Cecil County Department of Social Services v. Russell

SHARER, Judge. The Cecil County Department of Social Services (“DSS”) appeals from an order of remand by the Circuit Court for Cecil County in a case involving a finding of indicated child sexual abuse, for the purpose of entering the name of appellee, Danny Russell, on the Social Services Administration central child abuse registry, pursuant to Md.Code Ann., Family Law § 5-714 (1999 Rep. Vol. & 2001 Supp.). An Administrative Law Judge found that the DSS had correctly found “indicated child sexual abuse” in a case in which Danny Russell, appellee, was accused of molesting his daughter’s teenage friend.

At issue in this appeal is whether, because the DSS had failed to include in the record before the ALJ, an audio recording of a statement made by appellee to investigators, the record was incomplete. The circuit court ruled that failure to provide the audio tape resulted in an incomplete record, and remanded the case to the Office of Administrative Hearings for the receiving of additional evidence, to wit, the audio tape. Appellant presents for our review three questions, which restated, are: 1 ⁵⁹⁷ 1. Did the circuit court err by ordering remand on the ground that the record was incomplete because of the absence of an audio recording of appellee’s statement to investigators? 2.

Did the circuit court err by ordering the Office of Administrative Hearings to presume, should the audio recording not be produced, that the information on the audio tape was unfavorable to the DSS? We answer “No” to both questions, and shall affirm. For the reasons stated herein, we hold that the audio tape of Russell’s joint interview with the DSS and Sheriffs Department investigators should have been included in the record provided to Russell and the Office of Administrative Hearings, and shall affirm the decision of the circuit court. Because this case will be remanded to the Office of Administrative Hearings for further proceedings, we need not reach the substantive issues presented by appellant’s questions two and three.

FACTS and PROCEDURAL HISTORY Since we will not address the substantive and sufficiency issues raised, a brief recitation of the facts will serve the purpose of this opinion. On March 18, 2000, the DSS received information that a 16 year-old girl, “D.,” had been sexually abused by her friend’s father on two separate occasions. The DSS assigned an assessor and the Sheriffs Department assigned a detective to conduct a joint investigation of the allegations. On March 15, 2000, the investigators interviewed “D.” at her school.

Although reluctant to discuss the incidents, “D.” eventually identified appellee as her abuser, and informed the investigators that he had touched her inappropriately on two occasions. ⁵⁹⁸ The Investigation The DSS and Sheriffs Department conducted a joint investigation of the allegations, as required by Md.Code Ann., Fam. L. § 5-706, which provides in pertinent part: § 5-706. Investigation. (a) In general—Promptly after receiving a report of suspected abuse of neglect: (1) the local department or the appropriate law enforcement agency, or both, if jointly agreed on, shall make a thorough investigation of a report of suspected abuse to protect the health, safety, and welfare of the child or children; * * * (f) Joint investigation procedure.—(1) The agencies responsible for investigating reported cases of suspected sexual abuse, including the local department, the appropriate law enforcement agencies, and the local State’s Attorney, shall implement a joint investigation procedure for conducting join investigations sexual abuse.

The implementation of the mandate of § 5-706(a)(l) is found in Fam. L. § 5-706(e), which provides (e) Written agreement to specify standard operation proce dures.—The local department, the appropriate law enforcement agencies, the State’s Attorney within each county and Baltimore City, the department’s office responsible for child care regulation, and the local health officer, shall enter into a written agreement that specifies standard operating procedure for the investigation and prosecution of reported cases of suspect abuse. In compliance with that directive, an interagency agreement was developed and became operative on October 22, 1992. Among the parties to the agreement were the DSS and the Cecil County Sheriffs Department. 2 ⁵⁹⁹ The joint investigation of the allegations against Russell included interviews of “D.,” her mother, Russell, Russell’s daughter, and two other witnesses.

As a result of the interviews, the DSS found Russell responsible for “indicated child abuse” on August 3, 2000. 3 The Administrative Hearing Russell appealed the finding of indicated sexual abuse, asserting that the finding was wrong because he had no “inappropriate contact whatsoever with the alleged victim.” A contested case hearing was held by an ALJ from the Office of Administrative Hearings (“OAH”) on March 30, 2001. During the course of the hearing, testimony concerning the nature of the joint investigation, and the contents of the DSS record, were provided. The DSS successfully sought admission of the Sheriffs Department report, over Russell’s objection. The DSS counsel argued: Your Honor, this document constitutes a part of the case record that is reviewed and examined by the case worker during the course of her investigation.

Quite frankly, this particular document denotes interviews that [the DSS investigator] was actually present for also. [The DSS investigator] works in combination with [the Sheriffs Department investigator], they did the investigation jointly, and this was a product of that investigation and is relevant to the matter. The Sheriffs Department report contained the statement that “[Russell] was advised that [the] interview would be audio taped,” 4 and that report became part of the record, as did ⁶⁰⁰ Russell’s written statement, taken during an interview conducted by the DSS and the Sheriffs Department. That statement remained in the custody of the Sheriff until requested by the DSS for inclusion in the record. The audio recording made of Russell’s interview was not part of the record.

The detective who investigated the allegations on behalf of the Sheriffs Department did not testify before the ALJ. When cross-examined about the joint interview with Russell, the DSS investigator testified: Q. And this was a joint investigation you said between you and the Sheriffs Department? A, Yes. Q. The interview with Mr. Russell was taped, was it not?

A. Correct. Q. Do you have a copy of the tape? A. I do not. Q. Why not?

A. I don’t have that information. Q. But you have everything else. You’ve got the Sheriffs report, you have a copy of his written statement, I believe a copy of his Miranda advice. A. Um-hum.

Q. Why don’t you have the tape? A. I don’t have it. Q. Wouldn’t that be certainly the best evidence of what was said during that interview? A. I don’t have that information.

On re-direct examination, the investigator further explained: Q. And even though the interview [with Russell] was tape recorded, audio tape recorded at the Sheriffs Department, who is in possession of those tapes? A. The law enforcement officer. ⁶⁰¹ Q. Is it your understanding that the tape remains in the possession of the Sheriffs office? A. Yes. Q. Okay.

Any has the tape ever been part of your case record? A. No. The ALJ ruled that the DSS’s finding that Russell was responsible for “indicated child sexual abuse” was supported by credible evidence and was consistent with the law. As a result, the ALJ ruled that the DSS could “identify [Russell] as an individual responsible for indicated child sexual abuse in a central registry and in its other files.” In so ruling, the ALJ made specific findings that Russell and his daughter were not credible witnesses, but that the DSS investigator and victim, “D.,” were credible witnesses. 5 After receiving the ALJ’s decision, appellee filed a timely petition for judicial review in the Circuit Court for Cecil County. The Circuit Court Proceedings On November 16, 2001, a hearing was held in the circuit court.

The court held the matter sub curia and issued a Memorandum and Order on March 28, 2003, remanding the case to the OAH for the development of further evidence, specifically the audio tape of the Russell interview. Although the DSS argued before the circuit court, as it does here, that the tape was not part of its record, the court found: The local department iterates throughout the record that this was a joint investigation between DSS and the Cecil County Sheriffs Department. In fact, [the Department investigator] testified on cross that the investigation was a joint investigation between the local department and the Sheriffs Department. [The Sheriffs Department investigator’s] report also states, quite explicitly, that “[t]his writer ⁶⁰² will conduct a joint investigation with [DSS].” Consistent with both agencies’ description of the investigation as a joint endeavor, the local department obtained a copy of [the Sheriffs Department’s] report, Appellant’s written statement, and Appellant’s Miranda form from the Sheriffs Department. Both the written statement and the Miranda form were taken during the interview that was audio taped at the Sheriffs Department.

The same is true of notes taken by [the detective], which were later incorporated as part of [the Sheriffs Department] report. The local department provided Appellant with copies of all of these documents as part of the redacted record, in full compliance with [COMAR] § 07.02.26.11. Moreover, the record reveals that [the detective] provided the local State’s Attorney with a copy of his report as required under FL § 5—706(f)(1). When viewed in light of FL § 5—706(f)(1), Hutton [v. State, 339 Md. 480 , 663 A.2d 1289 (1995)], and Craig [v. State, 76 Md.App. 250 , 544 A.2d 784 (1988)], these facts demonstrate that the investigation into “D’s” allegation was clearly conducted as a joint investigation between DSS and the Cecil County Sheriffs Department.

The implication of this finding in the case at bar is that the audio tape, which was made by the Sheriffs Department as part of the joint investigation into “D’s” allegation, is considered to be documentary material made the [sic] local department, as well. The local department, however, failed to procure and provide the tape. The local department has entirely failed to proffer a rationale as to why [the detective’s] report, Appellant’s statement, and the Miranda rights were collected by the local department and provided to Appellant while the audio tape was not. At the contested case hearing, the only response [the local Department investigator] could provide to the question, “[w]hy don’t you have the tape?” was “I don’t have it.” A reading of COMAR § 07.02.26.11(A) reveals that “I don’t know” is insufficient.

The audio tape was clearly documentary material made by the Sheriffs Department (and therefore made by the ⁶⁰³ local department) during the course of the joint investigation. The local department was required to provide Appellant with the redacted record, including the audio tape, not less than 14 days before the scheduled hearing. The local department, however, failed to provide the tape, in direct contravention of § 07.02.26.11(A). Here, the local department failed to produce the audio tape as required pursuant to COMAR § 07.02.26.11.

Production of the audio tape was peculiarly within the power of the Sheriffs Department, which holds the only copy of the tape. Under these circumstances, it should have been natural for the local department to obtain a copy of the audio tape and to include the copy in the redacted record. In cases such as the one at bar, where the outcome will turn on little more than which of two persons is to be believed, possible inferences, whether naturally or legally raised, become crucial. Hayes [v. State], 57 Md.App. [489] at 501, 470 A.2d 1301 .

The ALJ’s decision was entirely based upon inferences that were drawn from the testimony of witnesses and the information contained in the record. The weight that the ALJ attached to the credibility of the witnesses here was crucial to the outcome of the case. The local department’s failure to enter the audio tape into the record prejudiced Appellant’s defense and deprived the ALJ of information that may have influenced her decision. Accordingly, the local department’s failure to provide Appellant with a copy of the tape should have raised the presumption at the contested case hearing that the information contained on the tape, if the tape were provided, would be unfavorable to the local department.

In weighing the evidence, however, the ALJ failed to make this determination. Based on the foregoing, this case is remanded for further proceedings. On remand, the local department shall obtain a copy of the audio tape from the Sheriff’s department and insert the tape as part of the redacted record. In addition, the local department shall provide a copy of the audio tape to counsel for the Appellant.

If, on remand, the local ⁶⁰⁴ department fails to provide Appellant with a copy of the audio tape, then the ALJ shall find that this omission gives rise to the presumption that the audio tape, if produced, would be unfavorable to the local department. Finally, because this case is remanded for a new contested case hearing, the thicket of additional issues raised by Appellant in his Appeal Brief need not be addressed. In view of the court’s order of remand, it did not reach the substantive or sufficiency questions. The DSS filed a timely appeal.

SCOPE and STANDARD of REVIEW This Court’s review of the ALJ’s decision is quite narrow. The scope and standard of appellate review has been described as essentially the same as the circuit court’s scope of review. We must review the administrative decision itself. Pub.

Svce. Comm’n v. Baltimore Gas & Elec. Co., 273 Md. 357, 362 , 329 A.2d 691 (1974); State Election Bd. v. Billhimer, 72 Md.App. 578, 586 , 531 A.2d 1298 (1987), rev’d on other grounds, 314 Md. 46 , 548 A.2d 819 (1988); see also Dep’t Econ. & Emp’t Dev’t v. Hager, 96 Md.App. 362 , 625 A.2d 342 (1993). Decisions of the OAH are subject to review under the Administrative Procedure Act (“APA”), Md.Code Ann., State Gov.

Art. (“SG”) § 10-222 (Supp. 1994). Subsection (h) provides that the reviewing court may— (1) remand the case for further proceedings; (2) affirm the final decision; or (3) reverse or modify the decision if any substantial right of the petitioner may have been prejudiced because a finding, conclusion, or decision: i. is unconstitutional; ii. exceeds the statutory authority or jurisdiction of the final decision maker; iii. results from an unlawful procedure; iv. is affected by any other error of law; ⁶⁰⁵ v. is unsupported by competent, material, and substantial evidence in light of the entire record as submitted; or vi. is arbitrary or capricious. See also, Md. State Police v. Lindsey, 318 Md. 325, 332-34 , 568 A.2d 29 (1990); State Election Bd. v. Billhimer, 314 Md. 46 , 548 A.2d 819 (1988); Warner v. Town of Ocean City, 81 Md.App. 176 , 567 A.2d 160 (1989); Harford Mem’l Hosp. v. Health Svces. Cost Rev. Comm’n, 44 Md.App. 489 , 410 A.2d 22 (1980).

Beeman v. Dept. of Health & Mental Hygiene, 105 Md.App. 147, 154-55 , 658 A.2d 1172 (1995). With respect to an administrative decision concerning child sexual abuse, this Court described the process of investigation and review: Administrative Classification And Reporting Standards [The investigating local Department of Social Services] must select one of three statutorily defined dispositions for all reports of child sexual abuse: “indicated,” “ruled out,” or “unsubstantiated.” An “indicated” case of child sexual abuse is premised on a “finding that there is credible evidence, which has not been satisfactorily refuted, that abuse, neglect, or sexual abuse did occur.” Md.Code (1954, 1999 Repl. Vol., 2000 Cum. Supp.), § 5-701(k) of the Family Law Article (“FL”); COMAR 07.02.07.12A(2).

Cases in which child sexual abuse is “indicated” may be included in a central registry of child abuse and neglect cases that is maintained by a local department of social services (a “local department”). See FL § 5-714. [The local Department’s] registry is part of a network of similar registries maintained by other county social services departments throughout Maryland. See id. In many cases, the identity of a person whom a local department has determined was responsible for child sexual abuse may be discerned from these networked central registries. ⁶⁰⁶ Judicial Review Of Administrative Decision In a contested case proceeding to determine the validity of a local department’s disposition of a particular child sexual abuse case, the administrative law judge has a fact finding role.

See C.S. v. Prince George’s County Dept. of Soc. Svcs., 348 Md. 14, 33 , 680 A.2d 470 (1996). She must “sift between potentially conflicting information provided by [the local department] and the alleged abuser to determine whether there are sufficient facts to meet the definitions of’ indicated or unsubstantiated abuse. Id.

The ALJ’s determination can be challenged in circuit court. See FL § 5-706.1. Appeals from the ALJ to the circuit court, and from the circuit court to the appellate courts, are governed by the same standards of review. See Mayberry v. Anne Arundel County Bd. of Educ., 131 Md.App. 686, 700-01 , 750 A.2d 677 (2000). “The test for determining whether the ... findings of fact are supported by substantial evidence is whether reasoning minds could reach the same conclusion from the facts relied upon by the [agency]....

When an agency’s decision is based on an erroneous legal conclusion, however, we will substitute our own judgment for that of the agency.” Id. Montgomery County Dep’t of Health & Human Servs. v. P.F., 137 Md.App. 243, 262-65 , 768 A.2d 112 (2001) (footnote omitted). DISCUSSION Waiver We shall first address the DSS’s argument that appellee waived his right to challenge the exclusion of the audio tape from the administrative record because he did not file a subpoena requesting its inclusion or production before the administrative hearing. We find no merit in that argument.

Appellee argues that the record provided was incomplete because the DSS failed to include the audio tape. We conclude that Md.Code Ann., Fam. L. § 5-701(t), which we shall discuss in greater detail, infra, requires the inclusion of the ⁶⁰⁷ audio tape. Therefore, appellee was not required to request a subpoena to assure its inclusion in the administrative record.

Although appellee suggests he requested the audio tape, his appeal rests on the DSS failure to include it as part of the record provided to him during the regular course of the appeal process. As we have noted, appellee’s counsel objected to the introduction of the Sheriffs Department report, which was based in part on the recorded interview, on the basis that the audio tape had not been provided to him or made a part of the record. While more careful preparation for the administrative hearing might have alerted appellee that the audio tape was not a part of the record provided by the DSS, that failure does not amount to a waiver. Because of the statutory mandate it was not necessary for appellee to request or subpoena the audio tape to preserve the issue for appeal. 1.

Did the circuit court err by ordering remand on the ground that the record was incomplete because of the absence of an audio recording of appellee’s statement to investigators? Determining whether the circuit court erred by ordering a remand requires us to decide whether the audio tape ought to have been part of the DSS record. 6 If so, it was error for the DSS not to provide it, and for the ALJ not to order its inclusion in the record. The result, therefore, would be a decision based on an incomplete record, thereby requiring remand to the OAH. ⁶⁰⁸ As required by Fam. L. § 5-706(f), an inter-agency agreement was created, involving, among others, the Cecil County DSS and the Cecil County Sheriffs Department.

The agreement details how joint investigations are to be conducted. Fam. L. § 5—706(f). The relevant agreement before us provides with respect to purpose: Since a multi-disciplinary, multi-agency approach is necessary and crucial for effective intervention and service to abused children and their families, a multi-agency team is established to include participation from those parties mentioned above.

This approach will encourage the sharing of vital information so as to enhance their ability to protect children and to cooperatively serve their families. This team is created to ensure: 1. coordination in the investigation of reports of suspect- - ed child abuse ... Upon completion of an investigation, the local DSS must determine whether there is evidence that abuse has occurred. If the DSS makes a finding that the abuse has been indicated, it must notify the alleged abuser in writing.

Fam. L. § 5-706.1(a). The alleged abuser may request a contested case hearing, as provided by Title 10, Subtitle 2 of the State Government Article (the Maryland Administrative Procedure Act), to dispute the determination. Id. at (b).

The APA assures to the alleged abuser certain rights concerning the nature and form of the hearing, but allows each agency to adopt regulations concerning the procedures for an administrative appeal involving that agency. Md.Code Ann., Gov’t. § 10-206. See, e.g., C.S. v. Prince George’s County Dep’t of Social Servs., 343 Md. 14, 26 , 680 A.2d 470 (1996). Pursuant to the regulations adopted by the Department of Human Resources, of which the local departments of social services are a component, only limited discovery is available.

The relevant provision in the Code of Maryland Administrative Regulations (“COMAR”), provides: ⁶⁰⁹ The local department shall provide the appellant with the redacted record not less than 14 days before the scheduled hearing. COMAR 07.02.26.11(A). The definitions of “record” provided, respectively, by the General Assembly, in the Family Law Article of the Maryland Code, and the COMAR regulations of the Department of Human Resources, are slightly different. That difference, in part, gives rise to the question raised in this appeal.

The Family Law Article defines the “record” for review as: [T]he original or any copy of any documentary material, in any form, including a report of suspected child abuse or neglect, that is made by, received by, or received from the State, a county, or a municipal corporation in the state, or any subdivision or agency concerning a case of alleged child abuse or neglect. Md.Code Ann., Fam. L. § 5-701 (t). 7 The pertinent COMAR provision,