In the Matter of the Appeal by Amy Seelye of the Maltreatment Determination and the Amended Order of Denial for Child Foster Care Licensure.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0263

In the Matter of the Appeal by Amy Seelye of the Maltreatment Determination and the
Amended Order of Denial for Child Foster Care Licensure.

Filed January 13, 2020
Affirmed
Reyes, Judge

Minnesota Department of Human Services
File No. 35258

John E. Mack, Joel A. Novak, New London Law, P.A., New London, Minnesota (for
relator Amy Seelye)

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Danielle H. Olson, Swift County Attorney, Lisa K. Stevens, Assistant County Attorney,
Benson, Minnesota (for respondent Minnesota Department of Human Services)

Considered and decided by Connolly, Presiding Judge; Bjorkman, Judge; and
Reyes, Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
In this certiorari appeal from a decision by the Minnesota Department of Human
Services (DHS) to deny relator’s foster -care license, relator argues that (1) substantial
evidence did not support the decision and (2) the decision violates her procedural- and
substantive-due-process rights. We affirm.

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FACTS
Relator Amy Seelye applied for a license to become a foster parent to her
granddaughter A.S. after her daughter’s parental rights to A.S . were terminated. An
administrative-law judge (ALJ) made findings of fact and law, which Swift County Human
Services (the county) adopted to deny relator’s application.
On August 19, 2017, upon receiving a report of relator driving erratically, a police
officer pulled over relator after observing her cross the fog line twice. Relator was driving
with her s even-year-old son in the car. Upon approaching relator, the officer noted that
she had sluggish and slurred speech. The officer administered a preliminary breath test
that show ed 0.000 alcohol concentration, then administered field sobriety tests , which
relator failed. The officer also noticed nystagmus and a lack of convergence in relator’s
eyes. Based on these results, the officer placed relator into custody and administered a
blood test, which showed THC and its metabolites in relator’s system.
The county previously denied relator’s application 1 and entered into a settlement
agreement with relator requiring her to “comply with all applicable child foster care
licensing requirements for a license to be granted.” The county concluded that relator did
not fully comply with applicable laws and rules governing licensure because she

1 Relator reapplied because the county denied her initial application, but the facts from her
first application are largely irrelevant on appeal. In brief, her husband at the time, a
convicted felon, disqualified the couple from the foster -care licensing process. A
prospective foster parent must wait two years before reapplying unless the conditions that
caused the denial substantially change , Minn. Stat. § 245A.08 , subd. 5a(b), which the
county agreed would happen if her then -husband did not reside with her upon her
reapplication.

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(1) pleaded guilty to driving a car while under the influence of a controlled s ubstance
(DWI), with her child in the car ; (2) maltreated a child by neglect , a result of the DWI;
(3) provided false and misleading information in connection with her application; (4) failed
to demonstrate that she could provide the basic service of safety; and (5) could not certify
that she had been “free of chemical use problems” for two years. This appeal follows.
D E C I S I O N
I. Substantial evidence supports DHS’s decision to deny relator’s application for
a child foster-care license under Minn. Stat. §§ 245A.01-.66 (2018).

Relator argues that she did not drive while intoxicated and that, even assuming she
did, it does not establish maltreatment by neglect. We disagree.
We will not reverse or modify an administrative agency’s decision unless it is
“unsupported by substantial evidence in view of the entire record.” Minn. Stat. § 14.69(e)
(2018); In re Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264,
277 (Minn. 2001). Substantial evidence is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Excess Surplus, 624 N.W.2d at 274
(quotation omitted) . Additionally, “[w]e defer to an agency’s conclusions regarding
conflicts in testimony, the weight given to expert testimony and the inferences to be drawn
from testimony.” Id. at 278.
Relator must show by a preponderance of the evidence that she fully complied with
the foster-care-licensing statute, Minn. Stat. §§ 245A.01-.66, and other applicable laws or
rules and that her foster -care license should be approved. Minn. Stat. § 245A.08, subd.
3(b). Establishing a fact by a preponderance of evidence requires that the fact be more

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probable than not. City of Lake Elmo v. Metropolitan Council , 685 N.W.2d 1, 4 ( Minn.
2004).
Two statutory requirements are particularly relevant to our analysis: (1) DHS “shall
deny a license [application] if the applicant fails to fully comply with laws or rules
governing the program,” Minn. R. 2960.3020, subp. 11 (emphasis added), and (2) a finding
of maltreatment may result in denial of a license , see Minn. Stat. § 626.556, subds. 1,
2(g)(2) (2018); Minn. Stat. § 245A.07, subd. 1.
A. The county properly considered appellant’s DWI conviction and Alford
plea.

Relator argues that the county improperly considered her DWI conviction. We
disagree.
Relator challenges the basis for her DWI conviction, first contending that the
toxicology re port did not establish a positive result for tetrahydrocannabinol ( THC).
Relator concedes having smoked marijuana the night before driving, but maintains that any
THC in her system did not impair her driving. The blood test from the DWI showed THC
in rel ator’s system, and other evidence from the arrest sufficiently establishes relator’s
impairment. Moreover, relator disputes the circumstances leading to her DWI conviction,
but she cannot contest the fact that she pleaded guilty to and was convicted of DWI.
Relator also contests the significance of her DWI Alford guilty plea, implying that
the county should not have considered it. Under an Alford plea, a defendant maintains her
innocence while recognizing that sufficient evidence would support a jury verdict of guilty.
North Carolina v. Alford, 400 U.S. 25, 37-38, 91 S. Ct. 160, 167-68 (1970). Relator relies

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on the Minnesota Supreme Court ’s exclusion of an Alford plea from a civil case in Doe
136 v. Liebsch, 872 N.W.2d 875 (Minn. 2015). But the supreme court in Liebsch focused
on the narrow issue of whether an Alford plea could be used in a subsequent civil trial. Id.
880. The supreme court noted that “[a] convi ction based upon an Alford plea generally
carries the same penalties and collateral consequences as a conventional guilty plea.” Id.
The supreme court also noted circumstances when an Alford plea can be properly used “for
any legitimate purpose, including sentencing factors and enhancement, impeachment, and
in collateral proceedings, such as deportation.” Id. (quoting Armenakes v. State, 821 A.2d
239, 242 (R.I.2003)). Using the Alford plea from her criminal DWI case to help establish
the basis of an administrative determination of maltreatment qualifies as such a legitimate
purpose because relator’s foster -care-license application and her DWI trial proceeded
simultaneously. See id. at 881-82 (“We have held that evidence that a party has entered a
guilty plea is generally admissible in a subsequent civil trial regarding the same course of
conduct. . . . The district court enjoys broad discretion to determine whether to admit
evidence under Rule 403.”).
B. Pleading guilty to DWI establishes maltreatment by neglect.

Relator argues that a DWI conviction does not establish maltreatment by neglect .
We disagree.
The statute defines neglect to include, “other than by accidental means . . . failure
to protect a child from conditions or actions that seriously endanger the child’s physical or
mental healt h.” Minn. Stat. § 626.556, subd. 2 (g). The county equates relator’s DWI
conviction with endangering a child sufficient to establish maltreatment by neglect.

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Before the state tried relator for DWI, the county determined that she maltreated her
child by neglect because she failed to protect the child from serious endangerment. The
county stated that it “further defines [Minn. Stat. § 626.556, subd. 2] to include ‘parent(s),
guardian(s), or other persons responsible for a child’s care [who] are arrested for driving
under the influence of alcohol or drug s with children in the vehicle ’” (emphasis omitted).
Relator correctly points out two errors that the county made. First, the county improperly
identified the presence of any THC in the bloodstream as establishing DWI. Instead, “[i]t
is a crime for any person to drive, operate, or be in physica l control of any motor vehicle
. . . when . . . the person’s body contains any amount of a controlled substance listed in
Schedule I or II, or its metabolite, other than marijuana or tetrahydrocannabinols.” Minn.
Stat. § 169A.20, subd. 1 (7) (2018) (Emphasis added). Second, the county improperly
equated an arrest for, as opposed to a conviction of, DWI with a finding of maltreatment.
See Minn. R. Crim. P. 4.03 , subd. 1 (noting that person arrested without probable cause
must be released) ; State v. Harris , 589 N.W.2d 782, 790 -91 (Minn. 1999) (describing
probable cause as lower standard than preponderance of evidence).
Despite these errors, substantial evidence support s the county’s conclusion of
relator’s impairment and thus, by a preponderance of the evidence, that she maltreated her
child by neglect. The ALJ concluded , and we agree, that the record supported the
maltreatment determination because (1) the county considered not only her arrest, but also
the 911 tip from a different motorist observing relator’s erratic driving and the DWI and
toxicology reports; (2) the county interviewed relator and considered evidence that she was
driving erratically, failed the field sobriety tests, provided inconsistent excuses to the

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sheriff, and had a controlled substance in her system while driving; and (3) relator entered
an Alford guilty plea for DWI. These reasons support our conclusion that a preponderance
of evidence established maltreatment because it is more probable than not that relator failed
to protect her child from dangerous driving conditions . See Minn. Stat. § 245A.08, subd.
3(b); City of Lake Elmo, 685 N.W.2d at 4.
Because relator violated the statute by maltreating her child by neglect, relator failed
to fully comply with the rules governing this program. See Minn. R. 2960.3020, subp. 11.
We conclude that substantial evidence supports DHS’s decision to deny relator’s license.2
II. DHS’s denial of relator’s application did not violate her due-process rights.

Relator appears to argue that D HS’s decision deprived her of both substantive and
procedural due process. We address each issue in turn.
Administrative agencies lack jurisdiction to resolve constitutional issues. See
Neeland v. Clearwater Mem’l Hosp., 257 N.W.2d 366, 368 (Minn. 1977). We consider de
novo whether the denial of relator’s application violates her due-process rights. Plocher v.
Comm’r of Pub. Safety, 681 N.W.2d 698, 702 (Minn. App. 2004).
A. Substantive due process

Relator cites nonbinding or inapplicable caselaw establishing grandparents’
fundamental right to participate in the upbringing of their grandchildren.3 Relator’s
argument is misguided.

2 Because DHS needed only one basis to deny relator’s application, we need not discuss
the other bases. See Minn. R. 2960.3020, subp. 11.
3 See Moore v. City of East Cleveland , 431 U.S. 494, 504, 97 S. Ct. 1932, 1938 (1977)
(implicitly recognizing that grandparents can occupy parents’ position); Smith v. Org. of

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The Due Process Clause of the Fourteenth Amendment “provides heightened
protection against government interfere nce with certain fundamental rights and liberty
interests.” Washington v. Glucksberg , 521 U.S. 702, 720 , 117 S. Ct. 2258, 2267 (1997).
The Minn esota Constitution provides due -process protection consistent with the U.S.
Constitution. Sartori v. Harnischfeger Corp., 432 N.W.2d 448, 453 (Minn. 1988). A law
that does not restrict a fundamental right is subject to rational-basis review. See Romer v.
Evans, 517 U.S. 620, 631 , 116 S. Ct. 1620, 1627 (1996). The person challenging a law
under rational-basis review has the burden to show that there is no “conceivable basis”
supporting it. FCC v. Beach Commc’ns , 508 U.S. 307, 314 -15, 113 S. Ct. 2096, 2102
(1993).
The right to participate in the upbringing of a child is not synonymous with the right
to adopt a child via foster care. The Minnesota Legislature has enacted a comprehensive
statutory framework with specific elements applicants must meet to obtain a license to
provide foster care for a child, granddaughter or not, which suggests that the righ ts of
grandparents do not extend to foster-care licenses, as relator portrays them. See Minn. Stat.
§§ 245A.01-.66.

Foster Families for Equality and Reform, 431 U.S. 816, 844, 97 S. Ct. 2094, 2109 (1977)
(recognizing importance of emotional bonds cementing familial relationships); Lehr v.
Robertson, 463 U.S. 248, 258, 103 S. Ct. 2985, 2991 (1983) (equating “relationship of love
and duty in a recognized family unit” with “an interest in liberty entitled to constitutional
protection”); Drollinger v. Milligan, 552 F.2d 1220, 1226 -27 (7th Cir. 1977) (concl uding
grandparent has fundamental right to participate in caring for granddaughter); Johnson v.
City of Cincinnati, 310 F.3d 484, 501, 505-06 (6th Cir. 2002) (invalidating exclusion notice
prohibiting grandmother convicted of marijuana trafficking from ent ering locality where
her grandchildren resided).

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Relator fails to provide support for the assertion that becoming a foster parent is a
fundamental right. Moreover, she fails to show that no “conceivable basis” supports the
foster-care-application statute. See FCC v. Beach, 508 U.S. at 314-15, 113 S. Ct. at 2102;
see also Gluba ex rel. Gluba v. Bitzan & Ohren Masonry , 735 N.W.2d 713 , 719 (Minn.
2007) (“The party challenging the constitutionality of the statute bears the burden of
establishing beyond a reasonable doubt that the statute violates a constitutional right.”
(quotation omitted)). We reject relator’s argument that DHS violated her substantive-due-
process rights because she asserts no applicable fundamental right.
B. Procedural due process

Relator argues that the state’s foster-care-license-decision process fails the Mathews
v. Eldridge test. Relator’s argument is not persuasive.
The Supreme Court in Mathews v. Eldridge listed three competing interests to
balance when assessing the adequacy of procedural safeguards: (1) the private interest
affected by the official action ; (2) “the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value , if any, of additional or substitute
procedural safeguards ;” and (3) “the g overnment’s interest, including the function
involved and the fiscal and administrative burdens that the additional or substitute
procedural requirement would entail.” 424 U.S. 319, 335, 96 S. Ct. 893, 903 (1976).
“Procedural due process imposes constraints on governmental decisions which deprive
individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause
of the Fifth or Fourteenth Amendment[s].” Id. at 332, 96 S. Ct. at 901.

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Relator does not identify an interest triggering the Mathews v. Eldridge test. She
cites an interest in participating in a grandchild’s upbringing, but not in becoming a foster
parent. Moreover, as stated above, relator conflates becoming a foster parent with adoption
generally. Relator argues that, since courts tend to favor the preservation of familial bonds,
the government’s interest under the Mathews v. Eldridge test must favor her. But relator
overlooks the fact that substantial evidence weighed against preserving her particular bond
with her granddaughter through the foster-care system.
Even if we were to assume that relator’s foster-care-license application triggers the
Mathews v. Eldridge test, relator’s argument is not persuasive. Relator concedes that “in a
normal application of a foster -care license, these administrative proceedings will most
likely always meet constitutional muster.” She distinguishes her experience from that of a
normal foster-care-license applicant, citing her inability to cross examine, lack of notice
about the state’s argument, and lack of opportunity to rebut evidence. But the ALJ held a
full trial, and relator took full advantage of her right to provide ample briefing.
Relator also argues that the cumulative errors throughout the application process
deprived her of procedural due process. Relator refers to (1) the county concluding the
presence of THC based on results that were not “positive;” (2) speculation that she diluted
her blood; (3) the county’s erroneous application of the maltreatment statute to include an
arrest as opposed to a conviction; (4) the county’s erroneous statement that the presence of
THC was sufficient to establish DWI; and (5) disagreement with the ALJ ’s findings on
DWI and maltreatment. These instances either fall within the ALJ’s discretion or have no
bearing on the legitimacy of DHS’s conclusions based on the sufficiency of other evidence.

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As such, they do not demonstrate that the county’s process violated the Mathews v.
Eldridge test. We conclude that that relator has not demonstrated a violation of her
procedural- or substantive -due-process rights and that substantial evidence supported
DHS’s decision to deny relator’s foster-care application.
Affirmed.