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In re Maltreatment Determination of Restorff

Supreme Court of Minnesota

August 7, 2019

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

          Court 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.

          Thomas N. Kelly, Wright County Attorney, Karen L. Wolff, Assistant County Attorney, Buffalo, Minnesota, for respondent.


         1. 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.

         2. 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 necessary.



         In this 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 opinion.


         Amanda 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 children.[1]

         Three-year-old 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 while inside.

         Around 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.[2] 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 G.B.'s name.

         Around 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 office.

         Back at 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.

         With 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.

         At 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.

         With 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 determination.

         In 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 fine.

         Restorff 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.

         The ALJ 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.

         The 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 backyard.

         Restorff 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.

         We granted Restorff's petition for review of the maltreatment determination.[3] 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.


         This 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.[4] 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.

         Under 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.


         Restorff 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.

         The 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 ...

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