Judge Mitchell L. Beckloff, Case 21STCP03244 2022-08-03 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 21STCP03244, Date: 2022-08-03 Tentative Ruling

Petitioner, Mary Karapetian, seeks a court order compelling Respondent, California Department of Social Services (the Department), to set aside its September 24, 2021 decision, revoking Kinder Chicks Preschool and Kindergarten’s license to operate a child day care center and excluding Petitioner from “employment in, presence in, and contact with clients of, any facility licensed by the Department . . . .” (AR 593.)

Petitioner alleges the Department erred by failing to properly consider and give appropriate weight to Petitioner’s evidence of mitigation and rehabilitation thereby resulting an “unduly harsh and punitive” revocation and exclusion order. Petitioner contends the penalty imposed by the Department constitutes an abuse of discretion. (Petition ¶ 9.)

Petitioner’s unopposed request for judicial notice (RJN) of Exhibits 1 through 17 of California Department of Social Services Precedential Decisions is granted.

The California Child Day Care Facilities Act (Child Day Care Act) governs the licensing and operation of child day care centers. (Health & Saf. Code, § 1596.70 et seq.) The Department is the agency responsible for the licensing and inspection of family child care homes to ensure compliance with the day care statutes and regulations. The Department’s implementing regulations are in California Code of Regulations, title 22, division 12, section 102351.1 et seq.

The Child Day Care Act sets forth certain rights for the children who receive services for day care centers:

Each child receiving services from a family child care home shall have certain rights that shall not be waived or abridged by the licensee regardless of consent or authorization from the child's authorized representative. These rights include, but are not limited to, the following:

(1) To be treated with dignity in his/her personal relationship with staff and other persons

(4) To be free from corporal or unusual punishment, infliction of pain, humiliation, intimidation, ridicule, coercion, threat, mental abuse, or other actions of a punitive nature, including but not limited to: interference with eating, sleeping or toileting; or withholding shelter, clothing, medication or aids to physical functioning. (Cal. Code Regs., tit. 22, § 10243, subd. (a).)

The Department may institute disciplinary proceedings against day care licensees for violation of day care statutes and regulations. (Health & Saf. Code, § 1596.854.) The Department may suspend or revoke any license for a violation of the day care regulations or for conduct inimical to the health, morals, welfare, or safety of either (i) an individual, in or receiving services, from the facility or (ii) the people of this State. (Id., § 1596.885, subds. (a), (c); Cal. Code Regs., tit. 22, § 102402, subd. (a).) The Department may prohibit a licensee from employing, continuing the employment of, allowing in, or allowing contact with clients of a licensed facility by any employee, prospective employee, or other person who is not a client of a child day care center. (Health & Saf. Code, § 1596.8897.)

This proceeding arises out of the Department’s investigation and subsequent prosecution of alleged misconduct occurring at Kinder Chicks Preschool and Kindergarten (Kinder Chicks), a child day care center owned and operated by Petitioner. The specific misconduct alleged involved Petitioner’s failure to: (1) report employee violations of the personal rights of children in care; (2) provide adequate care and supervision; and (3) obtain criminal record clearances for two substitute teachers.

The Department licensed Kinder Chicks as a child day care center in October 2011. Petitioner owned Kinder Chicks and acted as its director at all relevant times. (AR 345, 571.) Kinder Chicks initially provided care for nine children. Over the years, Kinder Chicks grew to providing care for 48 to 50 children. (AR 346.)

Before the alleged incidents, the Department had never taken any disciplinary action against Petitioner. (AR 346-347.)

As examined and generally stipulated to and/or proved at the administrative hearing, the Department accused Petitioner and Kinder Chicks[1] of certain misconduct, which included failure to: (1) report employee Rosa Flores’ violations of personal rights of children in care; (2) provide adequate care and supervision when a child walked alone in the facility (3) comply with the teacher-child ratio regulation; and (3) obtain criminal record clearances for two substitute teachers.

More specifically, at the administrative hearing the parties stipulated to the following facts:

During the hearing, Petitioner provided explanations about the stipulated facts:

As to Flores, Petitioner testified teachers at the facility often had conflicts. Some of the conflict involved Flores’ treatment of children. (AR 386, 391-392, 410-411.) Maya Levine made a complaint to the Department about Flores leaving a red mark on the arm or hand of Child 1 as well as two other incidents involving Flores. (AR 284, 311, 399.)

Petitioner testified she had heard from some of her staff about Flores’ treatment of children, but she never personally saw Flores treat children in an aggressive manner. Petitioner also was never given proof of any inappropriate treatment of children by Flores. (AR 580.) Petitioner did not report the incident with Child No. 1 because of conflicting accounts of what happened and doubts that getting bumped by the door was a reportable incident. By the time of the hearing, however, Petitioner recognized her mistake of failing to report the incident involving Child No. 1 and Flores. (AR 580; but see AR 577 [finding Petitioner’s statement regarding red mark caused by door self-serving].)

As to the unaccompanied child inside the facility, Petitioner testified a teacher failed to accompany the child because the teacher was asking other children whether they needed to use the bathroom. (AR 401, 580-581.) The teacher failed to require the child to “wait right by her, next to her, so then they could walk in together . . . .” (AR 401.)

Petitioner explained the child-teacher ratio regulation violation as related to a momentary lapse that occurred when a father of the extra child was in the process of leaving the child and where other children were gathered sitting waiting for a story. The child joined the group; the teacher should have requested the father take the child to a different classroom. (AR 402-403, 581-582.)

Regarding the criminal record clearance, Petitioner testified she had critical staffing needs and there was a mix-up in the process of faxing her paperwork to the Department for the two substitute teachers. (AR 405-406, 582.)

On December 6, 2019, the Department filed an Accusation against Petitioner and Kinder Chicks. (AR 11-15.)[2]

Petitioner and Kinder Chicks filed Notices of Defense denying the allegations and requesting a hearing. (AR 75-76, 93-94.)

On October 27 and 28, 2020, an administrative law judge (ALJ) conducted the hearing. (AR 454.)

At the hearing, Petitioner presented evidence of mitigation and rehabilitation, including: (1) Petitioner’s long career as a kindergarten/preschool teacher before eventually becoming owner, operator, and director of Kinder Chicks (AR 345-349); (2) the extensive training Petitioner provided to her staff and Petitioner’s use of a third-party consultant for additional training and feedback (AR 349-370); (3) Petitioner’s running of staff meetings, including about constant supervision, appropriate discipline, and safety practices (AR 583-584); (4) Petitioner’s attendance at a Department compliance conference that showed that she satisfied all required items (AR 584); (5) the Department’s positive annual checkup (AR 370-371); (6) the Department’s unannounced visits that revealed no violations (AR 372, 585); and (7) Petitioner’s good character and integrity (AR 585).

In that proposed decision, the ALJ concluded: (1) cause exists to (a) revoke Kinder Chicks’ license to operate a child care center, (b) sustain Petitioner’s exclusion from employment in, presence in, and contact with clients of any facility licensed by the Department, and (c) sustain the forfeiture of Petitioner’s Trustline registration;[3] (AR 472-473) and (2) certain penalties were appropriate based upon the nature of the misconduct and the post-accusation conduct by Petitioner and Kinder Chicks. (AR 473-474.)

[13A.] . . . While [Petitioner] did not personally abuse children, she improperly allowed collegial loyalty to subjugate her responsibility to protect the children in her care. However, [Petitioner] corrected the 2018 deficiencies identified by the Department, met the requirements of the compliance plan, and operated the facility without further noted deficiencies since April 2018. Consequently, revocation of [] Kinder Chicks’ license to operate the facility would constitute unduly harsh discipline. A stayed revocation, with a probationary period to allow [Petitioner] time to further internalize what was learned from the compliance plan, will provide appropriate protection of the public health, safety, and welfare.

13B. As noted above, [Petitioner’s] violations did not stem from her own abuse of children, and her violations as director of the facility do not warrant excluding her from any licensed facility. Additionally, [Petitioner’s] rehabilitation and absence of facility deficiencies since April 2018 weigh against barring [Petitioner] from serving as director of the facility. (AR 474 [emphasis added].)

On February 3, 2021, the Department served notice of its recommendation to reject the ALJ’s proposed decision pursuant to the provisions of Government Code section 11517, subdivision (c). (AR 483-487.)

On February 26, 2021, the Department rejected the ALJ’s proposed decision. (AR 488-489.)

The parties thereafter submitted briefs to the Department for consideration for its final decision on the Accusation. (AR 520-527, 528-532.)

The Department, through its Deputy Director of the Legal Division, did not adopt the ALJ’s proposed decision and issued its Final Decision and Order on September 24, 2021. (AR 533-560, 568-596.) The Department delayed the effective date of its order until October 13, 2021. (AR 568-596.)

The Department’s Final Decision and Order increased the penalties against Kinder Chicks and Petitioner. The order revoked Kinder Chicks Chick’s license but did not impose a stay or probationary period as the ALJ proposed. It also prohibited Petitioner from employment in, presence in or contact with clients of any facility licensed by the Department. (AR 593-594.)

Petitioner seeks relief through the petition pursuant to Code of Civil Procedure section 1094.5.

Under Code of Civil Procedure section 1094.5, subdivision (b), the issues for review of an administrative decision are: whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the respondent has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (Code Civ. Proc., § 1094.5, subd. (b).)

There are two possible forms of review: (1) independent judgment; or (2) substantial evidence. (Id., subd. (c).) Code of Civil Procedure section 1094.5 does not specify which cases are subject to independent review, leaving the issue to the courts. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 811 (Fukuda).) In cases reviewing decisions which affect a vested, fundamental right, the trial court exercises independent judgment on the evidence. (Bixby v. Pierno (1971) 4 Cal.3d 130, 143.) In all other cases, the court determines whether the findings are supported by substantial evidence in light of the whole record. (See Code Civ. Proc., § 1094.5, subd. (c).)

Petitioner requests that the court apply its independent judgment to review the underlying administrative decision. The court agrees based upon the fundamental right implicated in this case—Petitioner’s employment and livelihood.[4] (Sulla v. Board of Registered Nursing (2012) 205 Cal.App.4th 1195, 1200. [“A trial court reviewing an administrative decision that imposes discipline on a professional licensee must exercise its independent judgment based on the evidence before it.”]) While it is not entirely clear, the Department does not appear to dispute the court’s review is by independent judgment. (See Opposition 10:15-18.)

Evidence Code section 664 creates a presumption “that official duty has been regularly performed.” (Evid. Code, § 664.) “In a section 1094.5 proceeding, it is the responsibility of the petitioner to produce a sufficient record of the administrative proceedings; ‘. . . otherwise the presumption of regularity will prevail, since the burden falls on the petitioner attacking the administrative decision to demonstrate to the trial court where the administrative proceedings were unfair, were in excess of jurisdiction, or showed’ prejudicial abuse of discretion.” (Elizabeth D. v. Zolin (1993) 21 Cal.App.4th 347, 354.) This presumption of correctness includes giving great weight to the agency’s credibility determinations even where the standard of review is independent judgment. (Fukuda, supra, 20 Cal.4th at 819.)

For the independent judgment standard, pursuant to Code of Civil Procedure section 1094.5, subdivision (c), the court decides whether the weight of the evidence supports the administrative findings (rather than whether substantial evidence supports the findings). Thus, a trial court “ ‘not only examines the administrative record for errors of law but also exercises its independent judgment upon the evidence.’ ” (Id. at 816, fn. 8.) Exercise of independent judgment “does permit (indeed, [] requires) the trial court to reweigh the evidence by examining the credibility of witnesses.” (Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 658.)

Even where the court’s review is by independent judgment, however, the court reviews an agency’s penalty decision for a manifest abuse of discretion. “The propriety of a penalty imposed by an administrative agency is a matter vested in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion.” (Williamson v. Board of Medical Quality Assurance (1990) 217 Cal.App.3d 1343, 1347.) “The policy consideration underlying such allocation of authority is the expertise of the administrative agency in determining penalty questions.” (Cadilla v. Board of Medical Examiners (1972) 26 Cal.App.3d 961, 967.)

Review of the penalty imposed by an agency does not allow the court to substitute its own judgment for that of the administrative agency, nor “disturb the agency's choice of penalty absent ‘ “an arbitrary, capricious or patently abusive exercise of discretion” ’ by the administrative agency.” (Cassidy v. California Bd. of Accountancy (2013) 220 Cal.App.4th 620, 628) If reasonable minds can differ with regard to the propriety of the disciplinary action, there is no abuse of discretion. (County of Los Angeles v. Civil Service Commission (1995) 39 Cal.App.4th 620, 634.) “Only in an exceptional case will an abuse of discretion be shown because reasonable minds cannot differ on the appropriate penalty.” (County of Los Angeles v. Civil Service Com. of County of Los Angeles (2019) 40 Cal.App.5th 871, 877.)

Petitioner contends the Department abused its discretion by revoking Petitioner’s license to operate her child day care center. Petitioner contends the Department’s findings “are not supported by the weight of the evidence, and because the Department manifestly abused its discretion in imposing such severe penalties.” (Opening Brief 1:24-26.) The Department asserts it “properly revoked [P]etitioner’s license to operate a child care center for failing to protect children from an employee’s physically rough treatment despite repeated complaints by staff, and failing to obtain criminal record clearance of employees.” (Opposition 5:6-8.)

The Department received evidence it categorized as mitigation and rehabilitation evidence proffered by Petitioner. The evidence noted Petitioner held a series of staff meetings to address issues at the facility. The staff meetings began to talk about employees’ complaints about one another, to address best practices for speaking to the children, the need to provide constant supervision of the children in the classroom and on the playground, safety and appropriate methods of discipline. (AR 583-584.) Petitioner also used the meetings for team building and communication exercises. (AR 584.)

Petitioner also attended a compliance conference with the Department and agreed to a compliance plan to correct deficiencies at the facility. (AR 584.) Petitioner met the requirements of her compliance plan. (AR 584.) She also hired an outside consultant who made recommendations for improvement after observing each of the four classrooms at the facility. (AR 584.)

Finally, the Department reported it had undertaken several unannounced visits to the facilities, and it did not note any deficiencies. (AR 585.)

Petitioner emphasizes mitigation evidence before the Department making her less culpable for regulatory deficiencies. Petitioner admitted she erred in failing to report Child No. 1’s injury and Flores’ responsibility for the injury whether by door or hand. Petitioner also interviewed Child No. 1 and did not see a red mark on his arm. Petitioner knew a conflict existed between Flores and other employees. Petitioner suggests such evidence mitigates the egregiousness of her failure to report the incident involving Flores and Child No. 1.[5]

Petitioner argues the Department had no evidence before it to undermine the mitigation and rehabilitation evidence presented.

Petitioner also contends the Department’s determination Petitioner’s evidence “belie[d] a showing of ‘rehabilitation,’ ” is inconsistent with its precedential decisions discussing rehabilitation. The Department has explained:

“Rehabilitation is normally demonstrated on the basis of evaluating two different aspects. The first is state of mind. It involves an appreciation of the gravity of the harm done, remorse for the actions, and a commitment to learning from one’s mistakes. . . . The second is a state of facts. This involves a track record of consistently appropriate conduct over a period of time from which the Department might conclude that there is a new level of maturity and awareness, thus justifying re-licensure.” (In re Thomas (2002) 10 CDSS 09 p. 4 [RJN, Ex. 15].)

Both the ALJ and the Department found Petitioner had received “continued complaints by staff members” about Flores and overlooked Flores’ “violations of children’s personal rights which included grabbing children in an aggressive manner, yelling at them, and one at least one occasion . . . striking a child.” (AR 507-508, 588.) Both the ALJ and Department found Petitioner “allowed [] Flores’ violations to go unchecked, and failed to report the violations to the Department. This laxity apparently arose from [Petitioner’s] unwillingness to acknowledge the wrongdoing of longtime colleague turned employee.” (AR 509-510, 592.) Both the ALJ and Department noted, “While [Petitioner] did not personally abuse the children, she improperly allowed collegial loyalty to subjugate her responsibility to protect the children in her care.” (AR 510, 592.)

The Department found correcting deficiencies did not establish rehabilitation—the acts taken were ordinarily those expected by licensees. The Department considered Petitioner’s remorse (or lack thereof) as a component of rehabilitation and considered it with other evidence:

“[Petitioner] presented no evidence of any effort on her part to address the possible emotional and physical harm of the children who suffered abuse by [] Flores by, for example, speaking to the parents and children and acknowledging and validating their concerns and accepting responsibility for her failure to act immediately to remove [] Flores from contact with children. To the contrary, [Petitioner] testified that when the parents of the child who was hit by [] Flores told her that they withdrew their child from the school, [Petitioner] continued to assert that she did not find any wrongdoing on the part of her employee, refused to remove [] Flores from the school and simply considered the matter closed. [Petitioner’s] actions when the allegations of abuse first surfaced and subsequently are more characteristic of, at a minimum, a lack of concern or empathy for the children and parents and at worst a complete disregard for them.” (AR 592-593.)

The Department’s findings directly inform on Petitioner’s state of mind—her appreciation of the gravity of the harm done, remorse for the actions, and a commitment to learning from one’s mistakes . . . .” (In re Thomas (2002) 10 CDSS 09 p. 4 [RJN, Ex. 15].) The weight of the evidence supports the Department’s finding Petitioner did not demonstrate rehabilitation as it views rehabilitation. The court disagrees the Department’s finding is “focused almost exclusively on actions contemporaneous with the initial failure to report.” (Opening Brief 9:5.) Petitioner had more than two years from the time of the incident with Child No. 1 until the hearing to demonstrate remorse. Petitioner provides no evidence she appreciated the gravity of Flores’ behavior, remorse for Petitioner allowing Flores to act inappropriately with the children despite numerous complaints from other staff or that she had learned from her mistakes.[6] Contrary to Petitioner’s claim, the Department did not merely focus on Petitioner’s incorrect response to the claim involving Flores and Child No. 1—conduct that occurred.[7]

“The department may prohibit any person from being a member of the board of directors, an executive director, or an officer of a licensee or a licensee from employing, or continuing the employment of, or allowing a licensed facility, or allowing contact with clients of a licensed facility by, any employee, prospective employee, or person who is not a client who has: . . . . (2) Engaged in conduct that is inimical to the health, morals, welfare, or safety of either an individual in or receiving services from the facility, or the people of the State of California.”

Petitioner argues the penalty imposed by the Department excluded Petitioner from employment in, presence in, and contact with clients of any facility licensed by the Department is excessive and grossly disproportionate to the point there is an abuse of discretion. Petitioner argues the Department fails to address the issue and therefore concedes it.[8]

The court acknowledges In re Biggers (1997) 99 CDSS 04 did not result in an exclusion order for those who knew about the sexual abuse and failed to take action to protect the disabled adult. The court also acknowledges the precedential decisions submitted by Petitioner where exclusion orders were based on substance abuse and criminal convictions.

Nonetheless, where an individual has engaged in conduct that is “inimical to the health, morals, welfare, or safety of either an individual in or receiving services from the facility,” the Department has the authority to issue an exclusion order. (Health & Saf. Code § 1596.8897, subdivision (a)(2).) The statute does not limit the conduct to substance abuse and criminal convictions. It focuses on acts harmful to the safety of those in the facility—here the children of Kinder Chicks.

The Department found Petitioner had “repeatedly” been informed of Flores’ inappropriate physical behavior with children at the facility. (AR 574, 590.) Petitioner had been advised Flores would interrupt children’s naps, grab children roughly and lift them by their arm. (AR 574.) Petitioner also heard complaints about Flores often yelling at the children at Kinder Chicks. (AR 574.) Despite such knowledge, Petitioner did not take appropriate action to protect the children which ultimately resulting in Flores striking a three-year-old child.

As found by the Department, Petitioner repeatedly made excuses for Flores. (AR 574.) Petitioner minimized and overlooked Flores’ behavior presumably based on their personal long-term relationship subjecting the children to an ongoing risk of harm. (AR 579, 588.)

The Department noted Petitioner was required to report child abuse to authorities and did not do so. Despite having knowledge of Flores’ actions with the children, Petitioner failed to meet her legal obligations. (AR 590.) Petitioner’s decision to investigate allegations made against Flores instead of reporting them precluded an independent investigation to determine whether Flores was abusing the children. (AR 590.) Petitioner’s failure did not promote child safety.

Further, Petitioner’s actions subjected children at Kinder Chicks to ongoing abuse by Flores. (AR 590-591.) By failing to relieve Flores of her duties at Kinder Chicks after Petitioner received allegations of abuse by Flores, Petitioner put the children at further risk of harm. (AR 591.) Children of tender years were subjected to Flores’ acts for more than one year because Petitioner failed to take appropriate action. (AR 572.)

The court finds the weight of the evidence supports the Department’s finding Petitioner’s actions were is “inimical to the health, morals, welfare, or safety of either an individual in or receiving services from the facility . . . .” (Health & Saf. Code § 1596.8897, subdivision (a)(2).) The court cannot find the Department manifestly abused its discretion in excluding Petitioner from working in any facility licensed by the Department. Reasonable minds may (and did) differ on the appropriate penalty to impose.

[1] Unless otherwise necessary, the court refers to Petitioner and Kinder Chicks collectively as Petitioner for convenience and brevity.

[2] The Department also filed Accusations against other people involved. The disposition of those administrative proceedings are not relevant here. (Opposition 5:26-28. AR 572.)

[3] Petitioner has not challenged the forfeiture of her Trustline registration.

[4] While Kinder Chicks holds the license to operate the day care facility, Petitioner is the owner and director of the business. While the license revocation affects the business and Petitioner’s economic interests, Petitioner has also been excluded from working in her chosen profession. Thus, Petitioner’s fundamental and economic interests are implicated. Independent judgment is the appropriate standard of review here. (See Goat Hill Tavern v. City of Costa Mesa (1992) 6 Cal.App.4th 1519, 1526-1529.)

[5] Petitioner contends investigator notes of the incident between Flores and Child No. 1 report some witness accounts Child No. 1 was struck (accidentally) when he was trying to open the door. To the extent, Petitioner contends the witness interviews do not support Child No. 1’s report Flores struck him on the hand or arm, the court disagrees. Petitioner’s citations to the administrative record do not suggest Flores accidentally hit Child No. 1 with the door. (Opening Brief 9:17.)

[6] While Petitioner suggests the Department based its decision on In re Biggers (1997) 99 CDSS 04 is unavailing. The Department does not cite to In re Biggers in its final decision and order. Certainly, the egregious facts (“gross and reprehensible conduct”) in In re Biggers are not like those here except as to knowledge of harm and a failure to act. (Reply 4:5-6.)

[7] That Petitioner labels the claim an “unverifiable allegation,” Petitioner stipulated Flores hit and/or slapped Child No. 1 causing a red mark. (Opening Brief 5:3-4 [stipulation]; Reply 3:20-21 [“unverifiable allegation”].)

[8] The court notes the petition does not challenge the Department’s exclusionary order. Petitioner prayed for a writ of mandate to set aside the Department’s order “revoking Petitioner’s license to operate a Child Day Care Center.” (Pet., Prayer.) It is not entirely clear the issue is properly before the court.