This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
re the appeal of
Filed June 21, 2005
Hennepin County District Court
File No. WA 03-14524
Amy Klobuchar, Hennepin County Attorney, Arthur W. Katzman, Sr. Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent Hennepin County Department of Children, Family, and Adult Services)
Considered and decided by Willis, Presiding Judge, Klaphake, Judge, and Crippen, Judge.
Appellant disputes the decision of respondent Minnesota Department of Human Services (state agency), affirmed by the district court, finding him guilty of caregiver neglect. He contends that the finding of neglect of his son, a vulnerable adult, was unsupported by substantial evidence and that evidence requires application of an exemption for therapeutic conduct. Because the state agency findings are based on substantial evidence, we affirm.
30, 2002, A.J.W. was admitted to
The county department investigated the complaint and informed appellant that the findings were consistent with the allegation of caregiver neglect. The department concluded that appellant was aware that A.J.W. was swallowing the plastic drinking straws. When the state agency referee conducted a hearing in May 2003, appellant acknowledged that school officials had previously informed him that plastic straws were found in A.J.W.’s feces. The referee affirmed the determination of caregiver neglect. Appellant sought review in district court and on August 4, 2004, the court issued its final order affirming the state agency finding of caregiver neglect.
Standard of Review
an appeal from the district court’s review of an agency decision, we review the
agency’s decision to determine whether it is “unsupported by substantial
evidence in view of the entire record as submitted,” is “arbitrary or
capricious,” or whether the agency made an error of law.
The definition of neglect for purposes of Minn. Stat. § 626.5572, subd. 17
(2002), consists of a caregiver’s failure to provide “reasonable and necessary”
care for the adult’s health and safety, taking into account his dysfunction,
“which is not the result of an accident or therapeutic conduct.”
Appellant argues that the state agency’s decision was unsupported because there was no evidence as to which caregiver gave A.J.W. the plastic drinking straws. But appellant’s own testimony establishes that he gave A.J.W. plastic straws, that he allowed other caregivers to also give A.J.W. straws, and that he knew of A.J.W.’s propensity to swallow the plastic straws as well as pencil erasers. This evidence permits the finding that appellant failed to provide the supervision reasonably necessary to maintain A.J.W.’s safety.
Therapeutic conduct is not included in the definition of neglect under Minn. Stat. § 626.5572, subd. 17(a)(2). Therapeutic conduct is defined in subdivision 20 as “the provision of program services, health care, or other personal care services done in good faith in the interests of the vulnerable adult by . . . a caregiver.” Appellant argues that giving A.J.W. plastic drinking straws constitutes therapeutic conduct because the straws were used as “calming mechanisms.” But as the district court correctly noted, the conduct in furnishing plastic straws was no less harmful because it calmed A.J.W.
There was ample evidence that appellant was aware that A.J.W. was swallowing the plastic drinking straws. Appellant informed A.J.W.’s doctor that A.J.W. had been chewing and swallowing straws for eight to nine years. Appellant also was aware that A.J.W. had ingested pencil erasers in the past. Appellant furnished more straws to A.J.W. after the 2002 surgery. The state agency referee’s decision that appellant was not acting in A.J.W.’s best interests is supported by substantial evidence.
Appellant also argues that the statutory respect for therapeutic conduct shows an aim to address only intentional harm. He contends that there was no evidence submitted showing that he intentionally allowed A.J.W. to swallow the plastic drinking straws. But permission for therapeutic conduct extends only to good faith service of a vulnerable adult’s interests, as the agency referee observed. Evidence that appellant furnished plastic straws to his son, knowing that A.J.W. often swallowed them, permitted the finding of neglect in spite of the evidence that appellant did not intentionally inflict harm.
Appellant argues that a separately stated therapeutic conduct
exception applies to his use of the plastic drinking straws. This exception states that a vulnerable adult
may not be neglected when an individual makes an error, “not part of a pattern
of errors,” in providing therapeutic conduct.
The evident purpose of this therapeutic conduct provision is to exempt the caregiver who gives appropriate care that unintentionally causes harm to the vulnerable adult. The exception presupposes that the caregiver’s actions meet the definition of therapeutic conduct outlined in Minn. Stat. § 626.5572, subd. 20. Even if this court were to determine that the use of the drinking straws constituted therapeutic conduct, the exception in subdivision 17(c)(5) would still be inapplicable. The evidence demonstrates that appellant’s failure to adequately supervise A.J.W., thereby allowing him to ingest the plastic straws, had been occurring for eight to nine years prior to A.J.W.’s surgery. Even after surgery, appellant continued to give A.J.W. plastic drinking straws despite repeated warnings from hospital staff. Because appellant’s conduct is part of a pattern of errors, it does not fall within this therapeutic conduct exception.
This court also has before it a
motion to strike portions of appellant’s brief and appendix not previously
submitted to the district court.
Appellant argues that Minn. Stat. § 256.045, subd. 8 (2002), allows this
court to take new or additional evidence if it determines that “such evidence
is necessary for a more equitable disposition of the appeal.” This statute allows the district court to
hear additional evidence but does not authorize this court to make the
determination that such evidence is necessary.
Affirmed; motion granted.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.