In the Matter of the Appeal by Mayflower Early Childhood Center of the Determination of Maltreatment and Order to Pay a Fine.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1500

In the Matter of the Appeal by
Mayflower Early Childhood Center of the
Determination of Maltreatment and Order to Pay a Fine.

Filed April 10, 2017
Reversed
Kalitowski, Judge

Department of Human Services
File No. 82-1800-32893

Jonathan Geffen, Arneson & Geffen, PLLC, Minneapolis, Minnesota (for relator)

Lori Swanson, Attorney General, William Young, Assistant Attorney General, St. Paul,
Minnesota (for respondent commissioner of human services)

Considered and decided by Reilly, Presiding Judge; Stauber, Judge; and Kalitowski,
Judge.
U N P U B L I S H E D O P I N I O N
KALITOWSKI, Judge
Relator Mayflower Early Childhood Center challenges respondent commissioner of
human services’s determination that Mayflower was culpable for maltreatment based on
neglect, and imposition of a $1,000 fine. Following a contested -case hearing, an
administrative-law judge (ALJ) recommended that the maltreatment determination be

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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reversed and the fine rescinded, but the commissioner affirmed both. Relator argues that
(1) the commissioner erred as a matter of law by using a violation of licensing supervision
rules to support a maltreatment violation and (2) the commissioner’s decis ion is not
supported by substantial evidence. Because the commissioner’s decision is not supported
by substantial evidence, we reverse.
D E C I S I O N
“Administrative-agency decisions enjoy a presumption of correctness and may be
reversed only when they are arbitrary and capricious, exceed the agency’s jurisdiction or
statutory authority, are made upon unlawful procedure, reflect an error of law, or are
unsupported by substantial evidence in view of the entire record.” In re Revocation of
Family Child Care License of Burke, 666 N.W.2d 724, 726 (Minn. App. 2003). We defer
to the agency’s factual findings, but review de novo “the interpretation of statutes and their
application to undisputed facts.” Mattice v. Minn. Prop. Ins. Placement, 655 N.W.2d 336,
340 (Minn. App. 2002), review denied (Minn. Mar. 18, 2003). “The relator has the burden
of proof when challenging an agency decision . . . .” Minn. Ctr. for Envtl. Advocacy v.
Minn. Pollution Control Agency, 660 N.W.2d 427, 433 (Minn. 2003).
I.
The present case arises out of two incidents of inappropriate touching involving very
young children supervised by Mayflower while on Mayflower’s playground. Mayflower
argues that the commissioner erred as a matter of law by using the licensing supervision
rules as a basis for a maltreatment determination. We disagree.

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The legislature has provided that the public policy of Minnesota “is to protect
children whose health or welfare may be jeopardized through physical abuse, neglect, or
sexual abuse.” Minn. Stat. § 626.556, subd. 1(a) (2016). Under the Minnesota
Maltreatment of Minors Act, maltreatment includes neglect. Id., subd. 10e(f)(2) (2016).
Maltreatment by neglect includes “failure by a person responsible for a child’s care to
supply a child with necessary food, clothing, shelter, health, medical, or other care required
for the child’s physical or mental health when reasonably able to do so” and “failure to
protect a child from conditions or actions that seriously endanger the child’s physical or
mental health when reasonably able to do so.” Id., subd. 2(g)(1), (2) (2016).
Minnesota law requires childcare -license holders to conduct an internal review
“when the facility has reason to know that an internal or external report of alleged or
suspected maltreatment has been made.” Minn. Stat. § 245A.66, subd. 1(1) (2016). In
addition, childcare centers must “develop a risk reduction plan that identifies the general
risks to children” and such a plan “must include specific policies and procedures to ensure
adequate supervision of children at all times as defined under section 245A.02, subdivision
18, with particular emphasis on . . . supervision during outdoor play.” Id., subd. 2(a), (f)(4)
(2016). “‘[S]upervision’ means when a program staff person is within sight and hearing
of a child at all times so that the program staff can intervene to protect the health and safety
of the child.” Minn. Stat. § 245A.02, subd. 18 (2016).
Because Mayflower is a licensed childcare center, it must follow the childcare -
licensing rules, including the supervision provisions outlined above. The ALJ correctly
acknowledged that a supervision violation does not necessaril y constitute maltreatment.

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Rather, maltreatment by neglect occurs when a childcare center fails to provide ca re
“required for the child’s physical or mental health” or “to protect a child from conditions
or actions that seriously endanger the child’s physical or mental health” when the center is
able to provide such care or protection. Minn. Stat. § 626.556, subd. 2(g)(1), (2). Thus,
although a violation of the licensing supervision rules could be maltreatment, every such
violation does not necessarily constitute maltreatment.
Although Mayflower is correct that the commissioner cited the licensing
supervision s tandards provided by chapter 245A in affirming the maltreatment
determination, the commissioner did not rely on the supervision standards in affirming the
determination. Rather, the commissioner reviewed the supervision rules to establish that
Mayflower w as required to develop a risk -reduction plan that specifical ly included
provisions regarding adequate supervision of children, including during outdoor play; that
Mayflower was required to review its policies after becoming aware that children were
engaging in inappropriate touching ; and that Mayflower was required to impleme nt a
corrective-action plan.
The commissioner viewed the level of care and protectio n provided to the children
in light of the review and corrective -action plan required of Mayflower and determined
that the lack of supervision provided by Mayflower constituted maltreatment. Because the
commissioner did not rely on the statutes regarding supervision in affirming the
maltreatment determination, we conclude that the commissioner did not err as a matter of
law.

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II.
Mayflower argues, and we agree, that the commissioner’s decision is not supported
by substantial evidence. Mayflower contends that it provided appropriate supervision and
that the commissioner improperly relied on the mere occurrence of a second incident as
evidence that Mayflower provided inadequate supervision.
A decision is supported by substantial evidence when it
is supported by (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;
(4) more than any evidence; or (5) the evidence considered in
its entirety.

Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency , 644 N.W.2d 457, 464
(Minn. 2002).
The maltreatment determination stems from two incidents that occurred on
Mayflower’s playground. On July 14, 2015, a child reported to Mayflower’s aftercare co-
coordinator that he had observed two other children, five-year-old AV-11 and six-year-old
AV-2, playing an inappropriate “touching game,” which involved the children touchin g
each other’s genital areas. The incident occurred behind recycling and trash bins that were
stored at the perimeter of Mayflower’s playground. When interviewed, AV -1 and AV-2
each stated that it was the other child’s idea to play the game and reported that they had
played the game with three other children “on a different day.”

1 The children involved in this case are referred to by a number and the initials “AV.”
“AV” is an abbreviation for alleged victim.

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Following this incident, Mayflower instructed staff to be vigilant when supervising
the playground, told staff to move around the playground in order to observe all a reas of
it, and identified lilac bushes and an opaque yellow tube as areas of the playground to be
particularly aware of because they were places where children could not be seen.
The second incident occurred on July 27, 2015. On that day, AV -3 reported that
AV-1 had pulled her pants down and put his finger in her vagina while they were in the
yellow tube on the playground. Neither the precise time nor the duration of the incident is
known, but four different staff members were supervising the playground at various times
when the incident may have occurred. And a t all relevant time s Mayflower was in
compliance with licensing standards regarding the ratio of adults to children.
The Minnesota Department of Human Services (the department) issued Mayflower
a maltreatment determination based on neglect regarding the second incident du e to
inadequate supervision. But the ALJ found that the department failed to identify what
behavior, action, or omission was neglectful . When asked at the hearing what the
maltreatment determination was based on, the department investigator explained tha t
Mayflower was aware of the first incident but inappropriate tou ching occurred a second
time. The investigator, when asked to identify the specific f ailure of Mayflower, testified
that “[t]here was not enough supervision to prevent [inappropriate touchin g] from
occurring again.”
But to sustain the department’s maltreatment by neglect determination, the
department must present substantial evidence that Mayflower failed to provide a child with
care required for the child’s physical or mental health when M ayflower was reasonably

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able to do so or that Mayflower failed “to protect a child from conditions or actions that
seriously endanger the child’s physical or mental health when reasonably able to do so.”
Minn. Stat. § 626.556, subd. 2(g)(1), (2). Essenti ally, the department was required to
produce substantial evidence that (1) Mayflower failed to provide care to the children or
failed to protect them and (2) Mayflower was reasonably able to provide such care or
protection.
Both the ALJ and the commissioner found that Mayflower made extensive efforts
to prevent recurrence of the first incident. On the day of the first incident, the recycling
and trash containers were removed to eliminate the hidden area where the first incident had
occurred, and Nanci Olesen, Mayflower’s director, contacted the pare nts of the children
involved. That day, Olesen sent an email to all staff alerting them to the incident and
informing them that she would be addressing the incident with them the next day in one -
on-one meetings. Also, Olesen spoke to the teacher of the students known to be involved
in the first incident and identified the students to Mayflower’s aftercare staff. 2 Olesen
emphasized to the staff the importance of moving around the playground when supervising
the children and addressed the incident in a weekly memorandum that was mandatory
reading for all staff members. Olesen spoke with peers in other childcare centers for
guidance on how to respond to the incident. Mayflower ordered books for addressing
appropriate touch with children, and teachers discussed appropriate touch with the children

2 Mayflower’s program includes an aftercare program that begins at 3:30 p.m., when the
preschool day ends. The first incident occurred during aftercare.

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in small groups. And Mayflower was in compliance with licensing ratio standards when
both incidents occurred.
The ALJ concluded that the maltreatment determination was not supported because
the department did not show that Mayflower failed to provide the children with necessary
care or protection, reasoning that the department could not point to any act or omission that
was neglectful and that Mayflower was in complia nce with all of the licensing rules and
took immediate steps to address the first incident. The ALJ noted that in hindsight
Mayflower could have taken more steps, but concluded that “the steps [Mayflower] did
take were reasonable given the concerns it had to balance, watching the children but not
villainizing any particular child, and the facts it had at the time.”
The commissioner adopted the ALJ’s findings reg arding Mayflower’s efforts , but
rejected the ALJ’s recommendation that the maltreatment determination be reversed,
essentially concluding that the department’s maltreatment determination was substantiated
because Mayflower could have reasonably taken other steps that would have prevented the
second incident. Specifically, the commissioner noted that Mayflower could have removed
the yellow tube, modified its policy concerning children’s access to the tube, or established
an explicit policy regarding supervision of the playground’s hidden spaces.
On appeal, the commissioner points to a number of steps that Mayflower could have
taken, including informing all of its staff that AV-1 was one of the children involved in the
first incident, and increasing staff supervision of AV-1. But based on the record, some of
the actions suggested by the commissioner were not reasonable, given the knowledge
Mayflower had at the time. For example, the department suggests that Mayflower should

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have increased staff supervision of AV-1. But Mayflower would have also had to increase
staff supervision of AV-2 and the other children that AV-1 and AV-2 identified as having
played the “touching game” because Mayflower did not know who was the instigator of
the first incident. And such increased supervision would necessarily detract from the
ability of the staff to su pervise the remaining children. Mayflower could have told all of
the staff members that AV-1 and AV-2 were the two children involved in the first incident,
instead of just the aftercare staff and the teacher of AV -1 and AV -2. But, given that
Mayflower was unaware whether AV -1 or AV -2 was the instigator and had information
concerning other children’s involvement in the “touching game,” it was not unreasonable
that Mayflower did not alert each and every staff member concerning AV-1 and AV-2.
Importantly, the commissioner improperly relied on possible measures that might
have prevented the second incident in determining whether Mayflower failed to provide
care for or protect the children when it was reasonably able to. Using hindsight, the
commissioner identified steps that Mayflower could have taken that would have prevented
the second incident from occurring. But to determine whether the maltreatment
determination is supported by substantial evidence, the question is whether Mayflower
failed to provide care to or failed to protect children when Mayflower was reasonably able
to do so, not whether Mayflower took all possible preventative steps that may have
prevented the second incident.
Although measures suggested by the commissioner may have prevented the second
incident, this possibility does not mean that Mayflower’s actions or omissions necessarily
constituted neglect. After the first incident, Mayflower was aware that a “touching game”

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had occurred on its playground and that AV -1 and AV -2 were two of the participants in
that incident. Mayflower was not aware of any inappropriate sexual behavior of any child
prior to the first incident. And according to both the ALJ and the commissioner, Mayflower
took “extensive measures to prevent recurrence of the [first] incident.” Moreover, although
Mayflower was unaware of any incident involving the yellow tube, it nonetheless
instructed its staff to be sure to watch the yellow tube and the lilac bushes. Moreover, the
department investigator did not note any deficiencies in Mayflower’s policies and
procedures and could not specifically identify what was deficient about the supervision.
Despite having visited the playground on a number of occasions for licensing purposes, the
department never raised the yellow tube as an area of concern or instructed Mayflower to
get rid of it. Given the knowledge it had, we conclude that the evidence does not support
the conclusion that Mayflower failed to provide care to or protect the children despite being
reasonably able to provide such care or protection.
The commissioner also points to the fact that Mayflower implemented additional
measures after the second incident as evidence that Mayflower did not adequately
supervise the playground before the second incident. Specifically, after the second incident
a staff member sits near the yellow t ube to be able to see inside. But implementation of
this measure does not mean that Mayflower should have anticipated that inappropriate
touching would occur after the first incident despite its preventative measures, that such
touching would occur in the yellow tube, and that the recurrence of this kind of incident
would be prevented by stationing a staff member to constantly monitor the yellow tube.

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Relying on the additional measures Mayflower took following the second incident
as proof that Mayflower did not take all reasonable measures within its power , and as a
basis for a maltreatment finding, transforms the neglect definition from failure to care for
or protect a child “when r easonably able to do so” to “failure to take all steps that could
have prevented the harm.” Such a standard improperly requires Mayflower to have taken
every possible step that could have prevented the harm, as determined with the benefit of
hindsight, rather than considering whether Mayflower was reasonably able to prevent the
harm but failed to do so, based on the facts known to Mayflower at the time.
The commissioner suggests that Mayflower should have suspected that AV -1 was
the instigator of the inappropriate touching because Mayflower staff knew that AV-1 was
in therapy. But the record indicates that when Olesen called AV-1’s therapist, Olesen was
told that the therapist had information about AV -1 and his family that she was unable to
share. The commissioner also notes that, sometime between the first and second incidents,
Mayflower learned from child-protection services that AV-1’s mother was no longer able
to pick him up. Although these facts indicate that Mayflower was aware that there were
issues regarding AV-1’s home life, they do not indicate that Mayflower was aware, should
have been aware, or even should have suspected that AV -1 was likely to engage in an
incident involving nonconsensual touching.
Finally, we note that (1) the commissioner found that Mayflower took extensive
measures to prevent recurrence of the first incid ent; (2) Mayflower did not know or have
reason to know which child had instigated the first incident ; and (3) the commissioner,
absent reliance on hi ndsight, failed to identify what act or omission was neglectful . We

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therefore conclude that based on this record, the maltreatment determination was not
supported by substantial evidence.
Reversed.