In the Matter of the Maltreatment Determination of Amanda Restorff and the Order to Pay a Fine and Order of Conditional License for the Family Child Care License of Amanda Restorff
of Appeals Office of Appellate Courts
Deborah C. Eckland, Michael S. Rowley, Elizabeth L. Taylor,
Chelsea L. Gauger, Goetz & Eckland P.A., Minneapolis,
Minnesota, for appellant.
N. Kelly, Wright County Attorney, Karen L. Wolff, Assistant
County Attorney, Buffalo, Minnesota, for respondent.
Whether a caregiver has committed maltreatment by neglect
under Minn. Stat. § 626.556, subd. 2(g)(3) (2018) is a
fact-specific determination that must be made based on an
examination of the totality of the circumstances.
Because the Commissioner of Human Services did not conduct
the necessary fact-specific analysis, including determining
how long the children at appellant's daycare were outside
without her, a remand for additional fact finding is
GILDEA, CHIEF JUSTICE.
case we are asked to decide whether appellant Amanda Restorff
committed maltreatment by neglect under the Maltreatment of
Minors Act ("the Act"). Minn. Stat. § 626.556,
subd. 2(g) (2018). The Commissioner of Human Services
("Commissioner") determined that Restorff committed
maltreatment under the Act when a 3-year-old child wandered
away from her daycare. On appeal, Restorff argues that the
supervision she provided was appropriate and that the
Commissioner misinterpreted the Act in finding her
responsible for maltreatment. Because we conclude that the
Commissioner misinterpreted the Act and failed to make
necessary findings, we reverse and remand for additional fact
finding and a revised agency decision consistent with this
Restorff operates a daycare out of her home in Otsego. Before
this appeal, Restorff had been licensed to run a daycare for
7 years; her license permitted her to care for up to 14
children at a time. On August 1, 2016, Restorff was caring
for 12 children-4 of whom were under 5 years old.
Restorff's license did not require that she have
assistance in caring for this number of children, but on
August 1 she did have help from her 13-year-old niece, Emma.
Emma had taken online training before beginning work at the
daycare and Restorff gave Emma instructions on supervising
G.B. and his sister arrived at the daycare by 8:30 the
morning of the incident. Restorff was preparing cereal, and
the children were playing inside. Soon after G.B. and his
sister arrived, Restorff helped the children put their shoes
on in the garage and sent them to the backyard with Emma. The
backyard is large-about an acre-and unfenced. But
Restorff's license did not require that she have a fence
or that she keep the children inside. Restorff testified that
she would typically keep children younger than five on her
deck, which has a gate, when they were outside. But, she
explained, she did not do that on August 1 because she had
help from Emma and because she was going to be in the house
for such a brief period of time. Emma was pushing children on
a swing set outside while Restorff finished getting breakfast
ready back in the house. While Restorff was inside, the
window by the kitchen sink and a nearby sliding-glass door
were open. Both overlooked the backyard, and Restorff
believed she could still see and hear all of the children
8:45 a.m., Restorff finished preparing cereal for the
children and brought it out to the deck. At this point, the
children had been in the backyard for some amount of time
between 1 to 20 minutes. The cereal was distributed to the
children, and Restorff realized that G.B. was missing when
she discovered that there was an extra bowl. She began to
search the yard, the garage, and the house, yelling out
8:47 a.m., the sheriff's office received a call that G.B.
had been found near the side of a road approximately
2½ blocks from Restorff's house. A deputy arrived
on the scene at 8:51 a.m. G.B. told the deputy his name and
said that he was looking for his mother. The woman who found
G.B. told the responding deputy that she lived near the
corner of County Road 39 and Page Avenue Northeast in Otsego.
She heard semi-trucks honking as they passed by her house
that morning, and, when she looked outside, she found G.B.
standing near an address sign across the street. The woman
went outside, picked G.B. up, and called the sheriff's
Restorff's daycare, the search continued. Restorff called
her father, who lived nearby, to search the neighborhood
while she stayed at home and searched the house. Unable to
find G.B., Restorff called 911 at 9:06 a.m. The 911
dispatcher told Restorff that someone had found G.B. and that
he was with a deputy. The deputy brought G.B. back to
Restorff's daycare a few minutes later.
G.B. returned, Restorff called G.B.'s parents to inform
them about the incident. They told her-for the first
time-that G.B. had wandered off before and that they did not
fault her for the incident. G.B.'s mother said the same
to the deputy sheriff.
approximately 9:45 a.m., Restorff reported the incident to
her licensing worker. By the end of the day, the Minnesota
Department of Human Services ("DHS") issued an
order temporarily suspending Restorff's childcare
license. Restorff initially appealed the temporary suspension
but later withdrew that appeal.
the temporary suspension in place, Wright County's health
and human services and child protection departments began a
joint investigation. They interviewed Restorff, Emma, and
G.B.'s father. After completing its investigation, Wright
County determined that Restorff was responsible for
maltreatment. In a letter to Restorff, Wright County
explained that "a preponderance of the evidence . . .
shows that a child was found .3 miles from the daycare
facility unattended." Restorff requested
reconsideration, and Wright County affirmed its maltreatment
addition to the maltreatment determination, Restorff's
license remained suspended for several months as she worked
with Wright County to install additional safeguards in her
home. In November, Restorff prepared a "wandering
prevention plan" in which she promised to voluntarily
install a fence in her yard, amend her supervision policies,
and enroll in a training course on supervision. By December
9, 2016, Restorff had put up a temporary fence around a
portion of her yard, agreed to put a permanent fence in the
yard once the ground thawed, completed a 2-hour course on
supervision, and amended her supervision policies. Satisfied
with these additional safeguards, DHS issued an order lifting
the temporary suspension but placed conditions on
Restorff's license for two years and imposed a $1, 000
appealed Wright County's maltreatment determination and
DHS's order imposing conditions on her license and a
fine. Under Minn. Stat. § 245A.08, subd. 2a(a) (2018)
and Minn. Stat. § 626.556, subd. 10i(f) (2018), an
administrative law judge ("ALJ") held a
contested-case hearing on March 15, 2017. At the hearing,
Restorff testified that, before the incident in question, she
had never received a license suspension or been found
responsible for maltreatment. She also explained that she had
never had a child wander away from her daycare before this
incident. In addition to Restorff's testimony, 11 parents
who planned to or had previously sent their children to
Restorff's daycare-including G.B.'s mother-testified
or wrote letters endorsing the quality of Restorff's
daycare. Two people who had known Restorff for an extended
period of time also submitted letters in the administrative
proceeding endorsing Restorff's honesty and integrity.
issued a recommendation to the Commissioner of Human Services
that the sanctions be affirmed. Specifically, the ALJ
recommended that Restorff's maltreatment determination be
affirmed because she failed to "provide for necessary
supervision or child care arrangements appropriate for a
child" as required by Minn. Stat. § 626.556, subd.
2(g)(3). To reach this conclusion, the ALJ imported the
definition of "supervision" from the daycare
licensing rules. Those rules define "supervision"
as "being within sight or hearing" of a child
G.B.'s age "at all times so that the caregiver is
capable of intervening to protect the health and safety of
the child." Minn. R. 9502.0315, subp. 29a (2017). The
ALJ concluded that Restorff was not within sight or hearing
of G.B. "from the time he left [Restorff's] yard
until the time he was returned to her care by a deputy
sheriff," and, therefore, Restorff "failed to
supervise" G.B as required by the Act.
Commissioner issued a final agency decision adopting the
ALJ's recommendation but using a different analysis. The
Commissioner characterized the maltreatment issue as
"whether the supervision level was appropriate" for
G.B. under the factors listed in Minn. Stat. § 626.556,
subd. 2(g)(3). She determined that Restorff's supervision
level was inappropriate for G.B. "because G.B. was able
to wander away without [her] knowledge." In addition,
the Commissioner adopted the definition of
"supervision" from the licensing rules and
concluded that because G.B. was able to leave the daycare, he
"was either not within [Restorff's] sight or
hearing, or [Restorff] was not capable of intervening while
G.B.'s elopement from [Restorff's] yard was in
progress." Thus, while both the ALJ and the Commissioner
used a strict-liability analysis, the ALJ determined that
Restorff failed to supervise G.B. because she could not see
or hear him after he left the backyard, and the
Commissioner determined that Restorff must have
failed to supervise G.B. because he was able to leave the
petitioned the court of appeals for review by a writ of
certiorari. The court of appeals affirmed. In re
Maltreatment Determination of Restorff, No. A17-1433,
2018 WL 1997186 (Minn.App. Apr. 30, 2018). In doing so, the
court of appeals, like the ALJ and the Commissioner, used the
definition of "supervision" from Rule 9502.0315.
The court of appeals adopted the ALJ's reasoning and
concluded that, under the definition in the rule, Restorff
needed to be within sight or hearing of G.B. "at all
times," and that "G.B. was likely outside of
Restorff's sight or hearing for at least 25 minutes"
from the time he left the backyard until he was returned to
the daycare. Id. at *3.
granted Restorff's petition for review of the
maltreatment determination. On appeal, Restorff argues that
the Commissioner misinterpreted and misapplied the
Maltreatment of Minors Act in finding her responsible for
maltreatment. Specifically, she argues that the language
"to provide for necessary supervision" under Minn.
Stat. § 626.556, subd. 2(g)(3), requires caregivers to
make and execute a plan for a child's supervision, not
guarantee "a fail-safe supervisory system."
Otherwise, according to Restorff, "every parent in this
state, as well as every licensed daycare provider, who has
ever had a child stray out of sight or hearing while under
their supervision [will be liable] for maltreatment by
neglect." The Commissioner contends that she properly
interpreted and applied the Act, and she urges us to affirm
the determination of maltreatment.
case involves the safety of a young child who wandered away
from his caregivers. Although the child was not injured, that
fortuity does not change the seriousness of the situation.
This case also comes to us against the backdrop of a marked
increase in the number of reports of child maltreatment and
increased scrutiny of the work caregivers and government
officials alike perform. While these developments should provide
incentives to caregivers and government officials to ensure
all reasonable steps are taken to protect children, they do
not alter the controlling legal standards or the
responsibility of Minnesota's courts to ensure that those
standards are met. To that end, the Administrative Procedure
Act controls our review in this case.
the Administrative Procedure Act, we may reverse or modify an
agency decision if it is, among other things, affected by an
error of law or unsupported by substantial evidence. Minn.
Stat. § 14.69 (2018). In addition, we may remand the
case for additional fact finding if the agency's findings
are insufficient. In re A.D., 883 N.W.2d 251, 258
(Minn. 2016). Agency decisions enjoy a presumption of
correctness that warrants deference by courts. In re
Appeal by Kind Heart Daycare, Inc. v. Comm'r of Human
Servs., 905 N.W.2d 1, 9 (Minn. 2017). But when
confronted with questions of law, our review is de novo.
Id. Whether an agency decision is supported by
substantial evidence is a question of law, Webster v.
Hennepin County, 910 N.W.2d 420, 428 (Minn. 2018), as
are questions of statutory interpretation, In re
A.D., 883 N.W.2d at 256.
argues that the Commissioner misinterpreted the Maltreatment
of Minors Act in finding her responsible for maltreatment.
The Act requires, among other things, that local welfare
agencies investigate reports of maltreatment in child care
programs and make determinations as to whether maltreatment
occurred. Minn. Stat. § 626.556, subds. 3c(a), 10e(c)
(2018). Maltreatment includes physical abuse, sexual abuse,
mental injury and neglect. Id., subd. 10e(f). The
Act specifically defines each of these terms, but only
"neglect" is at issue here.
definition of "neglect" includes nine clauses that
set out qualifying acts and omissions. See id.,
subd. 2(g)(1)-(9). Restorff was found to have violated clause
3. Id., subd. 2(g)(3) ("Clause 3"). Clause
3 defines "neglect" as the failure by ...