in the Court of Appeals 14 January 2019.
by Plaintiff Nanny's Korner Day Care Center, Inc. from
order entered 12 March 2018 by Judge C. Winston Gilchrist in
Robeson County No. 17 CVS 1375 Superior Court.
T. Bryant, Jr., for Plaintiff-Appellant Nanny's Korner
Day Care Center, Inc.
Carolina Attorney General Josh Stein, by Assistant Attorney
General Alexandra Gruber, for Defendant-Appellee.
HUNTER, JR., ROBERT N., JUDGE
Nanny's Korner Day Care Center, Inc.
("Plaintiff') appeals from an order dismissing its
complaint against the North Carolina Department of Health and
Human Services, Division of Child Development and Early
Education ("Defendant") for failure to state a
claim upon which relief may be granted based on the statute
of limitations. We affirm.
Factual & Procedural History
November 2009, Defendant received a report that an
eight-year-old girl enrolled at Plaintiff's daycare
center complained a staff member at the facility had touched
her inappropriately. The complaint prompted an investigation
by Sharon Miller ("Ms. Miller"), an abuse and
neglect consultant for Defendant, and a social worker from
the Robeson County Department of Social Services
("DSS"). The investigation consisted of visits to
the child's school and home to interview the child, as
well as the child's guidance counselor, teacher, mother,
and sibling. Ms. Miller and the social worker then visited
Plaintiff's facility to interview staff members. While
there, Ms. Miller and the social worker also interviewed
Plaintiff's CEO, Bernice Cromartie ("Mrs.
Cromartie"), as well as the accused, her husband Ricky
Cromartie ("Mr. Cromartie"). Mr. Cromartie, now
deceased, was a teacher and maintenance worker at
Plaintiff's facility. Mr. Cromartie denied
inappropriately touching the child, and requested a polygraph
test, which he passed with no deception. No criminal charges
were filed against Mr. Cromartie.
February 2010, Ms. Miller received notice that DSS completed
its investigation and "substantiated" the
allegations of sexual abuse against Mr.
Cromartie. On 4 February 2010, Ms. Miller submitted a
Case Decision Summary of Defendant's investigation to her
supervisor, noting DSS had substantiated the allegations of
inappropriate touching of a child at Plaintiff's facility
by Mr. Cromartie.
2010, Defendant's Internal Review Panel ("the
Panel") determined the appropriate administrative action
was a written warning. The Panel also reviewed its decision
to prohibit Mr. Cromartie from Plaintiff's facility
during operating hours, and upheld the decision, citing
DSS's substantiation of child sexual abuse. The Panel
agreed the decision would remain in effect unless
substantiation was overturned. Defendant never conducted an
independent investigation into the allegations, but rather
relied on DSS's substantiation of child sexual abuse in
its decision to issue a written warning to Plaintiff.
Defendant did not give Plaintiff or Mr. Cromartie a hearing
to contest the finding of substantiation of abuse.
timely petition by Plaintiff for a contested case hearing in
the Office of Administrative Hearings ("OAH"), a
hearing on the petition was held on 12 July 2011. Despite
expressing doubts about whether Mr. Cromartie sexually abused
the child at Plaintiff's facility, the Administrative Law
Judge affirmed the Division's decision to issue a written
warning to Plaintiff and restrict Mr. Cromartie from the
property when children were present. In its conclusion of
law, the Administrative Law Judge concluded:
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 Correct Action plan prohibiting Ricky
Cromartie from being on the child care facility 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 DSS' substantiation is
located in another forum other than the Office of
about 12 March 2012, Defendant adopted the Administrative Law
Judge's order as its Final Agency Decision. Plaintiff
then filed a petition in Wake County Superior Court seeking
judicial review of Defendant's Final Agency Decision
pursuant to N.C. Gen. Stat. § 150B-36 of the North
Carolina Administrative Procedure Act ("NCAPA").
The Wake County Superior Court upheld the Administrative Law
Judge's decision in an order entered on 9 January 2013.
filed a timely notice of appeal to the North Carolina Court
of Appeals ("Nanny's Korner
I"). On 20 May 2014, the Court of Appeals
held Defendant erred when it relied upon DSS's
substantiation of abuse to issue the written warning to
Plaintiff and order Mr. Cromartie to remain off the
premises. The Court stated that Defendant was
required to conduct an independent investigation into the
allegations of abuse, and upon substantiation, allow
Plaintiff an opportunity to contest the agency's
determination. The Court further stated: "Thus, given
the documented evidence in the record showing the impact of
[Defendant's] administrative action on [Plaintiff's]
livelihood, [Plaintiff] has arguably suffered a deprivation
of her liberty interests guaranteed by our State's
constitution, necessitating a procedural due process
analysis." Nanny's Korner Care Ctr. v. N.C.
HHS, 234 N.C.App. 51, 64, 758 S.E.2d 423, 431 (2014).
though the Court found for Plaintiff in Nanny's
Korner I and reversed the final agency decision, the
damage to Plaintiff had already occurred. The administrative
penalty required Plaintiff to notify its customers on or
around 15 June 2010 that a report of child abuse at the
daycare center had been substantiated. Consequently,
Plaintiff began to lose customers and ...