Laura Chigozini Iroabuchi, Relator, vs. Commissioner of Human Services, Respondent.

Laura Chigozini Iroabuchi, Relator, vs. Commissioner of Human Services, Respondent. A06-1303, Court of Appeals Unpublished, May 1, 2007.

This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1303

 

Laura Chigozini Iroabuchi,

Relator,

 

vs.

 

Commissioner of Human Services,

Respondent.

 
Filed May 1, 2007

Affirmed

Collins, Judge*

 

Human Services Department

File No. 900055-A

 

Laura Chigozini Iroabuchi, 3140 Minnehaha Avenue South, Apartment 9, Minneapolis, MN 55406 (pro se relator)

 

Lori Swanson, Attorney General, Stephanie A. Riley, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for respondent)

                       

            Considered and decided by Hudson, Presiding Judge; Dietzen, Judge; and Collins, Judge.

U N P U B L I S H E D   O P I N I O N

COLLINS, Judge

Relator challenges the decision of the Department of Human Services (DHS), which disqualified her from holding any position allowing direct contact with persons who receive services from DHS-licensed programs, arguing that (a) she has accepted full responsibility for her underlying crime and served four months in an adult correction facility; (b) hers was not a crime against persons and she does not otherwise have a criminal background; and (c) with this disqualification she is effectively disabled from completing her nursing education and becoming a nurse.  We affirm the DHS's decision.

FACTS

            In January 2006, relator Laura Chigozini Iroabuchi was convicted of gross-misdemeanor theft-by-swindle under Minn. Stat. § 609.52.1 (2004) for stealing merchandise from the retail store where she worked part-time.  Iroabuchi was enrolled in a practical-nursing program at Anoka Technical College (Anoka Tech) and, in connection with her training, was also employed part-time in nursing homes at Lake Ridge Health Care Center (Lake Ridge) and University Good Samaritan Center (Good Samaritan).  The DHS was asked to determine whether the conviction disqualified Iroabuchi from working at the nursing homes.

            The DHS conducted a background study, including a risk-of-harm assessment under Minn. Stat. § 245C.16, subd. 1(b) (2006), and determined that Iroabuchi's conviction created a disqualifying characteristic.  The DHS notified Iroabuchi, Anoka Tech, Good Samaritan, and Lake Ridge of Iroabuchi's disqualification from "any position allowing direct contact with, or access to, persons receiving services from facilities licensed by the Department of Human Services and the Minnesota Department of Health."

            Iroabuchi applied for reconsideration of the disqualification in February 2006.  Iroabuchi did not dispute her conviction; instead, she challenged the DHS's finding that she posed a risk of harm.  The DHS conducted a second risk-of-harm assessment under Minn. Stat. § 245C.22, subd. 4(b) (2006), and reaffirmed the disqualification.  On May 22, 2006, Iroabuchi was notified that her disqualification would not be set aside.  The DHS's letter explained that, after considering all statutorily required factors, Iroabuchi's reconsideration request was denied because she failed to demonstrate that she did not pose a risk of harm.  Two factors were detailed as determinative: 

1.  The vulnerability of the people for whom you wish to provide direct contact services.  In your request for reconsideration you indicated that you provide care to persons who need assistance with activities of daily living.  These individuals would be vulnerable to theft.

 

2.  It has been less than one year since your conviction for the disqualifying offense.  This type of offense is a disqualification for ten years from the time you have completed your sentence, including probation.  You have not yet successfully completed your probationary period.  It is therefore too soon to conclude that you have changed your attitude and behavior.

 

This certiorari appeal followed.

D E C I S I O N

            Because no contested-case hearing was held, this certiorari appeal of the DHS's decision is not brought under the Administrative Procedure Act, Minn. Stat. §§ 14.63-.69 (2006).  See Rodne v. Comm'r of Human Servs., 547 N.W.2d 440, 444 (Minn. App. 1996).[1]  In reviewing such a decision, this court considers "whether the order or determination in a particular case was arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any evidence to support it."  Id. at 445 (quoting Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992).  The DHS may grant an application to set aside a disqualification if it finds that the applicant does not pose a risk of harm to persons served.  Minn. Stat. § 245C.22, subd. 4(a) (2006). 

            Upon reconsideration of an applicant's disqualification, the applicant bears the burden of submitting sufficient evidence to show that she or he does not pose a risk of harm to any person served.  Id.  In determining whether or not an individual poses a risk of harm, the commissioner must consider:

(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.

 

Minn. Stat. § 245C.22, subd. 4(b) (2006).  Any of these factors may be determinative of the DHS's decision, and the preeminent consideration is the safety of the persons served in the program from which the applicant was disqualified.  Minn. Stat. § 245C.22, subd. 3 (2006).

The DHS reviewed each of these factors during its reconsideration of Iroabuchi's disqualification.  In particular, the DHS noted that the criminal act was intentional, caused moderate damage, and occurred recently.  Favorable to Iroabuchi, the DHS also noted that (a) the conviction was isolated, (b) the victim, a retail store, was not particularly vulnerable, (c) Iroabuchi accepted responsibility, and (d) there was little similarity between the victim and the program clients.

            On appeal to this court, Iroabuchi argues that it is "unfair to prevent [her] from completing [her] education . . . for a conviction which [she] has already served [her] time and learned a valuable lesson from and corrected [her] conduct and behavior."  She pleads on "bended knees" for her disqualifying characteristic to be set aside, explaining that she fully accepted responsibility and "punished [herself] immensely, asked for forgiveness from the store, [her] family and friends and sought repentance in church."  Finally, Iroabuchi argues that becoming a nurse has been a life-long goal and that she has no other convictions on her record. 

            In denying Iroabuchi's reconsideration request, the DHS observed that the disqualifying criminal conduct occurred so recently that relator had "not yet successfully completed [her] probationary period" and concluded that it was simply too soon to determine if Iroabuchi had changed her attitude and behavior.  Moreover, the DHS reflected on its concern for the people whom Iroabuchi wishes to serve and their vulnerability to theft. Based on this concern, which the DHS acknowledged as the preeminent factor in refusing to set aside the disqualification, and the recency of Iroabuchi's disqualifying offense, both of which are supported by the record, the decision of the DHS was not arbitrary, unreasonable, or otherwise erroneous as a matter of law.

            Affirmed.      

* Retired judge of the district court, serving as judge of the Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1]Respondent contends that Minnesota's Administrative Procedure Act governs here, citing Brunner v. State, Dep't of Pub. Welfare, which applied a substantial-evidence test to judicial review of a grant reduction to families with dependent children.  285 N.W.2d 74, 79 (Minn. 1979).  Brunner was a proceeding under Minn. Stat. § 256.045, subd. 7, and thus involved a different review process, one that led to a district-court hearing.  Id.  Here, however, no appeal was made to a district court, thus this case is analogous to Rodne and its progeny.