This opinion will be unpublished and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

A04-1937

 

In re the appeal of Anthony Wajda.

 

Filed June 21, 2005

Affirmed; motion granted
Crippen, Judge*

 

Hennepin County District Court

File No. WA 03-14524

 

R. Donald Hawkinson, 1455 West Lake Street, Suite 308, Minneapolis, MN 55408-2648 (for appellant Wajda)

 

Mike Hatch Attorney General, Kerri Stahlecker Hermann, Assistant Attorney General, Suite 900, 445 Minnesota Street, St. Paul, MN 55101-2127 (for respondent Minnesota Department of Human Services)

 

Amy Klobuchar, Hennepin County Attorney, Arthur W. Katzman, Sr. Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent Hennepin County Department of Children, Family, and Adult Services)

 

            Considered and decided by Willis, Presiding Judge, Klaphake, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

            Appellant disputes the decision of respondent Minnesota Department of Human Services (state agency), affirmed by the district court, finding him guilty of caregiver neglect.  He contends that the finding of neglect of his son, a vulnerable adult, was unsupported by substantial evidence and that evidence requires application of an exemption for therapeutic conduct.  Because the state agency findings are based on substantial evidence, we affirm.

FACTS

            Appellant Anthony Wajda is the father and primary caregiver of 26-year-old A.J.W., who is autistic and nonverbal.  In July 2002, respondent Hennepin County Department of Children, Family, and Adult Services (county department) received a report alleging appellant’s maltreatment of A.J.W.  The report stated that appellant continued to give A.J.W. plastic drinking straws despite his knowledge that A.J.W. chewed and swallowed the straws, once causing a bowel obstruction that required surgery.  Appellant allowed A.J.W. to chew the plastic straws as “calming mechanisms” but asserts that he did not intentionally allow him to swallow the straws.  Before ingesting straws, A.J.W. chewed on pencils and pens.  He was given straws because he swallowed the erasers on the pencils and bit the pens, getting ink all over himself.  Appellant testified that all of A.J.W.’s caregivers gave him plastic drinking straws. 

            On June 30, 2002, A.J.W. was admitted to Unity Hospital due to abdominal pain.  X-rays revealed a small bowel obstruction, and a CT scan showed foreign material in the right lower quadrant.  Dr. Stoltenberg discussed the test results with appellant, who admitted that A.J.W. chewed and swallowed plastic straws and had been doing this for eight to nine years.  Although surgery was recommended to remove the straws, appellant chose to take A.J.W. home against medical advice.  Appellant indicated that because A.J.W. had been eating straws for a number of years, he believed the straws would eventually pass through the bowel as they had on previous occasions.  On July 26, appellant returned A.J.W. to Unity Hospital because A.J.W. was experiencing increased abdominal pain.  This time, appellant consented to surgery on A.J.W.  After surgery, appellant again allowed A.J.W. to play with plastic drinking straws in an effort to calm him.  Nurses admonished appellant to refrain from giving A.J.W. any plastic straws.

            The county department investigated the complaint and informed appellant that the findings were consistent with the allegation of caregiver neglect.  The department concluded that appellant was aware that A.J.W. was swallowing the plastic drinking straws.  When the state agency referee conducted a hearing in May 2003, appellant acknowledged that school officials had previously informed him that plastic straws were found in A.J.W.’s feces.  The referee affirmed the determination of caregiver neglect.  Appellant sought review in district court and on August 4, 2004, the court issued its final order affirming the state agency finding of caregiver neglect. 

D E C I S I O N

Standard of Review

 

            In an appeal from the district court’s review of an agency decision, we review the agency’s decision to determine whether it is “unsupported by substantial evidence in view of the entire record as submitted,” is “arbitrary or capricious,” or whether the agency made an error of law.  Minn. Stat. § 14.69 (2004).  “This court reviews the commissioner’s order independently, giving no deference to the district court’s review.”  Zahler v. Minn. Dep’t of Human Servs., 624 N.W.2d 297, 301 (Minn. App. 2001), review denied (Minn. June 19, 2001). 

1.

The definition of neglect for purposes of Minn. Stat. § 626.5572, subd. 17 (2002), consists of a caregiver’s failure to provide “reasonable and necessary” care for the adult’s health and safety, taking into account his dysfunction, “which is not the result of an accident or therapeutic conduct.”  Id., subd. 17(a). 

            Appellant argues that the state agency’s decision was unsupported because there was no evidence as to which caregiver gave A.J.W. the plastic drinking straws.  But appellant’s own testimony establishes that he gave A.J.W. plastic straws, that he allowed other caregivers to also give A.J.W. straws, and that he knew of A.J.W.’s propensity to swallow the plastic straws as well as pencil erasers.  This evidence permits the finding that appellant failed to provide the supervision reasonably necessary to maintain A.J.W.’s safety. 

2.

            Therapeutic conduct is not included in the definition of neglect under Minn. Stat. § 626.5572, subd. 17(a)(2).  Therapeutic conduct is defined in subdivision 20 as “the provision of program services, health care, or other personal care services done in good faith in the interests of the vulnerable adult by . . . a caregiver.”  Appellant argues that giving A.J.W. plastic drinking straws constitutes therapeutic conduct because the straws were used as “calming mechanisms.”  But as the district court correctly noted, the conduct in furnishing plastic straws was no less harmful because it calmed A.J.W. 

There was ample evidence that appellant was aware that A.J.W. was swallowing the plastic drinking straws.  Appellant informed A.J.W.’s doctor that A.J.W. had been chewing and swallowing straws for eight to nine years.  Appellant also was aware that A.J.W. had ingested pencil erasers in the past.  Appellant furnished more straws to A.J.W. after the 2002 surgery.  The state agency referee’s decision that appellant was not acting in A.J.W.’s best interests is supported by substantial evidence.

Appellant also argues that the statutory respect for therapeutic conduct shows an aim to address only intentional harm.  He contends that there was no evidence submitted showing that he intentionally allowed A.J.W. to swallow the plastic drinking straws.  But permission for therapeutic conduct extends only to good faith service of a vulnerable adult’s interests, as the agency referee observed.  Evidence that appellant furnished plastic straws to his son, knowing that A.J.W. often swallowed them, permitted the finding of neglect in spite of the evidence that appellant did not intentionally inflict harm.

Appellant argues that a separately stated therapeutic conduct exception applies to his use of the plastic drinking straws.  This exception states that a vulnerable adult may not be neglected when an individual makes an error, “not part of a pattern of errors,” in providing therapeutic conduct.  Id., subd. 17(c)(5)(iii). 

The evident purpose of this therapeutic conduct provision is to exempt the caregiver who gives appropriate care that unintentionally causes harm to the vulnerable adult.  The exception presupposes that the caregiver’s actions meet the definition of therapeutic conduct outlined in Minn. Stat. § 626.5572, subd. 20.  Even if this court were to determine that the use of the drinking straws constituted therapeutic conduct, the exception in subdivision 17(c)(5) would still be inapplicable.  The evidence demonstrates that appellant’s failure to adequately supervise A.J.W., thereby allowing him to ingest the plastic straws, had been occurring for eight to nine years prior to A.J.W.’s surgery.  Even after surgery, appellant continued to give A.J.W. plastic drinking straws despite repeated warnings from hospital staff.  Because appellant’s conduct is part of a pattern of errors, it does not fall within this therapeutic conduct exception. 

3.

            This court also has before it a motion to strike portions of appellant’s brief and appendix not previously submitted to the district court.  Appellant argues that Minn. Stat. § 256.045, subd. 8 (2002), allows this court to take new or additional evidence if it determines that “such evidence is necessary for a more equitable disposition of the appeal.”  This statute allows the district court to hear additional evidence but does not authorize this court to make the determination that such evidence is necessary.  Id.  Therefore, the motion is granted.

            Affirmed; motion granted.