In the Matter of the Appeal by Amy Waters of the Maltreatment Determination and Disqualification, and by John and Amy Waters Order of Revocation of their Child Foster Care License DHS Case Number 36496.

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-1119

In the Matter of the Appeal by Amy Waters of the Maltreatment Determination and
Disqualification, and by John and Amy Waters Order of Revocation of their Child Foster
Care License DHS Case Number 36496.

Filed June 27, 2022
Reversed
Reilly, Judge

Minnesota Department of Human Services
File No. DHS 36496

Katherine S. Barrett Wiik, Saul Ewing Arnstein & Lehr, LLP, Minneapolis, Minnesota (for
relators John and Amy Waters)

Keith Ellison, Attorney General, R.J. Detrick, Assistant Attorney General , St. Paul,
Minnesota (for respondent Minnesota Department of Human Services)

John J. Choi, Ramsey County Attorney, So Yeon Woo- Bockman, Assistant County
Attorney, St. Paul, Minnesota (for respondent Ramsey County)

Thomas H. Boyd, Jessica Timmington Lind strom, Kyle R. Kroll, Winthrop & Weinstine,
P.A., Minneapolis, Minnesota (for amicus curiae The Reel Hope Project)

Considered and decided by Worke, Presiding Judge; Reilly, Judge; and Frisch,
Judge.
SYLLABU S
A maltreatment determination of the commissioner of human services is arbitrary
or capricious when the decision adopts an administrative -law judge’s findings about
circumstances surrounding an injury to a foster child but then rejects the administrative -
law judge’s conclusions of law and recommendation based on those findings without
explaining the basis for the decision.
2
OPINION
REILLY, Judge
Relators John and Amy Waters served as foster parents to three young children.
After a bruise appeared on one child’s cheek , respondent Ramsey County (the county)
investigated and concluded that foster mother had caused the child’s injury. Based on this
conclusion, the county issued a maltreatment determination against foster mother.
Respondent Department of Human Services (DHS) then disqualified foster mother from
having contact with persons receiving services from licensed department programs. DHS
also revoked foster parents’ chi ld-foster-care license based on foster mother’s
disqualification, as well as alleged violations of various licensing rules by both foster
parents.
Foster parents appealed the maltreatment determination, the disqualification, and
the license revocation . The case proceeded to an evidentiary hearing before an
administrative-law judge (ALJ). The ALJ determined that the county failed to prove that
foster mother had physically abused the child, and he recommended that the commissioner
of human services vacate and rescind the actions against foster parents. The commissioner
disagreed with the ALJ’s recommendations and affirmed the maltreatment determination,
the disqualification, and the license revocation .
In this certiorari appeal from the commissioner’s decis ion, relators challenge the
commissioner’s decision affirming the maltreatment determination against foster mother,
the disqualification of foster mother from having contact with persons receiving services
from licensed department programs, and the revocat ion of foster parents’ child-foster-care
3
license. We conclude that the commissioner’s maltreatment determination was not
supported by substantial evidence and was arbitrary or capricious. Because the
disqualification and the license revocation stemmed from the maltreatment determination,
those decisions are also legally erroneous . For these reasons, we reverse the
commissioner’s decision in all respects.
FACTS 1
Relators married in 2014 and planned to start a family together. After a few years,
relators began to explore adoption. Relators applied for a child -foster-care license from
DHS, and they obtained the license in 2017.
The Foster-Care Placement
In March 2018, Clay County Social Services appr oached relators about a possible
placement. Clay County was seeking a placement for three young siblings, all boys, whom
we will refer to here as Child 1, Child 2, and Child 3.2 At the time, Child 1 was eight years
old, Child 2 was six years old, and Child 3 was five years old. 3 The boys had experienced
significant trauma and neglect from a young age. The boys’ biological parents were
involved in selling narcotics and exposed the boys to drug use and domestic violence. The
district court terminated the parents’ parental rights in 2016. Since their first placement in

1 These facts are taken from the commissioner’s findings of fact and are supplemented by
relevant evidence in the record.
2 The commissioner’s decision refers to the children by the Greek letters Alpha, Beta, and
Gamma. We use a different method to follow this court’s preferred method of referring to
children in child-welfare matters.
3 We note that the ages of the children listed in the commissioner’s findings are inaccurate.
The ages listed here are taken from the record showing the children’s dates of b irth, as
shown on neuropsychological examinations for each child.
4
the foster -care system, Child 1 and Child 2 had been in nine different placements, and
Child 3 had been in eight different placements. The children had also experienced a failed
adoption, which was especially difficult for Child 1, who seemed to take it personally and
blamed himself. The children all suffered from post-traumatic-stress disorder and reactive -
attachment disorder. Despite the challenges that the placement posed, relators agreed to
take in the children. Clay County placed all three children in relators’ home by the end of
March 2018.
The children remained in relators’ care for more than a year, and the placement
seemed promising. Relators took measures to address the children’s health conditions and
developmental delays, including having medical evaluations and therapy sessions for the
children. According to the children’s guardian ad litem (GAL), Child 2 suffer ed from
mental-health and cognitive issues that ma de it hard for him to respond accurately and
consistently in interviews. Relators learned from the children’s therapists that the boys
could be “manipulative” and had problems with lying and “raging,” and relators sometimes
used those terms to describe the children’s behaviors. The GAL had regular contact with
the children and hoped that the children could remain in relators’ home and be adopted by
relators.4 Relators began drafting the adoption petition, and Clay County officials started
preparing for a permanent adoptive placement for the boys with relators .

4 The GAL testified that she had served as the children’s GAL since May 2015, when the
children were first placed in foster care.
5
Bruising of Child 2 and County Investigation
On the morning of May 13, 2019, a bruise appeared on Child 2’s left cheek. The
bruise drew the attention of several people who interacted with the child. Foster mother
took Child 2 to her workplace that day because Child 2 had a medical appointment
scheduled for later in the day. One of foster mother’s coworkers asked about the bruise,
and Child 2 said that he got hit in the face with a ball. Over the next several days, Child 2
gave varying explanations about the cause of the bruise, and Child 1 and Child 3 also
provided conflicting accounts.
On May 14, Child 2’s teacher asked him about the bruise. Child 2 initially avoided
eye contact and said he was hurt. When the teacher pressed him for details, Child 2 said
that foster mother got mad at him after he urinated in his pants and that she hit him on the
cheek. The teacher then sent Child 2 to the school nurse to examine his injury. The school
nurse examined him, and Child 2 said that he had hit his cheek while getting out of the car.
At lunch that day, another faculty member asked Child 2 about the bruise, but Child 2
responded t hat he had already discussed the matter with other staff members. The same
faculty member later asked Child 3 about Child 2’s bruise, and Child 3 said that foster
mother had slapped Child 2 “because she was mad at him in the car.”
After the children discl osed this information, a deputy from the Ramsey County
Sheriff’s Office (the first deputy)5 went to the school to interview Child 2. The first deputy

5 Three different deputies from the Ramsey County Sheriff’s Office were involved in
various parts of the investigation. To distinguish between the deputies, we call them the
“first deputy,” “second deputy,” and “third deputy.”
6
asked Child 2, “What happened with the bruise on your cheek?” Child 2 replied, “I had an
accident and my mom was mad.” Child 2 clarified that the “accident” was “peeing [his]
pants,” and he said that he had the accident when he was playing outside. The first deputy
asked Child 2 if foster mother hit him “with an open hand . . . or was it more like a fist, like
a punch?” Child 2 shared that the hit was with an open hand. Child 2 later stated that, after
he had urinated in his pants, the family went to W almart and foster mother struck him in
the car when they were leaving the store. After interviewing Child 2, the first deputy called
foster mother and inquired further about the injury. Foster mother said she had noticed the
bruise on the morning of May 13 but claimed not to know how the injury happened . S he
propounded that she may have accidentally hit Child 2’s cheek during a jumping game she
was playing with the boys the previous weekend .
The county opened a maltreatment investigation and assigned a c hild-protection
investigator to the matter (the county investigator). The county investigator interviewed
all three children at the school on May 16, 2019. According to the county investigator’s
notes from the interview, t he children provided different s tories about the cause of the
bruise. Child 2 told her that, during the previous weekend, foster mother became angry in
the car after learning that he had wet his pants. According to Child 2, foster mother t old
Child 2 to get out of the car, grabbed him by the arm near the shoulder, and struck his face
with her open hand. Child 1 told the county investigator that Child 2 did have an accident
in his pants, but he believed that Child 2 obtained the bruise by falling down the stairs.
Child 3 reported that foster mother had slapped Child 2, but he said that the slap happened
on the deck of the family home, rather than in the car.
7
After interviewing the children, the county investigator contacted the children’s
foster-care case manager with Clay County and urged her to remove the children from
relators’ home. The county investigator said that she was “concerned about the safety and
well-being” of the children and that she believed “it is best that the children do not r emain
in placement” with relators. The Clay County case manager, with the support of her
supervisor and the foster-care licensor,6 responded that they believed it was in the
children’s best interests to remain in relators’ home until the maltreatment inv estigation
was complete, because they did not want to cause additional trauma to the children by
removing them from the home.
On May 21, 2019, the county investigator and a second deputy interviewed relators
separately at their residence. Foster mother speculated about possible sources of Child 2’s
bruise and provided two possible times she thought the injury could have happened: first,
when they were playing soccer in the house and foster mother “was trying to playfully take
[Child 2] down and she ended up grabbing his face with her thumb”; and second, when
Child 2 had his “accident” and foster mother “touched his face while in the car.” Foster
mother expanded on the incident in the car. She said that, when she discovered that Child 2
had wet his pants, she was in the driver’s seat and foster father was in the passenger seat.
According to foster mother, she became frustrated, reached around to the passenger seat
behind foster father, and tried to grab Child 2’s arm so that she could get him out of the car

6 These individuals had worked with relators and regularly visited relators’ home since
Clay County had placed the children with relators in March 2018.
8
because his pants were wet. As she was doing this, her hand “went across his face.” Foster
mother said that it was “harder than a tap,” but that it was not a slap and was unintentional.
Foster father also told the county investigator and the second deputy about the
incident in the car. He said that, while the family was running errands, he and foster mother
discovered that Child 2 had wet his pants. Foster father indicated that they asked Child 2
to get out of the car and go inside to get cleaned up. Foster father acknowledged that he
and foster mother were frustrated with Child 2, but he denied seeing foster mother slap the
child. During the interviews, both foster parents said that the children had problems with
lying and manipulation and that they were trying to address those issues in therapy.
Based on the interviews, t he county investigator and the second deputy distrusted
foster parents. They viewed foster mother’s listing of alternative ways that the child could
have been injured and the description of the children’s problems with lying as signs that
foster mother was trying to obscure the truth.
The county investigator also showed photos of Child 2’s bruise to a doctor with the
Midwest Children’s Resource Center. The doctor said that the mark did not appear to be a
typical slap mark but seemed to have been caused by “impact pressure or being squeezed.”
The doctor, though, told the county investigator that he believed there was “a
preponderance of evidence to believe [Child 2]” and that it “[did] not seem like reasonable
parenting.”
Based on the investigation, the county notified foster parents on May 23, 2019, of a
maltreatment determination against foster mother. The maltreatment determination was
based on the county’s conclusion that a preponderance of the evidence supported that foster
9
mother had “caused bruising” to Child 2’s face, which is defined by statute as “physical
abuse,” a form of maltreatment.7 See Minn. Stat. § 260E.03, subds. 12, 18 (2020) (defining
“maltreatment” and “physical abuse”).
Because of the county’s maltr eatment determination, DHS considered whether to
take licensing action against foster parents. While the DHS investigation was pending, the
children’s GAL wrote to support relators. The GAL stated that she had never had any
concerns related to the childr en’s care while they were in relators’ home. The GAL wrote
that she and Clay County officials “fully endorse[d] the children remaining in the home.”
On July 11, 2019, DHS notified relators that, because of the maltreatment
determination, foster mother was disqualified from any position allowing direct contact
with persons served by the DHS-licensed child-foster-care program. DHS then sent foster
father an order for immediate removal, which directed him to immediately remove foster
mother from the home and to prevent her from having direct contact with the children.
Foster mother left the home within the seven- hour period provided by the order, to avoid
having the children placed in emergency foster care and to prevent their foster-care license
from being revoked.
Report of Sexual Contact among the Children and Removal from Relators’ Home
After foster mother left the home, foster father continued to care for the children by
himself. Then, on July 25, 2019, the county received a report tha t Child 1 may have

7 The county later charged foster mother with gross -misdemeanor malicious punishment
of a child. In Dece mber 2019, after the children had been removed from relators’ home,
the county dismissed the complaint because the state did not believe that it could meet its
burden of proof.
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engaged in sexual contact with his siblings. According to the report, Child 2 and Child 3
told their friends that, while they were playing at a park, Child 1 had “sucked” on them
“down there.” The exchange was overheard by an adult, who reported it, and the county
began to investigate for possible sexual abuse. The county investigator and a third deputy
conducted forensic interviews of Child 2 and Child 3. Despite the disqualification against
her, foster mother received permission from the county to come to the county office while
the two boys were being interviewed and to hear the interviewers’ findings. During the
forensic interviews, Child 2 and Child 3 denied that Child 1 had engaged in any sexual
contact with them.
After the fore nsic interviews, relators asked the county what would happen next.
The parties disagree about the response by county officials. According to relators, the third
deputy simply told them, “just leave it alone.” Foster parents claimed that it was not clear
to them what the third deputy meant by “leave it alone.” According to the county, however,
the third deputy specifically advised relators not to discuss anything with the boys, in case
one of them decided to disclose sexual abuse in the future. During t hat conversation,
relators also questioned what would happen if the children continued to “lie, manipulate,
and rage.” Foster father stated that he was “at his [wits’] end” having to care for the
children himself and that he felt unsafe because of Child 1’s unpredictable behaviors.
On the car ride home from the forensic interviews, Child 2 and Child 3 began to talk
to relators about the sexual -contact allegations. According to relators, the two children
admitted that they had lied and asked if Child 1 was “going to jail.” To try to determine
whether the children’s claims were truthful, relators drove to the park where the alleged
11
sexual contact happened. E ach foster parent took one boy to a different part of the park
and tried to make sense of wha t the boys had told their friends . After doing so, relators
became convinced that Child 1 could not have engaged in the alleged sexual contact with
his siblings. Foster mother obtained a satellite image of the park and annotated the image
with features o f the children’s claims, and she emailed the county investigator with the
image to explain that she did not believe the claimed sexual contact occurred.
After the incident at the park, t ensions between relators and the county reached a
breaking point. The county investigator was troubled by foster mother’s email and
believed that she had violated the county’s directives not to have access to the children and
not to discuss the sexual -contact claims with the children. The third deputy and foster
mother had a heated phone conversation about the incident at the park. During a
teleconference to discuss the support that foster father might need in caring for the children,
county officials suggested that the children might need additional hours of therapy.
According to the county investigator, f oster mother was cool to the idea of additional
therapy because the children already had significant time commitments for therapy , and
she said that “having to sit at therapy for three hours [was] torture .” Foster mothe r,
however, denied making this remark and said that Child 1 had called it “torture” and that
the children did not like sitting in a waiting room for hours during each other’s therapy
sessions.
On July 31, 2019, t he county investigator emailed the Clay County officials in
charge of the foster -care placement and encouraged them to remove the children from the
home and to find a third adoptive placement. The county investigator believed that relators
12
were exaggerating the children’s mental and medical needs because “it does not appear as
though they are as high need as [relators] make them out to be.” The county investigator
wrote that the county did not believe that relators were qualified to provide foster -care
services and that it did “not feel as though this is a safe or healthy environment for the[]
children.”
Shortly after the county investigator’s email, the children’s foster -care-placement
agency formally recommended that DHS revoke relators’ child -foster-care license. On
August 10, 2019, the three children were removed from relators’ home.
On October 8, 2019, DHS issued an order revoking relators’ child -foster-care
license. The primary reason for the license revocation was foster mother’s disqualification
for serious maltreatment. DHS also determined that license revocation was appropriate
because relators failed to comply with various DHS licensing rules. The revocation order
listed the rules that DHS determined relators had violated. F irst, DHS determined that
relators violated Minnesota Rule 2960.3060, subpart 4(I) (2021), because relators “failed
to deal with anger, sorrow, frustration, conflict, and other emotions in a manner that would
build positive interpersonal relationships,” based on relators “repeatedly describ[ing] the
foster children . . . as manipulative, lying, and raging.” Next, DHS determined that relators
violated Minnesota Rule 2960.3060, subpart 4(J) (2021), which required them to comply
with the foster children’s care plan and to work w ithin agency and state policies. This
violation was based on foster father reporting that he felt unsafe around the children, foster
mother saying that waiting while the children had three hours of therapy was “torture,” and
relators taking the children to the park to discuss the allegations of sexual contact against
13
Child 1. Finally, DHS determined that foster mother violated Minnesota Rule 2960.3080,
subpart 8 (2021) , which prohibits corporal punishment of a child, based on the
maltreatment determination against her. The next day, DHS denied relators’ request to set
aside its earlier disqualification of foster mother, determining that she failed to prove that
she did not pose a risk of harm to foster children.
Relators administratively appealed the maltreatment determination, the
disqualification, and the license revocation. While the matter was pending before the
agency, the children’s GAL wrote to re lators saying that she believed that it was in the
children’s best interest s not to return the children to relators’ home for adoption and
placement. The GAL explained she reached that opinion because of how long it was taking
to appeal the maltreatment d etermination, the uncertainty about whether the maltreatment
determination would be overturned, and that “[t]here is no way to determine when or if you
will be able to have the children in your home.” The children were eventually separated
and placed in d ifferent foster-care homes.
The ALJ’s Recommendation and the Commissioner’s Decision
The ALJ held a contested -case hearing over three days. After the hearing, the ALJ
issued his findings of fact, conclusions of law, and recommendation. The commissioner
then reviewed the ALJ’s recommendation and issued her final order.
The ALJ determined that DHS failed to establish that foster mother physically
abused Child 2 as defined in Minn. Stat. § 260E.03, subd. 18.8 The ALJ stated that the

8 The definition of “physical abuse” was previously codified at Minn. Stat. § 626.556,
subd. 2(k) (2018), and the ALJ’s recommendation and the commissioner’s order cite that
14
case “reveal[ed] the very real dangers of confirmation bias.” The ALJ found that the county
had “cherry-picked” the evidence and clung to its initial belief that foster mother had
caused Child 2’s bruise, despite evidence to the contrary. As contrary evidence, the ALJ
cited Child 2’s differing accounts of the injury, the conflicting accounts of other family
members, and the medical opinion of the doctor that the bruise was caused by a pinch rather
than a slap.9 The ALJ reasoned that the county’s case was “side-stepping an inconvenient
truth”—“that the eyewitness accounts of the car ride, and the medical evidence of
[Child 2’s] injuries, do not match.”
Based on the determination that the county had failed to show that foster mother
was responsible for Child 2’s injury, the ALJ concluded that DHS also failed to show
serious maltreatment by mother, as defined by Minn. Stat. § 245C.02, subd. 18 (2020). As
a result, the ALJ recommended that the commissioner vacate the maltreatment
determination against foster mother and rescind her disqualification. The ALJ also
determined that the licensing -rule violations were “doubtful.” T he ALJ concluded that
DHS could not sanction relators for violating Minnesota Rule 2960.3060 because that
provision, by its plain language, applied only to prospective foster parents during their

provision. As part of the 2020 statutory amendments, much of section 626.556 was moved
to chapter 260E. See 2020 Minn. Laws 1st Spec. Sess. ch. 2, art. 7, §§ 3, at 199; 39, at 234.
We cite the current version of the statute.
9 Before the evidentiary hearing, the doctor was served with a subpoena seeking records of
his review of Child 2’s injuries. The doctor did not comply with the subpoena, but the
county later sought to offer into evidence an affidavit from the doctor explaining his
conclusions. The ALJ excluded the doctor’s affidavit because of his failure to comply with
the subpoena. The doctor’s affidavit is not part of the administrative record.
15
initial application and home study, not throughout foster parents’ license period. Thus, the
ALJ recommended that the commissioner vacate the order of license revocatio n.
The commissioner adopted almost all the ALJ’s factual findings. The commissioner
adopted in full the ALJ’s first 52 findings, which included all relevant findings about the
circumstances of Child 2’s injury and the county’s maltreatment investigation. These
included findings about the county investigator’s and the deputies’ methods of
investigating the injury and interviewing the family members, the children’s conflicting
accounts of how the bruise happened, and foster parents’ alternative theories. The
commissioner modified several of the ALJ’s findings about the county’s investigation of
the sexual -contact allegations against Child 1 and the circumstances prompting the
children’s removal from relators’ home. The commissioner made additional findings that
county officials specifically told foster parents not to discuss the sexual-contact allegations
with the children and that foster parents expressed concerns to the county about the
children’s “lying, manipulating, and raging.” Despite agreeing with most of the ALJ’s
factual findings, the commissioner reached the opposite determination about maltreatment
and disagreed with the ALJ’s recommendations.
As for Child 2’s bruising, the commissioner stated in her analysis that foster mother
“does not deny that she caused the injury to [Child 2]; she claims that she did so
accidentally.” The commissioner rejected foster mother’s explanation that she accidentally
touched Child 2’s face in an attempt to get him out of the car , deeming her account of the
incident not credible . Instead, the commissioner determined that “the weight of the
credible evidence is that [foster mother] reached for [Child 2’s] arm in a manner that was
16
not controlled, reasonable, or moderate physical discipline, and that [foster mother’s]
actions resulted in injury to the child.” Thus, the commissioner concluded that foster
mother physically abused Child 2 and that her conduct was not accidental. In reaching this
conclusion, the commissioner did not address the ALJ’s concerns about confirmation bias
or relators’ proposed possibilities of alternative sources of the injury. The commissioner
determined that foster mother’s conduct constituted serious maltreatment, and she affirmed
the maltreatment determination an d the disqualification of foster mother. The
commissioner also considered whether to set aside the disqualification but declined to do
so.
Finally, the commissioner affirmed the revocation of relators’ child-foster-care
license, based on both the disquali fication of foster mother and relators’ violations of
licensing rules . The commissioner disagreed with the ALJ’s determination that the
licensing rules did not apply to relators and noted that DHS regularly applied the rules
throughout licenseholders’ dur ation of their service as providers. The commissioner
concluded that relators violated the licensing rules by failing to deal with their frustration
with the foster children’s needs, by failing to work within agency and state policies, and
by committing corporal punishment. For these reasons, the commissioner determined that
revocation of relators’ child-foster-care license was appropriate.
Relators requested reconsideration of the commissioner’s decision, which the
commissioner denied. Relators appeal to this court by certiorari.
17
ISSUES
I. Is the commissioner’s maltreatment determination supported by substantial
evidence and not arbitrary or capricious?
II. Did the commissioner err by disqualifying foster mother for serious maltreatment?
III. Is the commissioner’s d ecision to revoke foster parents’ child -foster-care license
based on foster mother’s disqualification and the licensing- rule violations legally
correct, supported by substantial evidence , and not arbitrary or capricious?
ANALYSIS
Our review of the decisions of an administrative agency following a contested -case
hearing is governed by the Minnesota Administrative Procedure Act, Minn. Stat.
§§ 14.001-.69 (2020). See Minn. Stat. § 14.63. “Agency decisions enjoy a presumption
of correctness and warran t deference by courts.” Kind Heart Daycare, Inc. v. Comm’r of
Hum. Servs., 905 N.W.2d 1, 9 (Minn. 2017) (quotation omitted). An appellate court may
reverse or modify an agency’s decision if the appealing party’s substantial rights are
prejudiced because the decision is (a) unconstitutional, (b) in excess of the agency’s
statutory authority or jurisdiction, (c) based on unlawful procedure, (d) affected by an error
of law, (e) unsupported by substantial evidence in the record, or (f) arbitrary or capricious.
Minn. Stat. § 14.69. We review legal questions, including the interpretation of statutes and
administrative rules, de novo. In re Restorff, 932 N.W.2d 12, 18 (Minn. 2019); see also St.
Otto’s Home v. Minn. Dep’t of Hum. Servs., 437 N.W.2d 35, 39- 40 (Minn. 1989).
The supreme court has defined the substantial -evidence standard as “such evidence
that a reasonable person would accept as adequate to support a conclusion.” Restorff, 932
N.W.2d at 21 (quotation omitted). The standard requires “more than a scintilla of evidence,
18
more than ‘some’ evidence, and more than ‘any’ evidence.” Webster v. Hennepin County,
910 N.W.2d 420, 428 (Minn. 2018) . The substantial -evidence standard reflects the
principle that this court examines “whether the agency has adequately explained how it
derived its conclusion and whether that conclusion is reasonable on the basis of the record.”
In re NorthMet Project Perm it, 959 N.W.2d 731, 749 (Minn. 2021).
An agency’s decision is arbitrary or capricious if it “represents the agency’s will
and not its judgment.” In re Schmalz , 945 N.W.2d 46, 54 (Minn. 2020). In determining
whether an agency’s decision is arbitrary or ca pricious, we consider whether the agency’s
decision
(a) relied on factors not intended by the legislature; (b) entirely
failed to consider an important aspect of the problem;
(c) offered an explanation that runs counter to the evidence; or
(d) the decision is so implausible that it could not be explained
as a difference in view or the result of the agency’s expertise.
Citizens Advocating Responsible Dev. v. Kandiyohi Cnty. Bd. of Comm’rs , 713 N.W.2d
817, 832 (Minn. 2006).
Relators challenge these three aspects of the commissioner’s decision: (1) the
maltreatment determination against foster mother ; (2) the disqualification of foster mother;
and (3) the revocation of the child -foster-care license for both foster parents. We address
each determination in turn.
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I. The commissioner’s maltreatment determination is not supported by
substantial evidence in the record and is arbitrary or capricious.
We first address the maltreatment determination against foster mother. The
commissioner’s maltreatment decision was based on the determination that foster mother
was responsible for maltreatment by physical abuse.
Minnesota statute defines “physical abuse” as “any physical injury . . . inflicted by
a person responsible for the child’s care on a child other than by accidental means, or any
physical or mental injury that cannot reasonably be explained by the child’s history of
injuries.” Minn. Stat. § 260E.03, subd. 18(a). Physical abuse is a form of maltreatment.
Id., subd. 12(3). Maltreatment that constitutes “abuse resulting in serious injury,”
including bruises, is considered “serious maltreatment.” Minn. Stat. § 245C.02,
subd. 18(a), (c) (2020). If DHS determines that an individual committed serious
maltreatment, the individual is subject to various sanctions, including disqualification and
revocation of their lic ense. See Minn. Stat. §§ 245C.15, subd. 4(b)(2 ) (requiring
disqualification of individual determined to have committed serious maltreatment),
245A.07, subd. 3(a)(5), .04, subd. 7(d) (requiring license revocation when individual has
been disqualified) (2020). Under agency rules, DHS had the burden to show that foster
mother was responsible for serious maltreatment before taking action against her. See
Minn. R. 1400.7300, subp. 5 (2021) (providing that “[t]he party proposing that certain
action be taken must prove the facts at issue by a preponderance of the evidence”).
Relators argue that the maltreatment determination was not supported by substantial
evidence and was arbitrary or capricious because the commissioner failed to address
20
contradictory evidence in the record and failed to explain why she departed from the ALJ’s
conclusions of law and related recommendations. The commissioner is “not required to
treat the ALJ’s recommendation with the same deference an appellate court must accord
the findings of a trial court.” In re Excess Surplus Status of Blue Cross & Blue Shield of
Minn., 624 N.W.2d 264, 274 (Minn. 2001). “Rejection of the ALJ’s recommendations
without explanation however, may suggest that the agency exercised its will rather than its
judgment and was therefore arbitrary and capricious.” Id. at 278. The commissioner must
articulate a “rational connection between the facts found and the choice made.” Id. at 277
(quotation omitted) . And when an agency’s findings on witness credibility diff er from
those of the ALJ, we review the agency decision more critically. In re Occupational
License of Hutchinson, 440 N.W.2d 171, 176 (Minn. App. 1989), rev. denied (Minn.
Aug. 9, 1989).
While recognizing that the commissioner was not bound by the ALJ’s
recommendation about maltreatment, we conclude that the commissioner’s decision di d
not adequately explain how she reached her determination that foster mother maltreated
the child. The commissioner adopted all the ALJ’s findings about the circumsta nces of
Child 2’s injury. Despite adopting these same findings, the commissioner reached the
opposite determination as the ALJ and determined that foster mother caused the child’s
bruise. The commissioner did not explain the reasons for disregarding the ALJ’s
conclusion that DHS failed to show that foster mother was responsible for serious
maltreatment. Nor did the commissioner try to reconcile her conclusion with the ALJ’s
concerns about confirmation bias, the conflicting accounts of the injury among the family
21
members, and the doctor’s medical opinion that the bruise was likely caused by a pinch
rather than a slap.
Moreover, the commissioner’s analysis of the issue is marred by a fundamental
misstatement about the parties’ positions. The commissioner inaccurately stated that foster
mother “does not deny that she caused the injury to [Child 2]; she claims that she did so
accidentally.” The record contradicts this statement. The commissioner correctly noted
that foster mother did not deny that the incident in the car happened; she ind eed
acknowledged that her hand made contact with the child’s face after she discovered he had
wet his pants and she was trying to get hi m out of the car . But foster mother’s statement
in this respect did not a mount to a concession that her conduct during that incident was
what caused the child’s bruise. Instead, foster mother was open to that idea as one of
several possibilities as the source of the bruising. Throughout their filings to the ALJ and
the commissioner, relators maintained that mother did not cause the bruise and cited other
possible causes. The commissioner’s decision assumed that the incident in the car was the
cause of the child’s injury but d id not identify a definitive basis for reaching tha t
conclusion. By incorrectly stating that relators had essentially conceded this issue, the
commissioner circumvented an entire area of analysis and skipped over an important area
of contention among the parties.
Because of the commissioner’s rejection of the ALJ’s recommendation without
explanation, as well as the failure to consider other possible causes of the bruise based on
an inaccurate determination that relators had conceded the issue, we conclude that the
commissioner’s decision that foster mother physically abused Child 2 was arbitrary or
22
capricious. The supreme court has recognized that these types of deficiencies in an agency
decisionmaker’s analysis may show that a decision was arbitrary or capricious. See
Citizens Advocating Responsible Dev., 713 N.W.2d at 832 (noting one way that an agency
acts arbitrarily or capriciously is by failing to consider an important aspect of the problem);
Excess Surplu s Status , 624 N.W.2d at 274 ( providing that “[r]ejection of the ALJ’s
recommendations without explanation” may show the exercise of an agency’s will rather
than its judgment ). The commissioner’s analysis is further troubling because the ALJ
appears to hav e implicitly found foster mother’s version of events credible, while the
commissioner found her account not credible. The ALJ, not the commissioner, sat through
the three-day evidentiary hearing and had the chance to evaluate the witnesses’ credibility.
While the commissioner was not bound by the ALJ’s credibility determinations, the
commissioner’s decision failed to explain the bases for rejecting the ALJ’s determinations
on witness credibility.
Based on these deficiencies in the commissioner’s analysis, we are not satisfied that
the commissioner’s decision establishes a “rational connection” between the findings of
fact and the conclusion that foster mother was responsible for Child 2’s bruise. See Excess
Surplus Status, 624 N.W.2d at 277. In light of the record as a whole, the commissioner’s
determination that foster mother committed physical abuse against Child 2 is not supported
by substantial evidence and is arbitrary or capricious. We therefore reverse the
maltreatment determination against foster mother.
23
II. The commissioner’s disqualification of foster mother based on the
determination of serious maltreatment is reversible error.
Relators also challenge the commissioner’s disqualification of foster mother from
providing direct contact with persons served by the DHS -licensed child -foster-care
program. The commissioner must disqualify an individual for seven years from any
position allowing direct contact with persons receiving licensed services if there is a
determination that the individual committed “substantiated serious or recurring
maltreatment of a minor.” Minn. Stat. § 245C.14, subd. 1(a)(3), .15, subd. 4(b)(2) (2020).
The disqualification of foster mother was based on the commissioner’s determination that
foster mother committed ser ious maltreatment. Because we reverse the maltreatment
determination against foster mother , we also reverse the disqualification.10
III. The bases for the revocation of relators’ foster -care license are legally
erroneous, not supported by substantial evidence in the record, and arbitrary
or capricious.
Finally, we address the commissioner’s revocation of relators’ child -foster-care
license. The commissioner must revoke a license if the licenseholder has been disqualified
and the disqualification was not set as ide. Minn. Stat. §§ 245A.07, subd. 3(a)(5), .04,
subd. 7(d). Because we reverse the commissioner’s disqualification of foster mother, the
license revocation cannot be affirmed based on the disqualification.
DHS argues that the license revocation can be independently sustained based on
relators’ violations of licensing rules. The commissioner may revoke a license if the

10 Relators also challenge the commissioner’s decision not to set aside the disqualification
of foster mother. Given our decision, we need not address this alternative argument.
24
licenseholder “fails to comply fully with applicable laws or rules” governing DHS
licensing. Minn. Stat. § 245A.07, subd. 3(a)(1) (2020) . When imposing sanctions on
licenseholders, the commissioner must “consider the nature, chronicity, or severity of the
violation of law or rule and the effect of the violation on the health, safety, or rights of
persons served by the program.” Id., subd. 1(a) (2020). The commissioner’s decision cited
three provisions that relators failed to comply with : two provisions under Minnesota Rule
2960.3060, subpart 4, and one provision of Minnesota Rule 2960.3080, subpart 8.
As a threshold question, we address the applicability of some of these provisions to
relators’ situation. The ALJ reasoned that DHS could not sanction relators for violating
Minnesota Rule 2960.3060 because that provision applies only to applicants at the time of
the initial application and home study, not during the license period. The commissioner
disagreed with this interpretation and reasoned that DHS routinely applies the rule to
licenseholders throughout the duration of their license period. We observe that the plain
language of the rule appears to support the ALJ’s interpretation. Rule 2960.3060 refers to
the duties of prospective licenseholders , and it lists requirements that an applicant “must
demonstrate the ability” to do during a home study. Minn. R. 2960.3060, subp. 4 (2021).
Rule 2960.3080, on the other hand, governs the requirements that licenseholders must
comply with during the placement. We therefore question why DHS chose to impose
sanctions under the rule that applies to home study applicants and not under the rule that
applies to licenseholders during the license period.
We need not decide whe ther rule 2960.3060 applies to all licenseholders because
we conclude that, under the circumstances of this case, the rule applie d to relators. The
25
rule imposes requirements that “[t]he applicant” must demonstrate. Minn. R. 2960.3060,
subp. 4. And the definition of “applicant” includes “a current license holder who is seeking
relicensure or recertification.” Minn. R. 2960.3010, subp. 2 (2021). The record shows,
and relators acknowledge in their brief, that they were in the process of having their home
study updated in July 2019. Thus, relators were “applicants” who were seeking an update
of the home study and rule 2960.3060 applied to them.
We now address each of the three licensing rules that the commissioner determined
relators violated.
A. Rule 2960.3060, subp. 4(I)—failure to deal with frustration and emotions
An applicant must show the ability to “deal with anger, sorrow, frustration, conflict,
and other emotions in a manner that will build positive interpersonal relationships rather
than in a way that could be emotionally or physically destructive to other persons.” Minn.
R. 2960.3060, subp. 4(I). The commissioner determined that relators violated this rule
because they “failed to successfully and appropriately process their frustrations.” As the
basis for this rule violation, the DHS order of license revocation cited the fact that relators
“repeatedly described the foster children . . . as manipulative, lying, and raging.”
We conclude that relators’ conduct does not violate this rule. While relators did call
the children “manipulative,” “lying,” and “raging,” the record shows that they used those
terms because they learned the terms from therapists as ways to describe the boys’
behavior. There are no allegations that foster parents made disparaging remarks to the
children; instead, they directed their frustrations at county offici als in the context of
discussing the children’s behavioral problems. Foster parents’ verbal expressions of
26
frustration to county officials with the children’s problematic behaviors do not show an
inability to deal with their emotions in a positive way. Nor does the record su pport that
relators could not appropriately respond to the children’s emotional needs. A psychologist
who evaluated the children and had worked with relators wrote that relators were “tuned
into” the children’s emotional, social, psyc hological, physical, and behavioral needs, and
that they eagerly pursued treatment recommendations. Because the evidence of relators’
conduct is insufficient to show that they violated subpart 4(I), the commissioner cannot
sanction relators under this rul e.
B. Rule 2960.3060, subp. 4(C) & (J)—inability to comply with agency and state
policies and foster children’s care plan
Applicants are required to “work within agency and state policies” and to
“demonstrate an ability to comply with the foster child’s care plan.” Minn. R. 2960.3060,
subp. 4(C), (J). The commissioner reasoned that relators violated these provisions when
they took the children to the park to question them about the alleged sexual contact by
Child 1, after county officials told relators not t o discuss the allegations with the children.
We conclude that the record does not support the commissioner’s determination that
relators’ conduct showed an inability to comply with agency and state policies or the
children’s care plan. This violation depends solely on the commissioner’s finding that the
county deputy directed relators not to discuss the sexual -contact allegations with the
children. Neither DHS nor the commissioner’s order explains which “agency” or “state”
policies apply to the deputy’s direction on this matter . And the record does not show that
the deputy’s directive on this point was a part of the foster children’s “care plan.” Because
27
DHS has not shown a connection between relators’ conduct and any policy of the agency,
state, or care plan, there is insufficient evidence in the record to show tha t relators violated
this provision.11
C. Rule 2960.3080, subp. 8(A)—corporal punishment
Licenseholders are prohibited from using corporal punishment against a child.
Minn. R. 2960.3080, subp. 8(A). The commissioner determined that foster mother violated
this rule, based on the finding that she physically abused the child. Given our reversal of
the maltreatment determination against foster mother, we similarly conclude that the
license revocation cannot be based on the alleged use of corporal punishment.
D. Consideration of the severity of the violations
In sum, we conclude that the commissioner’s findings do not support a
determination that foster parents violated any of the licensing rules under which they were
sanctioned. We also observe that, when imposing sanctions on licenseholders, the
commissioner must “consider the nature, chronicity, or severity of the violation of law or
rule and the effect of the violation on the health, safety, or rights of persons served by the
program.” Minn. Stat. § 245A.07, subd. 1(a) (2020); see also In re Revocation of Family
Child Care License of Burke , 666 N.W.2d 724, 728 (Minn. App. 2003) (recognizing that

11 The revocation order also stated that relators violated subpart 4(C) and (J) because foster
father told county officials that he felt unsafe around the children and foster mother
allegedly commented that it was “torture” to wait during the children’s three hour s of
therapy. It is unclear whether the commissioner relied on these bases in determining that
relators violated this rule. To the extent that DHS relies on these bases on appeal, they are
insufficient to show a violation of these provisions. W e do not see how relators violated
any particular state or agency policy, or any provision of the children’s care plan, by
expressing these concerns to the county.
28
the severity of an agency’s sanction “must reflect the seriousness of the violation”). Even
if we were to conclude that the evidence supported the commissioner’s determinations that
relators violated any of these licensing rules, the violations are not so serious that license
revocation would be an appropriate sanction.
Because the revocation of relators’ child -foster-care license cannot be sustained
based on either the disqualification of foster mother or the alleged licensing-rule violations,
we reverse the license revocation.
IV. Conclusion
Finally, we take this opportunity to express our concerns about the county’s and
DHS’s maltreatment investigation. The overarching principle in juvenile -protection
proceedings, including adoptive placements, is the best interests of the children. See Minn.
Stat. §§ 259.29, subd. 1(a) (“The policy of the state of Minnesota is to ensure that the best
interests of the child are met by requiring individualized determination of the needs of the
child and of how the adoptive placement will serve the needs of the child.”), 260C.001,
subd. 2(a) (“The paramount consideration in all juvenile protection proceedings is the
health, safety, and best interests of the child.”), .193, subd. 3(a) (providing that “[t]he
policy of the state is to ensure that the best interests of children in foster care” are met),
.212, subd. 2 (listing factors for the agency to consider to further the state’s policy “to
ensure that the child’s best interests are met”) (2020).
For as long as the children were in relators’ care during the investigation, the
children’s GAL and the Clay County officials in charge of the children’s adoptive
placement consistently supported the children’s placement with relators. The GAL and
29
Clay County officials had worked with the children since they were removed from their
parents’ care and placed in the care of the commissioner. During their first few years in
the foster -care system, each child had been through at least eight different placements,
including a failed adoptive placement. The GAL and Clay County officials were most
familiar with the children’s needs.
When the county began its maltreatment investigation, the children had been in
relators’ care for more than one year and were preparing for an adoptive placement. The
children were excited about being adopted by relators. The GAL and Clay County officials
wrote to the county to say that they never had any concerns about the children’s care in
relators’ home and fully endorsed the children remaining in that placement. Only after the
county’s investigation dragged on and it became unclear whether or when the children
could return, did the GAL and Clay County officials eventually support the county’s
decision not to return the children to relators’ care. After the children were removed from
relators’ home, they were separated and placed in different foster homes.
On this record and given the children’s experience in the foster -care system, we
agree with the assessment of the GAL that relators’ home was the best fit for all three
children. And, while we recognize that the coun ty and DHS undertook the maltreatment
investigation because of a concern for the safety of the children, we question whether the
actions of the county or DHS during these proceedings served the best interests of the se
children.
12

12 Nothing in this opinion is meant to suggest that we believe that the county officials or
DHS acted in bad faith or with an intent to harm the children.
30
For the reasons explained above, we conclude that the commissioner’s decision
must be reversed.
DECISION
The commissioner’s maltreatment determination was not supported by substantial
evidence and was arbitrary or capricious. Because the disqualification of foster mother
was based on the maltreatment determination, we reverse the disqualification. We likewise
reverse the license revocation to the extent that it was based on the disqualification. We
also conclude that the licensing-rule violations agains t foster parents are not supported by
the evidence and do not support the sanction of license revocation. For these reasons, we
reverse the commissioner’s decision in all respects.
Reversed.