This opinion will be unpublished and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
and Public Health Department,
Minnesota Department of
Filed February 14, 2006
Hennepin County District Court
File No. AP 04-10486
Lee R. Johnson, Johnson & Greenberg, PLLP, Interchange Tower, #1025, 600 South Highway 169, St. Louis Park, MN 55426 (for appellant)
Amy Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, 525 Portland Avenue South, Suite 1210, Minneapolis, MN 55415 (for respondent Hennepin County Human Services & Public Health Department)
Attorney General, Laura N. Kirscher Strauss, Assistant Attorney General, 900
Considered and decided by Minge, Presiding Judge, Randall, Judge, and Crippen, Judge.
In January 2004, then 16-year old B-S.M. was sharing an apartment with appellant and J.M., B-S.M.’s sister and guardian. B-S.M. reported to her ninth-grade teacher that appellant had struck her on the right side of her face with a belt buckle. In an interview with a human services investigator, appellant asserted that B-S.M. was injured by a hanger when she attempted to hang up clothes in a bedroom closet. In contrast, B-S.M. reported that she was putting clothes into the closet when appellant entered the room, picked up a belt from the bed, and hit her in the face with the belt buckle. When she began bleeding, appellant took her to the hospital, where she received four stitches.
B-S.M. told a police officer that when she first arrived at the hospital with appellant, she told the doctor that she had cut her head when she fell into the closet. But B-S.M. told the officer that in truth, appellant had confronted her, slapped her face with his hand, pulled her into a bedroom, removed the belt from his pants, and struck her on the side of the head with the buckle. B-S.M. told the officer that she was afraid of appellant and that she planned to live with another sister.
Judicial review of the commissioner’s
decisions are governed by Minn. Stat. § 256.045, subd. 7 (2004). This court may reverse an agency decision only
if it violates constitutional provisions, exceeds the agency’s statutory
authority or jurisdiction, is made upon unlawful procedure, reflects an error
of law, is unsupported by substantial evidence, or is arbitrary or capricious.
Minn. Stat. § 256.045, subd.
3b(a)(1) (2004) provides that, at the agency level, maltreatment must be
established by preponderance, or a greater weight, of the evidence.
Appellant asserts that the referee’s decision to credit B-S.M.’s testimony was arbitrary and lacked record support because, he claims, there are numerous “material inconsistencies” between B-S.M.’s reports to a human services investigator and a police officer. But the evidence considered in its entirety demonstrates that B-S.M.’s accounts are consistent in their determinative assertion: that appellant struck her with a belt buckle. At least three of appellant’s claimed inconsistencies merely involve details omitted in one or the other version. Other conflicts, regarding exactly when and where appellant confronted B-S.M. and whether he took the belt from his pants or the bed, are insufficiently material to permit a conclusion that the referee arbitrarily accepted the report that appellant struck B-S.M. Evidence supporting the referee’s findings is substantial, not a mere scintilla.
Appellant also contends that the referee’s credibility determination rested on the implication that there had been inconsistencies in his own description of the facts. But the referee explicitly stated that she credited B-S.M’s testimony because it was “much more specific” about the circumstances of her injury, not because appellant gave inconsistent accounts. This fact determination is well within the referee’s province to assess the credibility of witnesses. See Zahler, 624 N.W.2d at 303 (noting deference to referee’s credibility decisions is appropriate).
The record shows no cause that overcomes the presumption of correctness demanded by law for the agency decision.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.