Taylor-Coleman v. N.C. Dep't of Health & Hum. Servs. Div. of Child Dev. & Early Educ.

• Court: Court of Appeals of North Carolina
• Decided: November 19, 2024
• Docket: 24-387
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA24-387

Filed 19 November 2024

Mecklenburg County, No. 19 CVS 23222

BRENETTA TAYLOR-COLEMAN, Petitioner,

v.

NORTH CAROLINA DEPARTMENT OF HEALTH & HUMAN SERVICES DIVISION OF CHILD DEVELOPMENT AND EARLY EDUCATION, Respondent.

Appeal by Petitioner from an order entered 4 October 2023 by Judge Daniel A.

Kuehnert in Mecklenburg County Superior Court. Heard in the Court of Appeals 8

October 2024.

Mark Hayes for petitioner-appellant.

Attorney General Joshua H. Stein, by Assistant Attorney General Amber I. Davis, for respondent-appellee.

WOOD, Judge.

Brenetta Taylor-Coleman (“Petitioner”) appeals from the superior court’s order

affirming a final decision of the North Carolina Office of Administrative Hearings

(“OAH”). The North Carolina Department of Health and Human Services, Division

of Child Development and Early Education (the “Division”), placed Petitioner on the

Child Maltreatment Registry. OAH upheld the placement, and the superior court

affirmed the final decision. On appeal, Petitioner challenges the determination of her TAYLOR-COLEMAN V. N.C. DEP’T OF HEALTH & HUM. SERVS. DIV. OF CHILD DEV. & EARLY EDUC.

Opinion of the Court

placement on the registry. For the reasons set forth below, we affirm the superior

court’s order.

I. Factual and Procedural Background

Petitioner was the owner, operator, and director of two licensed child care

centers, namely: Ms. Chop’s Child Development (“Ms. Chop’s”) and Ms. Chop #2

Academy (“Ms. Chop #2”). Both facilities were in Mecklenburg County and Ms.

Chop’s operated out of Petitioner’s home. The Division is an agency that provides the

mandatory licensing of North Carolina child care facilities. N.C. Gen. Stat. § 110-85.

In relevant part, the Division has the duty to oversee these facilities, “ensur[e] that

these facilities provide a physically safe and healthy environment where the

developmental needs of these children are met[,]” and certify that the operators are

qualified and of “good moral character.” Id. Likewise, the Division is required to

complete inspections of these facilities and investigate any reports or complaints

filed. N.C. Gen. Stat. § 110-105.

On 28 June 2018, the Division received a report that an incident involving two

children had occurred at Ms. Chop #2 two days prior. The report alleged Russ1, a

twelve-year-old child, “pulled another child’s pants down and ‘sucked’ his private

area.” The other child, John2, is Petitioner’s grandson. The Division began its

1 A pseudonym is used to protect the identity of the juvenile pursuant to N.C. R. App. P.

42(b). 2 See n.1.

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investigation into the complaint and assigned Rhonda Carey, an investigations

consultant, to the matter. Ms. Carey conducted interviews with the individuals

involved, the child care providers at Ms. Chop #2, Petitioner, John’s mother, and

Russ’ foster parent. The investigation revealed: on 26 June 2018, Ms. Graham, a

volunteer provider at the facility, was the only staff member outside supervising a

group of eleven children whose ages ranged from three to twelve years old. Ms.

Graham was unable to see and hear all the children at all times. Ms. Graham

observed Russ and John playing in an area where they could not be seen and

redirected them to the playground; she then observed John with his pants down and

Russ “sucking on [John’s] private part.”

Ms. Graham immediately separated the children, took Russ inside, and

notified Petitioner of the situation. The events that occurred next were disputed at

the hearing. Russ stated that “Aunt Net” hit him on the back of the head using her

hand, but the children typically referred to Petitioner as “Ms. Chops.” However, Ms.

Carey’s investigation revealed that it was Petitioner who hit Russ on the back of the

head and yelled at him. Ms. Graham reported that Petitioner stated, “You know

better[,]” “You better not ever put your mouth on my grandson[,]” and “I’ll kill you[.]”

Ms. Lowe, an employee who was inside the facility during the incident, corroborated

Ms. Graham’s statement that it had been Petitioner who hit Russ.

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Based on Ms. Carey’s findings during the investigation, the Division cited Ms.

Chop #2 for numerous violations of North Carolina Law and the North Carolina Child

Care Rules. The Division was then required to determine whether the case

constituted “child maltreatment” which is defined as “[a]ny act or series of acts of

commission or omission by a caregiver that results in harm, potential for harm, or

threat of harm to a child.” N.C. Gen. Stat. § 110-105.3(b)(3). The Division concluded

evidence that Petitioner “used [her] hands and fists to hit [Russ] on the back of the

head and threatened to kill [him]” was sufficient to support a finding of child

maltreatment. Consequently, on 31 October 2018, the Division provided Petitioner

with a Notice of Pending Placement on the North Carolina Child Maltreatment

Registry (the “Registry”) and Disqualification. The Notice informed Petitioner she

was entitled to an administrative hearing prior to being placed on the Registry and

that, effective immediately, Petitioner was prohibited from working in childcare in

North Carolina.

In addition to the Division’s action of starting the process to place Petitioner

on the Registry, the Division issued three administrative actions, including one for

the revocation of Petitioner’s license to operate Ms. Chop #2. Subsequently,

Petitioner filed four petitions for contested case hearings at OAH, appealing the

Registry action and the three administrative actions by the Division: (1) Petitioner’s

placement on the Registry; (2) the Division’s decision to summarily suspend

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Petitioner’s license to operate Ms. Chop’s; (3) the Division’s decision to revoke

Petitioner’s license to operate Ms. Chop #2; and (4) the Division’s decision to revoke

Petitioner’s license to operate Ms. Chop’s. On appeal, Petitioner does not challenge

the Division’s revocation and closure of Ms. Chop’s and Ms. Chop #2; rather,

Petitioner challenges her placement on the Registry. Therefore, we do not address

the alleged violations and conclusions of the Division as it relates to these facilities.

See Koufman v. Koufman, 330 N.C. 93, 97-98, 408 S.E.2d 729, 731 (1991) (“Where no

exception is taken to a finding of fact by the trial court, the finding is presumed to be

supported by competent evidence and is binding on appeal.” “Furthermore, the scope

of review on appeal is limited to those issues presented by assignment of error in the

record on appeal.” (citations omitted)).

On 9 August 2019, a hearing was held on Petitioner’s petitions. On 2 October

2019, the administrative law judge at OAH issued a final decision, affirming the

administrative actions filed by the Division. The judge concluded that the Division

properly determined that Petitioner’s actions rose to the level of child maltreatment

and that her actions warranted placement on the Registry. Petitioner appealed and

petitioned the superior court for judicial review of the final decision of the OAH. A

hearing was conducted in the superior court on 29 August 2023. The court affirmed

the OAH’s final decision by order dated 3 October 2023. Petitioner filed notice of

appeal to this Court on 31 October 2023.

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II. Analysis

On appeal, Petitioner argues the superior court erred in affirming OAH’s

decision to place Petitioner on the Registry. Petitioner argues that the grounds for

her placement on the Registry—that Petitioner struck Russ on the back of the head

and threatened him—was unsupported by the evidence presented at the OAH

hearing.

A. Standard of Review

When the superior court “acts in the capacity of an appellate court[,]” as it

“exercises judicial review over an agency’s final decision,” “[t]he standard of review

for our Court upon an appeal from an order of the superior court affirming or

reversing an administrative agency decision is the same standard of review as that

employed by the superior court.” N. Carolina Dep’t of Env’t & Nat. Res. v. Carroll,

358 N.C. 649, 662, 599 S.E.2d 888, 896 (2004) (citations omitted); Dorsey v. Univ. of

N. Carolina-Wilmington, 122 N.C. App. 58, 62-63, 468 S.E.2d 557, 560 (1996) (citation

omitted). Our review “is limited to determining: (1) whether the superior court

applied the appropriate standard of review and, if so, (2) whether the superior court

properly applied this standard.” Mayo v. N. Carolina State Univ., 168 N.C. App. 503,

507, 608 S.E.2d 116, 120 (citation omitted). In this case, the superior court affirmed

the final agency decision, applying the whole-record standard of review. Accordingly,

we must first determine whether the whole-record test was the appropriate standard

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of review and whether the superior court properly applied it to the case.

“It is well settled that in cases appealed from administrative tribunals,

questions 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.” Harris v. N. Carolina Dep’t of Pub. Safety, 252 N.C. App. 94, 99,

798 S.E.2d 127, 132 (2017) (citation omitted). Here, Petitioner’s appeal challenges

the sufficiency of the evidence to support the conclusion that her placement on the

Registry was warranted; accordingly, pursuant to N.C. Gen. Stat. § 150B-51(b)(5) and

(b)(6), we review Petitioner’s appeal under the “whole-record test” standard of review.

We conclude the superior court applied the correct standard of review satisfying the

first prong under Mayo.

The whole-record test requires this Court to “examine all the record evidence—

that which detracts from the agency’s findings and conclusions as well as that which

tends to support them—to determine whether there is substantial evidence to justify

the agency’s decision.” Carroll, 358 N.C. at 660, 599 S.E.2d at 895 (2004) (citation

omitted). “Substantial evidence is relevant evidence a reasonable mind might accept

as adequate to support a conclusion.” Id. (cleaned up). “This test does not allow the

reviewing court to replace the [Division’s] judgment as between two reasonably

conflicting views, even though the court could justifiably have reached a different

result had the matter been before it de novo.” Mills v. N. Carolina Dep’t of Health &

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Hum. Servs., 251 N.C. App. 182, 189, 794 S.E.2d 566, 570 (2016) (cleaned up). Thus,

while we review the superior court’s order affirming the OAH’s final decision, the

OAH “is the only fact-finding body of this proceeding,” and we must employ the whole-

record review to the OAH’s final decision. Fonvielle v. N. Carolina Coastal Res.

Comm’n, 288 N.C. App. 284, 288, 887 S.E.2d 93, 96 (2023).

Because the superior court applied the correct standard of review, we proceed

to determine whether the superior court properly applied the whole-record test. We

now turn our attention to a careful examination of the record evidence to determine

whether substantial evidence justifies the final agency decision.

B. Placement on the Child Maltreatment Registry

The OAH concluded Petitioner’s actions amounted to child maltreatment and

warranted placement on the Registry. The superior court affirmed this conclusion.

This Court and our Supreme Court have not previously addressed a caregiver’s

challenge to placement on the Registry. As such, this is a case of first impression.

We are guided by our standard of review and look to the statutory provisions and

procedures proscribed by the Division.

As discussed supra, child maltreatment is the commission of an act by a

caregiver “that results in harm, potential for harm, or threat of harm to a child.” N.C.

Gen. Stat. § 110-105.3(b)(3). When reviewing whether an act of maltreatment

occurred, the Division considers five factors: (1) the severity of the incident; (2) the

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age and developmental ability of the child; (3) evident disregard of consequences; (4)

maltreatment history and previous similar incidents; and (5) future risk of harm. If

the Division determines the incident rose to the level of child maltreatment, the

caregiver is placed on the Registry. The Registry was established to maintain “names

of all caregivers who have been confirmed by the Department of having maltreated a

child.” N.C. Gen. Stat. § 110-105.5(a). Individuals listed on the Registry are

prohibited from being a caregiver at any licensed child care facility. Id. §110-105.5(c).

Stated differently, individuals on the Registry are banned for life from working in

child care.

At the OAH hearing, the Division presented evidence supporting Petitioner’s

placement on the Registry through the testimony of Ms. Carey. By pre-trial order,

the judge permitted Ms. Carey to testify about statements made by Russ and John

during her investigation because the children were not called to testify. Ms. Carey

further testified about Ms. Graham and Ms. Lowe’s recollection of the incident, since

both witnesses failed to appear at the hearing. Her testimony centered on the

findings from her investigation and statements made by the individuals involved, as

reported in her investigation documentation. Petitioner now argues that the judge

“had no ability to assess the credibility of the actual sources of the statements upon

which Ms. Carey’s conclusions were based[,]” since none of these witnesses testified.

Further, even if Ms. Carey’s testimony was credible, her testimony failed to identify

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that Petitioner was the one who struck Russ, since Russ stated “aunt Net” was the

one who hit him. For these reasons, Petitioner argues the judge erred in relying on

statements from non-testifying witnesses, without the ability to assess their

credibility, and for definitively determining that Petitioner was the one that struck

Russ when he stated it was “aunt Net.”

We are tasked therefore with determining whether there was substantial

evidence presented, when viewing the record as a whole, which justifies the

conclusion that Petitioner must be placed on the Registry. Such evidence must be

“more than a scintilla or a permissible inference.” Lackey v. N. Carolina Dep’t of Hum.

Res., Div. of Med. Assistance, 306 N.C. 231, 238, 293 S.E.2d 171, 176 (1982) (citation

omitted). Further, the decision must have “a rational basis in the evidence.” ACT-UP

Triangle v. Comm’n for Health Servs. of the State of N.C., 345 N.C. 699, 706-07, 483

S.E.2d 388, 392 (1997) (citations omitted).

We note, it is well settled that the judge presiding over the administrative

hearing is left “to determine the weight and sufficiency of the evidence and the

credibility of the witnesses” and “[t]he credibility of witnesses and the probative

value of particular testimony are for the [ALJ] to determine, and [the ALJ] may

accept or reject in whole or part the testimony of any witness.” Brewington v. N.

Carolina Dep’t of Pub. Safety, State Bureau of Investigation, 254 N.C. App. 1, 13, 802

S.E.2d 115, 124 (2017) (citation omitted). Furthermore, Petitioner had the burden of

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proof in the hearing at OAH, and “the ALJ is to determine whether the petitioner

ha[d] met its burden” of showing that the Division acted erroneously. Britthaven, Inc.

v. N. Carolina Dep’t of Hum. Res., Div. of Facility Servs., 118 N.C. App. 379, 382, 455

S.E.2d 455, 459 (1995). Thus, we must defer to the ALJ’s determination about the

weight and credibility assigned to the evidence and witnesses.

When reviewing the entire record, the findings of fact, and the conclusions of

law, we conclude the OAH decision had a rational basis in the evidence. The ALJ

based its decision on Ms. Carey’s testimony and her investigation documentation.

The documentation detailed information gathered from her interviews with the

individuals involved throughout several months. Specifically, Ms. Graham reported

during her interview that Petitioner struck and threatened Russ and Ms. Lowe

confirmed Ms. Graham’s statements. Further, Ms. Carey testified that, despite Russ’

statement that “Aunt Net” hit him, her investigation later revealed Russ called

Petitioner by this name. Therefore, Ms. Carey’s determination was not solely based

on Russ’ statement but was confirmed by Ms. Graham and Ms. Lowe who witnessed

the incident. At the hearing, Petitioner questioned Ms. Carey about the statements

made by the non-testifying witnesses and the identity of who hit Russ; however, it

was ultimately to the discretion of the judge to determine each witness’ credibility.

In light of this evidence, under the whole-record test, we hold there was substantial

evidence to support the OAH decision.

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As a final note, we cannot over emphasize the footnote in the superior court’s

order which states:

This court, understanding how serious the findings were, is, however, very troubled by the apparent inability of our State’s law to, at least, provide some future hope to the [Petitioner] to be removed from this registry; a person who ran her child care(s) for 21 years and who has a long- demonstrated care for and love of children. The court can offer no hope of her ever being removed from the Child Maltreatment Registry when we give sex offenders the right to petition to be removed from the Sex Offender Registry after ten (10) years, and when many criminals can have their felony convictions expunged from their court record.

The superior court articulated strong public policy issues that are persuasive to this

Court. Notwithstanding, this Court is without the authority to redress this issue, as

it rests solely within the policy-making authority granted to our legislature. We

recognize the disparities of the laws governing the Child Maltreatment Registry and

invite the General Assembly to speak to the issues raised and concerns expressed by

the superior court and shared by this Court. While we are sympathetic to Petitioner’s

situation, as her placement on the Registry resulted from her emotional response to

her four-year-old grandson being sexually assaulted by a twelve-year-old child, this

Court is only permitted to exercise its judicial powers. Thus, we are constrained to

hold Petitioner failed to prove her placement on the Registry was not warranted, as

we are not permitted to “replace the [Division’s] judgment as between two reasonably

conflicting views.” Mills, 251 N.C. App. at 189, 794 S.E.2d at 570. Accordingly, we

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affirm the superior court’s order.

III. Conclusion

For the foregoing reasons, we affirm the superior court’s order, affirming the

final decision of the OAH. We conclude that under the whole-record test, there was

substantial evidence sufficient to support OAH’s order to uphold the Division’s

decision to list Petitioner on the Registry.

AFFIRMED.

Judge ARROWOOD concurs.

Judge STADING concurs in the result only.

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