NANNY'S KORNER CARE CENTER BY BERNICE M. CROMARTIE, CEO, Petitioner,
NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES -- DIVISION OF CHILD DEVELOPMENT, Respondent
Heard in the Court of Appeals October 10, 2013.
Wake County. No. 12 CVS 005438. Donald W. Stephens, Judge.
George Ligon, Jr., for petitioner-appellant.
Attorney General Roy Cooper, by Assistant Attorney General Alexandra Gruber, for the State.
Robert N. HUNTER, JR., Judge. Judges ERVIN and DAVIS concur.
Appeal by petitioner from order entered 9 January
2013 by Judge Donald W. Stephens in Wake County Superior Court.
Robert N. HUNTER, JR., 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 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 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. 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 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 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 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 ...