The agency asserts that it does not have such documents. The referee concluded that “there is no evidence that the agency intentionally withheld or is intentionally withholding evidence from the appellant. Moreover, neither the pictures nor the . . . documents are relevant to this case.” (Footnote omitted.) Whether the agency intentionally withheld evidence involves a credibility assessment that is within the discretion of the referee and will not be reweighed by this court. Zahler, 624 N.W.2d at 303
Appellant argues that the photos and documents are relevant because they contributed to Lennander’s decision to pursue the case. But Lennander initiated the investigation pursuant to a maltreatment report and his finding that the children were endangered was based on “Corner[H]ouse [i]nterviews, collateral interviews, police interviews and direct interviews of the girls.” There is no indication in the record that the photos or the alleged documents played a role in Lennander’s decision.
Finally, appellant argues that new evidence “is available now and is likely to change the outcome of the [proceedings].” This alleged new evidence consists primarily of a contention that a babysitter “has since heard of this decision and is very insistent to set the record strai[gh]t.”
the issue of new evidence before the district court, but did not make any
arguments regarding the babysitter or her potential testimony. We will generally not consider matters not
argued and considered in the district court.
Thiele v. Stich, 425 N.W.2d
580, 582 (
Appellant has not demonstrated that the administrative appeal referee’s decision was biased, arbitrary and capricious, unsupported by the evidence, based on false information, or affected by procedural error. Thus, the commissioner did not err in affirming the referee’s determination that appellant maltreated his children by failing to protect them from sexual abuse when he was reasonably able to do so.
 The CHIPS petition was later amended to include C.K.
 Chris Kneen was subsequently criminally charged and convicted in May 2001 of first- and second-degree criminal sexual conduct. The juvenile court determined that the state had “established beyond a reasonable doubt that . . . Christopher Kneen intentionally sexually penetrated [A.K.] by an intrusion of his penis into her female genital opening. . . . [and] intentionally touched [A.F.’s] clothing over the immediate area of her intimate parts (her genital area) and touched her intimate parts.”
 The commissioner “adopt[ed] the referee’s recommended findings of fact, conclusions of law and order as his final decision.”
 Kneen appeared at the administrative hearing pro se.
 The referee concluded:
The appellant’s arguments about [A.F.’s] truth[-] telling, to the extent that the appellant means to show that Chris did not engage in intentional criminal sexual misconduct, are irrelevant. The criminal court’s decision on that issue is conclusive here. To the extent that the appellant means to show that the girls’ statements to Dr. Davis reported in her September 26, 2000 letter are unreliable, I reject the appellant’s argument. The girls’ statements do not appear to be mere storytelling; according to Dr. Davis, the girls consistently identified ongoing issues with Chris when he was left in charge of them.
Appellant also contends that the phone call
and letter from Dr. Davis to the referee assigned to the case constituted
impermissible “ex parte” communications.
But “[a]n ex parte communication is a communication about a case which
an adversary makes to the
decisionmaker without notice to an affected party.” D’Aquisto
 The referee who issued the original subpoena duces tecum was not the same referee who responded to the new request and heard the appeal. This change resulted from a routine “rotation of the referee[s’] assigned regions.”
 These letters are not part of the record.
 Appellant asserts that he sent a letter on November 5, 2000, requesting to be interviewed by Lennander. The record contains an undated letter from appellant to the agency in which he states, “if the department would ask[,] I would explain.” The record contains no other communication from appellant that could be construed as a request to be interviewed by the investigator.
 Appellant contends that “the missing pictures and documents contribute to [a] pattern of arbitrary recklessness” by the agency.
 CornerHouse is a child-abuse training and evaluation center whose stated mission is to “assess suspected child sexual abuse, to coordinate forensic interview services and to provide training for other professionals.”