Law lets ex-offenders watch kids

04/24/2005

By Jean Hopfensperger
Star Tribune Staff Writer

Thousands of ex-offenders—including some child abusers and other violent criminals—have been allowed to work in licensed Minnesota day cares or live in child-care homes. And no one has to notify parents whose children attend those day cares.

Minnesota law bars people with certain serious offenses in their backgrounds from licensed child-care settings, at least for a while.

People can be disqualified after criminal convictions. They can also be disqualified after regulators’ findings that an offense probably occurred, even though the applicants were never criminally charged.

But the Minnesota Department of Human Services (DHS) can grant exemptions to offenders. Most people who request exemptions get them: From 1997 through 2004, exemptions were granted to nearly 90 percent of the 2,687 offenders who requested them.

In 2004, the top four offenses for which DHS wrote waivers were theft, assault, domestic abuse and child maltreatment.

The state official in charge of licensing, Jerry Kerber, says children are not being endangered by the exemptions.

Records show no serious injuries to children at the hands of people who have waivers.

But some children have been hurt. And critics say the policy puts children at risk.

“It’s hard not to cry, hard not to get emotional about it,” said Karen Wettanen of Minneapolis. Her son, Austin, was physically abused by a day-care provider in 2003 when he was 7 years old. The day-care worker had a background of theft and welfare fraud.

“It’s one thing to let these people work in child care, but it’s even worse that they don’t tell parents,” Wettanen said. “You’re not able to know who’s watching your kids.

“Every time I dropped Austin off, he would cry. I just thought he wanted to go home.” The provider had a license from the state, and Wettanen said she thought that meant more than it did. “I trusted the home would be safe,” she said.

Granting exemptions is “a policy decision the Legislature has made,” Kerber said, adding that it reflects Minnesota’s commitment to rehabilitate ex-offenders. It also offers some flexibility to day cares, he said. For example, it allows home day-care providers to get or keep a license and prove they are reliable, even if they have someone in their house with a problematic background.

In deciding who is granted an exemption, DHS weighs the rights of ex-offenders to rehabilitation and the provider’s rights to run a business against the rights of the children.

“The safety of children always comes first,” Kerber said.

But Beth Mork, program director of the Minnesota Licensed Family Child Care Association, the trade association for the state’s 15,000 licensed child-care homes, said the exemptions policy reflects the wrong priorities.

“Why are they [DHS] doing background checks if they’re allowing people to get around them? What’s the point?” she asked. “Wouldn’t it make more sense to give incentives to good people, without criminal backgrounds, to go into child care—rather than lower the floor to bad ones?”

Two doors in

In 2003 and 2004, the state granted exemptions allowing 58 people deemed responsible for child maltreatment to live or work in day cares. In those two years, it also exempted 49 cases involving domestic assaults, 133 other alleged assaults and 300 theft cases.

Two people found responsible for criminal sexual conduct were on the 2003 list. One was the husband of a family day-care provider. In 1998, he had plied his 20-year-old niece with alcohol and tried to force sex on her, DHS records show.

The state also approved an exemption for a man convicted of fifth-degree criminal sexual conduct from an incident in 1998 in which he tried to force sex on his girlfriend. DHS approved the waiver two years later after he completed his probation and took note of positive reports from his probation officer and his counselor.

Some applicants are granted an exemption—called a set-aside—on their first try. But if they’re turned down for a set-aside, they have another chance. They can still get jobs or reside in day-care homes if they pledge to follow the conditions of a second type of exemption, called a variance.

The conditions can be simply a promise not to commit other misdeeds.

Absent any complaints, state law does not require authorities to check on day cares with set-asides or variances except when the licenses are renewed—once a year for homes with variances, once every two years for those with set-asides.

National licensing experts say they’ve not encountered this double appeals process elsewhere.

“Generally, if you don’t get the waiver, you don’t work in child care,” said Judy Collins, president of the National Association for Regulatory Administration, which works to improve human service licensing.

Legislators and child-care advocates said they had no idea that so many ex-offenders were allowed in child-care settings.

“I’m totally flabbergasted,” said Sen. Becky Lourey, DFL-Kerrick, who has served on Senate committees overseeing child care for nearly 15 years. “It’s too bad that people have these backgrounds. But if you do, I’m sorry, you don’t get to go into this work.”

‘Something isn’t right’

Wettanen, a single mother of two young children, moved to the Twin Cities in 2001. She was taking a class and working as a waitress and needed child care on some nights and weekends. Such flexible hours are hard to find, she said, so she asked her daughter’s school for a referral. They gave her the number of Annette Narine, who provided child care in her St. Louis Park home.

Wettanen enrolled her 7-year-old son, Austin, and his 6-year-old sister.

After a few months, Wettanen noticed bruising around Austin’s ears. Austin, who has Down syndrome, has trouble speaking, and couldn’t explain.

She brought the boy to a doctor, who referred her to a St. Paul child-abuse clinic.

A nurse said the bruising most likely occurred by someone slapping or pulling Austin’s ears, according to the complaint by Hennepin County. Austin’s sister, as well as two other children at Narine’s home, later told police that Narine twisted children’s ears to punish them. Austin’s sister also said Narine used a spatula to spank her and Austin on the soles of their feet.

Narine was charged with malicious punishment of a child, a gross misdemeanor. She denied she was responsible for the bruises but was convicted in August.

Narine had been able to enter the day-care business because DHS had granted her a variance.

She had been found guilty in 2002 of illegally collecting $17,000 in welfare benefits between 1997 and 1999. Also in 1999, she stole $900 from a cash register at the Tom Thumb where she worked. She admitted to the theft, but the charge was dismissed when she entered a pre-trial diversion program.

Narine insists that she never hurt Wettenen’s son. She said she was an experienced day-care provider, having held a license in the 1990s for several years. And other parents weren’t complaining, she said.

She said licensers should be able to give variances.

“Everybody makes a mistake—as long as they don’t make the same mistake twice,” she said. “It doesn’t make me a horrible person that someone else makes me out to be.”

Wettanen had no idea that Narine had a criminal history until she was told by the Star Tribune. Even a nonviolent crime, she said, is a sign that “something isn’t right.”

How many problems?

Kerber said his office has not done a study to compare whether day cares with exemptions are as safe as those without them. He said the department evaluates all day cares against the licensing standards.

But statistics provided to the Star Tribune suggest that day-care homes with variances may experience more negative licensing actions—suspensions, revocations, and the like—than do day-care homes in general.

In 2003, the most recent figures available, 189 day-care homes out of about 14,000 received a negative licensing action—or about one in every 74.

But among 239 day-care homes that operated with a variance for some part of that year, 9—or one in about every 27—received a negative licensing action.

The true number of problems, meanwhile, could be higher than statistics indicate, critics say. DHS only becomes aware of violations through public complaints, law enforcement or periodic inspections. “You don’t know who ... hasn’t been caught, who hasn’t been prosecuted,” said Mork, of the Minnesota Licensed Family Child Care Association.

If offenders are going to be in child-care settings, licensers should follow up and check on them, Mork said. They should interview parents and children and make sure parents are aware of the potential risk, she said.

Physical harm, Mork said, is not the only danger. Children in these child care settings could be exposed to traumatic events, inappropriate behavior, or just poor care, she said.

“Children are a mirror of what they see in the world,” Mork said. “If I have a hard time controlling my temper, if I use bad language, inappropriate ways of dealing with my anger, I’m teaching this to the children.”

Little scrutiny

The Legislature hasn’t requested detailed reports on the exemptions granted by DHS, said Sen. Sheila Kiscaden, IP-Rochester, a longtime member of Senate human services committees.

Kiscaden said allowing some offenders to work in child care makes sense. Some have committed minor offenses that don’t endanger kids, she said. And welfare reform has created a high demand for child care, which is scarce in some parts of the state, she said.

Similarly, Rep. Fran Bradley, R-Rochester, chairman of the House Health Policy and Finance Committee, said he understood why offenders who have not committed crimes against children and who have paid their debt to society could be given exemptions. But authorities must careful, he said. “The whole reason for doing background checks is to protect the safety of children. It’s not an area where you gamble.”

Lourey, chairwoman of the Senate Health and Human Services Policy Committee, said she plans to hold hearings on the practice.

“I will absolutely look at it,” she said.