STATE OF NORTH CAROLINAIN THE OFFICEOF
ADMINISTRATIVE HEARINGS
COUNTY OF WAKE07 DHR 0411
WILLIAM MCCRAY PRETTY,)
Petitioner,)
vs )
) DECISION
N.C. DEPARTMENT OF HEALTH AND)
HUMAN SERVICES, DIVISION OF )
FACILITY SERVICES,)
Respondent.)
THIS MATTER came for hearing before the undersigned, the Honorable Joe L. Webster, Administrative Law Judge, on December 3 and 7, 2007 in Raleigh, North Carolina.
APPEARANCES
For Petitioner:Robert E. Nunley
Nunley & Associates, PLLC
5 West Hargett St., Suite 1000
Raleigh, NC27601
For Respondent:Bethany A. Burgon
Assistant Attorney General
North Carolina Department of Justice
9001 MailServiceCenter
Raleigh, NC27699-9001
ISSUE
Whether Respondent otherwise substantially prejudiced Petitioner’s rights and acted erroneously when Respondent substantiated the allegation that Petitioner abused a resident (A.D.) of Destiny Homes of Phyd (Pretty Homes Youth Dev.) on or about September 16, 2006 by asking her personal sexual questions, by fondling her, and by digitally penetrating her causing her mental anguish.
APPLICABLE STATUTES AND RULES
N.C. Gen. Stat. § 131E-256
N.C. Gen. Stat. § 150B-23
42 CFR § 488.301
10A N.C.A.C. 130-0101
N.C. Gen. Stat. § 122C-65
N.C. Gen. Stat. § 14-27.5
N.C. Gen. Stat. § 14-27.1
EXHIBITS
Petitioner’s Exhibit 1: A.D.’s Diary
Petitioner’s Exhibit 2:A.D.’s After-School Detention Records
Petitioner’s Exhibit 3:A.D.’s After-School Detention Records
Petitioner’s Exhibit 4:Statement of Petitioner’s Co-Worker’s (never interviewed as part
of CPS, RPD, or DHHS investigations)
Petitioner’s Exhibits 1-4 were offered and received into evidence (R. pp. 361-362).
Respondent’s Exhibit 1:Residential Counselor’s Job Description for Petitioner
Respondent’s Exhibit 2:Client’s Right Advisement by Petitioner
Respondent’s Exhibit 3:Supervision Plan for A.D.
Respondent’s Exhibit 4:Facility Notes for A.D. for September 16, 2006
Respondent’s Exhibit 5:Facility Notes for A.D. for September 20, 2006
Respondent’s Exhibit 6:HCPR Interview of Petitioner on May 23, 2007
Respondent’s Exhibit 7:Facility Assessment Forms for A.D. from August 7, 2006
Respondent’s Exhibit 8:HCPR Interview of A.D. on May 22, 2007
Respondent’s Exhibit 9:Statement of Lila Ellison, LCSW on September 26, 2006
Respondent’s Exhibit 10:HCPR Interview of Lila Ellison on May 30, 2007
Respondent’s Exhibit 11:HCPR Interview of Rachel Johnson Williams on June 15, 2007
Respondent’s Exhibit 12:Staff Interview of Petitioner on September 22, 2006
Respondent’s Exhibit 13:Staff Interview of Petitioner, undated
Respondent’s Exhibit 14:HCPR Interview of Zenobia Green on June 14, 2007
Respondent’s Exhibit 15:Offense/Incident Report of Detective Limper, RPD
Respondent’s Exhibit 16:Offense/Incident Report of Detective Bean, RPD
Respondent’s Exhibit 17:Warrant for Arrest of Petitioner – 06CR101528
Respondent’s Exhibit 18:Warrant for Arrest of Petitioner – 06CR101527
Respondent’s Exhibit 19:DA’s Order Dismissing Indecent Liberties Charge (06CR101527)
Respondent’s Exhibit 20:DA’s Order Dismissing Statutory Sex Off. Charge (06CR101528)
Respondent’s Exhibit 21:Surveyor Worksheets
Respondent’s Exhibit 22:Surveyor Worksheets
Respondent’s Exhibit 23:Statement of Deficiencies for Facility
Respondent’s Exhibit 24:MHL Type B Rule Violation Letter to Facility
Respondent’s Exhibit 25:DFS Section Referral to HCPR
Respondent’s Exhibit 26:HCPR Interview of Andrea Pretty on May 15, 2007
Respondent’s Exhibit 27:HCPR Investigation Conclusion Report dated July 23, 2007
Respondent’s Exhibit 28:HCPR Entry of Finding Letter to Petitioner dated July 23, 2007
Respondent’s Exhibit 29:HCPR Interview of Barbara Flowers on June 30 and July 16, 2007
Respondent’s Exhibits 1-29 were offered and received into evidence (R. pp. 347-348).
WITNESSES
Mr. William McCray Pretty – Petitioner and Residential Counselor at Destiny Homes
Ms. Andrea Brooks-Pretty – Owner and Executive Director, Destiny Homes
Ms. Charlene M. Williams – Executive Director, Destiny Homes
Sgt. Donna Bean – Detective, Raleigh Police Department
Ms. A.D. – Former resident client of Destiny Homes
Ms. Rachel Marie Johnson Williams – Foster Care Social Worker, Wake Co. Social Services
Ms. Lila Ellison – LCSW, Wake Co. Social Services
Ms. Zenobia Green – Investigator, Wake Co. Social Services
Ms. Barbara D. Flowers – Former Employee, Destiny Homes
Mr. Wayne Denning – Facilities Survey Consultant, Health Care Registry
Ms. Sharon O’Sullivan – Investigator, Health Care Registry
Mr. Glenn Matthew Harvell – Former Resident, Destiny Homes
BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing and the entire record in this proceeding, the undersigned makes the following findings of fact. In making the findings of fact, the undersigned has weighed all the evidence and has assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility, including but not limited to the demeanor of the witness, any interest, bias, or prejudice the witness may have, the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witness testified, whether the testimony of the witness is reasonable, and whether the testimony is consistent with all other believable evidence in the case. From the sworn testimony of witnesses, the undersigned makes the following:
FINDINGS OF FACT
1.That at all times relevant to this matter, Petitioner, William McCray Pretty, was employed by Destiny Homes of Phyd (Pretty Homes Youth Dev.) (hereinafter Destiny Homes) as a residential counselor with direct supervision requirements over A.D., a resident client at the facility. During this period, the Petitioner worked weekends and some nights during each week, depending on staffing requirements. (R. pp. 20-26, pp. 178-191)
2.That at all times relevant to this matter, the Petitioner was 32 years of age and resident A.D. was 15 years old. (Resp. Ex. 17, R. pp. 46, 179) Prior to the instant allegations, the Petitioner had never had involvement with law enforcement other than traffic tickets. (R. pp. 46-47)
3.That resident A.D. joined Destiny Homes as a resident client in August 2006 (R. pp. 25-26, 126-127, 138, 179, and Resp. Ex. 3 and 7)
4.That Petitioner reviewed resident A.D.’s assessment form from August 2006, which detailed prior sexual activities and behaviors. (R. pp. 26-28) Later, in early September 2006, Petitioner had to intervene between resident A.D. and several males in the wave pool when he observed inappropriate sexual conduct. Resident A.D. became mad at the Petitioner as a result of his intervention. (R. pp. 28-29) Petitioner was also aware that residents L.D. and A.D. had been at a prior group home (and were removed from that home to Destiny Homes) where the residents were allowed to use drugs and engage in sex acts with fellow residents. (R. p. 48) The Petitioner was also aware that resident A.D. had purportedly made a pornographic movie with several males while placed in the earlier group home. (R. p. 49-50).
5.That on Saturday, September 16, 2006, the Petitioner arrived at Destiny Homes mid-morning while most of the kids were still sleeping. He then talked briefly with resident A.D. downstairs and made the kids do chores. Petitioner left after an hour when other staff arrived. (R. pp. 31-34, 180-182)
6.That on Saturday, September 16, 2006, the Petitioner returned to Destiny Homes in the early evening. He and the residents went outside and played dodge ball, then returned inside. They ate dinner, had a group discussion, and then watched a movie. The movie was titled “Satan’s Expose” and addressed the issues of STDs, abortions, homosexuality, and relationships. Resident A.D. watched the movie, which was voluntary, but did become upset at various times during its showing. The movie ended approximately 11:00 P.M. (R. pp. 35-38, 72-73)
7.That after the movie ended on Saturday night, September 16, 2006, the Petitioner’s wife, Andrea Brooks-Pretty, the owner of Destiny Homes, left to take a resident of a second facility back to her group home. That left Glenn Matthew Harvell, L.D., D., and A.D. in and under the sole custody and supervision of Petitioner, while his wife had custody and supervision of another female who was the sole resident of the second group home. Petitioner then had the residents prepare for and go to bed, with Mr. Harvell and L.D., the two males, sharing a room, and with D. and A.D. sleeping in their own separate rooms. (R. p. 38)
8.That there were two alarms used at Destiny Homes on September 16, 2006. The first was on the boys’ room door and was motion activated (by someone opening the door). The second was in the hallway and detected motion of anyone moving in the hallway outside the rooms of the residents. Both alarms were working and utilized on September 16, 2006. (R. p. 39, 230-231)
9.That when the residents went to bed at around 11:50 P.M. on September 16, 2006, the Petitioner told resident A.D. to come back downstairs in 15 minutes to get her sheets, which were still drying in the dryer. (R. pp. 40-41) Resident A.D. had wet her bed earlier and soiled her sheets, necessitating their cleaning. (R. pp.127-128) Resident A.D. did not come to get her sheets when they were done in the dryer, so Petitioner took the sheets upstairs and delivered them to resident A.D.’s room. The Petitioner did so by knocking and entering her room and setting her sheets on her bed and then leaving. (R. pp. 40-41)
10.That later in the night, now the early morning hours of Sunday, September 17, 2006, the Petitioner would check on the residents every 30 minutes or if he heard a noise. At one point, he had to enter each resident’s room to adjust thermostats. (R. p. 45)
11.That while at Destiny Homes, resident A.D. was very open and vocal about her sexual orientation and activities, which resulted in her being frequently corrected by staff at the group home. (R. p. 65, Resp. Ex. 4)
12.That on Thursday, September 21, 2006, resident A.D. first made a claim thatthe Petitioner had abused her by having inappropriate personal sexual discussions and by fondling her and digitally penetrating her on September 16, 2006. Police and social services investigations then began into her allegations. (R. pp. 127, 179-191) Resident A.D. testified to Petitioner trying to teach her to say “no” to boys/men and engaging in discussions of a personal sexual nature and fondling her while doing so. (R. pp. 180-183) Further, resident A.D. testified to an incident during that Saturday night in which she claimed the Petitioner started “feeling” on her and told her to tell him “no.” She testified that in the course of “feeling” on her, Petitioner touched her chest, her thighs and “fingered” her. (R. pp. 189-191)
13.That Petitioner denied having any physical contact with resident A.D. on September 16, 2006. (R. pp. 45-46) Petitioner denied ever having touched resident A.D. in an inappropriate manner. (R. p. 57) Petitioner denied ever fondling or touching resident A.D. in a manner to teach her to say “no” to men, and denied ever having inappropriate discussions with resident A.D. of a personal sexual nature. (R. p. 59).
14.That when confronted with allegations of abusing resident A.D., the Petitioner freely talked with and gave interviews to the Raleigh Police Department (RPD), DSS, and CPS on the matter. Later, in May 2006, Petitioner gave an interview with Sharon O’Sullivan, an investigator for the Health Care Registry, and later signed her report of that interview. (R. p. 47, Resp. Exs. 6, 12, and 16)
15.That Ms. Andrea Brooks-Pretty was the executive director and owner of Destiny Homes, in addition to being the wife of the Petitioner. At no time did she witness any inappropriate contact between the Petitioner and resident A.D., or become aware of any inappropriate discussions between them of a personal sexual nature. (R. pp. 60-122) Ms. Brooks-Pretty also denied ever telling resident A.D. that the latter did not pray to the same god as the former because “God is against gays.” (R. pp. 74, 185, 208, 227) Ms. Brooks-Pretty did confront resident A.D. after the allegations were made and told her to tell the truth, that she had gone too far in making the allegations just to be removed from the group home. (R. p. 78)
16.That Ms. Brooks-Pretty testified to one specific incident where she caught resident A.D. in a lie about whether or not she knew the Petitioner was her husband. This incident occurred in the presence of the other residents the week before the alleged incident in September 2006. Ms. Brooks-Pretty confronted resident A.D. about the lie and about the need to be honest. (R. pp. 87-90) Ms. Brooks-Pretty testified to other incidents when it appeared that resident A.D. had lied about school and other miscellaneous matters. (R. p. 93-96, Resp. Ex. 8) Ms. Charlene Williams also testified to incidents she was aware of when resident A.D. was not truthful. (R. pp. 143-145)
17.That resident A.D. was telling others she was going to be expelled from SandersonHigh School and that she really wanted to go to GarnerHigh School, where her girlfriend attended school. (R. pp. 97-98, 155-156). Resident A.D. was serving in-school suspensions the week immediately before making the allegations against Petitioner (R. pp. 130-133)
18.That none of the other residents of Destiny Homes at the time of the alleged incident in September 2006 were ever interviewed by law enforcement or social services investigators regarding resident A.D.’s allegations or about their observations of the conduct by the Petitioner. (R. pp. 102-103, 149, 354) That other than Ms. Barbara Flowers, a former employee of Destiny Homes, no other co-worker of the Petitioner, besides Ms. Brooks-Pretty, the executive director, and Ms. Charlene Williams, the program director, were ever interviewed about the allegations by A.D. and the Petitioner’s conduct while in the group home. (R. pp. 107-108)
19.That resident A.D. testified she liked it at Destiny Homes and did not want to leave prior to the incident with Petitioner; however, resident A.D. had a diary in which she wrote that she hated Destiny Homes. (R. pp. 110-111, 198-199, 245-246, and Pet. Ex. 1) Resident A.D. also told Charlene Williams that she did not want to be at Destiny Homes. (R. pp. 145-146)
20.That resident A.D. has had a very traumatic childhood, including being prostituted by her mother for drugs, being in multiple group homes, being sexually active in a way farbeyond what someone her age should be, and by being taken advantage of for sexual favors by boys and men in her life. (R. pp. 114-116, 297-298, 351 and Resp. Exs. 8-10) Resident A.D.’s mother is in prison at present for prostituting A.D. for drugs. (R. pp. 114-115)
21.That on the night of the alleged incident on September 16, 2006, the Petitioner was the sole caregiver in the group home due to a staffing shortage, while his wife, Ms. Brooks-Pretty was the sole caregiver in the other group home, which had a single female resident. (R. pp. 120-122)
22.That after the allegations against Petitioner were made, Ms. Charlene Williams, who in addition to her duties at Destiny Homes is the Petitioner’s older sister, interviewed the other resident clients for Destiny Homes’ internal investigation—none of the other clients offered any observations or knowledge of evidence that would corroborate resident A.D.’s allegations. Further, the other resident clients supported the Petitioner and offered no observations or examples of inappropriate behavior by him. (R. pp. 149-153)
23.That Sgt. Donna Bean testified she was the case agent who investigated resident A.D.’s allegations against Petitioner. She did so by interviewing Ms. Andrea Brooks-Pretty, The Petitioner, and resident A.D. on September 22, 2006. Sgt. Bean’s report on these interviews is consistent with the in-court testimony of Petitioner and Ms. Brooks-Pretty. (R. pp. 160-175, Resp. Ex. 16) The interview of resident A.D. is at odds with the in-court testimony of A.D., who couldn’t recall ever talking with Sgt Bean or giving her any statement. (R. pp. 221-240) Sgt. Bean acknowledged she did not interview any of the Petitioner’s co-workers (other than his wife) or any of the other resident clients at Destiny Homes, and that other than resident A.D.’s oral statements about what happened, there was no other corroborative evidence to substantiate the claims A.D. made. (R. p. 176)
24.That resident A.D.’s foster care social worker, Ms. Rachel Marie Johnson Williams, testified that A.D. made her first report of the allegations against Petitioner on Thursday, September 21, 2006, after she had problems at her high school that day. (R. pp. 260-265)
25.That Ms. Lila Ellison, a licensed clinical social worker with Wake Co. Social Services in 2006, testified that resident A.D. made the initial claim of abuse against Petitioner in a meeting in her office on Thursday, September 21, 2006. (R. pp. 284-290, and Resp. Ex. 9 and 10)
26.That Ms. Zenobia Green, an investigator with Wake Co. Social Services, testified about starting her investigation into the allegations against Petitioner on September 21, 2006. She interviewed Ms. Brooks-Pretty first, then resident A.D., and finally she interviewed Petitioner. (R. pp. 302-312, Resp. Ex. 14) Ms. Green testified that she recalled interviews being conducted with the other resident clients of Destiny Homes, but could produce no notes or results of interviews with them. No additional incriminating evidence or corroborating evidence was acquired during these interviews, to her recollection. (R. p. 312) She did admit that there was no physical evidence to corroborate resident A.D.’s allegations. (R. p. 314, 318-321)
27.That Ms. Barbara D. Flowers, a former employee of Destiny Homes testified to cleaning up resident A.D.’s room after she was removed from the facility and finding several bags of clothing that were stained with urine smell and the bed was urine stained and smelled of urine. (Hearing notes, Resp. Ex. 29)
28.That Mr. Wayne Denning, a Facilities Survey Consultant with the Health Care Registry testified; however, his testimony was limited to describing the Registry. (Hearing notes)
29.That Ms. Sharon O’Sullivan, the investigator for the Health Care Registry testified about her investigation and the statements made to her by various witnesses. (R. pp. 331-348, and Resp. Exs. 6, 8, 10, 11, and 14) She began her investigation in January 2007 and did not conduct any interviews of the Petitioner’s co-workers or other resident clients of the facility. (R. pp. 331-343) Finally, Ms. O’Sullivan testified concerning a statement from one of the resident clients that resident A.D. stated, “I’m going to do something to get out of this home. I’m about ready to do something.” This statement was allegedly made on the day before A.D. first disclosed any abuse by Petitioner. (R. pp. 344-345)
- That Mr. Glenn Matthew Harvell, a former resident client of Destiny Homes,
testified about interacting with resident A.D. Specifically, he testified to her being untruthful and he contradicted her testimony about statements made by Ms. Brooks-Pretty. (R. pp. 349-353, 359-360) Further, he testified on behalf of Petitioner’s character and performance of duties as a caregiver at Destiny Homes. (R. pp. 353-355) Finally, Mr. Harvell testified about hearing that resident A.D. made a statement that she hated it at Destiny Homes and she was going to find a way out of it. (R. p. 357)
31.Although various investigators found A.D.’s statements to be consistent, the undersigned finds the testimony of A.D. to be contradictory and not entirely credible. In A.D’s hearing testimony she could not recall exact times, and more importantly, her testimony was inconsistent as to where she was touched Saturday morning. (T. pp.182, 204-205). Also when asked whether anything significant happened at the water park, she said nothing unsual. (T. p. 336)