In the Matter of the Indefinite Suspension of the Family Child Care Licenses of Christine Svee.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-446

 

In the Matter of the Indefinite Suspension
of the Family Child Care Licenses of Christine Svee

 

Filed December 7, 2004

Affirmed

Stoneburner, Judge

 

Human Services Department

File No. 121800155582

 

Michael J. Dolan, Thomas P. Klecker, Thornton, Hegg, Reif, Dolan & Bowen, P.A., Box 819, 1017 Broadway, Alexandria, MN 56308 (for relator)

 

Christopher Karpan, Douglas County Attorney, Daniel Lee, Assistant County Attorney, 305 Eighth Avenue West, Alexandria, MN 56308; and

 

Mike Hatch, Attorney General, Michael E. Burns, Stephanie Riley, Assistant Attorneys General, Suite 900, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2109 (for respondent)

 

            Considered and decided by Wright, Presiding Judge; Peterson, Judge; and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Relator Christine Svee appeals by writ of certiorari the order of the Commissioner of the Department of Human Services denying her motion for reconsideration and upholding the indefinite suspension of her family-child-care license.  Relator argues that the commissioner abused his discretion by failing to consider the criteria for sanctions set forth in Minn. Stat. § 245 A. 07, subd. 1 (2002).  Because the commissioner did not abuse his discretion, we affirm.

FACTS

 

            Relator has operated a family daycare in the lower level of her home for 8 years.  The daycare is licensed by respondent Minnesota Department of Human Services (DHS).  In mid- to late-July 2003, relator's 12-year-old stepdaughter, B.S, who lives with relator, engaged in sexual contact with a 7-year-old child in relator's daycare.  A delinquency petition alleged that B.S. had committed second-degree criminal sexual conduct, a felony level offense. 

            Despite relator's work with a Douglas County Social Services (DCSS) social worker to develop a safety plan that would eliminate contact between B.S and children in relator's daycare and support for relator by many of the parents of the children in the daycare, DHS suspended relator's family-child-care license indefinitely so long as B.S. continues to reside in relator's home.  The order suspending relator's license initially stated that the suspension was based on relator's failure to provide adequate supervision as required by Minnesota rules on child-care licensing and operation because relator was not sufficiently aware of the location and activities of the 7-year-old and B.S. when the sexual contact occurred in a shed on relator's property.  DHS denied a request for reconsideration and later amended the order of suspension to add as an additional basis for suspension the fact of B.S.'s disqualification from direct contact with or access to persons served by a licensed program under Minn. Stat. §§ 245C.14 and .15 (Supp. 2003) (requiring disqualification of an individual who is subject to  background study from direct contact with or access to persons served by licensed program when preponderance of the evidence shows individual committed the type of felony criminal sexual conduct to which B.S. admitted).

            Relator appealed.  Much of the contested hearing before an administrative law judge focused on relator's plan to keep B.S. separate from children in the daycare.  Relator's safety plan was acceptable to DCSS and all of the parents of children in the daycare but was rejected by DHS.  The ALJ recommended that the commissioner set aside B.S.'s disqualification and lift the suspension of relator's family child-care license, concluding that relator had "prove[d] by a preponderance of the evidence that the disqualification [of B.S.] should be set aside because the supervision plan ensures that [B.S.] does not pose a risk of harm to [relator's] clients."  In an attached memorandum the ALJ noted that neither the statutes nor the rules require that a disqualified household member must be removed from the residence in order for a licensee to remain licensed.      

            DHS submitted exceptions to the ALJ's conclusions.  The commissioner issued an order adopting all of the ALJ's findings of fact and many of the ALJ's conclusions of law.  But the commissioner concluded that relator's plan "limits opportunities for direct contact between [B.S.] and the day care children," and that, as a household member, B.S.'s access to the children could never be "completely eliminated."  The commissioner also concluded that relator did not prove "by a preponderance of the evidence that her stepdaughter does not pose a risk of harm to [relator's] clients," as required to set aside B.S.'s disqualification.  DHS ordered that relator's family-child-care license be indefinitely suspended. 

            Relator requested reconsideration and provided notice of the new information that B.S.'s juvenile case had been continued for dismissal, and B.S. had not been adjudicated on the charge of second-degree criminal sexual conduct.  The commissioner denied reconsideration.  This appeal by writ of certiorari followed.

D E C I S I O N

 

            Agency decisions are presumed correct, and courts must defer to the agency's expertise.  In re Space Ctr. Transp., 444 N.W.2d 575, 579 (Minn. App. 1989).  A reviewing court must uphold an agency's decision unless the decision violates the constitution, exceeds the agency's authority or jurisdiction, is a result of unlawful procedure or other error of law, is not supported by substantial evidence, or is arbitrary and capricious.  Minn. Stat. § 14.69 (2002).  "The party seeking review of the agency action has the burden of proving that the agency's conclusions violate one or more of the provisions of section 14.69."  In re Space Ctr., 444 N.W.2d at 579.

            "[T]he imposition of a sanction lies within the discretion of an agency."  In re Licenses of Kane, 473 N.W.2d 869, 877 (Minn. App. 1991) (citing In re Haugen, 278 N.W.2d 75, 80 n. 10 (Minn. 1979)), review denied (Minn. Sept. 25, 1991).  The agency's discretion in sanctioning is "not unfettered" and if abused, the sanctions will be set aside on appeal.  Id. at 878.  The sanction imposed must not exceed that "necessary to protect the public and to deter such conduct in the future."  Id. (citations omitted).  This court only reviews for abuse of discretion and does not determine sanctions.  See In re the Matter of the Family Child Car License of Burke, 666 N.W.2d 724, 728 (Minn. App. 2003).

            "The standard of review is not heightened where the final decision of the agency decision-maker differs from the recommendation of the ALJ."  In re Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 278 (Minn. 2001).  And "although reviewing courts are not bound by an agency's interpretation of the law, ‘an agency's interpretation of the statutes it administers is entitled to deference and should be upheld, absent a finding that it is in conflict with the express purpose of the Act and the intention of the legislature.'"  In re Henry Youth Hockey Ass'n, 511 N.W.2d 452, 455 (Minn. App. 1994) (quoting Geo. A Hormel & Co. v. Asper, 428 N.W.2d 47, 50 (Minn. 1988)). 

            Relator argues that indefinite suspension of her license constitutes an abuse of discretion because the commissioner failed to address the criteria for license sanctions contained in Minn. Stat. § 245 A. 07, subd. 1 and DHS rules.  The statute provides that:

In addition to making a license conditional under section 245 A. 06, the commissioner may propose to suspend or revoke the license, impose a fine, or secure an injunction against the continuing operation of the program of a license holder who does not comply with applicable law or rule.  When applying sanctions authorized under this section, 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. § 245 A. 07, subd. 1.

DHS agency rules divide possible daycare license sanctions into three main types of enforcement actions: issuance of correction orders, probation and negative licensing actions.  Minn. R. 9543.1050, subps. 1, 7.  Within the negative licensing actions are suspension, immediate suspension, and revocation.  Minn. R. 9543.1060.  The rules reflect a relative hierarchy of sanctions, increasingly severe based on the effect of the violations.

 

In re Burke, 666 N.W.2d at 727.

            Relator relies extensively on the Burke decision, which reversed the commissioner's order for revocation of Burke's daycare license, remanded with directions to reconsider a lesser sanction and required an explanation of any negative licensing sanction, considering the nature of the conduct and the choice among sanctions.  Id. at 728.  This case is distinguishable, however, because, in this case, the commissioner based the suspension on Minn. R. § 9502.0335, subp. 6 (D), which requires that a license be revoked, not renewed, or suspended if any person living in the daycare residence has a disqualification under Minn. Stat. § 245 A. 04, subd. 3 (which in turn refers to 245C).  Burke did not involve a disqualified person living in the daycare residence.  The analysis and explanation for sanctioning that was lacking in Burke is not lacking in this case.

            Relator does not challenge B.S.'s disqualification, and, on appeal, relator has not argued that failing to set aside B.S.'s disqualification was an abuse of the commissioner's discretion.  Relator argues that because Minn. Stat. § 245C does not require revocation of a license when a disqualified person lives in the daycare residence, B.S.'s presence in relator's residence is only one factor among many to be considered by DHS.  Relator then argues that most of the other factors in this case lead to the conclusion that issuance of a license conditioned on relator's safety plan is, as a matter of law, the appropriate sanction. 

            But although Minn. Stat. § 245C, does not require revocation or suspension of a family daycare provider's license when a disqualified person resides in the daycare residence, Minn. R. 6502.0335, subp. 6(D), requires that a daycare license "shall be revoked, not renewed, or suspended if the . . . provider, or any other person living in the daycare residence or present during the hours children are in care, or working with children . . . has a disqualification under Minnesota Statutes, section 245 A. 04, subdivision 3d."  Relator does not address this rule in her brief on appeal and erroneously argues that the commissioner's decision is based on an arbitrarily applied policy that is not required by statute or rule. 

            At oral argument, relator acknowledged the existence of the rule but argued that its application is discretionary and that the rule does not eliminate the need for analysis of the statutory factors.  We disagree.  The plain language of the rule makes its application mandatory when a disqualified person is in the daycare residence.  And, in this case, the commissioner imposed the least restrictive alternative provided by the rule.

            Relator does not argue that the rule was improperly adopted or that the rule exceeds the commissioner's statutorily delegated authority.  It is undisputed that B.S. has a disqualification under the cited statute, lives in the daycare residence, and is sometimes present in the residence while children are in care.  The commissioner's decision reflects an awareness of relator's proposed safety plan and the fact that B.S. was not adjudicated on the criminal sexual conduct charge, but DHS concluded that relator had not proven by a preponderance of the evidence that B.S. does not pose a risk of harm to relator's clients, and declined to set aside the disqualification.  The commissioner applied a legitimate rule to the facts and upheld the indefinite suspension of relator's license.  We conclude that the commissioner's decision adequately reflects a consideration of the specific facts of this case and a consideration of sanctioning factors, does not constitute an abuse of discretion, and is not arbitrary or capricious.

            Affirmed.