An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 19 September 2006
ANTONIA MARIE COLLINS,
No. 04 CVS 2051
NORTH CAROLINA DEPARTMENT OF
HEALTH AND HUMAN SERVICES,
DIVISION OF FACILITY SERVICES,
Appeal by respondent from judgment entered 29 July 2005 by
Judge Milton F. Fitch Jr., in Wilson County Superior Court. Heard
in the Court of Appeals 14 August 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Susan K. Hackney, for the State.
Legal Aid of North Carolina, Inc., by Elizabeth C. Krabill and
John R. Keller, for petitioner appellee.
Respondent North Carolina Department of Health and Human
Services, Division of Facility Services, appeals from a superior
court decision reversing the final decision of the administrative
law judge. We reverse the decision of the superior court.
This case arises out of a finding of abuse listed against
petitioner, Antonia Marie Collins, on the Health Care Personnel
Registry. The finding of abuse was the result of an accusation by
a nursing home resident, RE, that petitioner had slapped andthreatened her. The following evidence was presented at the initial
hearing before an administrative law judge:
Petitioner Antonia Marie Collins is an African-American
certified nurse's aide (CNA) who was working at the Brian Center of
Wilson (Brian Center), a nursing home in Wilson, North Carolina,
from April of 2001 until her termination in September 2003. Her
duties at the Brian Center included bathing and showering the
residents, preparing them for breakfast and appointments, and other
general assistance. One of the patients in her care was a 73-year-
old woman who suffers from dementia, schizophrenia, and is slightly
mentally retarded (hereinafter RE). During her six months of
employment at the Brian Center, petitioner worked with RE at least
three times each week.
On 2 September 2003, petitioner was assigned to work with RE.
Petitioner went into RE's room at about 7:00 a.m., and seeing that
she was already up, decided to bathe her before attending to her
roommate. Petitioner found that there were dirty clothes in RE's
closet and began removing them to send to the laundry. RE became
agitated when petitioner started to go through her closet and told
petitioner not to touch her clothes. Petitioner told RE that she
would send the clothes to the laundry and they would be sent back
to her. Petitioner testified that RE eventually acquiesced and let
petitioner remove the dirty clothes. Petitioner then gave RE a
bath at the sink, and noted that RE appeared to consent to bathing
and that her demeanor was normal during the bath. It tookpetitioner about thirty minutes to care for RE, and she left RE's
room at about 7:30 a.m.
Stefanie Xan Knopick, a licensed practical nurse at the Brian
Center, was responsible for giving RE her morning medications. Ms.
Knopick testified that on the morning in question she gave RE her
medications between 8:00 a.m. and 8:15 a.m. When Ms. Knopick gave
RE her medication, she noticed that RE was very agitated and that
RE told Ms. Knopick that she was mad as hell and wanted to call
her sister. Ms. Knopick testified that one of RE's medications was
for agitation, and that RE was generally agitated in the mornings
until she took her medication. Ms. Knopick further stated that she
did not see a red mark on RE's cheek at the time of medication
Sometime between 8:30 a.m. and 9:00 a.m. Darnta Latisha
Barnes, a CNA at the Brian Center, was walking down the hall and RE
walked out of her room, agitated, and asked Ms. Barnes for a
telephone because she wanted to call her sister. Ms. Barnes gave
RE a telephone by placing it in the basket of her walker. Ms.
Barnes testified that she did not see a red mark on RE's cheek.
Willie Carson Head, the maintenance supervisor at the Brian
Center, testified that he has known RE for approximately seven or
eight years and speaks to her at least once a day, usually when he
makes his morning rounds between 8:00 a.m. and 9:00 a.m. On the day
in question, Mr. Head stopped to see RE and found her in her
recliner crying. In the many years of their association Mr. Head
had never seen RE crying. When he sat near RE he saw a redhandprint mark on RE's face. When he asked RE what was wrong, RE
asked to call her sister and then told Mr. Head that she had been
slapped and threatened because she did not want to take her bath
that morning. Mr. Head inquired with RE as to who had slapped and
threatened her. After several other CNAs passed by RE's room,
petitioner walked past RE's open door, and RE stated that she was
the one who had slapped her. Mr. Head then left RE's room to report
to Dawn Mitchum, the Director of Nursing, RE's allegations that
petitioner had slapped and threatened RE.
Ms. Mitchum immediately went to RE's room, and found RE to be
very angry. Ms. Mitchum testified that it was around 8:00 a.m. RE
told Ms. Mitchum that a nigger had slapped and threatened her.
Ms. Mitchum noticed that there was a red mark about the size of a
fifty-cent piece on RE's cheek. Several CNAs walked passed RE's
door, but when petitioner walked by RE's door, RE told Ms. Mitchum
that she was the one who hit her. Ms. Mitchum then left to get Dan
Cotten, the administrator of the Brian Center.
After Ms. Mitchum briefly explained the situation to Mr.
Cotten, he went to see RE. Mr. Cotten was unsure of the time, and
testified that it was in the morning. RE was still upset and
told Mr. Cotten that the woman who bathed her had slapped her and
threatened her. Mr. Cotten saw no red mark on RE's cheek. He left
and brought petitioner into RE's room, at which point RE said, you
hit me, and you threatened to kill me. Petitioner denied the
accusations and said that RE was only angry because petitioner hadremoved RE's clothing. Petitioner was then suspended and
Lisa Jordan, the activities director at the Brian Center,
testified that following the incident with petitioner, RE
repeatedly told Ms. Jordan that she had been hit, but did not cite
a specific name. RE also told all of the activities volunteers what
had happened to her, and wanted to know if Ms. Jordan was mad at
her for telling others what had happened. Based on RE's demeanor
after the incident, Ms. Jordan opined that RE was frightened. While
Ms. Jordan admitted to previously hearing RE accuse staff members
of taking her newspapers, money and clothes, in her opinion, RE's
demeanor was different regarding this accusation. Ms. Jordan
further testified that while usually RE can be easily distracted
from her other accusations, she repeated that she had been slapped
and threatened for over a week. Ms. Jordan believes RE's account
of what happened to be accurate.
On 24 May 2004, eight months after the incident in question,
RE was able to remember and recount being slapped and threatened by
a black woman before she took her bath. She did not identify
petitioner by name, but stated that the woman who slapped her was
the woman who gave her a bath that day. She further described the
woman who slapped her as having lost her job, and having four
children. However, RE stated in her 24 May 2004 deposition that
she knew the woman who slapped her and was fired had four children,
because someone had told her; she did not describe petitioner this
way at the time of the incident. Evidence was further presented at trial tending to show that
RE is very protective of her belongings and sometimes uses racial
slurs when describing African-Americans. RE has also accused
African-American staff members at the Brian Center of stealing her
money, magazines or newspapers, and taking her clothes. While most
employees testified that they had never heard RE accuse a staff
member of abuse, petitioner presented the testimony of Ernestine
Edmonds who stated that she heard RE say that nigger Ernestine hit
me one morning after Ms. Edmonds threw away some of RE's
newspapers. Ms. Edmonds testified that she reported the incident
to staff member Lisa Billups. No one but Ms. Edmonds testified to
hearing RE's accusation, and Ms. Billups testified that she
remembers no report of the incident made to her by Ms. Edmonds.
On 30 December 2003, petitioner filed a petition for a
contested case hearing in the Office of Administrative Hearings to
appeal respondent's finding of abuse listed against petitioner's
name on the Health Care Personnel Registry. A recommended decision
was issued by the administrative law judge on 15 September 2004.
The recommended decision concluded that respondent carried its
burden of proof by the preponderance of the evidence presented at
the contested case hearing and upheld the agency's decision to list
a finding of abuse against petitioner's name on the Health Care
On 18 November 2004, the agency issued its final decision
adopting the administrative law judge's recommended decision and on
29 December 2004, petitioner filed a petition for judicial reviewin Wilson County Superior Court. Following a hearing, the superior
court judge reversed the agency's final decision. The Agency now
appeals to this Court.
In its first argument on appeal, respondent contends that the
superior court erred in reversing the agency's decision because the
decision was supported by substantial evidence in the whole record.
In reviewing the agency's decision, the superior court applies
the 'whole record' test, which requires the examination of all
competent evidence to determine if the administrative agency's
decision is supported by substantial evidence. Henderson v. N.C.
Dept. of Human Resources, 91 N.C. App. 527, 530, 372 S.E.2d 887,
889 (1988) (citation omitted). 'Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion' and is more than a scintilla or a
permissible inference. Lackey v. Dept. of Human Resources, 306
N.C. 231, 238, 293 S.E.2d 171, 176 (1982) (citations omitted).
In its role as an appellate court, the superior court reviews
the agency's decision but is not allowed to replace the agency's
judgment with its own when there are two reasonably conflicting
views, even though the court could have reached a different result
upon de novo review. Thompson v. Board of Education, 292 N.C. 406,
410, 233 S.E.2d 538, 541 (1977). The whole record test requires
that the trial court take all evidence into account, including theevidence that both supports and contradicts the agency's findings.
Leiphart v. N.C. School of the Arts, 80 N.C. App. 339, 344, 342
S.E.2d 914, 919, cert. denied, 318 N.C. 507, 349 S.E.2d 862 (1986).
However, the 'whole record' test is not a tool of judicial
intrusion and a court is not permitted to replace the agency's
judgment with [its] own[,] even though [it] might rationally
justify reaching a different conclusion. Floyd v. N.C. Dept. of
Commerce, 99 N.C. App. 125, 129, 392 S.E.2d 660, 662 (citation
omitted), disc. review denied, 327 N.C. 482, 397 S.E.2d 217, disc.
review dismissed, 327 N.C. 633, 399 S.E.2d 120 (1990).
In the instant case, respondent contends that petitioner
slapped and threatened RE. To support this claim, respondent
presented evidence including the testimony of RE stating that
petitioner slapped her and threatened to kill her. Respondent also
presented the testimony of Mr. Head stating that he found RE crying
in her room, that he had never seen her cry before in their seven-
year association, and that he observed a red mark on RE's cheek.
Mr. Head's testimony was corroborated by the testimony of Ms.
Mitchum in which she stated that she also observed a red mark on
RE's cheek. Other employees testified that while RE did have a
history of accusing staff members of stealing from her, they had
never heard her accuse anyone of violence against her, and that her
behavior associated with this accusation was far different than
when she made the other accusations. Specifically, Ms. Jordan
testified that usually RE could be distracted from making heraccusations, but that RE continued to make this accusation for over
a week, and that RE acted frightened.
On the other hand, petitioner claims that she did not strike
RE. To support her contention petitioner provided evidence that
mainly consisted of her own testimony and the testimony of other
Brian Center employees which tended to show that RE is mentally
unstable, and has a history of accusing African-American staff
members of wrongdoing. Petitioner also provided evidence which
tended to show that there was possibly one and a half hours between
the time when the alleged slap occurred and the time in which the
handprint was observed, and that two employees of the Brian Center
may have had close personal contact with RE during that time and
neither observed a red mark on RE's face.
The administrative law judge weighed the credibility of the
conflicting testimony presented by both the agency and the
petitioner and found the former to be more credible. An appellate
court cannot, on review, replace this judgment with its own when
there are two reasonably conflicting views and the final
determination is based upon credibility. Where the record reveals
that this is a case of two reasonably conflicting views, we must
hold that the evidence presented by respondent is sufficient to
support a decision finding that the petitioner did slap and
threaten RE. We further hold that it is evident from a review of
the whole record that the findings of fact are supported by
substantial evidence and the superior court erred in concluding
In its second argument on appeal respondent alleges that the
superior court erred because the findings of fact and conclusions
of law in the final agency decision were neither arbitrary and
capricious nor an abuse of discretion. We agree.
The whole record test is applied when determining whether a
decision is arbitrary and capricious. Brooks, Com'r. of Labor v.
Rebarco, Inc., 91 N.C. App. 459, 463, 372 S.E.2d 342, 344 (1988).
Administrative agency decisions may be reversed as arbitrary or
capricious if they are 'patently in bad faith,' or 'whimsical' in
the sense that 'they indicate a lack of fair and careful
consideration' or 'fail to indicate any course of reasoning and
the exercise of judgment. . . .' Lewis v. N.C. Dept. of Human
Resources, 92 N.C. App. 737, 740, 375 S.E.2d 712, 714 (1989)
Where this Court has determined from a review of the whole
record that this case was one of conflicting evidence which
required the administrative law judge to weigh the credibility of
the witnesses and the testimony, and that after doing such made
findings of fact which are supported by substantial evidence, it
cannot be said that the agency's decision was arbitrary or
The corresponding assignment of error is overruled.
In its third argument on appeal respondent contends that the
superior court erred because the findings of fact and conclusionsof law contained in the final agency decision were not affected by
errors of law. We agree.
In her petition to the superior court, petitioner averred
several errors of law in the administrative law judge's findings of
fact and conclusions of law. The superior court did not specify in
its order which errors of law, if any, the administrative law judge
made, so this Court will only address those errors of law which are
addressed by appellant in the brief to this Court.
Petitioner first asserted that several findings of fact and
conclusions of law were affected by errors of law because they
consisted of hearsay evidence. However, [i]n order to preserve a
question for appellate review, a party must have presented to the
trial court a timely request, objection or motion.... N.C.R. App.
P. 10(b)(1) (2006). As appellant did not object to the hearsay
evidence at the hearing, any objection has been deemed waived.
Petitioner also asserted that several findings of facts and
conclusions of law are affected by errors of law because the
administrative law judge omitted what petitioner considers
relevant, necessary and material facts, or included findings of
fact which are inaccurate.
When determining whether an agency's decision is affected by
errors of law pursuant to N.C. Gen. Stat. § 150B-51(4), a superior
court must review the record de novo
. N.C. Dep't of Env't & Natural
Res. v. Carroll
, 358 N.C. 649, 659, 599 S.E.2d 888, 894-95 (2004).
' review requires a court to consider a question anew, as
if not considered or decided by the agency. Amanini v. N.C. Dept.of Human Resources
, 114 N.C. App. 668, 674, 443 S.E.2d 114, 118
Pursuant to N.C. Gen. Stat. § 1A-1, Rule 52(a)(1), findings of
fact made without a jury or with an advisory jury must be more than
evidentiary facts; they must be specific ultimate facts sufficient
enough for an appellate court to determine if the judgment is
supported by the evidence. N.C. Gen. Stat. § 1A-1, Rule 52(a)(1)
(2005); Montgomery v. Montgomery
, 32 N.C. App. 154, 231 S.E.2d 26
(1977). [E]videntiary facts are those subsidiary facts required to
prove the ultimate facts. Woodard v. Mordecai
, 234 N.C. 463, 470,
67 S.E.2d 639, 644 (1951). Ultimate facts are the final resulting
effect reached by processes of logical reasoning from the
evidentiary facts. Id.
An error of law exists if a conclusion of law entered by the
administrative agency is not supported by the findings of fact
entered by the agency or if the conclusion of law does not support
the decision of the agency. Brooks v. ANSCO & Associates
N.C. App. 711, 717, 443 S.E.2d 89, 92 (1994).
In the instant case, petitioner contends that the findings of
fact should have included the times in which Mr. Head, Ms. Mitchum,
Mr. Cotten, Ms. Knopick, and Ms. Barnes saw RE on the morning in
question; that Mr. Cotten did not observe a red mark on RE's cheek;
that Ms. Barnes was standing close to RE when she handed her the
phone; and that no attempt was made to corroborate Ms. Edmonds'
testimony. However, '[t]he [agency] is not required . . . to
find facts as to all credible evidence. That requirement wouldplace an unreasonable burden on the [agency]. Instead the [agency]
must find those facts which are necessary to support its
conclusions of law.' Peagler v. Tyson Foods, Inc.
, 138 N.C. App.
593, 602, 532 S.E.2d 207, 213 (2000)
(citation omitted). We hold
that the administrative law judge found the ultimate facts
necessary to allow him to reach his conclusions of law by processes
of logical reasoning, and the omission of extraneous facts is not
an error of law.
Petitioner also finds an error of law in the following finding
of fact made by the administrative law judge, claiming that it is
Ms. [Judy] Adkins [the investigator with the
Health Care Personnel Registry] found that
RE's accusation against petitioner was a one
time occurrence. RE's story was corroborated
by the red hand print Buddy Head saw on her
face, and the half dollar sized mark that Dawn
Mitchum later saw. The mark was smaller when
Ms. Mitchum saw it because it had begun to
fade. Ms. Adkins concluded that after
petitioner slapped RE, Mr. Head came into the
room, followed by Ms. Mitchum. Ms. Adkins
substantiated the allegation of abuse against
Petitioner contends that the above finding of fact is inaccurate,
because the handprint only corroborates that someone struck RE, not
that it was the petitioner. Corroborative testimony is testimony
which tends to strengthen, confirm, or make more certain the
testimony of another witness. State v. Rogers,
299 N.C. 597, 601,
264 S.E.2d 89, 92 (1980). What is at issue is whether the
existence of contrary evidence necessarily negates the conclusionof law that the handprint corroborates RE's accusations against
petitioner. We hold that it does not.
The gravamen of petitioner's argument is that the witnesses
were not entirely clear as to when they came into contact with RE
on the day in question, that the time between when RE was allegedly
slapped and the time the handprint was first spotted could be up to
an hour and a half, and two other nurses came in close personal
contact with RE during that time and did not see a mark on RE's
cheek. If that were the case, then the handprint would not
corroborate RE's story, but actually weaken it, suggesting that RE
was struck sometime later in the morning. However, other testimony
indicates that the handprint was seen much earlier in the morning,
which would corroborate RE's accusation against petitioner.
This is merely a case of conflicting evidence and '[i]t is
the duty of the fact finder to resolve conflicting evidence.'
Welter v. Rowan Cty. Bd. of Comm'rs
, 160 N.C. App. 358, 366, 585
S.E.2d 472, 478 (2003) (citation omitted). In addition, the
agency, as fact finder, determines the weight and credibility to be
accorded the testimony of each of the witnesses. Cartin v.
, 151 N.C. App. 697, 703, 567 S.E.2d 174, 178, disc. review
356 N.C. 434, 572 S.E.2d 428 (2002). Evidence was presented
by both sides which tended to show that the handprint could have
been seen anywhere between 8:00 a.m. and 9:00 a.m. on the morning
in question, and after weighing the credibility of the witnesses
and the testimony, the administrative law judge determined that thehandprint was seen soon enough after 7:35 a.m. to corroborate RE's
accusation against petitioner.
We therefore hold that the agency's conclusion of law, stating
that the respondent carried its burden of proof to show that
petitioner abused RE, was supported by substantial evidence in the
record, was not arbitrary, capricious, or an abuse of discretion,
and was not affected by error of law.
Accordingly, for the foregoing reasons, we reverse the order
of the superior court.
Judges MCGEE and HUNTER concur.
Report per Rule 30(e).
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