Nanny's Korner Care Center v. North Carolina Department of Health & Human Services — Division of Child Development

NO. COA13-602

NORTH CAROLINA COURT OF APPEALS

Filed: 20 May 2014

NANNY’S KORNER CARE CENTER BY
BERNICE M. CROMARTIE, CEO,
Petitioner,

v. Wake County
No. 12 CVS 005438
NORTH CAROLINA DEPARTMENT OF
HEALTH AND HUMAN SERVICES —
DIVISION OF CHILD DEVELOPMENT,
Respondent.

Appeal by petitioner from order entered 9 January 2013 by

Judge Donald W. Stephens in Wake County Superior Court. Heard

in the Court of Appeals 10 October 2013.

George Ligon, Jr., for petitioner–appellant.

Attorney General Roy Cooper, by Assistant Attorney General
Alexandra Gruber, for the State.

HUNTER, JR., Robert N., Judge.

Petitioner Nanny’s Korner Care Center by Bernice M.

Cromartie, CEO (“Petitioner”) appeals from an order affirming

the Final Agency Decision of Respondent North Carolina

Department of Health and Human Services (“DHHS”) in which DHHS

issued a written warning to Petitioner’s child care center and

prohibited Petitioner’s husband from being on the child care
 -2-
center’s premises while children are on site. Petitioner

contends that the superior court erred in concluding that DHHS

could rely on a substantiation of abuse made by a local

Department of Social Services to invoke its disciplinary

authority under N.C. Gen. Stat. § 110-105.2(b). We agree.

I. Factual & Procedural History

Bernice Cromartie (“Mrs. Cromartie”) is the CEO and

President of Nanny’s Korner Care Center (“Nanny’s Korner”), a

child care facility located in Lumberton, operating pursuant to

a license issued by the Division of Child Development and Early

Education (“the Division”) within DHHS. Ricky Cromartie (“Mr.

Cromartie”), Mrs. Cromartie’s husband, was a lead teacher at

Petitioner’s facility and was also responsible for performing

janitorial and maintenance work at the facility.

On 5 November 2009, the Division received a report that an

eight-year-old girl who was enrolled with Petitioner had

complained that a staff member at Nanny’s Korner had touched her

inappropriately. On that same day, Sharon Miller (“Ms.

Miller”), an abuse and neglect consultant with the Division,

along with a social worker from the Robeson County Department of

Social Services (“DSS”) began to investigate the allegations in

the report. Ms. Miller and the DSS social worker visited the
 -3-
complainant’s school and spoke with the minor child’s guidance

counselor and teacher. They then visited the minor child’s home

and interviewed the complainant, her three-year-old sibling, and

the complainant’s mother.

Ms. Miller and the DSS social worker next visited Nanny’s

Korner and interviewed Mr. and Mrs. Cromartie, as well as

several staff members. Ms. Miller learned that, on occasion,

Mr. Cromartie had been “the sole caregiver for the children

after [another staff member’s] shift ended at eight-thirty p.m.”

Mrs. Cromartie was adamant that the allegations against her

husband were false and upset that her husband was being accused

of such conduct. Mr. Cromartie denied inappropriately touching

the complainant.

According to Ms. Miller, in order to ensure the safety of

affected children during the pendency of an investigation into

allegations of child abuse or neglect, the Division typically

enters into a “protection plan” with the provider or owner of

the facility under investigation. Such a protection plan

identifies rules to which the provider or owner agrees to adhere

during the course of the investigation. In the present case, on

6 November 2009, Mrs. Cromartie was informed of, and agreed to,

a protection plan which provided, in relevant part, that “Mr.
 -4-
Ricky Cromartie can not [sic] and will not be on the premises of

the child care center during normal business hours . . . and

therefore . . . will not be present while children are present.”

Ms. Miller made subsequent visits to Nanny’s Korner in

December 2009 and again in January 2010 in order to monitor

Petitioner’s compliance with the protection plan.

On 2 February 2010, Ms. Miller received notice that the

local DSS had concluded its investigation and had substantiated

the allegations of sexual abuse against Mr. Cromartie. Two days

later, on 4 February 2010, Ms. Miller submitted a Case Decision

Summary to her supervisor containing the results of the

Division’s investigation into the allegations of sexual abuse

made against Mr. Cromartie. In this Case Decision Summary, Ms.

Miller noted that DSS had substantiated that Ricky Cromartie

inappropriately touched a child being cared for at Nanny’s

Korner and recommended issuance of a special provisional license

to Nanny’s Korner. The Case Decision Summary also indicated

that, in making its determination, the Division considered the

following “other factors”: “The male staff member submitted to a

polygraph test and passed with no deception. No criminal

charges were filed. No indication that any other staff were
 -5-
involved/aware of the incidents. Protection plan implemented

during the initial visit.”

Since changing the status of Petitioner’s license to a

special provisional license “would have resulted in changing the

star [rating of the facility],” the Division’s Internal Review

Panel met in March 2010 to discuss the issuance of a proposed

special provisional license and to give Petitioner an

opportunity to explain in writing why she believed the Division

should not take such action. After meeting for a second time in

June 2010 and considering Petitioner’s compliance with the

corrective action plan in place at Nanny’s Korner, the

Division’s Internal Review Panel reduced the administrative

action to a written warning. However, Mr. Cromartie was still

prohibited from being on the premises of Nanny’s Korner while

children were present. The Review Panel articulated the

following rationale for its decision to issue the written

warning and to prohibit Mr. Cromartie from being on Petitioner’s

premises during operational hours:

An eight-year old child disclosed to a
medical professional who conducted a Child
Medical Examination (CME) that on two
separate occasions, Ricky Cromartie, the
facility owner’s husband, engaged in
incidents of inappropriate touching at the
facility, a violation of North Carolina
General Statute 110-91(10) regarding care
 -6-
and treatment of children. The child also
disclosed consistent information to the
Department of Social Services and the Child
Abuse/Neglect Consultant. Mr. Cromartie was
the sole caregiver present at the facility
at the time of the incidents. The child is
no longer enrolled.

The Review Panel noted that its decision to take the less

severe administrative action of issuing a written warning in

lieu of a special provisional license was due to the fact that

Mrs. Cromartie “has complied [with] all written request[s] from

[the Division].” However, the Review Panel determined that its

decision to prohibit Mr. Cromartie from being at the facility

during its operational hours should be upheld “as a result of

the substantiation of child sexual abuse by the local department

of social services” and would remain in place “unless

substantiation is overturned.”

Petitioner filed a timely petition for a contested case

hearing in the Office of Administrative Hearings (“OAH”) to

challenge this decision and a hearing on the petition was held

on 12 July 2011. After hearing the evidence, the Administrative

Law Judge (“ALJ”) made numerous findings of fact, including the

following:

39. None of the parents who testified at
the hearing in this matter had any
concerns about Mr. Cromartie caring for
their children. These parents could
 -7-
not give any reasons why Mr. Cromartie
should not be allowed to work at
Nanny’s Korner[.]

. . . .

43. None of the employees who testified at
the hearing in this matter observed or
had knowledge of any of the conduct
which gave rise to the allegations of
sexual abuse by Ricky Cromartie[.]

. . . .

52. Petitioner also kept a communication
log on [the minor child]. In her
communication logs concerning [the
minor child], Petitioner documented
that [the minor child’s] mother had
experienced behavior problems with [the
minor child], and documented three
incidents in which [the minor child]
lied while at Petitioner’s facility.

. . . .

69. Petitioner saw no indication, and
received no reports of inappropriate
touching or sexual misconduct towards
children prior to November 6, 2009[.]

. . . .

85. Neither [the minor child] nor [the
minor child’s] mother testified at the
contested case hearing. Neither [the
minor child’s] elementary school
teacher, nor [the minor child’s]
guidance counselor, nor any one from
the Robeson County Department of Social
Services testified at the contested
case hearing.

In its conclusions of law, the ALJ concluded that:
 -8-
9. When there is a substantiation of child
sexual abuse at a child care facility
by a local department of social
services, the Division may issue a
written warning to the facility,
although other more stringent remedies
are also available to the Division.
N.C. Gen. Stat § 110-105.2(b), (e)[.]

10. Respondent has the authority to
permanently remove a substantiated
child abuser or neglecter from child
care pursuant to N.C. Gen. Stat. § 110-
105.2(d).

11. The only issue before the undersigned
is whether Respondent acted properly in
issuing the written warning to
Petitioner’s family child care center,
and in implementing the Corrective
Action plan prohibiting Ricky Cromartie
from being on the child care facility’s
premises while children are in care.

12. While the preponderance of the evidence
before me raises serious questions
and/or doubts about whether Mr.
Cromartie sexually abused [the minor
child] at Petitioner’s center on
November 5, 2009, the undersigned lacks
the authority and/or jurisdiction to
issue a formal determination on the
merits of that substantiation. Review
of the DSS’ substantiation is located
in another forum other than the Office
of Administrative Hearings.

Accordingly, based on its findings of fact and conclusions

of law, the ALJ determined that “Respondent’s decisions to issue

a written warning to Petitioner’s child care center and to

prohibit Petitioner’s husband from being [on] the child care
 -9-
center premises while children are in care, should be AFFIRMED.”

On or about 12 March 2012, DHHS adopted the ALJ’s order as its

own Final Agency Decision.1

Petitioner then filed a petition in superior court

requesting judicial review of DHHS’s Final Agency Decision

pursuant to N.C. Gen. Stat. § 150B-36. On 9 January 2013, the

superior court entered an order in which it concluded the

following:

9. The Division has the authority to issue
a written warning to a facility at
which child abuse or neglect has been
substantiated by the local department
of social services and to “specify any
corrective action to be taken by the
operator.” N.C.G.S. § 110-105.2(b)[.]

10. The Division also has the statutory
authority to permanently remove a
“substantiated abuser or neglecter from
child care.” N.C.G.S. § 110-105.2(d).

1
In 2011, the General Assembly modified the contested case
procedure set out in the Administrative Procedure Act (“APA”) by
amending and repealing numerous statutory provisions contained
in Chapter 150B of the North Carolina General Statutes as well
as several other statutory provisions affected by those
procedures. 2011 N.C. Sess. Law 1678, 1685–97, ch. 398, §§ 15–
55. These amendments became effective on 1 January 2012 and
apply to contested cases commenced on or after that date. See
2011 N.C. Sess. Law 1678, 1701, ch. 398, § 63. However, because
Petitioner’s contested case was initiated on 21 July 2010, the
General Assembly’s 2011 modifications to the APA are
inapplicable to the present case, so we conduct our review
according to the statutory procedures that were in effect at the
time Petitioner’s contested case was filed with OAH.
 -10-
11. By statute, substantiations of child
abuse or neglect are issued by the
local departments of social services
throughout the State of North Carolina.
See N.C.G.S. § 7B-101, et seq.

. . . .

13. Local units of government such as
Robeson County Department of Social
Services are not subject to OAH’s
jurisdiction because they are not an
“agency” as defined by the APA.
Therefore, a substantiation of child
abuse or neglect is not subject to
review in OAH. See N.C.G.S.
§ 150B-2(1a).

14. The Administrative Law Judge and the
Agency properly held that the Agency’s
action was proper and within the
Agency’s authority as set out in the
North Carolina Child Care Act, N.C.G.S.
§ 110-105.2.

15. The Agency’s issuance of the Written
Warning was not arbitrary or
capricious.

16. The Agency’s issuance of the Written
Warning was supported by substantial
evidence in the whole record.

17. There is credible evidence in the
record that Ricky Cromartie was a
“substantiated abuser” as set forth in
the North Carolina Child Care Act,
N.C.G.S. § 110-105.2(d), and as such,
the Agency had authority pursuant to
statute to prevent him from being on
the premises when children are in care.

18. Prohibiting Ricky Cromartie from being
on the premises of Petitioner’s child
 -11-
care facility while children are in
care was not arbitrary or capricious.

Based on its findings and conclusions, the superior court

affirmed the Final Agency Decision. Petitioner gave timely

notice of appeal from the superior court’s order.

II. Jurisdiction

Plaintiff’s appeal from the superior court’s order lies as

of right to this Court pursuant to N.C. Gen. Stat. § 7A-27(b)

(2013). See also N.C. Gen. Stat. § 150B-52 (2013).

III. Analysis

On appeal, Petitioner argues that the superior court erred

as a matter of law by concluding that DHHS could rely on the

local DSS substantiation of child abuse to support its issuance

of a written warning, which prohibited Mr. Cromartie from being

on the premises of the facility while children were present

under Petitioner’s care.

“The North Carolina Administrative Procedure Act governs

both trial and appellate court review of administrative agency

decisions.” Eury v. N.C. Emp’t Sec. Comm’n, 115 N.C. App. 590,

596, 446 S.E.2d 383, 387 (citation omitted), appeal dismissed

and disc. review denied, 338 N.C. 309, 451 S.E.2d 635 (1994).

“On judicial review of an administrative agency’s final

decision, the substantive nature of each [issue on appeal]
 -12-
dictates the standard of review.” N.C. Dep’t of Env’t & Natural

Res. v. Carroll (Carroll), 358 N.C. 649, 658, 599 S.E.2d 888,

894 (2004).

Pursuant to N.C. Gen. Stat. § 150B-51, a trial court is

authorized to reverse or modify the agency’s decision

if the substantial rights of the petitioners
may have been prejudiced because the
findings, inferences, conclusions, or
decisions are:

(1) In violation of constitutional
provisions;

(2) In excess of the statutory
authority or jurisdiction of the
agency or the administrative law
judge;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Unsupported by substantial
evidence admissible under G.S.
150B-29(a), 150B-30, or 150B-31 in
view of the entire record as
submitted; or

(6) Arbitrary, capricious, or an abuse
of discretion.

N.C. Gen. Stat. § 150B-51(b) (2011).

“The first four grounds for reversing or modifying an

agency’s decision . . . may be characterized as ‘law-based’

inquiries,” while “[t]he final two grounds . . . may be
 -13-
characterized as ‘fact-based’ inquiries.” Carroll, 358 N.C. at

659, 599 S.E.2d at 894 (internal citations omitted). “It is

well settled that in cases appealed from administrative

tribunals, [q]uestions of law receive de novo review, whereas

fact-intensive issues such as sufficiency of the evidence to

support [an agency’s] decision are reviewed under the whole-

record test.” Id. (alterations in original) (quotation marks

and citation omitted).

“Under a de novo review, the superior court consider[s] the

matter anew[] and freely substitut[es] its own judgment for the

agency’s judgment.” Mann Media, Inc. v. Randolph Cty. Planning

Bd., 356 N.C. 1, 13, 565 S.E.2d 9, 17 (2002) (alterations in

original) (quotation marks and citation omitted). “Under the

whole record test, the reviewing court must examine all

competent evidence to determine if there is substantial evidence

to support the administrative agency’s findings and

conclusions.” Henderson v. N.C. Dep’t of Human Res., 91 N.C.

App. 527, 530, 372 S.E.2d 887, 889 (1988). “The reviewing court

must not consider only that evidence which supports the agency’s

result; it must also take into account contradictory evidence or

evidence from which conflicting inferences could be drawn.” Id.

at 530–31, 372 S.E.2d at 890. However, the “whole record” test
 -14-
“does not permit the reviewing court to substitute its judgment

for the agency’s as between two reasonably conflicting views.”

Lackey v. N.C. Dep’t of Human Res., 306 N.C. 231, 238,

293 S.E.2d 171, 176 (1982). Instead, “the reviewing court must

determine whether the administrative decision had a rational

basis in the evidence.” Henderson, 91 N.C. App. at 531,

372 S.E.2d at 890.

“As to appellate review of a superior court order regarding

an agency decision, the appellate court examines the trial

court’s order for error of law.” ACT-UP Triangle v. Comm’n for

Health Serv. of the State of N.C., 345 N.C. 699, 706, 483 S.E.2d

388, 392 (1997) (quotation marks and citation omitted). “The

process has been described as a twofold task: (1) determining

whether the trial court exercised the appropriate scope of

review and, if appropriate, (2) deciding whether the court did

so properly.” Id. (quotation marks and citation omitted).

Here, Petitioner challenges DHHS’s statutory authority to issue

a written warning and prohibit Mr. Cromartie from being on

Petitioner’s premises while children were present pursuant to

N.C. Gen. Stat. § 110-105.2. Accordingly, we review the
 -15-
superior court’s order to decide if the superior court, under a

de novo review, erred in affirming the ALJ’s order.2

Petitioner argues that, in accordance with N.C. Gen. Stat.

§ 110-105.2, DHHS was required to conduct its own investigation

and to independently substantiate whether a child had been

abused at Nanny’s Korner before issuing a warning letter to

Petitioner. For the following reasons, we agree and hold that a

plain reading of the pertinent statutes and administrative rules

places an affirmative duty on DHHS to independently substantiate

abuse before it can issue a warning to a facility and mandate

corrective action.

As we apply the pertinent statutory provisions to the

present case, we are mindful that “[t]he paramount objective of

statutory interpretation is to give effect to the intent of the

2
We note that with the exception of Petitioner’s unsupported
assertion in its brief that its “due process rights will be
severely impacted” as a consequence of DHHS’s Final Agency
Decision, Petitioner does not bring forward a constitutional
challenge to the superior court’s order on appeal. Therefore,
because Petitioner has not advanced a substantive constitutional
argument and because “[i]t is not the role of the appellate
courts . . . to create an appeal for an appellant,” see Viar v.
N.C. Dep’t of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361,
reh’g denied, 359 N.C. 643, 617 S.E.2d 662 (2005), we lack any
basis to engage in a constitutional analysis of the issue raised
by Petitioner and instead confine our review to whether a
violation of the North Carolina General Statutes—or any
administrative rules promulgated pursuant to the General
Statutes—occurred.
 -16-
legislature [and that] [t]he primary indicator of legislative

intent is statutory language.” In re Proposed Assessments v.

Jefferson–Pilot Life Ins. Co., 161 N.C. App. 558, 560,

589 S.E.2d 179, 181 (2003) (internal citation omitted).

“Statutory provisions must be read in context: Parts of the

same statute dealing with the same subject matter must be

considered and interpreted as a whole.” Id. (quotation marks

and citation omitted). “Statutes dealing with the same subject

matter must be construed in pari materia, as together

constituting one law, and harmonized to give effect to each.”

Id. (quotation marks and citation omitted).

Here, the plain meaning of the statutory and administrative

language places an affirmative duty on DHHS to independently

substantiate abuse, thereby precluding DHHS from treating a

local DSS substantiation as dispositive.

The General Assembly established, within DHHS, a special

unit—the Child Care Commission—“to deal primarily with

violations involving child abuse and neglect in child care

arrangements.” N.C. Gen. Stat. § 143B-168.5 (2013). The Child

Care Commission was created by the General Assembly with the

mandate that it “shall make rules for the investigation of

reports of child abuse or neglect and for administrative action
 -17-
when child abuse or neglect is substantiated, pursuant to G.S.

110-88(6a), 110-105, and 110-105.2.” Id.

Section 110-105.2(b) (2013) of our General Statutes

provides:

When an investigation pursuant to G.S. 110-
105(a)(3) substantiates that child abuse or
neglect did occur in a child care facility,
the Department may issue a written warning
which shall specify any corrective action to
be taken by the operator.

(Emphasis added).3 Thus, in order to invoke the disciplinary

authority conferred by this statute, abuse or neglect must be

substantiated in the manner prescribed by N.C. Gen. Stat. § 110-

105(a)(3). That section makes clear that it is the

responsibility of the Child Care Commission within DHHS to

inspect child care facilities upon being notified of abuse and

“to determine whether the alleged abuse or neglect has

occurred.” N.C. Gen. Stat. § 110-105(a)(3) (2013). See also

N.C. Gen. Stat. § 110-88(6a) (2013) (conferring disciplinary

rule making power on the Child Care Commission “when the

Secretary’s investigations pursuant to G.S. 110-105(a)(3)

substantiate that child abuse or neglect did occur in the

3
“Specific corrective action required by a written
warning . . . may include the permanent removal of the
substantiated abuser or neglecter from child care.” N.C. Gen.
Stat. § 110-105.2(d).
 -18-
facility” (emphasis added)); 10A N.C. Admin. Code 09.1904(b) (“A

written warning specifying corrective action to be taken by the

operator of the child care center or home may be issued when the

investigation is concluded and the Division determines that

abuse or neglect occurred . . . .” (emphasis added)).

Accordingly, a plain reading of the pertinent statutes and

administrative rules requires DHHS to determine or substantiate

an accusation of abuse. Any lack of specificity in the statutes

concerning the process of substantiation cannot be construed to

relieve DHHS of this responsibility.

Importantly, requiring DHHS to independently investigate

and substantiate abuse does not undermine the investigative

collaboration between DHHS and the local DSS encouraged by other

pertinent statutes and administrative rules. See, e.g., 10A

N.C. Admin. Code 09.1903(a) (“Reports from law enforcement

officers and other professionals, as well as photographs and

other investigative tools, may be used as appropriate.”) and (c)

(“The Division shall share information related to investigations

with departments of social services, as appropriate.”).

However, investigatory collaboration and the sharing of evidence

does not, ipso facto, absolve DHHS of responsibility for

independently determining or substantiating the occurrence of
 -19-
abuse. Stated differently, while DHHS may utilize evidence

collected by the local DSS in its investigation, DHHS may not

treat a local DSS substantiation as dispositive for purposes of

discipline. Here, that seems to be exactly what happened.

The Final Agency Decision indicates that DHHS reduced the

administrative action proposed in Ms. Miller’s Case Decision

Summary from the issuance of a special provisional license to a

written warning based on “Petitioner’s compliance with the

corrective action plan in place at Petitioner’s facility.”

However, “[Mr.] Cromartie was still prohibited from being on the

premises of the facility while children were in care, as a

result of the substantiation of child sexual abuse by the local

department of social services.” (Emphasis added.) Thus, the

record indicates that DHHS based its administrative action on

the local DSS substantiation, not its own.

Moreover, Conclusions of Law 9 and 12 of the ALJ’s decision

state:

9. When there is a substantiation of child
sexual abuse at a child care facility
by a local department of social
services, the Division may issue a
written warning to the facility,
although more stringent remedies are
also available to the Division. N.C.
Gen. Stat. § 110-105.2(b), (e)[.]

. . . .
 -20-

12. While the preponderance of the evidence
before me raises serious questions
and/or doubts about whether Mr.
Cromartie sexually abused [the minor
child] at Petitioner’s center on
November 5, 2009, the undersigned lacks
the authority and/or jurisdiction to
issue a formal determination on the
merits of that substantiation. Review
of the DSS’ substantiation is located
in another forum other than the Office
of Administrative Hearings.

Plainly, the ALJ did not find the evidence of abuse presented at

the hearing compelling, yet treated the local DSS substantiation

as dispositive. The Superior Court’s order also contains a

finding indicating that the local DSS substantiation was treated

as dispositive by the ALJ:

19. The Administrative Law Judge noted that
DSS’s substantiation of child abuse
against Petitioner’s husband is a
violation of North Carolina Child Care
law, N.C.G.S. § 110-105.2, and that the
Division had the authority to issue the
Written Warning and to prohibit
Petitioner’s husband from being present
while children were in care based upon
the DSS substantiation pursuant to that
same statute.

(Emphasis added.) The Superior Court’s order also concluded

that local DSS substantiations could be treated as dispositive

by DHHS for purposes of invoking DHHS’s disciplinary authority:

9. The Division has the authority to issue
a written warning to a facility at
 -21-
which child abuse or neglect has been
substantiated by the local department
of social services and to “specify any
corrective action to be taken by the
operator.” N.C.G.S. § 110-105.2(b)[.]

. . . .

14. The Administrative Law Judge and the
Agency properly held that the Agency’s
action was proper and within the
Agency’s authority as set out in the
North Carolina Child Care Act, N.C.G.S.
§ 110-105.2.

Because we find a clear statutory directive that DHHS

independently substantiate abuse before taking administrative

action, we hold that these conclusions are errors of law.

Furthermore, we find a statutory interpretation allowing

local DSS substantiations to be dispositive before the ALJ

particularly troubling on due process grounds where, as here,

the local DSS substantiation report was admitted at the OAH

hearing for the limited purpose of establishing that a

substantiation had occurred:

[Counsel for DHHS]: And, Your Honor, we’re
happy to introduce this document for the
sole purpose of noting the DSS conclusion,
the substantiation of sexual abuse.

THE COURT: Okay.

[Counsel for DHHS]: I have no objection to
omitting the hearsay from the document.

THE COURT: Okay. So---
 -22-

[Counsel for Petitioner]: So we would be
redacting, I guess, “[the minor child]
stated,” et cetera, “[the minor child]
described,” et cetera, “[the minor child]
had,” et cetera.

THE COURT: Okay.

[Counsel for DHHS]: Your Honor, I have no
objection to that.

THE COURT: Okay. We can take care of that
after the hearing. Okay. So Number 9 is
allowed for the purpose stated by counsel.

Thus, none of the underlying facts in the report supporting

DSS’s substantiation were admitted at the hearing and the local

DSS representative did not testify. As a consequence,

Petitioner was not afforded the ability to challenge the

evidence or cross-examine the person who substantiated the

abuse. Further, because the ALJ did not have jurisdiction to

review the merits of the local DSS substantiation, Petitioner

was powerless before the ALJ to challenge an unsupported

assertion dispositive of her rights. An independent

substantiation of abuse from DHHS, on the other hand, would be

subject to review by the ALJ.

Article I, Section 1 of the North Carolina Constitution

declares that “[w]e hold it to be self-evident that all persons

are created equal; that they are endowed by their Creator with
 -23-
certain inalienable rights; that among these are life, liberty,

the enjoyment of the fruits of their own labor, and the pursuit

of happiness.” N.C. Const. art. I, § 1. Article I, Section 19

states that “[n]o person shall be taken, imprisoned, or

disseized of his freehold, liberties, or privileges, or

outlawed, or exiled, or in any manner deprived of his life,

liberty, or property, but by the law of the land.” N.C. Const.

art. I, § 19. As our Supreme Court has noted:

These fundamental guaranties are very broad
in scope, and are intended to secure to each
person subject to the jurisdiction of the
State extensive individual rights, including
that of personal liberty. The term
“liberty,” as used in these constitutional
provisions, does not consist simply of the
right to be free from arbitrary physical
restraint or servitude, but is “deemed to
embrace the right of man to be free in the
enjoyment of the faculties with which he has
been endowed by his Creator, subject only to
such restraints as are necessary for the
common welfare. It includes the right of
the citizen to be free to use his faculties
in all lawful ways; to live and work where
he will; to earn his livelihood by any
lawful calling; to pursue any livelihood or
vocation . . . .”

State v. Ballance, 229 N.C. 764, 769, 51 S.E.2d 731, 734 (1949)

(citation omitted); see also Roller v. Allen, 245 N.C. 516, 518–

19, 96 S.E.2d 851, 854 (1957) (“The right to conduct a lawful

business or to earn a livelihood is regarded as fundamental.”
 -24-
(quotation marks and citations omitted)). Furthermore, in

another context, we have held that a “DSS investigation alone is

plainly insufficient to support the loss of liberty that

accompanies [placing a substantiated abuser’s name on a

‘Responsible Individuals List’].” In re W.B.M., 202 N.C. App.

606, 619, 690 S.E.2d 41, 50 (2010). Thus, given the documented

evidence in the record showing the impact of DHHS’s

administrative action on Petitioner’s livelihood, Petitioner has

arguably suffered a deprivation of her liberty interests

guaranteed by our State’s constitution, necessitating a

procedural due process analysis.

However, as noted above, Petitioner has not advanced a

constitutional challenge to the trial court’s order on appeal,

thereby limiting this Court’s review to whether a violation of

the pertinent statutes and administrative rules has occurred.

Nevertheless, we believe the constitutional issue should still

affect this Court’s statutory analysis when attempting to

discern legislative intent. “If a statute is reasonably

susceptible of two constructions, one of which will raise a

serious question as to its constitutionality and the other will

avoid such question, it is well settled that the courts should

construe the statute so as to avoid the constitutional
 -25-
question.” Appeal of Arcadia Dairy Farms, Inc., 289 N.C. 456,

465, 223 S.E.2d 323, 328 (1976). Because a statutory

construction treating a local DSS substantiation as sufficient

to support administrative action in this context raises a

serious concern with respect to Petitioner’s due process rights,

we find further support for the statutory interpretation

requiring DHHS to independently substantiate claims of abuse

before taking administrative action.

IV. Conclusion

For the foregoing reasons, we hold that the superior court

order erred in concluding that DHHS could rely on the local DSS

substantiation. Furthermore, because the record evidence

reveals that the agency and the court below treated the local

DSS substantiation as dispositive, we vacate the superior

court’s order and remand the matter to the trial court for

further remand to DHHS with instructions to conduct an

independent investigation to determine whether there is

substantial evidence of abuse and for any needed additional

administrative action in accordance with the statute.

VACATED AND REMANDED.

Judges ERVIN and DAVIS concur.