                               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.
