This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






Joann Divens,


Commissioner of Human Services,


Filed May 22, 2007


Minge, Judge


Department of Human Services

File No. 219254 FCC



Joann Divens, 7717 Beard Avenue North, Brooklyn Park, MN 55443 (pro se relator)


Lori Swanson, Attorney General, Margaret H. Chutich, Assistant Attorney General, 900 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)


            Considered and decided by Stoneburner, Presiding Judge; Minge, Judge; and Hudson, Judge.

U N P U B L I S H E D  O P I N I O N


MINGE, Judge


            Relator, an in-home daycare provider, appeals by writ of certiorari the decision of respondent Commissioner of the Department of Human Services denying her request to set aside a disqualification determination.  Relator argues that respondent’s decision is unsupported by substantial evidence, contains improper analysis, is arbitrary and capricious, and does not provide adequate explanation.  In addition, relator claims that two individuals supplied false testimony at the disqualification hearing.  We affirm. 


            Relator Joann Divens operated a daycare in her Brooklyn Park home for approximately ten years.  It was licensed by the Minnesota Department of Human Services (DHS).  On December 4, 2002, the Hennepin County Department of Children, Family, and Adult Services (DCFAS) notified relator that a background study indicated that she was disqualified from providing services licensed by DHS.  The disqualification notice was based on relator’s arrest for assaulting her 17-year-old son.  Relator’s fiancé told police that relator threw a plate at him during an argument and that the plate hit relator’s son in the face, resulting in a bleeding wound.  Relator was not prosecuted for the offense. 

            Relator requested both reconsideration and that the disqualification be set-aside.  DHS denied both requests.  Relator filed an appeal, and a hearing was held. At the hearing, both relator and her fiancé testified that she did not throw an object at her son, but that the son was injured accidentally.  The agency referee determined that this version of the events was not credible and that a preponderance of the evidence showed that relator committed fifth-degree assault.  The referee recommended that the commissioner uphold relator’s disqualification.  The commissioner did so.  Relator appealed to the district court, which affirmed the DHS decision. 

            After a second background study, a new notice of disqualification was issued in 2004.  Relator again requested reconsideration.  DHS refused to set aside the disqualification, but granted a variance.  Relator appealed DHS’s refusal to set aside the disqualification.  After conducting a hearing, an appeals referee affirmed DHS’s decision.  Relator again appealed to the district court, contending that she did not pose a risk of harm to children in her daycare.  But the district court affirmed, finding that the commissioner’s decision was “supported by substantial evidence and . . . neither arbitrary nor capricious.” 

            In February 2005, in response to the most recent background study, the Hennepin County Human Services Department notified relator that she was disqualified from providing direct contact services at her home daycare.  Relator requested that the county reconsider its determination, and the request was forwarded to the commissioner.  Again, the commissioner refused to set-aside the disqualification, but granted relator a variance, allowing her to continue providing services according to specified conditions.  This appeal follows. 


            The standard of review for this certiorari appeal provides that:

[T]he 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 [relator] may have been prejudiced because the administrative finding, inferences, conclusion, or decisions 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 (2006).


            Relator indirectly challenges the merits of her disqualification determination, by contending that two individuals supplied false information during the hearing and that evidence she presented was not fully considered.  The Human Services Licensing Act (Act) requires the commissioner to conduct a background study of all employees of programs that provide DHS-licensed services.  Minn. Stat. § 245C.03 (2006).  An individual is disqualified from providing licensed services after a background study shows, by a preponderance of the evidence, that the individual has committed any of several specified criminal acts.  Minn. Stat. § 245C.14, subd. 1(2) (2006).  The Act prescribes a seven-year disqualification period for individuals who commit fifth-degree misdemeanor assault.  Minn. Stat. § 245C.15, subd. 4(a)(2) (2006). 

            A disqualified individual may request that the commissioner reconsider a disqualification determination.  Minn. Stat. § 245C.21, subd. 1 (2006).  The individual requesting reconsideration must submit evidence that the information relied upon to disqualify the individual is incorrect, or that the individual “does not pose a risk of harm  . . . .”  Id., subd. 3(1), (3) (2006).  But the commissioner’s determination that “a preponderance of the evidence shows that the individual committed an act or acts that meet the definition of any of the crimes listed in section 245C.15” is conclusive after the district court issues its decision and the disqualified individual does not file an appeal.  Minn. Stat. § 245C.29, subd. 2(a)(2)(i) (2006).  In such cases, the disqualified individual is limited to challenging the commissioner’s risk-of-harm findings.  Id., subd. 2(c) (2006). 

            On June 24, 2004, the district court issued an order finding that the “record shows unequivocally that the disqualification is supported [by] a preponderance of the evidence and that [relator] committed an act that meets the definition of fifth degree assault, in violation of Minn. Stat. § 609.224, [s]ubd. 2.”  Relator filed no further appeal of this determination, and it became final. 

            The doctrine of res judicata prevents parties from relitigating claims when: “(1) the earlier claim involved the same set of factual circumstances; (2) the earlier claim involved the same parties or their privies; (3) there was a final judgment on the merits; [and] (4) the estopped party had a full and fair opportunity to litigate the matter.”  Hauschildt v. Beckingham, 686 N.W.2d 829, 840 (Minn. 2004).  Res judicata applies to administrative agency decisions when the “agency acts in a judicial or quasi-judicial capacity.”  See Graham v. Special Sch. Dist. No. 1, 472 N.W.2d 114, 115-16 (Minn. 1991). 

            Here, relator attempts to again challenge her 2004 disqualification determination.  This issue has already been resolved by an appeals referee and the district court, and the issue involves the same parties.  A final judgment on the merits resulted after relator presented her case, with the assistance of counsel.  Thus, we conclude that the doctrine of res judicata bars our consideration of the merits of relator’s disqualification determination.   


            The next issue is whether the commissioner erred in refusing to set aside relator’s most recent disqualification.  “The commissioner may set aside the disqualification if . . . the individual has submitted sufficient information to demonstrate that the individual does not pose a risk of harm to any person served by the . . . license holder . . . .”  Minn. Stat. § 245C.22, subd. 4(a) (2006).  Disqualified individuals bear the burden of showing that they do not pose a risk of harm.  Id.  In evaluating whether an individual poses a risk of harm, the commissioner must consider eight factors:

            (1) the nature, severity, and consequences of the event or events that led to the disqualification;

            (2) whether there is more than one disqualifying event;

            (3) the age and vulnerability of the victim at the time of the event;

            (4) the harm suffered by the victim;

            (5) the similarity between the victim and persons served by the program;

            (6) the time elapsed without a repeat of the same or similar event;

            (7) documentation of successful completion by the individual studied of training or rehabilitation pertinent to the event; and

            (8) any other information relevant to reconsideration.


Id., subd. 4(b) (2006).  Any of these factors, standing alone, “may be determinative of the commissioner’s decision whether to set aside the individual’s disqualification.”  Id., subd. 3 (2006).  When considering whether to set aside a disqualification, the commissioner must give “preeminent weight” to the safety of the individuals served by the license holder.  Id.  If the commissioner does not set aside a disqualification, “and there are conditions under which the disqualified individual may provide direct contact services or have access to people receiving services that minimize the risk of harm to people receiving services, the commissioner may grant a time-limited variance to a license holder.”  Minn. Stat. § 245C.30, subd. 1(a) (2006). 

            Here, a worksheet completed by the commissioner’s staff demonstrates that the commissioner considered the risk-of-harm factors.  With respect to the nature and severity of the single event leading to disqualification, the commissioner concluded that relator’s acts were “intentional, overt, violent.”  Regarding the consequences to the victim, the commissioner determined that the victim suffered “short-term damage” and “moderate harm.”  As to the age and vulnerability of the victim, the commissioner determined that relator’s son was “somewhat vulnerable.”  The commissioner also determined that there was “little similarity” between the victim and program clients.  The commissioner noted that fewer than four years had passed since the incident, that relator had not completed a training or treatment program, and that relator “does not accept responsibility” for the event leading to her disqualification.  “As a result,” the commissioner found, relator is “less likely to change [her] behavior in the future.”  The commissioner also noted, “there is no evidence that [relator has] undergone changes in [her] attitude and behavior that will make it unlikely that [relator] will commit a similar act in the future.”  Further, the commissioner noted:

The clients to be served are vulnerable due to their age, illness, or disability . . . .  These clients tend to have a wide range of individual needs, and may present extensive challenging behaviors to their caregivers.  Due to [relator’s] history of assault, there is a greater risk that [relator] would react in a similar manner to challenging behavior by these clients, than would a person who has never committed assault. 


            The commissioner acknowledged that “some of the factors may indicate a lesser risk of harm,” but focused on four factors that were “determinative” to its decision: (1) the vulnerability of the children served by relator; (2) relator’s failure to provide evidence of her rehabilitation; (3) relator’s failure to take responsibility for her actions; and (4) a risk that relator “would react in a similar manner to challenging behavior by [her] clients” in the future.  Relator argues that these factors are not supported by substantial evidence.  We examine each “determinative” factor in turn. 

Vulnerability of Children Served

            Relator does not directly address this factor, other than to argue that, at the time of the incident leading to her disqualification, her son was 17 years old, large in stature, and a “professional wrestler,” making him much less vulnerable than the children she serves in her daycare.  But the commissioner noted that relator’s clients “may present extensive challenging behaviors.”  There is a risk that relator could respond in a similar way when providing care for children, who are much more vulnerable than her son.  We conclude that the record supports the commissioner’s conclusion on this factor. 



Relator’s Rehabilitation

            There is no evidence in the record that relator has undergone any training or rehabilitation courses.  In fact, relator admits that she has not done so because she “was not requested . . . to take training or rehabilitation pertinent to this event.”  We conclude that relator’s failure to produce evidence that she has undergone training supports the commissioner’s decision to deny her set-aside request. 

Relator’s Responsibility for Actions

            Relator explains the events that led to her disqualification by claiming that “what happened that evening was purely [an] accident.”  Relator further explains:

I was walking to my bedroom with a plate of food, and a beverage in my hand, I had no idea when I turned around and yelled back at [my fiancé] that [my son] was walking behind me.  When I made the sudden turn to yell back at [my fiancé] . . . I bumped into [my son].


            This explanation of the event, in which relator denies that she intended to harm either her fiancé or her son, stands in direct conflict with the version of events as reported to the responding police officers on the night of the incident.  As previously noted, relator’s version of the events indicates that she has not taken responsibility for her actions and does not understand that her behavior was wrong.  We conclude that this factor supports the commissioner’s determination. 

Risk of Future Harm

            Relator argues that the event that led to her disqualification was an isolated event and is her “only incident on record.”  Relator also cites the passage of time, and the fact that she has not been involved in any similar incidents since that time.  But the commissioner found that relator’s failure to take responsibility or address her actions through a rehabilitation program makes it more likely that she could commit similar events in the future.  We conclude that there is substantial evidence supporting the commissioner’s decision and that it is neither arbitrary nor capricious. 

            Relator also contends that the commissioner failed to consider the evidence she presented in support of her arguments.  “[W]hen an individual requests reconsideration    . . . the Commissioner may not simply disregard information submitted with the request.”  Rodne v. Comm’r of Human Servs., 547 N.W.2d 440, 445 (Minn. App. 1996). 

            But here, none of the evidence that the commissioner allegedly ignored relates to the risk-of-harm factors the commissioner must balance when considering a request to set aside a determination.  Rather, the evidence relates to the merits of the disqualification determination, which, as noted, we do not address on appeal.  We therefore conclude that the commissioner’s decision is sufficiently supported by the record.