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

This opinion will be unpublished and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
A17-1433

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

Filed April 30, 2018
Affirmed
Worke, Judge

Minnesota Department of Human Services
File No. 10-1800-34116

Deborah C. Eckland, Elizabeth L. Taylor, Chelsea L. Gauger, Goetz & Eckland P.A.,
Minneapolis, Minnesota (for relator Amanda Restorff)

Thomas N. Kelly, Wright County Attorney, Karen L. Wolff, Assistant County Attorney,
Buffalo, Minnesota (for respondent Emily Johnson Piper, Commissioner of Human
Services)

Considered and decided by Worke, Presiding Judge; Peterson, Judge; and Ross,
Judge.
U N P U B L I S H E D O P I N I O N
WORKE, Judge
Relator challenges a maltreatment deter mination, fine, and conditional license
issued by the commissioner of h uman services, arguing that the commissioner
misinterpreted and misapplied the law in concluding that relator engaged in neglect by

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failing to properly supervise a child, and that the commissioner’s decision is not supported
by the evidence. We affirm.
FACTS
On August 1, 2016, around 8:47 a.m., a police officer was dispatched to an
intersection on a report of a found child . A citizen reported that she heard semi -trucks
honking their horns as they drove by her residence, causing her to look outside and see a
child holding onto a stree t sign. Three-year-old G.B. told the officer that he was looking
for his mom. A round 9:06 a.m., relator Amanda Restorff reported a child missing from
her daycare. The officer returned G.B. to Restorff’s daycare.
Restorff reported the incident to Wr ight County Health and Human Services ( the
county). Restorff stated that her helper had been outside with the children and that when
she went outside she noticed that G.B. was missing. Restorff yelled and searched, but
when she could not find G.B., she c alled 911 and G.B. was returned to her care.
Respondent commissioner of human s ervices (the commissioner) temporari ly suspended
Restorff’s license to provide family childcare because “a child in [her] care was fou nd
unattended in the community ,” and the commissioner could not ensure the safety of the
children in Restorff’s daycare.
On August 30, 2016, the county sent Restorff a determination that maltreatment
occurred. Restorff requested reconsideration, and the county upheld the maltreatment-by-
neglect determination because G.B. was “found unsupervised, approximately 2.5 blocks
from [Restorff’s] home, along a busy road with semi -trucks hon king as he stood by a

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roadsign.” The county stated that this lack of supervision met the definit ion of neglect
under Minnesota law.
In December 2016, the commissioner lifted the temporary suspension and notified
Restorff that two actions would be take n against her license—she would have to pay a
$1,000 fine and her license would be on conditional status for two years. Restorff requested
a hearing to contest the finding of maltreatment and the actions taken against her license.
At a hearing before an administrative-law judge (ALJ), a representative from the
county testified that when Restorff’s helper was interviewed, she reported that Restorff was
caring for 12 children, including four under five years old, on the date of the incident, and
that the helper had been supervising the children outside while Restorff prepared breakfast.
The county’s representative testified that Restorff violated a licensed-daycare supervision
rule that requires caregivers to be within sight or hearing of the children in order to
intervene. The county’s representative testified that Restorff’s license was suspended
because of the severity of the situation —G.B. was three years old and he was found far
from the home near a very busy road. The county’s representative also testified that the
incident was foreseeable because a three -year-old child is limited cognitiv ely in
understanding boundaries. She believed that the incident was preventable and could
possibly have been prevented if Restorff had been outside with the children while her
helper prepared the children’s cereal.
Restorff testified that around 8:40 a.m. the children went to an outdoor area that is
overlooked by a kitchen window and patio door. Restorff’s helper was outside and Restorff
was in the kitchen where she could hear and see the children. Restorff brought breakfast

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outside and called for the children. Restorff noticed that G.B. was missing and searched
for him. Restorff testified that she explained what happened to G.B.’s parents and, for the
first time, they told her that G.B. had previously wandered . She testified that she was
surprised that they had not told her sooner because it is “a dangerous behavior.”
Restorff testified that she has rules regarding wher e the children can play outside
because in “[t]oday’s world you can’t trust anybody. . . . [P]eople walk through [the]
neighborhood, bikers . . . anything.” Restorff testified that she set “very clear boundaries,”
and although she never experienced a child wandering away, she stated that the “little ones”
did not always follow the rules. F or “[e]xtra caution,” Restorff limits children under the
age of five to a gated deck. Restorff testified that she did not follow this rule on the day
of the incident because her helper was there, her windows were open, and she thought that
she would be quick and everything would be fi ne. Restorff conceded that it is her
responsibility to supervise the children when they are in her care and that she did not have
the ability to intervene when G.B. was by the busy road.
The ALJ concluded that Restorff committed maltreatment by neglect and
recommended that the commissioner affirm the finding of maltreatment as well as the
imposition of the fine and conditions on Restorff’s license. The commissioner determined
that Restorff was responsible for maltreatment by neglect, and affirme d t he fine and
conditional license. Restorff sought review of the commissioner’s decision by writ of
certiorari.

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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). This court
defers to the agency’s factual findings, but reviews 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. App. 2003).
Maltreatment by neglect
The commissioner concluded that Restorff
committed maltreatment of a child by neglect by failing to
provide necessary supervisi on in violation of the governing
maltreatment statute and applicable day care rules.

[Restorff] failed to supervise G.B. when he walked away from
her day care home, was found two and one -half blocks from
her home, and was not withi n her sight . . . or h earing. G.B.
was either not within [Restorff]’s sight or hearing . . . or
[Restorff] was no t capable of intervening while G.B.’s
elopement from . . . [Restorff]’s yard was in progress. Fro m
the moment he left the home, G.B. was not within [Restorff]’s
sight or hearing until the time he was returned to her care by a
deputy sheriff.

Restorff argues that “[p]roof of maltreatment by neglect requires more than evidence that
supervision safeguards failed on a single occasion.”

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The legislature has undertaken to protect “children whose health or welfare may be
jeopardized through physical abuse, neglect, or sexual abuse,” because sometimes
circumstances interfere with parents’ ability to keep their children safe and “the health and
safety of the children [is] of paramount concern.” Minn. Stat. § 626.556, subd. 1(a) (2016).
The legislature has defined physical abuse, neglect, and sexual abuse. Id., subd. 2 (g), (k),
(n) (2016).
Restorff suggests that this court look to a dic tionary definition of “neglect.” But
that is un necessary when the legislature has provided a definition. See Wayzata Nissan,
LLC v. Nissan N. Am., Inc., 875 N.W.2d 279, 286 (Minn. 2016) (“When a word is defined
in a statute, we are guided by the definit ion provided by the Legislature”[;] “ [w]hen there
is no applicable statutory definition, we often consult dictionary definitions to discern a
word’s plain meaning.”). She also suggests that maltreatment by neglect constitutes a form
of abuse, which she cl aims is “underscored by well -settled princi ples of statutory
construction.” But in determining whether Restorff committed maltreatment by neglect,
as defined by statute, this court does not resort to canons of statutory construction unless a
statute is am biguous. See Staab v. Diocese of St. Cloud , 853 N.W.2d 713, 718 (Minn.
2014). When a statute is susceptible to only one reasonable interpretation, this court
applies the statute’s “plain meaning.” Id. at 716-17.
Neglect is defined as, other than by accidental means, “ failure to pr ovide for
necessary supervision . . . appropriate for a child after c onsidering factors as the child’ s
age, mental ability, physical condition, length of absence, or environment, when the child
is unable to care for the chil d’s own basic needs or safety.” Minn. Stat. § 626.556, subd.

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2(g)(3). The plain meaning of “neglect,” as defined by the legislature, does not constitute
a form of abuse, nor does it require misconduct beyond a single act of failed supervision.
The record establishes that three -year-old G.B. left Restorff’s home. A citizen, two and
one-half blocks from Restorff’s home, heard semi -trucks honki ng as they passed her
residence; she looked outside and saw G.B. holding onto a street sign . During this time,
Restorff was not supervising G.B.
Restorff also claims that the commissioner misinterpreted maltreatment by neglect
by using a definition for “supervision” found in the licensing rules and “a licensing
violation and a maltreatment de termination are not th e same.” Although not every
violation of a licensing supervision rule will necessarily constitute maltreatment, situations
exist when a violation of a licensing supervision rule is maltreatment. Here, the definition
of “supervision” in the licensing rule s is relevant to determining whether Restorff failed
“to provide for necessary supervision” for G.B. See id.; see also Minn. Stat. § 14.386(a)
(2016) (stating that a rule adopted by an agency has the force and effect of law).
“‘Supervision’ means a caregiver being within sight or hearing of an infant, toddler,
or preschooler 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) (emphasis added).
Restorff argues that, based on this definition, “[t]here is nothing in the record to suggest
that G.B. was not at least within hearing at the time he left the property.” But that is not
necessarily true. W hen Restorff initially reported that G.B. had gone missing, she stated
that when she noticed that he was missing she “began yelling fo r him and searching the
yard.” It seems that to be within “hearing” of a child would mean that a hearing child could

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also hear his caregiver yelling for him. More importantly, the inquiry is not solely whether
G.B. was supervised at the time he left the property. The commissioner concluded that
“[f]rom the moment [G.B.] left the home, [he] was not within [Restorff]’s sight or hearing
until the time he was returned to her .” The entire time that G.B. walked over two blocks,
near a busy road, he was not within Restorff’s sight or hearing “so that [she was] capable
of intervening to protect” him. See id. Based on the record, the children went outsid e
around 8:40 a.m., a citizen reported finding G.B. around 8:47 a.m., and Restorff reported
G.B. missing at 9:06 a.m. Given that timeframe, G.B. was likely outside of Restorff’s sight
or hearing for at least 25 minutes.
Restorff conceded that it is her responsibility to supervise the children and that she
did not have the ability to intervene when G.B. was near the busy road. And Restorff
understands the importance of protecting the children. She testified that she was surprised
that G.B.’s parents had not disclosed that he previously wandered because that is
“dangerous behavior.” She testified that she has supervision rules because there are people
who walk and bike through her neighborhood and one cannot “trust anybody.” Given
Restorff’s appreciation for safety, it is difficult to understand her focus on the moment G.B.
left the property given that G.B., a three-year-old child, walked over two blocks near a busy
road, and, for at least 25 minutes, was without his caregiver to intervene in a n unsaf e
situation. Based on the record, the commissioner appropriately applied the facts to the law
to conclude that Restorff committed maltreatment by neglect.

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Decision supported by the record
Restorff also argues that the ALJ findings belie the conclusion that she failed to
supervise G.B. She extracts one ALJ finding to po int out the contradiction. But the
commissioner modified this finding in the final order, which is the decision we review.
The commissioner’s finding stated:
[Restorff]’s normal practice was to keep children under
five on her back deck with the gate closed, as an extra
precaution. She did not follow this practice on August 1, 2016,
because her assistant was outside in the yard with the children
and [Restorff] believed she could see a nd hear all of the
children out her open door and window.

This finding does not conflict with the commissioner’s determination.
Restorff also argues that the commissioner took her testimony out of context in
determining that G.B. wandering was “reasonably foreseeable.” Restorff testified that she
set “very clear boundaries,” but the “little” children maybe did not always follow the rules.
This statement supports that it was foreseeable that a three -year-old child could disobey a
boundary rule and wander. Restorff also testified that, for “[e]xtra caution,” children under
the age of five stayed on the gated deck. Restorff testified that this precaution was not
exercised on the date of the incident because her helper was there, her windows were open,
and she thought that she would be quick and everything would be fine. Restorff’s usual
practice of keeping the younger children on the gated deck supports that it was foreseeable
that a three-year-old child, without this safeguard, may wander. Restorff’s statement that
she was going to be “quick” and everything would “be fine” also indicates that she believed
that she needed to quickly return to care for the children in order for everything to be fine.

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Restorff claims that the commis sioner’s decision is unsupported by substantial
evidence in view of the entire record. Substantial evidence 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; (4) more than any evidence; or (5) the
evidence considered in its entirety.” Dourney v. CMAK Corp., 796 N.W.2d 537, 539 (Minn.
App. 2011) (quotation omitted).
The evidence shows that Restorff was responsible for the care of three-year-old G.B.
At 8:40 a.m., Restorff’s helper went outside with G.B. and 11 other children. Restorff did
not limit the boundary of the children younger than five years old to the gated deck. When
Restorff went outside and noticed that G.B. was missing, she searched for him. Around
8:47 a.m. police received a call that G.B. was found by a citizen two and one-half blocks
from Restorff’s daycare. The citizen noticed G.B. when she looked out her window after
hearing semi-trucks honking the ir horns as they passed her home. At 9:06 a.m. Restorff
called 911 to report G.B. missing. She was immediately told that G.B. was with the police.
Until G.B. was returned to her, Restorff was not within sight or hearing of a toddler
at all times so that she was capable of intervening to protect him. See Minn. R. 9502.0315,
subp. 29a. Because Restorff failed to provide supervision, she committed neglect. See
Minn. Stat. § 626.556, subd. 2(g)(3) (defining neglect as the failure to provide for necessary
supervision). Based on the record, the commissioner’s decision is supported by substantial
evidence.
Affirmed.