                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-1924

                             In the Matter of the Denial of the
                         Child Foster Care License Application of
                         Jennifer Gaffaney and Kenneth Hoffman

                                   Filed June 29, 2015
                                        Affirmed
                                      Worke, Judge

                        Minnesota Department of Human Services
                                File No. 48-1800-30937

Michael L. Jorgenson, Charlson & Jorgenson, P.A., Thief River Falls, Minnesota (for
relators Jennifer Gaffaney and Kenneth Hoffman)

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Alan G. Rogalla, Pennington County Attorney, Stephen R. Moeller, Assistant County
Attorney, Thief River Falls, Minnesota (for respondent Minnesota Commissioner of
Human Services)

         Considered and decided by Worke, Presiding Judge; Hudson, Judge; and Smith,

Judge.

                         UNPUBLISHED OPINION

WORKE, Judge

         Relators challenge the denial of their application for a foster-care license by

respondent commissioner of human services, arguing that the commissioner’s decision is

not supported by substantial evidence and is arbitrary and capricious. We affirm.
                                         FACTS

       In November 2011, D.R., the mother of three young daughters, asked relator

Jennifer Gaffaney1 for help caring for her children because she had lost her job and home.

At that time the children were residing with their paternal grandparents, who were no

longer able or willing to care for them. Gaffaney brought D.R.’s two older children to

live with her, her five children, and her long-term partner, relator Kenneth Hoffman.2

After social services learned that D.R.’s children were not residing with her, an

emergency protective care hearing was held and D.R.’s children were removed from

relators’ home and placed in foster care. On the day of removal, relators were not present

and D.R.’s great-uncle was caring for the children. The social workers noted in their

report that the children were “extremely dirty,” had matted hair, and looked “tired or

drugged.” The children were taken to urgent care where they were cleared medically.

The attending doctor observed two red marks on the back of one of the children, but

could not determine their origin. Gaffaney claimed that the marks were not present when

the child was last in her care.

       In January 2012, relators applied for a foster-care license to provide care for

D.R.’s three daughters. Later that year, Hoffman’s brother, sister-in-law, and their three

children, cousins to Gaffaney’s children, moved in with relators for several months. In

March 2013, Gaffaney’s 10-year-old daughter, M.R., asked her school nurse if it was

“normal for cousins to do it.” Upon questioning, M.R. disclosed sexual contact between

1
  Although both parties refer to relators as “appellants,” because this is an administrative
agency appeal, the appealing parties are properly termed “relators.”
2
  D.R.’s youngest daughter was taken in by another individual.

                                             2
herself and her male cousin while playing truth or dare, and claimed that relators

observed this contact. M.R.’s female cousin stated that she observed the sexual contact

and informed relators, who then took the male cousin downstairs. M.R.’s school nurse

and principal admitted that M.R. has “told a lot of stories.” Child protection and law

enforcement closed the case because M.R.’s statements could not be corroborated.

M.R. was subsequently diagnosed with Asperger’s syndrome and mood disorder, and her

psychologist noted that M.R.’s reporting tended “to suggest that [she] was not making the

story up.”

       Relators’ initial caseworker had already completed home visits and “was just

waiting on some of the things to be fixed in the home” when she left her position and a

new child-foster-care licensor was assigned to relators’ application. The new licensor

contacted the department of human services (DHS) for advice because she was concerned

about D.R.’s children being “extremely dirty” when removed from relators’ home, D.R.’s

children not being taken to the hospital by relators, and the reports of inappropriate

sexual contact and Gaffaney’s belief that M.R. made up the story. The licensor sent a

denial letter to the commissioner after the consultation with DHS. On August 6, 2013,

DHS denied relators’ application for a child-foster-care license because they “failed to

demonstrate their ability to ensure the safety of, or meet the basic needs of, children in

their care” and because “denial was necessary to protect the health and safety of children

receiving services in DHS-licensed programs.” Relators timely appealed the license

denial, and after a hearing an administrative law judge (ALJ) recommended that relators’




                                            3
license application be denied.3 The commissioner ultimately affirmed the license denial,

making only minor changes to the ALJ’s findings. Relators requested reconsideration,

which the commissioner granted. In October 2014, the commissioner reaffirmed the

denial of the foster-care license. This certiorari appeal followed.

                                        DECISION

         Relators first argue that the commissioner’s decision is not supported by

substantial evidence. We may reverse or modify an administrative agency’s decision

where it is “unsupported by substantial evidence in view of the entire record.” In re

Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 277

(Minn. 2001); Minn. Stat. § 14.699(e) (2014). Substantial evidence exists when there is:

                (1) such relevant evidence as a reasonable mind might accept
                    as adequate to support a conclusion;
                (2) more than a scintilla of evidence;
                (3) more than some evidence; [or]
                (4) more than any evidence[.]

Cannon v. Minneapolis Police Dep’t, 783 N.W.2d 182, 189 (Minn. App. 2010). We will

affirm an agency’s decision if the agency engaged in reasoned decision making, even

though we may have reached a different result had we been the factfinder.          Cable

Commc’ns Bd. v. Nor-West Cable Commc’ns P’ship, 356 N.W.2d 658, 669 (Minn. 1984).

         A foster-care provider must be licensed and provide basic services to the child.

Minn. Stat. § 245A.03, subd. 1(2) (2014), Minn. R. 2960.3080, subp. 5A (2013). Basic

services are “food, shelter, clothing, medical and dental care, personal cleanliness,

privacy, spiritual and religious practice, safety, and adult supervision.”     Minn. R.

3
    Prior to this order, D.R. voluntarily terminated her parental rights.

                                                4
2960.3010, subp. 5 (2013). A foster-care-license applicant must also “demonstrate the

ability to . . . . nurture children, be mature . . . and meet the needs of foster children in the

applicant’s care.” Minn. R. 2930.3060, subp. 4J (2013). The commissioner shall deny a

license application:

              if the applicant fails to fully comply with laws or rules
              governing the program or fails to cooperate with a placing or
              licensing agency. Failure to fully comply shall be indicated by:
                      A. documentation of specific foster home deficiencies
              that may endanger the health or safety of children;
                      B. failure to be approved by fire, building, zoning, or
              health officials;
               ....
                      D. any other evidence that the applicant is not in
              compliance with applicable laws or rules governing the
              program.

Minn. R. 2960.3020, subp. 11 (2013). The applicant who is denied a license “bears the

burden of proof to demonstrate by a preponderance of the evidence that [he or she has]

complied fully with this chapter and other applicable law or rule and that the application

should be approved and a license granted.” Minn. Stat. § 245A.08, subd. 3(b) (2014). Here,

the ALJ found that relators did not meet their burden and recommended that their license

application denial be affirmed by the commissioner, noting that the evidence raised “serious

concerns about whether the [relators] can meet the basic needs of additional children in their

care” because M.R. has special needs, D.R.’s daughters were “extremely dirty” when

removed from relators’ care, and there were allegations of inappropriate sexual contact

between relators’ child and another child living in relators’ home.4


4
  Relators assert that the ALJ erred by reasoning that the 10-year-old’s Asperger’s
disorder raised additional concerns for relators’ ability to care for the three girls. But
after relators took exception to this finding, the commissioner stated in its order for

                                               5
       Relators claim that when D.R.’s daughters were removed from their home they had

just finished lunch and were dirty because of typical young children’s eating habits. But this

is inconsistent with the documentation.     A worker is unlikely to describe children as

“extremely dirty” with matted hair from normal lunchtime activities. This description, along

with the allegation that the daughters appeared tired or even drugged, provides evidence

relators were not meeting D.R.’s daughters’ basic needs. See Minn. R. 2960.3010, subp. 5.

While there was testimony that relators are good parents who take excellent care of

Gaffaney’s five children, this does not undermine the findings that there were significant

safety concerns regarding D.R.’s daughters. While relators correctly assert that the cause of

the red marks on one daughter’s back was not determined, there was enough concern about

the daughters’ states that they were taken to urgent care after they were removed from

relators’ home.5

       Relators next claim that the findings regarding the inappropriate sexual contact are

not supported by substantial evidence because M.R. “had a history of telling false stories”

and because child protection and law enforcement “could not corroborate the story and

closed their files.” But the allegations were corroborated: M.R.’s female cousin reported that

she observed M.R. and her male cousin together in a top bunk without underwear on and the

male cousin admitted that he slept in the same room as the 10-year-old. While there may not



reconsideration that “[n]o presumption was made by the [c]ommissioner that [Gaffaney]
lacks the ability to provide for the basic needs of children . . . simply on the basis of
[M.R.’s] diagnosis.” Therefore we need not address this claim.
5
  We acknowledge that D.R.’s daughters were not removed from relators’ care because of
safety concerns but because social services was notified the daughters were not residing
with their biological mother. The children were removed because relators were not
licensed-foster-care providers and were not blood relatives of the children.

                                              6
have been sufficient corroboration for law enforcement or child protection to take further

action, there was substantial evidence on which the commissioner based its decision.

       While relators dispute the characterization and interpretation of the evidence in this

matter, we grant great deference to the agency. Cable Commc’ns Bd., 356 N.W.2d at 668.

The agency affirmed the license application denial based upon specific concerns raised by

the testimony and evidence submitted. We therefore conclude that the agency’s decision is

supported by substantial evidence.

       Relators next argue that the commissioner’s decision was arbitrary and capricious.

An agency’s decision is not arbitrary and capricious so long as there is a rational

connection between the facts found and the decision. In re Review of 2005 Annual

Automatic Adjustment of Charges, 768 N.W.2d 112, 120 (Minn. 2009). A decision is

arbitrary and capricious if it represents an agency’s will, rather than its judgment. In re

Excess Surplus Status of Blue Cross & Blue Shield, 624 N.W.2d at 278. Here, the

commissioner denied the license application based on substantial evidence of safety

concerns for D.R.’s daughters while in relators’ care.         Thus, there was a rational

connection between the facts found and the decision.

       Affirmed.




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