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In re Revocation of the Family Child Care License of Burke

August 5, 2003


Department of Human Services

Considered and decided by Toussaint, Chief Judge, Stoneburner , Judge, and Minge , Judge.


Before revoking a child daycare license, the Commissioner of Human Services must consider the information required by the licensing act and administrative rules to ensure that the sanction is consistent with the seriousness of the violation.

The opinion of the court was delivered by: Minge, Judge

Reversed and remanded


In this certiorari appeal from the commissioner's order revoking relator's child daycare license for failure to supervise and for violating licensing rules, relator argues that the Commissioner of Human Services abused her discretion. Because the evidence in the record does not support the sanction of revocation, we reverse and remand.


In April 1998, relator Gail Burke began operating a child daycare facility licensed by the Minnesota Department of Human Services (DHS). Daycare services were located primarily in the lower level of the building, which had been constructed as a split-level home. A paved biking and walking path runs behind the facility.

Burke's compliance problems with the DHS began on July 26, 2001, when she received her first correction order for failure to supervise. That afternoon, while the DHS licensor Colleen Peterson was visiting the daycare facility next door to Burke's, Peterson observed a group of children leave Burke's fenced backyard and walk down the bike path. Burke's ten-year-old daughter and two friends had unlocked the gate, intending to take a crayfish to a nearby shallow creek. One four year old and six school-aged daycare children tagged along. Peterson followed and found them one to two blocks away on the path. Burke's daughter released the crayfish into the shallow creek while the daycare children watched from the path. As Peterson and the children returned to the daycare, Burke's sixteen-year-old daughter, who had come to retrieve the daycare children, met them on the path.

Peterson estimated that twelve minutes passed from the time the children exited the backyard to their return to the daycare. Burke knew of the crayfish and had suggested that her daughter dispose of it. At the time the group left, she had been tending to an infant and preparing a celebration for a daycare child's birthday. When she discovered that the whole group had left, she sent her sixteen year old out to bring them back.

Based on the July 26, 2001 correction order, the DHS ordered a one-year conditional license. Burke timely requested reconsideration of the order. One year later, in August 2002, the one-year conditional license decision was affirmed.

In the interim, and apparently unrelated to the pending reconsideration, Burke was the subject of another sanction action by DHS. It was triggered by a death on the night of April 8, 2001 of an infant who had been at Burke's daycare center that day. The child died at the parent's home apparently of sudden infant death syndrome (SIDS). On April 9, Burke phoned the office of the DHS licensor to report the death. That same day, DHS licensor Peterson visited Burke's facility. When she arrived, Burke was on the upper level, and the door to the lower level was closed. When Peterson asked to see the room that the deceased infant had slept in, Burke unlocked the room where two children were sleeping. Burke explained to Peterson that she had locked the door to keep a disruptive child out so other children could nap without disturbance. Since the lock was on the inside, the children other than a toddler, could let themselves out and the key was just outside the room. On this visit, Peterson also observed a child enter the furnace room through an open door.

Based on this visit, the DHS issued another correction order, which noted four violations: failure to supervise, failure to notify the DHS of the SIDS death, failure to secure the furnace-room door, and locking the nap-room door. Three days later, the DHS issued an order revoking Burke's license. In addition to the incidents cited in the second correction order, the order of revocation erroneously stated that on April 8 an infant died while napping in Burke's care. The DHS based the revocation ...

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