Case Number: BS170261 Hearing Date: June 12, 2018 Dept: 85

Ethel Hill-Jergensen v. California Department of Social Services & Pamela Dickfoss, BS 170261

Tentative decision on petition for writ of mandate: denied

Petitioner Ethel Hill-Jergensen (“Hill-Jergensen”) dba Hill-Jergensen Family Child Care and dba Hill-Jergensen Foster Family Home seeks a writ of mandate directing Respondents California Department of Social Services (“DSS” or “Department”) and Pamela Dickfoss (“Dickfoss”) in her official capacity as Deputy Director of DSS’s Community Care Division to set aside the Department’s decision revoking Hill-Jergensen’s license.

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

A. Statement of the Case

1. Petition

Petitioner Hill-Jergensen commenced this proceeding on July 21, 2017. The verified Petition alleges in pertinent part as follows.

Hill-Jergensen operated a child care facility and foster care facility at 7707 8th Avenue, Los Angeles, CA. She carried licenses to operate a family child care home and a foster family home.

From February 13 through February 17, 2017, a recently-hired employee at the child care facility video recorded Hill-Jergensen at work. One of the videos shows Hill-Jergensen hitting a nine-year old boy with a green spatula and screaming to two other children: “Did you see him hit me?” On the same day, another video shows Hill-Jergensen shouting at the same boy: “God damn ass cry! Don’t give a shit! You piss at your fucking daddy’s house!” In two others videos captured between February 13 and February 17, 2017, Hill-Jergensen yells to an unknown child: “Take your ass to sleeping!” She says to another: “If you get your ass up I will beat the shit out of you! Take your little ass in there and lay down and don’t get up until your mother gets here! Get in there now!”

On February 24, 2017, Licensing Program Analysts (“LPAs”) Michelle Escandon (“Escandon”) and Myriam Luga (“Luga”) conducted an unannounced visit to the child care facility after the employee sent the video and audio recordings to DSS. At the time of their visit, the facility was in charge of 12 children. The LPAs interviewed children and staff members at the facility. None of the children directly corroborated the allegation that Hill-Jergensen struck a child.

On April 6 and 7, 2017, a hearing was held on the allegations before an Administrative Law Judge (“ALJ”). Thereafter, the ALJ issued a Proposed Decision recommending the revocation of Hill-Jergensen’s licenses. The ALJ found in pertinent part that Hill-Jergensen demonstrated “gross abuse of power and violation of trust in her relationship with the children in her care” and that “her testimony was lacking in appreciation for the seriousness of her offense and the victimization it clearly encompassed.” DSS adopted the ALJ’s proposed decision.

DSS’s revocation of Hill-Jergensen’s licenses and closure of the facilities is counter to the purpose of child day care facilities to serve working parents. Hill-Jergensen operated the child care facility for over 16 years without a single injury to a child. No parent has ever complained about Hill-Jergensen’s treatment of the children.

The ALJ failed to attribute insufficient weight to evidence favorable to Hill-Jergensen. The employee who lodged the complaint with DSS admitted that she was not sure if the children were hurt. The video did not actually depict Hill-Jergensen hitting the boy. None of the children corroborated the allegations against Hill-Jergensen. Several parents and community members submitted letters attesting to Hill-Jergensen’s respectable reputation.

The ALJ failed to apply objective, ascertainable standards to the proceeding. The ALJ relied on incompetent evidence. The ALJ failed to bridge the analytic gap between the raw evidence and ultimate decision pursuant to Topanga Assn. for a Scenic Community v. County of Los Angeles, (“Topanga”)(1974) 11 Cal.3d 506.

B. Standard of Review

CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 514-15.

CCP section 1094.5 does not in its face specify which cases are subject to independent review, leaving that issue to the courts. Fukuda v. City of Angels, (“Fukuda”) (1999) 20 Cal.4th 805, 811. In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (“Bixby”) (1971) 4 Cal.3d 130, 143. See CCP §1094.5(c). 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. Sulla v. Board of Registered Nursing, (2012) 205 Cal.App.4th 1195, 1200.

Under the independent judgment test, “the trial court not only examines the administrative record for errors of law but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” Bixby, supra, 4 Cal.3d at 143. The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. Morrison v. Housing Authority of the City of Los Angeles Board of Cmrs., (2003) 107 Cal.App.4th 860, 868. In short, the court substitutes its judgment for the agency’s regarding the basic facts of what happened, when, why, and the credibility of witnesses. Guymon v. Board of Accountancy, (1976) 55 Cal.App.3d 1010, 1013-16.

However, “[i]n exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” Fukuda, supra, 20 Cal.4th at 817. Unless it can be demonstrated by petitioner that the agency’s actions are not grounded upon any reasonable basis in law or any substantial basis in fact, the courts should not interfere with the agency’s discretion or substitute their wisdom for that of the agency. Bixby, supra, 4 Cal.3d 130, 150-151; Bank of America v. State Water Resources Control Board, (1974) 42 Cal.App.3d 198, 208.[1]

The agency’s decision must be based on a preponderance of the evidence presented at the hearing. Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862. The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d 506, 514-15. Implicit in section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Id. at 515.

An agency is presumed to have regularly performed its official duties (Ev. Code §664), and the petitioner therefore has the burden of proof. Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137. “[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion. Alford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

The propriety of a penalty imposed by an administrative agency is a matter in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion. Lake v. Civil Service Commission, (1975) 47 Cal.App.3d 224, 228. Neither an appellate court nor a trial court is free to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed. Nightingale v. State Personnel Board, (1972) 7 Cal.3d 507, 515. 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.

C. Governing Law

1. The Child Day Care Act

The California Child Day Care Facilities Act (“Child Day Care Act”) is found at Health and Safety (“H&S”) Code section 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 22 CCR section 102351.1 et seq.

For the Child Day Care Act, the Legislature found the following:

“(a) That child day care facilities can contribute positively to a child’s emotional, cognitive, and educational development.

(b) That it is the intent of this state to provide a comprehensive, quality system for licensing child day care facilities to ensure a quality day care environment.

(c) That this system of licensure requires a special understanding of the unique characteristics and needs of the children served by child day care facilities.

…

(e) That good quality child day care services are an essential service for working parents.” H&S Code §1596.72.

The Child Day Care Act’s purposes are to:

“(a) Streamline the administration of child care licensing and thereby increase the efficiency and effectiveness of this system.

(b) Encourage the development of licensing staff with knowledge and understanding of children and child care needs.

(c) Provide providers of child care with technical assistance about licensing requirements.

(d) Enhance consumer awareness of licensing requirements and the benefits of licensed child care.

(e) Recognize that affordable, quality licensed child care is critical to the well-being of parents and children in this state.” H&S Code §1596.73.

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

“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 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.” 22 CCR §10243(a).

The Department has the absolute right to inspect a licensed facility without giving notice to the licenses. H&S Code §1596.8535(a); 22 CCR §102391. The Department may institute disciplinary proceedings against day-care licensees for violation of day-care statutes and regulations. H&S 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. H&S Code §1596.885(a), (c); 22 CCR section 102402(a).

2. The Foster Care Act

The Department may suspend or revoke a license to operate a foster family home issued under the California Community Care Facilities Act (“Foster Care Act”) on any of the following non-exhaustive grounds: (1) violation of the Foster Care Act by the licensee, (2) aiding, abetting, or permitting the violation of the Foster Care Act, and (3) conduct which is inimical to the health, morals, welfare, or safety of either the California people or an individual in, or receiving services from, the facility or certified family home. H&S Code §1550(a)-(c).

D. Statement of Facts

1. Background

On October 31, 2000, DSS issued Hill-Jergensen a license to maintain and operate a family day care. AR 8. The facility named on the license was Hill-Jergensen Family Child Care located on 7707 8th Avenue, Los Angeles. Id.

On August 22, 2013, DSS issued Hill-Jergensen a license to operate and maintain a foster family home. AR 9. The facility named on the license was Hill-Jergensen Foster Family Home located at the same address. Id.

The children whom Hill-Jergensen supervised this facility ranged from nine months to ten years of age. AR 155.

2. The Investigation

On February 22, 2017, a complaint was filed with DSS alleging that Hill-Jergensen was hitting children, using profanity directed at them, and yelling at them. AR 221, 223.

a. Complainant Interview

On February 23, 2017, LPA Michelle Escandon (“Escandon”) conducted an investigative interview with former Hill-Jergense employee Destanie Patterson (“Patterson”). AR 225. Patterson told Escandon that she worked at the Hill-Jergensen family child care facility five days, from February 13 to 17, 2017. Id. Patterson stated that when Hill-Jergensen gets mad, she yells and curses at the children and tells them that she would beat the “shit” out of them. Id. Hill-Jergensen would sometimes hit the children on the arm with a spatula. Id. Patterson saw children ages seven (Royce), six, and two (Anthony/Lamar) being hit. Id. Royce was hit because he hit Hill-Jergensen. Id. The toddler (Anthony/Lamar) wanted to go to sleep and Hill-Jergensen threw him on the mat. Id. Patterson was unsure whether the children sustained any injuries or the hitting left any marks. Id.

Patterson has vidos of Hill-Jergensen. Id. She believes the children are scared of Patterson. AR 226. Patterson left the facility after only five days of work because she felt uncomfortable. Id.

b. Videos[2]

On February 24, 2017, Escandon received videos with accompanying audio from Patterson. AR 227. One video shows Hill-Jergensen (AR 230) walking towards a child Royce Rivers (“Royce”) (AR 233) while holding a green object resembling a spatula in her hands. AR 227, 258. Royce is backing away from her and exclaims: “No, I didn’t. I didn’t hit you.” Id. Hill-Jergensen responds: “You’re lying to me. Did you see him hit me?” (or something to that effect) and concurrently appears to swat Royce with what appears to be a wooden spoon. Id.

In one audio recording Hill-Jergensen yells: “God damn ass crying. Don’t give a shit. You piss at your fucking daddy’s house.” AR 227, 259. In a second audio recording, Hill-Jergensen yells multiple profanities. AR 227, 260. Hill-Jergensen intelligibly yells: “If you get your ass up, I will beat the shit out of you” and, subsequently yells: “Take your little ass in there and lay down and don’t get up. Get in there now.” Id.

In a third audio recording, Hill-Jergensen yells: “Take your ass to sleep.” AR 227, 261.

c. The Facility Visit

On February 24, 2017, LPA’s Escandon and Luga conducted a visit to Hill-Jergensen’s child care facility to investigate the allegations. AR 223. The LPA’s toured the facility and observed the children engage in outdoor play and story reading. Id. They observed a positive interaction between the children, staff, and Hill-Jergensen. Id. Thereafter, the LPA’s interviewed children and staff. Id.

(i). Child #1

Child #1 is a seven year-old girl in first grade. AR 232. The child described the child care facility as “pretty cool” and stated that she has fun there. Id. The child also stated that there is nothing that she does not like about the day care facility. Id.

The LPAs asked Child #1 if she ever saw grown-ups hit children at the facility. AR 232. Child #1 responded with a “no” and stated that the grown-ups only just got mad at the children. Id.

(ii). Child #2

Child #2 is a seven year-old boy. AR 231. The child stated that Hill-Jergensen only yells when a child does something wrong to correct their behavior. Id. The child stated that only one staff member, Frances Norman (“Norman”), hits students and she does so with a wooden spoon. Id. Norman grabs kids by the arm and says:’Oget your stupid ass.” Id.

Child #2 was shown the video. AR 231. The child identified Hill-Jergensen as the adult individual depicted in the video. Id. The child stated that Hill-Jergensen “whooped” the hand of Royce because he urinated on the toilet. Id.

The LPAs asked Child #2 if Hill-Jergensen ever “whooped” him. AR 231. The child stated that Hill-Jergensen tried, but he got away. Id. The child said that, after he threw his backpack down, Hill-Jergensen said: “No you didn’t, you crazy motherfucker and shook him.” Id. The child started to cry. Id.

(iii). Royce

Royce is a nine year-old boy in third grade. AR 233. Royce initially stated that no one at the day care facility gets in trouble and that he has not seen anyone get hit or grabbed. Id. Royce stated that he was not scared of any grown-ups. Id.

The LPAs showed Royce the video. AR 233. Royce acknowledged that the video depicted Hill-Jergensen and himself. Id. Royce stated that Hill-Jergensen hit him on the hand with a spatula because he urinated on the toilet. AR 233, 238 (drawing of spatula). Royce described the hit as not hard. AR 233. Royce stated that this was the only time that this hitting occurred and that Hill-Jergensen does not hit other children. Id.

(iv). Frances Norman

Norman has been an assistant at the day care facility for 16 years. AR 237. She has not observed any physical or verbal abuse of the children. Id. The LPAs asked Norman about the facility’s discipline policy. Id. Norman responded that children get a “time out” if they do something wrong and Hill-Jergensen is in charge of said policy. Id.

Norman submitted a declaration. AR 241. Norman identifies Hill-Jergensen as the adult individual in the recordings using profane language and “whipping” Royce. Id.

(v). Hill-Jergensen

The LPAs asked Hill Jergensen about the facility’s discipline policy. AR 234. Hill-Jergensen responded that she institutes “time outs, and that’s about it.” Id.

The LPAs asked Hill-Jergensen whether she ever observed any adult physically or verbally abusing any children in care. AR 235. Hill-Jergensen responded no. Id. Hill-Jergensen acknowledged her familiarity with the concept of a mandated reporter, and knew that DSS policy required her to treat children fairly and avoid use of corporal punishment. Id.

The LPA’s played Hill-Jergensen the video recording. AR 235. Hill-Jergensen laughed and stated that she was justified because the kid jumped on her. Id. Hill-Jergensen acknowledged that both videos featured her and Royce. AR 236. Hill-Jergensen stated that she was spanking Royce in the video because he hit her. Id.

Hill-Jergensen also submitted a declaration. AR 240. In the declaration, Hill-Jergensen acknowledged that she hit a child in the video, but pointed out that the child attacked her first. Id. Hill-Jergensen stated that she regretted her action and would not do them again. Id.

d. The Investigation Findings

On February 28, 2017, LPA Escandon concluded that the allegations were substantiated that Hill-Jergensen yelled at children, grabbed children, hit children, and used improper language in front of them. AR 230.

e. The Accusation

On March 2, 2017, DSS suspended Hill-Jergensen’s license to operate her family child care facility. AR 1.

On the same day, Dickfoss, the Deputy Director of DSS’s Community Care Licensing Division, filed an Accusation against Hill-Jergensen. AR 2-6. The Accusation alleged that for a period of time unknown, Hill-Jergensen engaged in the use of corporal punishment and verbal abuse on children in care at the facility. AR 4. The Accusation listed several incidents. Id. The Accusation also alleged that Hill-Jergensen violated the personal rights of each child in care at the facility by engaging in this conduct. Id. The Accusation requested that the Department revoke Hill-Jergensen’s licenses to operate both a foster family home and a family child care home. AR 6.

On March 7, 2017, Hill-Jergensen filed a Notice of Defense. AR 32-33.

3. The Hearing

The hearing was held before ALJ Ji-Lan Zang on April 6 and 7, 2017. AR 37-74.

LPA Escandon testified in pertinent part that Hill-Jergensen identified herself and the child involved in the recordings. AR 56. Hill-Jergensen told Escandon that she was reacting to the child who had hit or attempted to hit her. AR 59.

Hill-Jergensen testified in pertinent part that she is the adult individual depicted in the video recordings and that she reacted in the manner that she did because the child had hit her. AR 104, 145-46. She testified that outside of this incident, she had never raised her voice with any child, never used curse words in the presence of a child, never cursed the children. AR 154-55. She also never hit any children in her day care other than the incident caught on tape. AR 152.

Hill-Jergensen submitted numerous letters from parents and colleagues attesting to her high integrity, work ethic, and love for children. AR 294-310.

4. The Decision

On May 1, 2017, the ALJ issued a proposed decision recommending the revocation of Hill-Jergensen’s licenses to operate a family child care home and a foster family home. AR 359.

The ALJ made several credibility findings. AR 353. The ALJ found self-serving and disingenuous Hill-Jergensen’s assertion that, apart from the February 17, 2017 incident, she had never raised her voice, never used curse words, and never used corporal punishment against a child in her care. AR 354. Hill-Jergensen was interviewed by LPA Escandon only six days after the incident, and yet she falsely told Escandon that corporal punishment is not used at the facility. AR 353. If Hill-Jergensen was telling the truth that she never used corporal punishment, she would have remembered the incident in her interview. AR 353.

The ALJ noted three other facts that undermined Hill-Jergensen’s assertion: (1) Child #2’s statement that Hill-Jergensen had attempted to hit him, had shaken him, and had used profanity in the past, (2) Patterson’s declaration averring that she heard Hill-Jergensen cuss at the children in the middle of the week and saw the incident occur at the end of the week, and (3) the recording themselves which, according to the ALJ, exhibited a loud and threatening tone, profuse use of profanity, and intent to belittle, bully, and humiliate the children in Hill-Jergensen’s care. Id. Hill-Jergensen’s conduct in the video is deliberate and malicious, belying any possibility that Hill-Jergensen’s conduct was a spontaneous, one-off reaction to a child’s misbehavior. Id.

The ALJ also noted Hill-Jergensen’s rehabilitation and mitigation efforts. AR 354-55. The ALJ pointed out, inter alia, Hill-Jergensen’s expression of regret over the incident, her participation in four 90-minute anger management classes and eight hours of parenting classes, and the favorable testimony and letters of her character witnesses. AR 355.

The ALJ found three causes to revoke Hill-Jergensen’s licenses. AR 357-58. Pursuant to 22 CCR section 102423(1), Hill-Jergensen violated the personal rights of Child #1 and the personal rights of each child at the child care facility who saw her grab and hit Child #1 or heard her use profanity against children in her care. AR 357. According to the ALJ, Hill-Jergensen “failed to treat each child in care with dignity in their personal relationships with staff, and she failed to provide an environment for the children free from corporal or unusual punishment, infliction of pain, humiliation, intimidation, ridicule, coercion, threat, mental abuse, or other actions of a punitive nature.” Id. This violation provided cause to revoke Hill-Jergensen’s license to operate a family child care home under H&S Code section 1596.885(a). Id.

Pursuant to H&S Code section 1596.885(c), the ALJ found that Hill-Jergensen’s conduct towards the children in her care was inimical to the health, safety, morals, or welfare of clients receiving care from a facility or to the California people and that this conduct thus provided a second ground for revocation of Hill-Jergensen’s license to operate a family child care home. AR 357.

Under the nearly identical H&S Code section 1550(c), the ALJ found that Hill-Jergensen’s conduct towards the children in her care is inimical to the health, safety, morals, or welfare of clients receiving care from a facility or to the California people. AR 358. This conduct thus provided a ground for revocation of Hill-Jergensen’s license to operate a foster family home. Id.

During closing argument, Hill-Jergensen’s attorney argued that the incidents captured on video were an anomaly. AR 358. The ALJ disagreed, finding the assertion was not credible. Hill-Jergensen used physical force and profanity against children on other occasions. Id.

The ALJ concluded that protection of public health, safety, and welfare requires the revocation of both of Hill-Jergensen’s licenses. AR 358.

To arrive at this conclusion, the ALJ first noted the gravity of the offenses. Id. The ALJ noted that Hill-Jergensen’s conduct exhibited a gross abuse of power and violation of trust in her relationship with the young children in her care. Id. The ALJ was concerned that Hill-Jergensen minimized her aggressive and harmful conduct during her interview with LPA Escandon and at the hearing by blaming the child for attacking her. Id. Her testimony lacked appreciation for the seriousness of the offense and her victimization of the child. Id. According to the ALJ, until Hill-Jergensen gains greater insight into the causes underlying her conduct, her rehabilitative efforts remain incomplete and she presents a danger to children in her care. Id.

The ALJ further found that Hill-Jergensen exhibited a disregard for Department oversight and a propensity for dishonesty. She falsely denied using corporal punishment at her facility and was less than candid at the hearing in explaining her statements to Escandon. Because of this disregard, the ALJ concluded that Hill-Jergensen was unlikely to comply with reasonable probationary terms of conditions and thereby warranted more stringent discipline. AR 358.

On May 24, 2017, DSS adopted the ALJ’s proposed decision. AR 361.

E. Analysis

Petitioner Hill-Jergensen seeks a writ of mandate directing DSS to set aside its decision revoking her licenses on the following grounds; (1) the decision was based on legally insufficient evidence; (2) the ALJ relied on inadmissible hearsay evidence; and (3) the penalty of licensure revocation is too harsh.

1. Legal Sufficiency of Evidence

Petitioner Hill-Jergensen argues that the ALJ’s decision was based on legally insufficient evidence in violation of Government (“Govt.”) Code section 11513(c) and Walker v. City of San Gabriel, (“Walker”) (1942) 20 Cal.2d 879, 881 (revocation of auto wrecking license unsupported where sole evidence was letter signed by chief of police) overruled on other grounds, Strumsky v. San Diego County Employees Retirement Assn., (1974) 11 Cal.3d 28, 37. Pet. Op. Br. at 4. Petitioner contends that LPA Escandon’s testimony was merely her personal opinion and speculation, which is insufficient to be substantial evidence supporting license revocation in light of contrary testimony from Hill-Jergensen, her sister, and her step-daughter, as well as 17 parent letters. Pet. Op. Br. at 5-6.

Govt. Code section 11513(c) provides in part: “Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs.” It is well settled that a board commits an abuse of discretion when it revokes a license to conduct a legitimate business without competent evidence establishing just cause for revocation, and that hearsay evidence alone is insufficient to support the revocation of such a license.” Walker, supra, 20 Cal.2d at 881; see also Govt. Code §11513(d) (“Hearsay evidence … shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions”).

Petitioner’s argument is spurious. The Department’s evidence consisted of the videos, Escandon’s investigative report (including witness interviews), LPA Escandon’s testimony, witness declarations (including Hill-Jergensen), and Hill-Jergensen’s testimonial admissions. The videos were authenticated by Patterson, Royce, Norman, and Hill-Jergensen herself. By themselves, the videos are substantial and competent evidence supporting revocation. Escandon’s report is an official duty regularly performed that was prepared after Escandon and another LPA visited the facility, observed its operations, conducted interviews, and prepared contemporaneous reports. The report chiefly offers Escandon’s observations, not her opinions and is presumed to be correct under Evid. Code section 664. The report is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs. See Govt. Code §11513(c).

Consistent with the Walker rule, the ALJ did not solely predicate her decision on hearsay; the ALJ relied inter alia on non-hearsay documentary evidence such as the video recording which Hill-Jorgensen conceded to be accurate. Moreover, large swathes of the hearsay present at the hearing and in the reports were admissible because of the party admission exception set forth by Evidence Code section 1220 and because of the declarants’ minor age and victimization pursuant to Health and Safety Code section 1596.8872.

2. Hearsay Evidence

Petitioner Hill-Jergensen claims that hearsay evidence was improperly admitted against her. Petitioner specifically refers to the Norman declaration (AR 49), the Patterson declaration (AR 74), and what a child told Escandon (AR 59). Pet. Op. Br. at 8.[3] Petitioner again relies on Walker to contend that mere uncorroborated hearsay does not constitute substantial evidence. Pet. Op. Br. at 9.

The Department properly rebuts this argument. Hearsay is admissible in administrative proceedings “for the purpose of supplementing or explaining other evidence.” Govt. Code §11513(d). The videos were properly authenticated and admitted at the hearing. The declarations of Patterson and Norman were admissible to explain those videos. They were also admissible to supplement the videos on the subject whether Hill-Jergensen’s behavior on the videos was a “one-off” or had occurred before. The hearsay statement of Royce (AR 59) was admissible under H&S Code section 1596.8872(a)(1) (permitting out-of-court statement of child under 12 who is victim to be admitted at administrative hearing so long as it is not the sole basis of finding).

3. Penalty of Revocation

Petitioner Hill-Jergensen contends that the penalty of revocation is inconsistent with the Child Day Care Act’s goal of serving working parents by having child day care facilities available for their children. Pet. Op. Br. at 11. According to Hill-Jergensen, this goal is not well-served by revoking her license because she has served as a day care facility provider for over 16 years — Hill-Jergensen repeatedly emphasizes her 16 years of licensure — without injuring a child and without complaints from parents. Pet. Op. Br. at 10-13.

This argument is meritless. While the Child Day Care Act does have a goal of enabling working parents to send their children to day care, nothing in the law requires a child care facility to remain licensed and open after its owner abuses a child.

While not necessary for purposes of H&S Code sections 1550 and 1596.885, an important issue for penalty is whether Hill-Jergensen simply had a bad day such that her behavior was a “one-off” or whether she failed to understand her obligations towards the children to which she was entrusted. This issue was addressed in detail by the ALJ, who found that Hill-Jergensen not only hit and used profanity towards Royce, but that it was inconceivable that this was a singular event. See AR 354. In fact, as the ALJ pointed out, Patterson reported hearing Hill-Jergensen use profanities in front of the children earlier in the week she worked there. AR 244. Child #2 also stated that Hill-Jergensen had tried to “whoop” him before, but was not able to do so because he got away. AR 231. AR 231. He further said that Hill-Jergensen shook him after he threw his backpack down, saying: “No you didn’t, you crazy motherfucker.” Id.

Most important, the ALJ was clearly correct in drawing an inference from the casual and angry nature of Hill-Jergensen’s actions caught on tape. AR 354. The recordings do not depict a person who slipped up, but rather a person who casually uses profanity with children with an “intent to belittle, bully, and humiliate.” Id.

In sum, Hill-Jergensen’s consistent and casual use of profanity and corporal punishment with the children under her care were actions directly contrary to the children’s rights under 22 CCR §10243(a). They are serious violations that are likely to reoccur. Hill-Jergensen’s witnesses and character letters have some merit in demonstrating her as a caring child care facilitator. But the issue for licensure revocation is not whether she cares. The issue is whether the children’s rights have been violated, whether the violations were serious, and whether protection of child health and safety requires revocation. Hill-Jergensen’s testimony lacked appreciation for the seriousness of the offense, her rehabilitative efforts were incomplete, and she continues to present a danger to children in her care. Id. She also has exhibited a disregard for Department oversight and a propensity for dishonesty. Therefore, the ALJ properly concluded that revocation was warranted. AR 358.[4]

In reply, Hill-Jergensen repeatedly attacks her former attorney, contending that he should have cross-examined Escandon and should have called Patterson and Norman to testify. Reply at 6-7. According to Hill-Jergensen, the ALJ allowed Department’s counsel simply to “offer and mark” evidence without objection from her lawyer. Reply at 7-8. Her lawyer also should have objected to admission of the video. Reply at 8. According to Hill-Jergensen, all of this was “ineffective assistance of counsel.” Id.

This is a new issue raised for the first time in reply which need not be considered. Penger v. Alza Corp., (1992) 11 Cal.App.4th 349, 362, n.8. Moreover, ineffective assistance of counsel argument is an argument in criminal law made pursuant to the 6th Amendment of the United States Constitution and has no application in civil or administrative law. A civil client who believes that his or her lawyer was incompetent is relegated to a malpractice claim. Hill-Jergensen is bound by the rulings and actions that occurred during her administrative hearing.

F. Conclusion

The petition for writ of mandate is denied. Respondents’ counsel is ordered to prepare a proposed judgment, serve it on Hill-Jergensen’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for July 19, 2018 at 9:30 a.m.

[1] For some reason, Petitioner quarrels with the opposition’s citation to Yamaha Corp. of America v. State Board of Equalization, (“Yamaha”) (1998) 19 Cal.4th 1, 7. Reply at 7. Yamaha stands, and was properly cited by the Department, for the proposition that judicial deference to an agency’s interpretation of a regulation or statute depends on the application of its expertise. It does not stand for the proposition that an arbitrary and capricious test applies in a CCP section 1094.5 licensure case. Nor would that highly deferential standard of review aid Petitioner anyway; it is much more deferential than a weight of the evidence review.

[2] The court has reviewed the videos in the Administrative Record.

[3] Petitioner claims that other hearsay evidence was improperly admitted, but her failure to specify what this hearsay was and why its admission was improper waives this argument.

[4] Petitioner Hill-Jergensen asserts that the DSS’s “Index of Precedential Decisions” does not support the revocation of her license. Pet. Op. Br. at 13. She argues that the most pertinent precedential case is In re Bailey, (“Bailey”) 99 CDSS02. Pet. Op. Br. at 14. But Bailey was a case involving persistent violations of pertinent regulations which caused injuries to children in respondent’s care. In this case, no child suffered abuse, no child was left alone, and no parent complained. Id.

This argument is unpersuasive. The fact that another case is distinguishable does not mean that revocation is inappropriate. The cases also do not resemble each other. Bailey involved the child care provider leaving the children unsupervised while the instant case involves a child care provider verbally and sometimes physically abusing the children. Hill-Jergensen also is incorrect that no child suffered abuse at her facilities.