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In re Appeal of Parents in Community Action, Inc.

Court of Appeals of Minnesota

December 30, 2013

In the Matter of the Appeal of Parents in Community Action, Inc. (PICA) Regarding the Order to Forfeit a Fine

UNPUBLISHED OPINION

Department of Human Services OAH Docket No. 11-1800-22356-2.

David L. Shulman, Craig Buske, Law Office of David L. Shulman PLLC, Minneapolis, Minnesota (for relator)

Lori Swanson, Attorney General, Cynthia B. Jahnke, Assistant Attorney General, St. Paul, Minnesota (for respondent)

Considered and decided by Halbrooks, Presiding Judge; Larkin, Judge; and Huspeni, Judge.[*]

LARKIN, Judge.

Relator challenges respondent-agency's order to forfeit a fine for failure to timely report an allegation of sexual abuse. Relator argues that the order is based on several errors of law, unsupported by substantial evidence, made upon unlawful procedure, and arbitrary and capricious. We affirm.

FACTS

Relator Parents in Community Action Inc. (PICA) is a Head Start organization that operates the Glendale Early Childhood Family Development Center. The Glendale Center provides a comprehensive early-childhood-education program, which includes preschool, child care, health and dental care, home visits, family resources, and programs for families. PICA employs "visiting advocates, " who visit families in their homes to recruit families, prepare children for kindergarten, and provide information about events and activities.

On November 23, 2010, F.J., a teacher at the Glendale Center, contacted the alleged victim's (A.V.) parents regarding the A.V.'s unexplained absence from school between November 9 and 23. The A.V.'s mother was very upset and told F.J. about a recent incident involving the A.V. The A.V., who was four years old at the time, ran into the living room without pants, spread her legs, and asked her little brother to lick her vagina. The A.V.'s mother was shocked and asked the A.V. where she learned such behavior. The A.V. replied that she had seen it on television. The A.V.'s mother did not accept that explanation and again asked where the A.V. had learned it. The A.V. told her mother that she had been in a bathroom at school with a teacher, the suspected employee (S.E.), while the other children were outside on the playground and that the S.E. removed her pants and asked the A.V. to lick her genital area.

On December 6, F.J. told visiting advocate A.A. that she wanted to talk to her about something serious that a parent had told her that "no one can know about." F.J. insisted that A.A. hear the story directly from the A.V.'s mother. So, F.J. arranged for the two to meet on December 8. A.A. told the center director, A.H., that she was meeting with a parent about something serious and would call her as soon as the meeting was over. During the meeting, the A.V.'s mother told A.A. about the A.V.'s sexualized behavior. She also stated that the family does not have cable television and that there had been no encounters between the A.V. and teenagers or other adults that would explain the A.V.'s sexual knowledge. The A.V.'s mother was convinced that the A.V. would not have thought up the sexual behavior herself and that she had to have seen it somewhere. A.A. informed the A.V.'s mother that she and F.J. are mandatory reporters and that they needed to talk to A.H. and report the situation.

That same day, A.A. told A.H. what she had learned from the A.V.'s mother. A.H. immediately called the A.V.'s mother and asked to meet with her, but the A.V.'s mother said that it was not a good time. A.H. then called the A.V.'s home and spoke with her father. He stated that the only concern he had about the situation was that he did not want his daughter discharged from the school. A.H. assured him that the A.V. would not be discharged.

On the morning of December 15, the A.V.'s mother dropped her off at school and spoke to A.H. The A.V.'s mother stated that she had some concerns about the A.V. exposing her body parts and told A.H. about the November incident. A.H. offered the services of the school's psychologist and explained that A.H. needed to report the incident to authorities. The A.V.'s mother asked A.H. not to report the incident and to instead speak with her husband. A.H. agreed to do so.

On December 17, A.H. spoke with the A.V.'s father. The A.V.'s father stated that he did not believe anything happened between the A.V. and the S.E. A.H. told him that she needed to report the incident, but he said that he did not want her to do so. After the A.V.'s father left, A.H. called Hennepin County Child Protection and respondent Minnesota Department of Human Services (the department) and reported the information.

The department assigned an investigator, and the investigator contacted the Minneapolis Police Department. The investigator also visited the Glendale Center and interviewed A.H., F.J., A.A., and the S.E. Cornerhouse, a child-advocacy center that, among other things, conducts forensic interviews of children who allegedly have been sexually abused, interviewed the A.V. twice. Following its investigation, the department concluded that maltreatment could not be determined. It further concluded that PICA had failed to report the incident in a timely manner and ordered it to forfeit a $200 fine.

PICA exercised its statutory right to challenge the fine. An administrative-law judge (ALJ) held a contested-case hearing pursuant to PICA's request and recommended that the commissioner of human services affirm the department's order to forfeit a fine. The commissioner affirmed the order, reasoning that:

There is undisputed evidence that the facility had "reason to believe" that a child enrolled in its program had been subject to sexual abuse and that it failed to timely report the information. The reported behavior of the four-year-old child and the obvious concerns of the child's mother—who had kept the child out of school for a significant number of days—are both strong indications that something happened to the child. Each teacher's reaction at the facility also evidenced their obvious concerns that the child had been the subject of some form of abuse. Each of them considered the report very "serious" and took deliberate steps to have the child's mother share the report with others. The assertion in hindsight that this information provided no "reason to believe" the child had been subject to abuse is inconsistent with the actions taken ...

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