This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







In the Matter of the Maltreatment Determinations,

Disqualification, and Order of Revocation

of the Adult Foster Care License of Deborah Barry.


Filed January 3, 2006


Peterson, Judge


Human Services Department

File No. 12-1800-15889-2


Joseph A. Rheinberger, 408 St. Peter Street, Suite 413, St. Paul, MN  55102 (for relator Deborah Barry)


Mike Hatch, Attorney General, Theresa M. Gray, Assistant Attorney General, 900 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2127 (for respondent Commissioner of Human Services)


            Considered and decided by Toussaint, Chief Judge; Peterson, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N


            In this appeal from an order of respondent Commissioner of Human Services disqualifying relator Deborah Barry from working with vulnerable adults and revoking Barry’s adult-foster-care license, Barry argues that the administrative law judge erred by admitting and relying on hearsay evidence and the Minnesota Department of Human Services (DHS) did not meet its burden of proving by a preponderance of the evidence the statutory basis for the decision.  We affirm.


DHS received a report that Barry, a licensed adult-foster-care provider, kicked vulnerable adult A.S., threatened to throw A.S. out a window, grabbed A.S.’s wrist and broke her watch, and was otherwise verbally and physically abusive to residents of her foster home.  After an investigation, DHS concluded that the maltreatment allegations were substantiated and issued a disqualification notice to Barry.  Barry requested reconsideration.  DHS issued a notice of reconsideration and license revocation, and a hearing was held before an administrative law judge (ALJ).

DHS’s witness list for the hearing included the investigator who conducted the DHS investigation and prepared the investigative memorandum.  The investigative memorandum included summaries of the investigator’s interviews with the victims of the alleged maltreatment, other caregivers who worked with the alleged victims, and Barry.  The witness list did not include the alleged victims.  At the beginning of the hearing, Barry objected generally on hearsay grounds to any evidence offered by DHS to the extent that it contained statements made by the alleged victims to the witness. 

DHS called the investigator as a witness, and the investigator described her investigation and identified the investigative memorandum that she prepared.  When DHS offered the memorandum as an exhibit, Barry objected because the exhibit contained statements that the investigator said were made to her by someone else.  Before allowing the investigator to testify about statements that were made to her, the ALJ allowed Barry to question the investigator about how she conducted interviews during the investigation.  The investigator testified that when she conducted interviews, she typed the questions and answers on her laptop computer during the interviews and tried to type everything word for word, but she could not guarantee that the interviews are exact word for word.  The investigator also testified that her typed records of interviews “were very, very accurate.” 

The investigator testified that she believed that A.S. did not immediately report being kicked and was reluctant to discuss the incident because she was afraid of Barry, and that A.S. was afraid that if she told anyone, Barry would be mean to her and “chop her neck off.”  The investigator also testified that A.S. stated that Barry grabbed A.S.’s wrist and pulled on it and broke a watch that A.S. was wearing.

The investigator testified that E.B., another vulnerable adult in Barry’s home, stated that she saw Barry kick A.S., heard Barry tell A.S. to jump out a second-story window, and saw Barry grab A.S.’s watch.  The investigator testified that when interviewed outside Barry’s home, the witnesses were more cooperative.  Regarding the allegation that Barry threatened to throw A.S. out a window, the investigator testified that it likely occurred in April 2002 because E.B. witnessed it, and E.B. moved out of Barry’s home in mid-April 2002.  Finally, the investigator testified that there were many allegations of yelling incidents involving A.S., E.B., and another client and that all of the allegations were substantiated.  The investigator acknowledged that she was not able to determine the exact date when any of the incidents occurred.

In response to the ALJ’s questions, the investigator testified that during her interview, A.S. seemed able to communicate, appeared to have her hearing aids in and was able to understand the questions and answer them, and was consistent in her description of the incidents.  Over Barry’s hearsay objection, the ALJ admitted the investigator’s typed records of her interviews with A.S. and E.B.

A.S. testified that Barry yelled at her every day, told her to jump out a window, and that she is afraid of Barry.  When asked if Barry hurt her, A.S. said “yes.”  When asked if Barry kicked her, A.S. said “I don’t know.”  E.B. testified that Barry threw water on E.B.’s clothes and face, that E.B. did not like living in the home because she doesn’t like Barry, and that Barry was mean to A.S. and yelled at her.  When asked if she saw Barry kick A.S., E.B. said “no.”  E.B. testified that she heard Barry tell A.S. to jump out a window.

Over Barry’s hearsay objection, a program coordinator with Boston Health Systems who worked with A.S. testified that one day, around the end of July 2002, when she picked up A.S. at Barry’s house, A.S. seemed sad, was not herself, started crying, and stated that Barry had kicked her.  The coordinator testified that A.S. indicated by pointing that the kick was on her right side, and she stated that it was sore.  The coordinator also testified that A.S. said that Barry made funny faces at A.S., threatened to throw her out the window, yelled at her, and grabbed her wrist and broke her wristwatch.

The coordinator testified that she assumed that the kicking incident happened shortly before the date A.S. reported it, rather than in April, because she and A.S. had been together between those months and A.S. seemed fine.  Over Barry’s hearsay objection, the ALJ admitted the coordinator’s written report.  The ALJ made a finding on the record that he was relying on hearsay because A.S. “didn’t appear fully capable of testifying today.”  Barry then testified and denied all of the allegations. 

The ALJ’s findings, conclusions and recommendations identified the evidence that the ALJ relied on in recommending that the commissioner affirm the maltreatment determination, the disqualification, and the revocation of Barry’s license.  The ALJ stated in an attached memorandum that he based his findings in large part on the statements that A.S. gave to the DHS investigator because the investigator captured an almost verbatim record of A.S.’s words that reflected a tone, language, and verbal style that were almost identical to A.S.’s speech patterns during her testimony at the hearing;  A.S. appeared to have been truthful with the investigator; A.S. was definite on the important points, did not embellish, and demonstrated that she was capable of remembering and relating what had happened to her; A.S.’s statements to the investigator were consistent with statements she made to others; Barry’s denials were not as credible as A.S.’s allegations and the statements of other witnesses; and A.S.’s words and body language indicated that she was reluctant to testify in Barry’s presence.

The commissioner adopted the ALJ’s findings and conclusions and affirmed the maltreatment determinations, disqualification, and revocation of Barry’s license to provide adult-foster-care services.  Barry appeals the commissioner’s decision.



“[D]ecisions of administrative agencies enjoy a presumption of correctness, and deference should be shown by courts to the agencies’ expertise and their special knowledge in the field of their technical training, education, and experience.”  Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 824 (Minn. 1977).  Upon review, a court must exercise judicial restraint, lest it substitute its judgment for that of the agency.  In re Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 277 (Minn. 2001).  The court will generally defer to the factfinder’s determination regarding credibility.  State by Cooper v. Moorhead State Univ., 455 N.W.2d 79, 83-84 (Minn. App. 1990). 

When reviewing an agency decision in a contested case, this court

may affirm the decision of the agency or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the petitioners may have been prejudiced because the administrative finding, inferences, conclusion, or decision are:

(a)       In violation of constitutional provisions; or

(b)       In excess of the statutory authority or jurisdiction of the agency; or

(c)       Made upon unlawful procedure; or

(d)       Affected by other error of law; or

(e)       Unsupported by substantial evidence in view of the entire record as submitted; or

(f)        Arbitrary or capricious.


Minn. Stat. § 14.69 (2004).  “The party seeking review of the agency action has the burden of proving that the agency’s conclusions violate one or more of the provisions of section 14.69.”  In re Space Ctr. Transp., 444 N.W.2d 575, 579 (Minn. App. 1989).

Barry argues that DHS failed to prove the allegations by a preponderance of the evidence.  But under Minn. Stat. § 14.69(e) (2004), this court reviews an agency decision to determine whether the decision is supported “by substantial evidence in view of the entire record as submitted.”  A decision is supported by substantial evidence when it is supported by “(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 entirety.”  Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 457, 466 (Minn. 2002).

            “The substantial evidence test requires a reviewing court to evaluate the evidence relied upon by the agency in view of the entire record as submitted.  If an administrative agency engages in reasoned decisionmaking, the court will affirm, even though it may have reached a different conclusion had it been the factfinder.”  Cable Commc’ns Bd. v. Nor-West Cable Commc’ns P’ship, 356 N.W.2d 658, 668-69 (Minn. 1984) (citation omitted).

The record contains substantial evidence that, under the statutory definitions of maltreatment and abuse, Barry maltreated the vulnerable adults in her care.  See Minn. Stat. § 626.5572, subds. 2(b), 15 (2004) (defining abuse and maltreatment).  The DHS investigator’s testimony, the investigative memorandum, A.S.’s and E.B.’s testimony, and the program coordinator’s testimony and report all provide evidence that Barry kicked A.S., told her to jump out a window, and was otherwise physically and verbally abusive to her.  The ALJ explicitly credited this testimony and evidence over Barry’s denials and stated specific reasons why he did so.  Because the record contains more than a scintilla of evidence that maltreatment occurred, the commissioner’s decision is supported by substantial evidence.


Barry argues that the ALJ erred in admitting and relying on hearsay evidence, that he should have based his findings and recommendation on the “best evidence,” which was the testimony of the vulnerable adults who testified at the hearing, and that the ALJ erred in determining that the hearsay was admissible under Minn. Stat. § 595.02, subd. 3 (2004).

“Evidentiary rulings in administrative proceedings are subject to an abuse-of-discretion standard.” CUP Foods, Inc. v. City of Minneapolis, 633 N.W.2d 557, 566 (Minn. App. 2001), review denied (Minn. Nov 13, 2001).  Under the rules governing contested cases, an ALJ “may admit all evidence which possesses probative value, including hearsay, if it is the type of evidence on which reasonable, prudent persons are accustomed to rely in the conduct of their serious affairs.”  Minn. R. 1400.7300, subp. 1 (2005); see also Lee v. Lee, 459 N.W.2d 365, 369 (Minn. App. 1990) (holding that under “loose evidentiary standards” of Minn. R. 1400.7300, subp. 1, ALJ did not abuse discretion in admitting hearsay evidence), review denied (Minn. Oct. 18, 1990).

The ALJ admitted the hearsay testimony of the DHS investigator, the investigative memorandum prepared by the investigator, which included hearsay statements of people who the investigator interviewed during the DHS investigation, and the program coordinator’s testimony and report.  The ALJ made specific findings regarding his reasons for relying on the hearsay evidence and why he found the hearsay evidence credible.  The ALJ also explained that he relied on the hearsay evidence, rather than A.S.’s testimony during the hearing because

A.S.’s words and body language on the stand, her “I don’t knows,” her nods and other silent answers to questions, glances at [Barry], her facial expressions, all made it clear that she feared [Barry], felt that [Barry] would harm her for speaking against her, and was extremely reluctant there in [Barry’s] presence to say anything negative about [Barry].


The rules allow the ALJ to admit hearsay, and Barry has failed to establish that the ALJ abused his discretion by admitting or relying on hearsay evidence.  Barry has not offered any explanation on appeal why the hearsay is not the type of evidence on which reasonable, prudent persons are accustomed to rely in the conduct of their serious affairs.  Because the hearsay evidence was admissible under Minn. R. 1400.7300, subp. 1, it is not necessary for us to determine whether the ALJ erred in determining that it also was admissible under Minn. Stat. § 595.02, subd. 3.

Because the ALJ did not abuse his discretion by admitting and relying on hearsay evidence, and because the record contains substantial evidence supporting the commissioner’s decision, we affirm.