In the Matter of the Appeal by Sheena Haack of the Order of License Revocation

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A23-0976

In the Matter of the Appeal by Sheena Haack of the Order of License Revocation.

Filed May 6, 2024
Affirmed
Reyes, Judge

Minnesota Department of Human Services, OAH
File No. 60-1800-37980

Katherine S. Barrett Wiik, Douglas D. Anderson, Saul Ewing, LLP, Minneapolis,
Minnesota (for relator Sheena Haack)

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

Justin R. Anderson, Grant County Attorney, Elbow Lake, Minnesota (for respondent
Minnesota Department of Human Services)

Considered and decided by Larson, Presiding Judge; Reyes, Judge; and Ede, Judge.

NONPRECEDENTIAL OPINION

REYES, Judge

In this certiorari appeal, relator challenges an order by respondent Minnesota

Department of Human Services (DHS) determining that relator committed maltreatment

by neglect and imposing conditions on relator’s child-care license. We affirm.

FACTS

The facts are undisputed. Beginning in 2014, relator Sheena Haack operated a

family-child-care program in the rural, western Minnesota town of Hoffman. On June 23,

2021, Haack was caring for ten children between the ages of 23 months and eight years
old. After returning from a bike ride with the children, Haack gave them water and a

bathroom break. Haack had food for the children’s lunch, but they asked for noodles,

which she did not have. Haack decided to go across the street to a grocery store to purchase

noodles. She grabbed her video/audio monitor and left the children alone in the home. The

store is located approximately 80 feet from Haack’s child-care home. As Haack reached

the front door of the store, a licensor from Grant County Social Services (the county) made

an unannounced relicensing visit to Haack’s child-care home. Haack immediately turned

around and met the licensor at the front door of the home.

After inspecting the child-care home, the county licensor informed Haack that there

were supervision and licensing violations that the county would refer to DHS to determine

whether discipline was appropriate. That same day, the county licensor filed a child-

protection report, and DHS issued a temporary immediate suspension order of Haack’s

child-care license.

During a subsequent interview with the county licensor, Haack admitted that she

had left the children alone to go to the store on June 23. Following its investigation, the

county determined that Haack committed maltreatment by neglect by leaving the children

unattended while going to the store. The county denied Haack’s request for

reconsideration, and Haack appealed by requesting a fair hearing from DHS.

On November 5, DHS followed the county’s recommendation to revoke Haack’s

license after determining that she had knowingly withheld or provided false or misleading

information during the county’s investigation, committed maltreatment, and failed to

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comply with multiple licensing laws and rules. Haack appealed the license revocation, and

the matter was consolidated with her appeal of the county’s maltreatment determination.

At a contested-case hearing in May 2022, an administrative-law judge (ALJ) heard

testimony from the county licensor, a child-protection social worker, a parent who had used

Haack for child care, a substitute provider at Haack’s child-care home, and Haack. The

ALJ subsequently determined that the county had failed to prove by a preponderance of

the evidence that Haack had committed maltreatment by neglect and had failed to

demonstrate reasonable cause to believe that she had committed most of the alleged

licensing violations. The ALJ recommended that the commissioner for DHS (the

commissioner) rescind the county’s maltreatment determination, vacate Haack’s license

revocation, and impose a correction order for her remaining licensing violations. Although

the ALJ noted that the underlying allegation that Haack had left the children unattended

was serious, it identified “problems with the [county’s] investigation,” including that the

county did not interview key witnesses and ignored facts supportive of Haack.

DHS filed exceptions to the ALJ’s recommendation, arguing that it had established

by a preponderance of the evidence that Haack committed maltreatment by neglect and

that it had demonstrated reasonable cause to believe that Haack had violated licensing-

supervision requirements. The commissioner issued a final order in January 2023. The

commissioner adopted the ALJ’s findings of fact, determined that Haack committed

maltreatment by neglect, rescinded most of the county’s licensing violations, affirmed a

licensing violation related to safety hazards involving the child-care home’s steps, and

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rescinded the revocation of Haack’s license. The commissioner ordered Haack to operate

with a conditional license for one year and denied Haack’s request for reconsideration.

Haack petitioned by writ of certiorari.

DECISION

Haack alleges that the commissioner’s (1) determination that she committed

maltreatment by neglect is based on their misapplication of the law, lacks the support of

substantial evidence, and is arbitrary and capricious and (2) imposition of a conditional

license lacks the support of substantial evidence. We disagree.

The Minnesota Administrative Procedure Act, Minn. Stat. §§ 14.001-.69 (2022)

(MAPA), governs our review of administrative decisions following contested-case

hearings. Minn. Stat. § 14.63. Under MAPA, we may affirm or remand, or may reverse

or modify the agency’s decision “if the substantial rights of the petitioners may have been

prejudiced because the administrative finding, inferences, conclusion, or decisions are:

. . . (d) affected by other error of law; or (e) unsupported by substantial evidence in view

of the entire record as submitted; or (f) arbitrary or capricious.” Minn. Stat. § 14.69 (d)-

(f). Generally, “[a]dministrative agency decisions enjoy a presumption of correctness.” In

re RS Eden/Eden House, 928 N.W.2d 326, 332 (Minn. 2019) (quotation omitted).

I. The commissioner’s determination that Haack committed maltreatment by
neglect is supported by substantial evidence and is not arbitrary or capricious.

Haack argues that the commissioner erred as a matter of law by determining that

she committed maltreatment by neglect because they misinterpreted and misapplied the

Maltreatment of Minors Act, Minn. Stat. §§ 260E.01-.38 (2022 & Supp. 2023) (MMA),

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and In re Restorff, 932 N.W.2d 12 (Minn. 2019), and imposed their will rather than their

judgment because Haack (1) had a plan of direct supervision in place; (2) provided

necessary supervision by use of the monitor; and (3) appropriately supervised the children

in her care. We are not persuaded.

When confronted with questions of law, such as statutory interpretation, an appellate

court’s review is de novo. Restorff, 932 N.W.2d at 18; Webster v. Hennepin Cnty., 910

N.W.2d 420, 428 (Minn. 2018). The “substantial evidence standard requires more than a

scintilla of evidence, more than some evidence, and more than any evidence,” and “is such

evidence that a reasonable person would accept as adequate to support a conclusion.”

Restorff, 932 N.W.2d at 21 (quotations and citations omitted). Appellate courts must

analyze whether the agency has explained adequately how it reached its determination and

whether the record reasonably supports that determination. Pfoser v. Harpstead, 953

N.W.2d 507, 514 (Minn. 2021).

“An agency’s decision is arbitrary or capricious if it represents the agency’s will

and not its judgment.” In re Waters, 977 N.W.2d 874, 885 (Minn. App. 2022) (quotation

omitted). To determine whether an agency’s decision is arbitrary or capricious, appellate

courts must consider whether, in making its decision, the agency

(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) (CARD). When a commissioner rejects an ALJ’s recommendations,

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“[t]he commissioner must articulate a rational connection between the facts found and the

choice made.” Waters, 977 N.W.2d at 886.

The MMA aims to “protect children and promote child safety” and “make the home,

school, and community safe for children by promoting responsible child care in all settings,

including through the reporting of child maltreatment.” Minn. Stat. § 260E.01. The MMA

requires local welfare agencies to investigate allegations of maltreatment in family child

care. Minn. Stat. § 260E.14, subd. 1(a). After an investigation, the commissioner must

determine whether maltreatment occurred based on a preponderance of the evidence.

Minn. Stat. § 260E.30, subd. 2(a).

Here, the commissioner found that Haack had committed “maltreatment,” Minn.

Stat. § 260E.03, subd. 12(2), by “neglect” by failing

to provide for necessary supervision or child care arrangements
appropriate for a child after considering factors as the child’s
age, mental ability, physical condition, length of absence, or
environment, when the child is unable to care for the child’s
own basic needs or safety, or the basic needs or safety of
another child in their care.

Id., subd. 15(a)(3). 1

Restorff guides our analysis here. In Restorff, the supreme court held that “[w]hether

a caregiver has committed maltreatment by neglect . . . is a fact-specific determination that

must be made based on an examination of the totality of the circumstances.” 932 N.W.2d

at 14. To evaluate the commissioner’s maltreatment determination, the supreme court

1
The legislature amended Minn. Stat. § 260E.03, subd. 15(a) in 2023, but the amendment
does not impact subdivision 15(a)(3).

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focused on three elements of the definition of “neglect” under Minn. Stat. § 260E.03,

subd. 15(a)(3): “(1) the effect of ‘provide for;’ (2) what ‘necessary supervision’ entails;

and (3) what it means for supervision to be ‘appropriate for a child’ under the listed

factors.” Id. at 19. Courts consider the statute as a whole “to harmonize [it] and give effect

to all its parts.” Id. (quotation omitted). We address each element individually before

considering them as a whole.

A. “Provide for”

In Restorff, the supreme court concluded that to “provide for” supervision means to

“make and execute a plan for supervision.” Id. The supreme court further stated that

“[s]uch a definition contemplates that a parent or childcare provider might directly

supervise a child or delegate that task to another individual. In either situation, the

caregiver is providing for supervision.” Id. The supreme court concluded “that Restorff

created and executed a plan for supervision” and that under the plan, “Restorff’s helper[]

supervised 12 children in an unfenced backyard while Restorff was within earshot inside

the house.” Id. at 21.

Here, Haack states that she made a plan for supervision to walk to a grocery store

80 feet across the street to pick up noodles for lunch and to supervise the children directly

by bringing a video/audio monitor. She did not completely execute the plan because she

returned to the home when she saw the county licensor. The commissioner determined

that Haack’s “plan” to leave the children alone and unsupervised was inconsistent with a

“plan for supervision,” and that Haack’s deficient plan disposed of the remainder of the

Restorff analysis. But at this stage, we just analyze whether Haack made and executed a

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plan, and we do not consider the Restorff elements in isolation. We agree with Haack that

she made a plan for supervision. Whether that plan and its execution were “appropriate”

are analyzed under the third element below.

B. “Necessary supervision”

In Restorff, because the MMA did not define “supervision,” the ALJ, commissioner,

and this court applied the definition of “supervision” from the daycare licensing rules,

Minn. R. 9502.0315, subp. 29a (2017), of “a caregiver being within sight or hearing of” a

child so they can intervene. 932 N.W.2d at 20. The supreme court rejected its use, and

instead applied the dictionary definition of “supervision” to conclude that “supervision

. . . requires that caregivers provide for watchful oversight of children in their care.” Id. at

21 (emphasis added).

Here, the commissioner determined that “the existence or non-existence of a baby

monitor is irrelevant as it is unacceptable for a provider to rely solely on a monitor as a

plan or substitute for direct supervision and to use the monitor to justify an absence from a

daycare setting.” The commissioner ultimately determined that Haack’s reliance on the

monitor “from afar while engaged in shopping, was not watchful oversight of the children

in her care.”

“Watchful oversight” is not a precise term. While the commissioner applied this

standard, it appears to have construed “direct supervision” to require a “fully present and

engaged care provider with the ability to intervene immediately” and that use of a monitor

is a “meager substitute.” We disagree with the commissioner’s reasoning, as the supreme

court in Restorff rejected the narrow definition of supervision that required “a caregiver

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being within sight or hearing of” a child. Id. at 19-20. We note that video/audio monitors

are commonly used by caregivers, and their use by themselves is not dispositive. Rather,

we must analyze whether the supervision was “appropriate” based on all the circumstances.

C. Supervision that is “appropriate”

In Restorff, the supreme court concluded that whether supervision is “appropriate”

requires the commissioner to “conduct a fact-specific examination of all of the

circumstances present to determine whether the supervision plan was appropriate in the

abstract and whether the plan was executed appropriately in the specific context at issue.”

932 N.W.2d at 21. The statute requires consideration of “the child’s age, mental ability,

physical condition, length of absence, or environment, when the child is unable to care for

the child’s own basic needs or safety, or the basic needs or safety of another child in their

care.” Minn. Stat. § 260E.03, subd. 15(a)(3). The supreme court highlighted that “the

length of the absence” of a caregiver matters, as “[i]t is one thing for a caregiver to step

away from her wards for a brief period of time to complete other necessary tasks [but

another] entirely to leave children alone for long periods of time with a single young

supervisor.” 932 N.W.2d at 23.

Here, the commissioner considered the number of children; their young ages; their

presumed mental and physical ability; the potential length of Haack’s absence; and the

child-care home’s environment, including safety hazards; before implicitly determining

that Haack’s “plan of supervision” failed to provide “appropriate” supervision in the

abstract and that Haack had committed maltreatment by neglect.

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 We conclude that Haack’s supervision plan was not appropriate under the

circumstances and that substantial evidence supports the commissioner’s determination

that Haack committed maltreatment by neglect. Although Haack made and executed a plan

for supervision and the use of a monitor may constitute “watchful oversight” or direct

supervision in some circumstances, her plan and supervision were not “appropriate” under

the particular circumstances present in this case and the “specific context at issue.”

Restorff, 932 N.W.2d at 21. The ten children Haack was caring for included two eight-

year-olds, three five-year-olds, a four-year-old, two three-year-olds, a two-year-old, and a

23-month-old. Although the record is silent regarding the abilities of the children, the

commissioner reasonably determined that they had “similar mental abilities and physical

conditions appropriate for their ages.” As noted by the commissioner, but for the county

licensor arriving, Haack’s absence would have been indeterminately longer, as she had not

yet entered the grocery store. Although the children were left in the child-care home, they

were left alone, with multiple barriers between them and Haack. The commissioner

appropriately considered “whether the supervision plan was appropriate in the abstract,”

id., and noted that Haack would have had to enter the store, collect the items, pay for them,

possibly interact with others, exit the store, cross the main street, and enter her daycare all

while supervising the children at the same time. Unlike in Restorff, Haack did not have a

helper available to supervise the children in person. Further, Haack did not need to visit

the store, but went only to buy noodles as a spontaneous reward for the children. Id. at 23

(noting possibility of caregiver stepping away from children “to complete other necessary

tasks.” (Emphasis added)).

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 Further, the record does not demonstrate that the commissioner’s determination was

arbitrary or capricious, as the commissioner relied on the statutory definition of neglect

and the Restorff case in its analysis, considered the totality of the facts, offered an

explanation that is supported by the evidence, and did not present an implausible decision.

CARD, 713 N.W.2d 817 at 832. 2

We conclude that the commissioner’s decision that Haack’s supervision plan was

not “appropriate” under the circumstances is legally correct, supported by substantial

evidence, and was not arbitrary or capricious. As a result, the commission did not err by

determining that Haack committed maltreatment by neglect. Although Haack implies that

affirming the commissioner’s “hardline” decision here would confuse parents and

providers regarding the law surrounding maltreatment determinations, we disagree. Our

decision in this case is consistent with Restorff and the MMA, and the commissioner’s

ongoing determinations of maltreatment by neglect must be based on fact-specific

analyses.

II. The commissioner’s imposition of a conditional license under the
circumstances is supported by substantial evidence.

Haack argues that, because the record lacks substantial evidence to justify the

commissioner’s determination that she committed maltreatment by neglect or violated the

2
Haack also cites to Waters, 977 N.W.2d 874, to argue that the commissioner erred by
adopting the ALJ’s findings of fact while reversing its conclusions of law without
explanation. But the commissioner did provide an explanation by stating that the ALJ
ignored the fact that the short length of Haack’s absence was caused by the arrival of the
county licensor. Further, the commissioner was unconvinced by the ALJ’s interpretation
of the MMA and Restorff, which is reflected in its final order. Haack’s reliance on Waters
is misplaced here.

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licensing rules regarding supervision, the commissioner’s order that she operate under a

conditional license should be rescinded. We are not convinced.

The commissioner may make a license conditional “[i]f the commissioner finds that

the . . . license holder has failed to comply with an applicable law or rule and this failure

does not imminently endanger the health, safety, or rights of the persons served by the

program.” Minn. Stat. § 245A.06, subd. 1(a) (2022 & Supp. 2023). 3 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.

Although the record reflects that Haack is otherwise a quality child-care provider,

based on our analysis above regarding the commissioner’s maltreatment determination, we

conclude that the commissioner’s decision to impose a conditional license is supported by

substantial evidence. Besides the maltreatment determination, DHS demonstrated

reasonable cause that Haack had violated licensing rules based on the condition of the steps.

Further, in determining whether to impose a conditional license, the commissioner

considered and adopted the ALJ’s findings that the county and DHS’s investigation was

lacking in some respects, that the record did not support that Haack had repeatedly

committed maltreatment, that DHS had only proved one of the many licensing violations

it originally alleged, and that Haack had cooperated with the investigation and expressed

remorse. As a result, the commissioner rescinded the original revocation of Haack’s

3
Although the legislature amended Minn. Stat. § 245A.06, subd. 1 in 2023, the amendment
does not impact subdivision 1(a).

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license and instead imposed a reasonable, one-year conditional license. The commissioner

adequately explained how it arrived at its determination, which is reasonably supported by

the record.

Affirmed.

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