Kelly v. Dept. of Jobs & Family Servs. ( 2014 )

[Cite as Kelly v. Dept. of Jobs & Family Servs., 2014-Ohio-3312.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
LINDA KELLY C.A. No. 27208
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
DEPARTMENT OF JOBS & FAMILY COURT OF COMMON PLEAS
SERVICES COUNTY OF SUMMIT, OHIO
CASE No. CV 2013 06 3058
Appellee
DECISION AND JOURNAL ENTRY
Dated: July 30, 2014
GALLAGHER, Judge.
{¶1} Appellant, Linda Kelly, appeals from the judgment of the Summit County Court
of Common Pleas affirming an administrative decision revoking her type B home childcare
provider certification. This Court reverses.
I.
{¶2} In 2000, Ms. Kelly was certified as a type B home childcare provider in Summit
County. On March 27, 2013, a two-year-old child, J.M., died while in Ms. Kelly’s care after he
choked on a toy. On March 28, 2013, the Department of Jobs and Family Services (“JFS”)
notified Ms. Kelly in writing that it was suspending her childcare contract. Later that same day,
JFS provided her with a second letter immediately revoking her certification and contract due to
her noncompliance with Administrative Code Section 5101:2-14-06 and Chapter 5104 of the
Revised Code. After the agency determined that the second letter was insufficient, a third letter
was delivered to Ms. Kelly on March 28, 2013, clarifying that her certification was immediately
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revoked due to her noncompliance with Administrative Code Section 5101:2-14-20, 5101:2-14-
06(C)(1) and Chapter 5104 of the Revised Code.
{¶3} Ms. Kelly requested a county appeal review of JFS’s decision to revoke her
certification. The hearing officer issued a decision pursuant to Ohio Administrative Code
5101:2-14-40(M) that found, based on the evidence and testimony presented at the county appeal
review, the agency was correct in revoking her certification. Ms. Kelly filed a timely
administrative appeal to the court of common pleas under Revised Code Section 2506. The trial
court affirmed the administrative decision, finding that it was supported by reliable, probative,
and substantial evidence. Ms. Kelly filed a timely appeal with this Court. She raises two
assignments of error for our review which we address out of order to facilitate our analysis.
II.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED WHEN IT FOUND THAT APPELLANT WAS
UNAMBIGUOUSLY INFORMED OF THE REASON FOR THE
REVOCATION OF HER LICENSE.
{¶4} Ms. Kelly argues that the trial court erred in affirming the administrative decision
as it was premised, in part, on the violation of a regulation that she did not receive notice of prior
to the hearing. Specifically, Ms. Kelly maintains that the decision revoking her certification was
based on Administrative Code Section 5101:2-14-19(A)(11), which was not one of the
regulations listed on JFS’s revocation notice. This Court agrees.
{¶5} “[A] court of common pleas examines administrative appeal proceedings
involving the revocation of type B child care certifications pursuant to R.C. 2506.01(A).” Hirsi
v. Franklin Cty. Dept. Job & Family Servs., 10th Dist. Franklin No. 13AP-39, 2014-Ohio-1804,
¶ 9. A trial court reviewing an administrative appeal may find that the order was
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“unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the
preponderance of substantial, reliable, and probative evidence on the whole record.” R.C.
2506.04(A). Section 2506.04(A) further provides that “[t]he judgment of the [trial] court may be
appealed by any party on questions of law as provided in the Rules of Appellate Procedure and,
to the extent not in conflict with those rules, Chapter 2505 of the Revised Code.” Id.{¶6} In Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142 (2000), the
Ohio Supreme Court clarified that “[t]he standard of review to be applied by the court of appeals
in an R.C. 2506.04 appeal is ‘more limited in scope’” than the standard of review applied by the
trial court. (Emphasis deleted.) Id. at 147, quoting Kisil v. Sandusky, 12 Ohio St.3d 30, 34
(1984). “This statute grants a more limited power to the court of appeals to review the judgment
of the common pleas court only on ‘questions of law,’ which does not include the same extensive
power to weigh ‘the preponderance of substantial, reliable and probative evidence,’ as is granted
to the common pleas court.” Id., quoting Kisil at fn. 4.
It is incumbent on the trial court to examine the evidence. Such is not the charge
of the appellate court. * * * The fact that the court of appeals * * * might have
arrived at a different conclusion than the administrative agency is immaterial.
Appellate courts must not substitute their judgment for those of an administrative
agency or a trial court absent the approved criteria for doing so.
Id., quoting Lorain City School Dist. Bd. Of Edn. v. State Emp. Relations Bd., 40 Ohio St.3d 257,
261 (1988).
{¶7} An appellate court’s determination of an administrative appeal is limited to
whether the trial court abused its discretion. Lorain City School Dist. Bd. Of Educ. at 261. An
abuse of discretion “implies that the court’s attitude is unreasonable, arbitrary or
unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
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{¶8} At the time Ms. Kelly’s certificate was revoked, Ohio Administrative Code
Section 5101:2-14-06 authorized JFS to revoke a type B certification if it determined that the
provider was noncompliant with Administrative Code Section 5101:2-14 or Chapter 5104 of the
Revised Code. Ohio Adm.Code 5101:2-14-06(B)(1), effective July 1, 2011. A revocation under
this section, however, could not occur prior to a county appeal review pursuant to Section
5101:2-14-40 unless JFS determined that children were at risk of being abused or neglected or
that the daycare’s conditions endangered the children’s health, safety or well-being. Ohio
Adm.Code 5101:2-14-06(C)(1), effective July 1, 2011. If JFS determined that such conditions
were present, it could immediately revoke the type B certificate and tender a written notice to the
provider within two working days that provided such information as the reason for the revocation
and “[t]he rule or statute violated * * *.” Ohio Adm.Code 5101:2-14-06(D)(2), effective July 1,
2011.
{¶9} If the daycare provider requests a county appeal review of the JFS decision in
accordance with Section 5101:2-14-40, JFS is required to “[e]xplain [at the review hearing] the
reasons for the proposed action” and “[c]ite the regulations upon which the proposed action is
based.” Ohio Adm.Code 5101:2-14-40(L)(1) and (2), effective November 15, 2010. The
administrative decision must be based upon the “(1) [f]acts and evidence presented at the county
appeal review [and] (2) Ohio department of job and family services (ODJFS) regulations
governing * * * type B homes * * *.” Ohio Adm.Code 5101:2-14-40(M)(1) and (2), effective
November 15, 2010. The decision must include not only “[f]indings of facts,” but also a
“[c]itation and summarization of relevant Administrative Code rules which support the facts
established.” Ohio Adm.Code 5101:2-14-40(N)(2) and (3), effective November 15, 2010.
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{¶10} During its opening statement at the county appeal review hearing, counsel for JFS
mentioned twice that the child in question choked on a “large” object. JFS called one witness, its
agency childcare specialist, Janet Gulish, whose job responsibilities included inspecting daycare
providers’ homes to ensure their compliance with applicable rules and regulations. Ms. Gulish
testified that she inspected Ms. Kelly’s home approximately one week prior to the incident.
According to Ms. Gulish, Ms. Kelly passed the inspection and was in compliance with all
applicable rules.
{¶11} Ms. Gulish testified that the Administrative Code sections cited in the letters
provided to Ms. Kelly, including Sections 5101:2-14-20(A)-(B) and 5101:2-14-06(B)(1) and
(C)(1), were the basis for the agency’s decision to revoke Ms. Kelly’s certification. She further
testified that Ms. Kelly’s certification was terminated “[f]or the reasons * * * described in the
opening statement * * *” and that “[i]t was based on her failure to provide a safe environment for
[the] child.”
{¶12} According to Ms. Gulish, when she delivered JFS’s termination letters to Ms.
Kelly on March 28, 2013, Ms. Kelly spoke with her about the incident. Ms. Gulish testified that
Ms. Kelly told her J.M. was not within her sight and sound “the whole time.” Ms. Gulish also
testified, however, that Ms. Kelly neither relayed to her “what was happening prior to what she
was doing at the time or what the child was doing” nor did she inquire of Ms. Kelly about such
facts. Ms. Kelly told her that J.M. choked on a toy cucumber from a play set and showed her
similar items from the set. Ms. Gulish testified that Ms. Kelly told her she measured the toy and
that it was age appropriate.
{¶13} The only other witness at the county appeal review hearing was Ms. Kelly. She
testified that she was caring for three children at the time of the incident. J.M. was sitting on a
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chair watching a video in the family room, a two-year-old child was in a playpen also in the
family room, and a 3-year-old child was watching a video in a nearby bedroom. Ms. Kelly
testified that she noticed J.M. had a toy and told him he was not supposed to play with it as he
was to be watching his movie but that she did not take it away from him. According to Ms.
Kelly, she walked back to the bedroom to check on the 3-year-old child. She was gone
approximately 60 seconds. While J.M. and the other child in the family room were not within
her sight, they were within her hearing. Ms. Kelly testified that she heard J.M. walking in the
hallway behind her. She turned around and noticed that he was choking. She tried to extract the
object to no avail. Ms. Kelly described the toy as a cucumber that separates in half with both
halves adhering to each other with Velcro. It was part of a vegetable play set that she had for
approximately 23 years. Ms. Kelly testified that other children played with the toys without
incident. According to Ms. Kelly, the toy was age appropriate as “[i]t was too big to swallow.”
{¶14} The hearing officer’s decision upheld JFS’s revocation of Ms. Kelly’s
certification. The decision included a section titled “Conclusion of Policy” that referenced
various Administrative Code sections. Besides referencing Sections 5101:2-14-20(A)-(C) and
5101:2-14-19(A)(11), the “Conclusion of Policy” also discussed Revised Code Section
5104.11(A)(3)(b) and (B).1
{¶15} At the time of the appeal review hearing, Section 5104.11(A)(3)(b) provided that
if JFS “determines that the information, when viewed within the totality of the circumstances,
reasonably leads to the conclusion that the applicant may directly or indirectly endanger the
health, safety, or welfare of children, the county department shall * * * revoke the certification of
an authorized provider.” Section 5104.11(B) authorized the county director to revoke the
1
The hearing officer’s decision erroneously cites to these sections as “OAC
5104:4.11(B)” and “5104:11(A)(3b).”
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provider’s certificate “after determining that revocation is necessary.” Administrative Code
Section 5101:2-14-19 proscribed certain safety requirements for childcare providers including
that “[t]oys * * * small enough to be swallowed shall be kept out of the reach of infants and
toddlers.” Ohio. Adm. Code 5101:2-14-19(A)(11), effective July 1, 2011.
{¶16} The hearing officer’s decision also included an analysis section that provided as
follows:
Ms. Kelly has been a child care (sic) provider since 1994 and has not had any
reported incidents. Per the Type B Provider Manual rules, Ms. Kelly did follow
the proper procedures and took appropriate actions while trying to assist the child
from choking. Ms. Kelly testified she was not in the room where the two children
were playing while checking on the child in the back bedroom. The child was
playing with a toy cucumber that was part of a velcro vegetable set. The toy was
not available to view as evidence. Per the manual, toys or any material small
enough to be swallowed should be kept out of the reach of toddlers. The object
was small enough for the 2½ yr[.] old to swallow which caused him to choke and
ultimately die. Ms. Kelly did notify the agency and filed the incident report
timely.
The analysis included an additional paragraph detailing the procedural steps JFS took to revoke
Ms. Kelly’s certification.
{¶17} The common pleas court found that while the hearing officer “merely noted”
Section 5101:2-14-19(A)(11) in her decision, she did not specifically find that Ms. Kelly violated
that Section. The trial court further determined that “[e]ven if this notation had not been made,
revocation was still appropriate in light of the OAC 5101:2-14-20(A) violation” concerning the
necessity to adequately supervise all children in the provider’s care including the requirement
that all children are within the provider’s sight or hearing.
{¶18} Ms. Kelly challenges the decision’s citation to Section 5101:2-14-19(A)(11),
which concerns a toddler’s access to toys that are small enough to be swallowed, as JFS’s notice
of revocation did not inform her that she allegedly violated this Section. Ms. Kelly argues that
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the hearing officer relied in part on this Section in finding that JFS was correct in revoking her
certification. She claims that this hampered her defense as she was not aware that the size of the
object was an issue in the case. JFS disputes that the decision relied on Section 5101:2-14-
19(A)(11) in upholding the revocation as evidenced by the fact that it did not make a specific
finding as to the toy’s size. It further maintains that the main basis of the decision affirming the
revocation was Ms. Kelly’s lack of supervision as required by Section 5101:2-14-20. The State
argues that the decision’s reference to Section 5101:2-14-19 was an aside that was mentioned as
part of the hearing officer’s consideration of the totality of the circumstances in finding that JFS
acted correctly in revoking Ms. Kelly’s certification.
{¶19} While the trial court is correct in its observation that the administrative decision
never specifically found that Ms. Kelly violated Section 5101:2-14-19(A)(11), this Court notes
that the decision did not include a finding as to which Section(s) Ms. Kelly allegedly violated.
Given the lack of specificity in the administrative decision as to which Section(s) Ms. Kelly
violated, we are left to speculate as to the basis of the decision. On the one hand, the decision’s
analysis section references the fact that Ms. Kelly was not in the same room as J.M. when he
choked while also including as a finding of fact that J.M. and the other child in the family room
were within her hearing. We note, however, that Section 5101:2-14-20 proscribes that all
children must be within the sight or hearing of the childcare provider at all times. (Emphasis
added.) Ohio Adm. Code 5101:2-14-20(C), effective August 14, 2008. While JFS maintains
that Ms. Kelly conceded the fact that J.M. was not within either her sight or hearing according to
Ms. Gulish’s testimony, this was a disputed fact as Ms. Kelly testified that he was at least within
her hearing. The administrative decision appeared to credit the testimony of Ms. Kelly over Ms.
Gulish as it specifically found that Ms. Kelly “could still hear the other children playing * * *.”
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{¶20} On the other hand, other than the reference to Ms. Kelly not being in the same
room as J.M., the administrative decision’s analysis focused on the fact that the toy was small
enough for J.M. to swallow. There was no additional discussion about the alleged lack of
supervision that JFS argues forms the main basis of the decision to revoke Ms. Kelly’s
certification.
{¶21} We are also troubled by the fact that JFS twice referenced the size of the toy in its
opening statement and proceeded to ask Ms. Gulish questions designed to elicit testimony about
the age appropriateness of the toy. This defies JFS’s assertion that the decision to revoke Ms.
Kelly’s certification was premised on the rule concerning supervision rather than the rule
pertaining to the safety of objects within a toddler’s reach.
{¶22} Given the lack of specificity in the administrative decision about which Section(s)
Ms. Kelly violated, coupled with the focus on the size of the toy and lack of analysis concerning
an alleged failure to adequately supervise the child, we are left to conclude that the decision
relied on Section 5101:2-14-19(A)(11) in upholding JFS’s decision to revoke Ms. Kelly’s
certification. JFS’s written notices fail to cite to this Section as a basis for revocation of her
license in contravention of Section 5101:2-14-06(D), which requires that the agency cite the
applicable “rule or statute violated.” Accordingly, we conclude that the trial court abused its
discretion in affirming the administrative decision that revoked Ms. Kelly’s certification. Due to
the lack of specificity in the administrative decision, this Court remands the matter to the trial
court with instructions for it to remand the matter to the agency for a new county appeal review.
See Coleman v. State Med. Bd. Of Ohio, 10th Dist. Franklin No. 06AP-1299, 2007-Ohio-5007, ¶
19-20. Ms. Kelly’s second assignment of error is sustained.
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ASSIGNMENT OF ERROR I
APPELLANT’S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY
OHIO CONSTITUTION ART. I, § 10 WERE VIOLATED FOR [THE]
REASON THAT THE FINDINGS OF THE HEARING OFFICER WERE NOT
SUPPORTED BY THE FACTS AND NO INVESTIGATION WAS
CONDUCTED BY APPELLEE TO DETERMINE THE TRUE FACTS OF THIS
CASE.
{¶23} Ms. Kelly argues in her first assignment of error that the trial court’s judgment
affirming the administrative decision was not based on “substantive, reliable and probative
evidence” as JFS did not conduct either its own investigation or review the reports of other
agencies, such as the police, that were involved in the case. Given our resolution of Ms. Kelly’s
second assignment of error that results in a remand for a new county appeal review, the
foregoing assignment of error is moot. Therefore, we decline to address it. App.R. 12(A)(1)(c).
III.
{¶24} Ms. Kelly’s first assignment of error is moot. Her second assignment of error is
sustained. The judgment of the Summit County Court of Common Pleas is reversed, and the
cause is remanded for further proceedings.
Judgment reversed,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
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period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
EILEEN T. GALLAGHER
FOR THE COURT
BELFANCE, P. J.
CONCURS.
CARR, J.
DISSENTING.
{¶25} I respectfully dissent, as I would conclude that the trial court did not abuse its
discretion by affirming the administrative decision revoking Ms. Kelly’s certification.
{¶26} The Department of Job and Family Services notified Ms. Kelly that it was
revoking her child care certification based on her violation of O.A.C. 5101:2-14-20 which
requires a provider to be responsible for the child’s safety and to never leave a child
unsupervised. “Supervision means the provider has knowledge of a child’s needs and
accountability for his or her care at all times. Supervision includes awareness of and
responsibility for the activity of each child and being near enough to intervene if needed.”
O.A.C. 5101:2-14-20(B). The notice also alleged a violation of O.A.C. 5101:2-14-06, which
allows revocation on the basis of noncompliance with Chapter 5101:2-14 of the Administrative
Code.
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{¶27} The trial court found that, while the hearing officer referenced O.A.C. 5101:2-14-
19(A)(11) (regarding the propriety of toys) in her decision, the hearing officer did not premise
the propriety of revocation of certification on a violation of that section. Instead, the trial court
recognized that the hearing officer properly understood that the circumstances of the child’s
death were relevant to a finding that Ms. Kelly had failed to properly supervise the child. That
the child choked on a toy was merely evidence of Ms. Kelly’s lack of awareness as to the child’s
activity at a time when she was not near enough to intervene and prevent the harm.
{¶28} Ms. Kelly had proper notice of the alleged violations underlying the revocation of
her certification. Specifically, she was notified that revocation was based on her failure to
supervise the child. The trial court did not abuse its discretion by affirming the administrative
decision that premised revocation on facts indicating that Ms. Kelly had failed to properly
supervise the child. Accordingly, I would affirm the trial court’s judgment.
(Gallagher, J., of the Eighth District Court of Appeals, sitting by assignment.)
APPEARANCES:
LAWRENCE J. WHITNEY, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.