B.H. v. Anne Arundel County Department of Social Services

MATRICCIANI, J. On April 23, 2010, the Anne Arundel County Department of Social Services (“DSS”) received a report of alleged child abuse by B.H., appellant, against his minor child, Brayden. Police officers responded, and B.H. was charged with Child Abuse in the Second Degree, Assault in the Second Degree, and Reckless Endangerment. All charges were placed on the STET docket 1 on September 3, 2010. On April 27, 2010, DSS began a civil investigation.

The investigation concluded on July 30, 2010, finding that child abuse was indicated as defined in the Family Law Article and by its corresponding COMAR sections. B.H. appealed from that finding and on December 21, 2010, a hearing took place before an Administrative Law Judge (“ALJ”). The ALJ found that DSS met its burden in proving indicated child abuse. B.H. appealed that decision to the Circuit Court for Anne Arundel County.

In a memorandum opinion docketed October 4, 2011, the circuit court upheld the ALJ’s decision. B.H. noted a timely appeal to this Court on October 25, 2011. Questions Presented B.H. presents three questions for our review which we have rephrased and combined for clarity as: 2 ²¹¹ 1. Did the Administrative Law Judge draw an erroneous conclusion of law or fail to base her decision on substantial evidence when upholding a DSS finding of indicated child abuse?

For the reasons that follow, we answer no and uphold the decision of the Administrative Law Judge. Factual and Procedural History On the evening of April 22, 2010, B.H. prepared a meal for himself and his two minor children. B.H. made spaghetti with a sauce containing mushrooms. Brayden, B.H.’s four-year-old son, refused the food because he disliked mushrooms.

B.H. responded by informing Brayden that if he did not finish his dinner, he would not get dessert and he would be unable to go outside to play with his friends. Brayden then left the table. B.H. returned Brayden to his seat and told him that his presence at dinner was required while B.H. and his eleven-year-old daughter, Brianna, finished eating. Brayden resisted and B.H. held Brayden by the arm to ensure his attendance at the dinner table.

Because B.H. and Mrs. H. 3 shared custody of the children, she picked them up from school on the afternoon of April 23, ²¹² 2010. Once home, Mrs. H. found several bruises on Brayden’s neck and a scratch under his chin. That day, Mrs. H. brought Brayden to his pediatrician. The pediatrician documented the injuries discovered by Mrs. H. The pediatrician’s office referred the matter to DSS on the evening of April 23, 2010.

DSS contacted the police, and on the morning of April 24, 2010, Officer Laura Witherspoon, of the Anne Arundel County Police Department, joined by Officer Josh Ingerebretson, of the Annapolis Police Department, investigated the claim. Although Officer Ingerebretson was present, Officer Wither-spoon conducted the investigation and completed the Application for Statement of Charges. 4 In the presence of Mrs. H., Officer Witherspoon questioned Brayden about his injuries. Officer Witherspoon testified that Brayden informed her “his father had grabbed him by— around his neck and had pulled him down and that he had also somehow bruised his arm in the process of—of either falling or hitting it on something.” Officer Witherspoon charged B.H. with three offenses: Child Abuse in the Second Degree, Assault in the Second Degree, and Reckless Endangerment. All charges were placed on the STET docket on September 3, 2010.

DSS assigned social worker Lauren Askew to conduct a civil investigation into the incident on its behalf. 5 On April 27, 2010, Ms. Askew interviewed Brayden, Mrs. H., and Brianna. The investigation resulted in Ms. Askew finding indicated ²¹³ child abuse. B.H. appealed that finding to an ALJ and a hearing was held on December 21, 2010. At the hearing, Ms. Askew testified to the contents of her interviews.

She testified that Brayden told her “his dad tried to make him eat the mushrooms that was [sic] in the spaghetti sauce and that he did not like them.” Further, she testified “[s]o he tried to run away from the table. Brayden said that he hurt his elbow by hitting it on the wall while he was running away from dad, at which point dad grabbed him by his neck and brought him back to the table.” Mrs. H. confirmed this account. Ms. Askew testified to her conversation with Mrs. H., saying “she said that Brayden said that the incident happened, because he refused to eat his mushrooms and that he had hit his elbow on the table, and his dad had held him down to force him to eat the mushrooms.” Brayden told Mrs. H. that, in the words of Ms. Askew, “his dad [ ] held him down to force him to eat the mushrooms.” Brianna provided the following account, testified to by Ms. Askew: Brianna told me that they were at dad’s house eating spaghetti and that her brother did not want to eat the mushrooms and that dad had told him that he had to eat the mushrooms or that he would not go outside and play if he did not eat them. At which point, Brayden got up from the table and tried to run, but dad grabbed him and picked him up by the arm and place [sic] him back at the table.

Brianna went on, as Ms. Askew testified, “[d]ad had put the mushrooms in Brayden’s mouth, and Brayden spit the mushrooms out on the floor, because he did not like them and started to cry.” Ms. Askew interviewed B.H. on April 29, 2010. He provided a substantially similar narrative. Ms. Askew testified “[h]e stated that Brayden did try to exit the table, but he picked Brayden up from under his arm and carried him back to the table and told him to sit there.” B.H. testified directly that after dinner “we watched TV downstairs ... then we went upstairs, and [the kids] wanted to snuggle on daddy’s bed, so I ²¹⁴ let them ... I read Brayden a book ... and then I took them both to their beds.” When asked about whether B.H. intended to injure Brayden, Ms. Askew agreed that “the intention of Mr. H[ ] at that point was to have his son eat mushrooms.” 6 Ms. Askew’s investigation resulted in a finding of indicated child abuse as defined in the Family Law Article and by its corresponding regulations.

Abuse means: the physical or mental injury of a child by any parent or other person who has permanent or temporary care or custody or responsibility for supervision of a child, or by any household or family member, under circumstances that indicate that the child’s health or welfare is harmed or at substantial risk of being harmed. Md.Code Ann., Fam. Law § 5—701(b)(1). Indicated Child Abuse means: (1) Physical Abuse Other than Mental Injury.

Except as provided in § A(3) of this regulation, a finding of indicated child physical abuse is appropriate if there is credible evidence, which has not been satisfactorily refuted, that it is more likely than not that the following four elements are present: (a) A current or prior physical injury; (b) The injury was caused by a parent, caretaker, or household or family member; (c) The alleged victim was a child at the time of the incident; and (d) The nature, extent, and location of the injury indicate that the child’s health or welfare was harmed or was at substantial risk of harm. ²¹⁵ COMAR § 07.02.07.12(A) (2012). In support of her finding, Ms. Askew testified that it was based on “[t]he statements that were presented to myself, the pictures 7 and, of course, talking to Mr.—the appellant and the kids.” Ms. Askew testified to each of the regulation 07.02.07.12(A) factors. She testified that there was a current injury, 8 that Brayden was under the age of 18 at the time of the incident, and that the injury was caused allegedly by his father. To satisfy part (d) of the regulation, Ms. Askew said: [t]he nature of the incident in regards to when Mr. H[ ] was shoving the mushrooms down Brayden’s neck—I mean, down his mouth—Bray—as I reported, Brayden could have choked on the mushrooms, which had—could have caused him to die by blocking the airways.

So that’s how—he was placed—his harm and welfare—his welfare was placed in substantial risk. Finally, Ms. Askew was asked “during the course of your investigation, was the appellant able to satisfactorily refute the—this—this matter to—your satisfaction, so that you could, you know, change your disposition?” She responded, “no.” The ALJ issued an order dated January 21, 2011. 9 The ALJ found that in this case, “[ajppellant’s actions rise to abuse.” The ALJ “accept[ed] Bianna’s and Brayden’s hearsay statements to the [ ] [DSS] investigator over the [ajppellant’s testimony and believefd] that the [a]ppellant chased Brayden and forced food into his mouth.” The ALJ “found Brayden’s statement that the [a]ppellant grabbed him on the neck persuasive because [the ALJ] [did] not believe, and there [was ²¹⁶ anything] in the record to convince [the ALJ] that the child would lie and carry on the lie.... ”. The opinion concluded that appellant injured Brayden’s neck. The ALJ reasoned that “Brianna and Brayden’s statements, the photographs, and the medical report are credible evidence” of the injury.

The ALJ said: I have considered that the [appellant is an adult confronting a four-year-old boy. The [ajppellant’s size and strength relative to Brayden’s size and strength magnifies the [appellant’s force and, if he is angry or out of control, renders that force physically dangerous to a small child. Thus, the [appellant’s actions placed Brayden’s health and welfare at substantial risk of harm. Applying the COMAR factors, the ALJ found that: [appellant did not satisfactorily refute, that: Brayden was injured; the [ajppellant, his father, caused the injury; Brandon [sic] was four years old and a child; and Brayden’s health or welfare were harmed by the scratches and bruises on his neck, and at substantial risk of harm given the comparative size and strength of Brayden and the [appellant. 10 B.H. appealed the ALJ’s decision to the Circuit Court for Anne Arundel County.

The circuit court heard argument on September 6, 2011. By memorandum opinion docketed October 4, 2011, the circuit court upheld the ALJ’s decision. As previously indicated, on October 25, 2011, B.H. noted a timely appeal to this Court. ²¹⁷ Discussion Standard of Review Generally, “in an appeal from judicial review of an agency action, we review the agency action directly, not the decision of the trial court.” McLaughlin v. Gill Simpson Elec., 206 Md.App. 242, 251 , 47 A.3d 1074 (2012); accord MVA v. Shea, 415 Md. 1, 17 , 997 A.2d 768 (2010) (“[0]ur role is not to review the [cjircuit [cjourt’s judgment, but rather to review the decision of the ALJ____”). “Our review of the agency’s factual findings consists solely of an appraisal and evaluation of the agency’s fact finding and not an independent decision on the evidence.” Doe v. Allegany County Dep’t of Soc. Servs., 205 Md.App. 47, 54 , 43 A.3d 1071 (2012). “The Court of Appeals has consistently stated that an adjudicatory agency’s decision can only be reviewed on grounds identical to those relied upon by the agency.” Id. at 55 , 43 A.3d 1071 (citing Dep’t of Health & Mental Hygiene v. Campbell, 364 Md. 108 , 112 n. 12, 771 A.2d 1051 (2001)).

We do not “substitute [our] judgment for the expertise of those persons who constitute the administrative agency.” 11 United Parcel Serv. v. People’s Counsel, 336 Md. 569, 576-77 , 650 A.2d 226 (1994). “Nonetheless, if an agency has made an erroneous conclusion of law, it is our duty to correct that conclusion.” Anderson v. General Cas. Ins. Co., 402 Md. 236, 245 , 935 A.2d 746 (2007). Although we are constrained to reverse if the agency has made an erroneous conclusion of law, “[t]he substantiality of the evidence is the common denomina ²¹⁸ tor of the scope of judicial review with respect to all administrative agencies.” Baltimore Lutheran High School Asso. v. Employment Sec. Admin., 302 Md. 649, 661 , 490 A.2d 701 (1985).

As the Court of Appeals said in the case of Charles County Dep’t of Soc. Servs. v. Vann, 382 Md. 286 , 855 A.2d 313 (2004), “[t]o determine the proper standard of review, we must first determine whether the agency decision was a legal conclusion, a factual finding, or a mixed question of law and fact.” Id. at 296-97 , 855 A.2d 313 . In Vann , The Court of Appeals was called upon to decide whether or not a finding of indicated child abuse was “solely” a legal issue for the purposes of applying the correct standard of review. The Vann Court noted: We disagree that the issue is solely a legal one.

Whether a finding of “indicated child abuse” is permitted by FL § 5-701 when, in the course of administering corporal punishment, the child disobeys the parent and consequently is injured is patently a mixed question of law and fact. When the ALJ concluded that a substantial risk was “imminent,” it did so by applying the law, which requires a substantial risk of harm for a finding of indicated child abuse, FL § 5-701(b); C.O.M.A.R. 07.02.07.12, to the facts of the case, the possibility of a swinging metal buckle causing severe injury to a six-year old child. Id. at 297, 855 A.2d 313 . Although the case before us does not involve a finding that corporal punishment was administered, it does parallel the facts of Vann sufficiently for us to adopt its reasoning.

Although the ALJ thought it “improbable” that Brayden could choke on the mushrooms forced into his mouth by B.H., the ALJ made the determination that “the [ajppellant injured Brayden.” In Vann , the finding that “a substantial risk of harm resulted from respondent’s swinging of a belt buckle at a six-year old attempting to evade the blows—was an application of law to a specific set of facts.” Id. at 298 , 855 A.2d 313 . Such is the case here where an application of law to facts was required to find that “[ajppellant’s actions placed ²¹⁹ Brayden’s health and welfare at substantial risk of harm.” Therefore, we are reviewing a mixed question of law and fact. “When the agency decision being judicially reviewed is a mixed question of law and fact, the reviewing court applies the substantial evidence test.” Taylor v. Harford County Dep’t of Soc. Servs., 384 Md. 213, 223 , 862 A.2d 1026 (2004). An administrative decision is based on substantial evidence when a reviewing court determines that “a reasoning mind reasonably could have reached the factual conclusion that the agency reached.” Eberle v. Baltimore County, 103 Md.App. 160, 166 , 652 A.2d 1175 (1995) (quoting Hill v. Baltimore County, 86 Md.App. 642, 659 , 587 A.2d 1155 (1991)).

The ALJ’s decision is “entitled to deferential review, that is, substantial evidence review, and the court should [] consider[] whether the ALJ’s application of law to the facts was fairly debatable or whether a reasoning mind could have reached the same conclusions reached by the agency on the record before it.” Vann, 382 Md. at 298 , 855 A.2d 313 . Admission of Hearsay Statements B.H. first argues that admission of the children’s out of court statements constitutes reversible error. Citing Jones v. State, 68 Md.App. 162 , 510 A.2d 1091 (1986), B.H. contends that “Maryland law requires that prior to the admissibility of testimony from a child[,] the finder of fact must determine whether the child possesses the capacity to observe, understand, recall and relate the events that occurred and that the child also possesses the duty to tell the truth.” 12 B.H. draws ²²⁰ guidance from criminal cases, arguing that the ALJ “committed reversible error by admitting the statements of the four-year-old child at the hearing without requiring DSS to lay the proper evidentiary foundation and by failing to conduct the requisite examination to determine the child’s competency.” 13 B.H. urges this Court to apply the factors set in Section 11-304(e) of the Criminal Procedure Article to “determin[e] the admissibility of hearsay statements by child abuse victims under the age of twelve----”. 14 ²²¹ In support of upholding the admission of the hearsay statements here, DSS claims that “under traditional principles of administrative law, an ALJ is encouraged to err on the side of admitting hearsay evidence, trusting the process of judicial review to weed out decisions that are not based on ‘reliable’ evidence.” Because the testimony of Officer Witherspoon, Mrs. H., and Ms. Askew was subject to cross-examination by B.H., DSS argues that the legal standard for admitting the testimony was satisfied. 15 B.H. points to the factors of Section ll-304(e) of the Criminal Procedure Article, arguing that the ALJ failed to apply them, thereby committing reversible error. The factors are restricted facially to hearsay statements offered “in a juvenile court proceeding or in a criminal proceeding.” Md. Code Ann., Crim.

Proc. § ll-304(b). This was a civil investigation and not a criminal case. In a contested case administrative proceeding, such as this one, hearsay “may not be excluded solely on the basis that it is hearsay.” Md.Code Ann., State Gov’t § 10-213(c). 16 Although the factors of Section 11- ²²² 304(e) do not apply strictly, they have been cited with approval for assisting an ALJ in determining what testimony to credit and in sifting through contradictory evidence. See Montgomery County Dep’t of Health & Human Servs. v. P.F., 137 Md.App. 243, 271 , 768 A.2d 112 (2001) (reciting the factors and using them as guidelines in an administrative proceeding).

In the case of Montgomery County Dep’t of Health & Human Servs. v. P.F., 137 Md.App. 243 , 768 A.2d 112 (2001), the administrative law judge used the Section ll-304(e) factors to assess whether the hearsay statements of a three year old were sufficiently reliable to be “considered credible evidence” because hearsay statements “inherently raise[] concerns about trustworthiness and reliability.” Id. at 271-72 , 768 A.2d 112 . On review, the Court of Appeals recognized that the statutory factors “address[ ] the inherent questions of trustworthiness raised by such a young child’s out of court statement and balance[ ] the need to protect child victims from the trauma of court proceedings with the fundamental right of the accused to test the reliability of evidence proffered against him or her.” Id. at 272 , 768 A.2d 112 . Like P.F., application of the statutory factors was not compulsory here because “the proceedings did not involve a proceeding in court.” Id. at 273 , 768 A.2d 112 . In that case and in this one, the statements were admissible under Section 10-213(c) of the State Government Article. 17 B.H. argues that ²²³ the P.F. case requires application of the Section ll-304(e) factors as a predicate to the admission of hearsay testimony in this case.

The P.F. Court thought it was “appropriate for the ALJ to question whether the hearsay statement by this three year old was sufficiently reliable to be considered credible evidence.” The fact that something is “appropriate” in one case does not make it obligatory in another. Although the P.F. Court found that “the ALJ was legally correct to make a threshold determination of trustworthiness by considering the factors identified in section [ll-304(e) ]” the converse of that statement does not follow necessarily. 18 While it is true that in an administrative hearing testimony may not be excluded simply because it is hearsay, “[i]t is improper for an agency to consider hearsay evidence without first carefully considering its reliability and probative value.” Travers v. Baltimore Police Dep’t, 115 Md.App. 395, 413 , 693 A.2d 378 (1997). “Even though hearsay is admissible, there are limits on its use.” Kade v. Charles H. Hickey School, 80 Md.App. 721, 725 , 566 A.2d 148 (1989). “The hearsay must be competent and have probative force.” Id. “One important consideration for a hearing body is the nature of the hearsay evidence.” Travers, 115 Md.App. at 413 , 693 A.2d 378 . “For instance, statements that are sworn under ²²⁴ oath, or made close in time to the incident, or corroborated [ ] ordinarily [are] presumed to possess a greater caliber of reliability.” Id. “[M]ere uncorroborated hearsay or rumor does not constitute substantial evidence.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 230 , 59 S.Ct. 206 , 83 L.Ed. 126 (1938). As the record of the hearing reflects, Ms. Askew testified “having first been duly sworn.” Ms. Askew’s interviews followed in close temporal proximity from the alleged events. Brayden and Brianna were with B.H. on the evening of April 22, 2010.

Ms. Askew interviewed them only five days later. Finally, the statements made to Ms. Askew by Mrs. H., Brayden, and Brianna are self-referential and corroborate each other. They are neither contradictory in a material 19 respect, nor are they internally inconsistent. In the case of Maryland Dep’t of Human Resources v. Bo Peep Day Nursery, 317 Md. 573 , 565 A.2d 1015 (1989), the Court of Appeals identified four main dangers associated with statements made by a child testified to by a third person: [f]irst, the content of the declarant’s statement may be false.

Secondly, an adult witness, either intentionally or unintentionally, may have inaccurately conveyed the declarant’s statement to the decision maker. Third, the adult witness may have drawn an erroneous conclusion from the declarant’s accurately reported statement. Fourth, the adult witness may have accurately communicated the declarant’s statement, as far as it goes, but may have omitted other matter never explored, or deemed by the witness to be insignificant, but which would be significant to some other evaluator. Id. at 599 , 565 A.2d 1015 .

In Bo Peep, because “those who testified concerning statements made by the children were ²²⁵ subject to cross-examination concerning the accuracy of their communication,” the danger in admitting the statements was cured and they were properly considered by the hearing officer. Id. at 600 , 565 A.2d 1015 . In this case, B.H. had the opportunity to, and did, subject the testimony of Officer Witherspoon, Ms. Askew, and Mrs. H. to cross examination. B.H. emphasizes that “the determination of whether a child is competent to testify is left to the sound discretion of the trial court.” Jones, 68 Md.App. at 165 , 510 A.2d 1091 .

Before such testimony is admitted, B.H. argues, “the court must at least conduct such an examination as will disclose the factual basis on which his conclusion as to competency rests.” Brandau v. Webster, 39 Md.App. 99, 105-06 , 382 A.2d 1103 (1978). But this case does not involve the admission of direct testimony from a child. In this case, the question is whether or not hearsay statements by children were admissible through a third party adult witness. We conclude that they were. 20 Because B.H. subjected the hearsay statements to cross examination, they were rendered “sufficiently reliable to be admissible in this administrative proceeding, whether or not some or all of the hearsay declarations of the children embodied within that testimony would have been admissible in a judicial proceeding.” Bo Peep, 317 Md. at 589 , 565 A.2d 1015 .

Additional Fact Finding B.H. next contends that the ALJ “erred by failing to make a specific finding of fact to establish that the location, nature or extent of the four-year-old child’s