[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
                                                  2


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
                                                 3


“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).
                                                4


          {¶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.
                                                5


        {¶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
                                                 6


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).”
                                                  7


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
                                                 8


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 * * *.”
                                                  9


        {¶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.
                                                10


                                  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
                                                11


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.
                                                 12


       {¶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.
