may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Minnesota Department of Human Services,
Reversed and remanded
Department of Human Services
File No. 809025R3
John G. Shulman, Eileen J. Shields, Shulman, Walcott & Shulman, P.A., 2999 Norwest Center, 90 S. Seventh St., Minneapolis, MN 55402 (for relator)
Hubert H. Humphrey III, Attorney General, Terri D. Yellowhammer, Asst. Attorney General, 445 Minnesota St., Suite 900, St. Paul, MN 55101-2127 (for respondent)
Considered and decided by Huspeni, Presiding Judge, Amundson, Judge, and Foley, Judge.[*]
Relator, the administrator of an early childhood facility, received a citation from respondent Department of Human Services for emotional abuse of a child allegedly committed by a staff member. Because we are unable to conduct meaningful review of the citation, we reverse and remand.
Relator Parents in Community Action, Inc. (PICA), the federal Project Head Start grantee for Hennepin County, administers early childhood facilities. An anonymous phone call alerted respondent Department of Human Services (DHS) to possible maltreatment of a child at Project Secure, one of relator's facilities. The caller alleged that a staff member at Project Secure had, inter alia, called a child a "cry baby."
DHS representatives made an unannounced visit to Project Secure and interviewed ten staff members. All staff members were asked "Are you aware of a staff person calling a child a cry baby? Who? When? Where? How often?" Three staff members, including the accused individual, said they were not aware of such an incident; two more said they had heard that it happened but had not observed it. The sixth staff member stated that the accused individual had said to a child, "Don't be such a cry baby"; the seventh stated that this individual carried a child off the bus and called him a cry baby; the eighth said the individual called children cry babies and belittled them; the ninth said the individual told a crying child to "stop being a cry baby"; and the tenth said she had heard someone call a child a cry baby but would not identify who had done so.
The DHS then sent PICA a letter notifying it of "Violations and Correction Orders." The first citation was to Minn. R. 9503.0055, subpt. 1, mandating that children be provided with positive models of acceptable behavior, and Minn. R. 9503.0055, subpt. 3, prohibiting the emotional abuse of children. The violation stated that: "It was determined that a staff person yelled at and shamed a child by calling the child a `cry baby.'" The corrective action required by DHS was that PICA submit documentation verifying that the perpetrator had registered for, and subsequently completed, a ten-hour course from an outside agency in behavior guidance. DHS also informed PICA that a request for reconsideration could be filed with the DHS.
PICA sought reconsideration, denying
the allegations that name calling or shaming was done to a child by the staff person in question * * *. There is insufficient credible data to support the allegation. It is one disgruntled person's word against that of another. If DHS supports an anonymous allegation, without ample evidence, it serves to undermine the ability of PICA to hold its staff accountable whereby any disgruntled employee could make unsubstantiated allegations. There is no date, time, child or situation identified to prove that this occurred. We are confident that DHS will reconsider the citation by examining the anonymous caller's motives which we strongly suspect are the result of adverse personnel action against the caller.
The DHS replied:
The complaint investigation summary indicated four different staff members stated that they heard the alleged perpetrator (AP) call a child a "child baby." A fifth staff person indicated that a child was called a "cry baby" but refused to disclose the name of the individual.
A review of the record does not indicate that the licensing citation was inappropriate.
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. * * * The court will intervene * * * where there is a combination of danger signals which suggest the agency has not taken a hard look at the salient problems and the decision lacks articulated standards and reflective findings.
Cable Communications Bd. v. Nor-west Cable Communications Partnership, 356 N.W.2d 658, 668-69 (Minn. 1984) (citations and quotations omitted).
The decision of DHS not to remove the citation against PICA raises for this court concerns similar to those expressed in Cable Communications. The record in this case consists of the notes taken by respondent's licensor during on-site visitation and interviews with PICA staff members. Based upon that record, PICA received a violation notice dated November 21, 1996, indicating that "a staff person yelled at and shamed a child." DHS's response to PICA's request for reconsideration did not contain the word "yelled" as the November 21, 1996, notice had.
The relevance of the omission of the word "yelled" depends, we believe, upon resolution of a larger question: Can the DHS determination of emotional abuse be sustained on findings which do not address the context, surrounding circumstances, and tone of voice in which words were uttered? We conclude it cannot. The same words, spoken in one context or tone of voice to soothe or cajole, would not be emotionally abusive, but these words could meet that definition if spoken to punish or ridicule. On this record we are left to conjecture. The decision of DHS does not reflect a clear, comprehensive picture of the incident or incidents relied on in the November 21, 1996, citation or in the subsequent decision not to remove the citation because emotional abuse of a child had occurred. That decision lacks "articulated standards and reflective findings." Cable Communications, 356 N.W.2d at 669.
This case raises an additional concern--one nearly identical with that expressed in Rodne v. Commissioner of Human Services, 547 N.W.2d 440, 445 (Minn. App. 1996) (holding that in a proceeding to disqualify a licensed individual, "[t]he Commissioner must consider the information submitted with the request for reconsideration and determine whether the information relied upon to disqualify an individual is incorrect.").
In the case before us there was no hearing at which both parties could have presented evidence of the circumstances surrounding the incident. PICA's request for reconsideration specifically denied that the incident had occurred and pointed out that the accused staff member was a long-standing and well-regarded employee, that the evidence consisted of one disgruntled person's word against another, and that no date, time, child, or situation had been identified. The response to that request simply reiterated that four staff members had said they heard the accused staff member "call a child a `cry baby.'" There is no indication that respondent attempted to consider the information provided with the request for reconsideration.
We conclude that relief similar to that fashioned in Rodne is appropriate here. We reverse the challenged citation and remand to permit DHS to consider the information submitted by PICA in its request for reconsideration and to make findings sufficient to enable this court to conduct meaningful review on the issue of whether emotional abuse did, in fact, occur. DHS, in its discretion, may reopen the record to receive such additional evidence from the parties as may be of assistance in meeting the remand directives.
Reversed and remanded.
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
The caller's identity is protected as confidential information by Minn. Stat. § 626.556, subd. 11 (1996).
 There was also a violation for driving children under four years of age without use of a child restraint system. That citation is not a subject of this appeal.
3 We accept that use of the word "child" was inadvertent and "cry" was intended.
 Notwithstanding our other concerns regarding the DHS decision, we reject relator's argument that the interview notes were inadmissible as hearsay. Administrative hearings need not be conducted in compliance with the rules of evidence. See Schumann v. State, 367 N.W.2d 688, 690 (Minn. App. 1985).