This opinion will be unpublished and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

A05-1825

 

In the Matter of the Revocation of

the Family Child Care License of Carole Bruhjell.

 

Filed August 15, 2006

Affirmed

Kalitowski, Judge

 

Human Services Department

File No. 12-1800-16446-2

 

Gwen Updegraff, Legal Aid Service of Northeastern Minnesota, 302 Ordean Building, 424 West Superior Street, Duluth, MN 55802 (for relator Carole Bruhjell)

 

Mike Hatch, Attorney General, 900 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Joseph M. Fischer, St. Louis County Attorney, 403 Government Services Center, 320 West Second Street, Duluth, MN 55802 (for respondent Commissioner of Human Services)

 

            Considered and decided by Worke, Presiding Judge; Toussaint, Chief Judge; and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Carole Bruhjell challenges the order of the Commissioner of the Department of Human Services revoking her license to perform childcare, arguing that the revocation is arbitrary and capricious because (1) her adult guest did not have unsupervised access to children in her care; (2) revocation of her childcare license is an excessive sanction; and (3) she substantially complied with the terms of her conditional license.  We affirm.

D E C I S I O N

            The commissioner’s decisions to revoke childcare licenses are presumptively correct and will not be reversed unless they are

arbitrary and capricious, exceed the agency’s jurisdiction or statutory authority, are made upon unlawful procedure, reflect an error of law, or are unsupported by substantial evidence in view of the entire record.  In reviewing an agency’s decision on a legal issue, this court is not bound by the agency’s ruling.  A reviewing court must defer to the agency’s fact-finding process and be careful not to substitute its findings for those of the agency.  Absent a clear abuse of discretion, a reviewing court must also defer to an agency’s choice of sanction.

 

In re Revocation of Family Child Care License of Burke, 666 N.W.2d 724, 726 (Minn. App. 2003) (citations omitted).

I.

            The commissioner concluded that Bruhjell

did not demonstrate by a preponderance of the evidence that she fully complied with Minnesota Rule 9502.0375 and Minn. Stat. § 245C.03 [requiring background studies on persons who may have unsupervised access to children in childcare facilities].  [Bruhjell] did demonstrate at the hearing that while an adult and two minor children had moved into a camper on her property, they did not move into [Bruhjell’s] home.  [Bruhjell] did not prove that the adult who had access to her property and sometimes to her home, did not also have access to the children in [Bruhjell’s] care.  See Minn. Stat. §§ 245C.02, subd. 2 and Minn. Stat. 245C.03, subd. 6 [sic].

 

We reject Bruhjell’s argument that the record does not support the commissioner’s conclusion that the woman staying in Bruhjell’s camper did not have unsupervised access to the children in Bruhjell’s care.

            The commissioner did not credit Bruhjell’s evidence, stating that Bruhjell had “a demonstrated and chronic pattern” of “not cooperating with and providing truthful information to her licensing workers,” that it was “extremely difficult to believe” that the woman living in the camper had no access to the children in daycare given the proximity of Bruhjell’s house, playground equipment, and camper, and that the commissioner “cannot rely” on Bruhjell’s disclosures on the question of access.  We defer to the commissioner’s credibility determinations.  Saif Food Mkt. v. State, Comm’r  of Health, 664 N.W.2d 428, 431 (Minn. App. 2003); cf. Varner v. Varner, 400 N.W.2d 117, 121 (Minn. App. 1987) (stating district court not required to believe even uncontradicted testimony if there are reasonable grounds to doubt its credibility). 

            Moreover, even if the commissioner erred regarding Bruhjell’s guest, the remainder of the order is independently sufficient to affirm the revocation of Bruhjell’s childcare license.  It details Bruhjell’s failures to meet deadlines for obtaining training, submitting a plan for supervision of children in her care, and documenting that the parents of the children in her daycare had received or reviewed a copy of Bruhjell’s conditional license.  In addition, the commissioner determined that Bruhjell “did not take compliance with the terms of her conditional license seriously.”  The record supports the determination that Bruhjell’s uncooperative conduct and untimely compliance with conditions, along with her provision of inaccurate information hindered the commissioner’s ability to ensure protection of children in Bruhjell’s care.

II.

            When selecting a sanction to impose on a licensee, the commissioner “shall consider the nature, chronicity, or severity of the violation of law or rule and the effect of the violation on the health, safety, or rights of persons served by the program.”  Minn. Stat. § 245A.07, subd. 1 (2004).  Here, the commissioner properly cited Minn. Stat. § 245A.07, subd. 1, addressed the statutory factors, and directed revocation of Bruhjell’s childcare license.

            Bruhjell argues that, except for admitting an infant to her childcare when she did not have training regarding Sudden Infant Death Syndrome (SIDS), her violations were neither severe nor chronic.  She also argues that several of the violations recited by the commissioner were not violations at all or were problems for which Bruhjell was not responsible and should not have been used as bases to revoke her license.  Bruhjell admits, however, that she is “certainly guilty” of providing untruthful information to and not cooperating with her licensing workers, of poor record keeping, and of failing to obtain SIDS training.

            The commissioner noted Bruhjell’s “chronic pattern” of “not cooperating with and providing [un]truthful information to her licensing workers,” and stated that because he could not “protect the safety of children” based on incorrect information provided by a licensee, “revocation is appropriate in this case.”  Licensing and monitoring of childcare facilities “requires heightened scrutiny.”  Burke, 666 N.W.2d at 728.  And the commissioner cannot license and monitor childcare facilities with the “heightened scrutiny” mentioned in Burke if the information the commissioner gets from a licensee is incomplete, unclear, or inaccurate.  Given Bruhjell’s history of problems and the fact that the prior sanctions of a conditional license and a fine were ineffective in resolving the problems, the commissioner was properly concerned about Bruhjell’s chronic lack of cooperation and candor.

            Bruhjell also argues that revocation of her license is too severe a sanction because to the extent her revocation was based on her failure to comply with the deadlines in her conditional license in a timely fashion, these defects do not threaten persons in her care.  But the core of the commissioner’s order is Bruhjell’s persistent lack of candor and refusal to cooperate with authorities, subjects on which we defer to the commissioner.  Saif Food Mkt., 664 N.W.2d at 431.

            Bruhjell further argues that childcare is her livelihood and revocation of her license will have “serious consequences” for her because it will preclude her from doing licensed and unlicensed childcare.  She also asserts that revoking her childcare license will adversely impact the families for whom she provides childcare.  The commissioner acknowledged Bruhjell’s assertion that childcare was her livelihood, but still imposed the sanction, correctly noting that “[t]he emphasis in the licensing appeal process is not on the right of the licensee to hold a license but on the safety of children in care.”

III.

            Admitting that she did not timely comply with the terms of her conditional license, Bruhjell argues that because, eventually, she substantially complied with that license, her childcare license should not have been revoked.  But Bruhjell cites no authority for the proposition that substantial compliance with a conditional license precludes revocation.  Moreover, where, as here, the commissioner shows “reasonable cause” exists to impose a sanction, “the burden of proof shifts to the license holder to demonstrate by a preponderance of the evidence that the license holder was in full compliance with those laws or rules that the commissioner alleges the license holder violated.”  Minn. Stat. § 245A.08, subd. 3(a) (2004) (emphasis added).  Thus, we reject Bruhjell’s argument that the commissioner was required to credit her alleged substantial compliance.

            Affirmed.