David N. v. St. Mary's County Department of Social Services

EYLER, DEBORAH S., J. The sole issue in this appeal is whether a local department of social services for a Maryland county can investigate a report of suspected child abuse or neglect when the abuse or neglect is alleged to have happened in Maryland but the child victim lives out of state. David N., the appellant, maintains that the answer to that question is no, and that the St. Mary’s County Department of Social Services (“the Department”), the appellee, had no power to investigate the report of suspected child sexual abuse made against him in this case. For that same reason, he argues, the Department of Human Resources (“DHR”) erred in upholding the Department’s finding that he committed indicated child sexual abuse, and the Circuit Court for St. Mary’s County further erred in upholding the DHR’s decision. We disagree with David N., and hold that the controlling statute, Md.Code (2006 Repl.Vol., 2009 Supp.) section 5-706 of ¹⁷⁸ the Family Law Article (“FL”), authorizes, and indeed requires, a Maryland local department of social services to investigate a report of suspected abuse or neglect in Maryland of a child who lives outside of Maryland. 1 Accordingly, we shall affirm the judgment of the circuit court.

FACTS AND PROCEEDINGS On May 26, 2007, David N., then 15 years old and a resident of Frederick County, attended a picnic at his family’s summer home in St. Mary’s County. Also present at the picnic was David’s cousin, a 4-year-old girl whose home was in the State of Virginia. Sometime after the picnic, the Department received a report alleging that David had sexually abused the 4-year-old girl at the picnic. After investigating the report, the Department made a finding of indicated child sexual abuse against David. 2 David appealed the Department’s finding to the DHR, requesting a contested case hearing before an administrative law judge (“ALJ”) in the Office of Administrative Hearings (“OAH”).

See FL § 5-706.1(b) (permitting a person against whom a finding of indicated child abuse or neglect has been made to request a contested case hearing, pursuant to Subtitle 2 of the State Government Article, to appeal the finding). The OAH acts as the final decision-maker for the DHR in such ¹⁷⁹ appeals. Md.Code Regs. 07.01.04.21. See Md.Code (2009 Repl.Vol., 2010 Supp.), section 10-205(b)(5) of the State Government Article (“SG”).

The contested case hearing was held on October 20, 2008. David stipulated that during the picnic he took his 4-year-old cousin into a bedroom, removed her pants and underwear, and his own, and rubbed his penis against her, penetrating her anus. He moved to dismiss the administrative charge, however, on the ground that the Department lacked statutory authority to investigate the report of suspected abuse against him and therefore to make a finding against him based on its investigation. Specifically, David argued that section 5-706, concerning investigations of reports of suspected child abuse or neglect alleged to have happened in Maryland, only grants a local department of social services authority to investigate such a report when the child victim “lives in this State”; therefore, the local department does not have authority to investigate a report of suspected child abuse or neglect that happened in Maryland when the child victim lives outside of Maryland.

He maintains that, in his case, because the alleged abuse took place in Maryland but the victim was not living in Maryland, the Department had no power to investigate the report of suspected abuse or to make a finding as to whether the abuse happened, as making such a finding is part of the investigation. FL § 5-706(h) and (i). The Department opposed the motion to dismiss, arguing among other things that David was misinterpreting section 5-706 and other related statutes. The ALJ heard argument on the motion to dismiss and received supplemental memoranda of law from the parties.

On December 1, 2008, she issued a written decision and order ruling that the Department did not have statutory authority to investigate a report of suspected child abuse or neglect alleged to have happened in Maryland when the child was not a resident of Maryland, and granting the motion to dismiss on ¹⁸⁰ that basis. The ALJ’s decision was the decision of the OAH, and hence the final decision of the DHR. In the Circuit Court for Frederick County, the Department filed a timely action for judicial review of the final administrative decision. SG § 10-222(a).

On July 15, 2009, after receiving memoranda of law, the court held a hearing. On July 31, 2009, it issued a memorandum opinion and order, docketed on August 3, 2009, reversing the final decision of the DHR. This timely appeal followed. STANDARD OF REVIEW In an appeal from an administrative agency’s final decision, this Court reviews the agency’s decision, not the circuit court’s decision.

Halici v. City of Gaithersburg, 180 Md.App. 238, 248 , 949 A.2d 85 (2008). The agency decision in this case was that, as a matter of law, the Department did not have authority under FL section 5-706(a) to investigate the report of suspected child abuse against David because the alleged abuse happened in Maryland but the victim was not living in Maryland. The decision, being a matter of statutory interpretation, is a purely legal issue. Because we are deciding a legal question, we review the agency’s decision de novo.

Schwartz v. Md. Dep’t of Natural Res., 385 Md. 534, 554 , 870 A.2d 168 (2005); Charles County Dep’t of Soc. Servs. v. Vann, 382 Md. 286, 295 , 855 A.2d 313 (2004). We do, however, give some deference to the agency’s interpretation of the statute it administers. Bd. of Physician Quality Assurance v. Banks, 354 Md. 59, 69 , 729 A.2d 376 (1999).

DISCUSSION Pertinent Statutory Language and Framework David’s contention focuses on section 5-706, entitled “Investigation,” which states, in relevant part, that “[p]romptly after receiving a report of suspected abuse or neglect of a child who lives in this State that is alleged to have occurred in this State,” the local department of social services shall conduct an ¹⁸¹ investigation. FL § 5-706(a). As he did below, David asserts that this language plainly limits a local department’s authority to investigate a report of suspected abuse or neglect of a child in Maryland to cases in which the victim lives in Maryland. Alternatively, David maintains that, even if the critical statutory language is ambiguous, his interpretation is supported by the legislative history.

As it did below, the Department counters that the plain language of subsection 5-706(a), the relevant legislative history, and DHR’s longstanding interpretation of the statute make clear that a local department of social services is authorized to investigate a report of suspected child abuse or neglect alleged to have been perpetrated in Maryland, regardless of where the victim was residing when the abuse was committed. The Department further asserts that if the statutory language is ambiguous it should be construed to confer investigative authority on the local departments in these situations. Title 5 of the Family Law Article governs “Children,” and subtitle 7, with which we are concerned, addresses “Child Abuse and Neglect.” The sections pertinent to the issue before us, in addition to the general definitions in section 5-701, are those stating the legislative policy of the subtitle (5-702) and its scope and applicability (5-703); three sections governing reporting of child abuse and neglect (5-704, 5-705, and 5-705.1); and section 5-706, which, as mentioned above, pertains to an “Investigation.” The expressly-stated legislative policy of subtitle 7 is “to protect children who have been the subject of abuse or neglect” by mandating reporting, conferring immunity on those who make reports, 3 requiring prompt investigation of reports with cooperation among responsible agencies, and requiring local departments of social services to render appropriate services to the abused and neglected children. FL § 5-702.

Generally, subtitle 7 applies, and only applies, to “suspected abuse or neglect that is alleged to have occurred in this ¹⁸² State” and “suspected abuse or neglect of a child who lives in this State, regardless of where the suspected abuse or neglect is alleged to have occurred.” FL § 5-703(b)(1) and (2). (That subsection carves out an exception — “as otherwise provided in § 5-705.1,” which we shall discuss infra.) Thus, ordinarily, subtitle 7 applies to two categories of children: (1) all children thought to have been abused or neglected in Maryland and (2) all children who reside in Maryland and are thought to have been abused or neglected anywhere. The former category encompasses the child victim in this case, as she was suspected of having been sexually abused in Maryland. Reporting Obligations The reporting sections of subtitle 7 mandate, with some exceptions, the duties to report suspected child abuse or neglect owed by certain professionals, and then by the population at large.

Section 5-704 obligates identified professionals (health care practitioners, police officers, educators, and human services workers) to report suspected child abuse to the local department of social services or the appropriate law enforcement agency and to report suspected child neglect to the local department of social services. It draws no distinction in this reporting duty between child victims living inside or outside Maryland or between suspected abuse or neglect thought to have happened inside or outside Maryland. As long as the victim is a child and the mandated reporter is acting in his or her professional capacity in Maryland, the report must be made. The section, which has no exceptions, specifies the manner, timing, and contents of such a report.

Section 5-705 establishes the duty of all other persons (i.e., those who are not covered by section 5-704) to report suspected child abuse or neglect. Like the report required by section 5-704, a section 5-705 report must be made to the local department in the case of suspected child neglect and to either the local department or the appropriate law enforcement agency in the case of suspected child abuse. Also like section ¹⁸³ 5-704, the duty to report in section 5-705 applies to all children suspected of being abused or neglected, without any limitation based upon a child victim’s state of residence or the place where the abuse or neglect is thought to have happened. Unlike section 5-704, the duty to report established in section 5-705 is subject to two exceptions (neither of which applies here). 4 Section 5-705 details the form the report may take and its contents but does not impose a time frame on the duty to report.

Section 5-705.1 specifies how a report of suspected child abuse or neglect is to be made, and by whom it is to be investigated, when the suspected abuse or neglect happened outside of Maryland and the victim lives outside of Maryland. In that situation, a mandated reporter under section 5-704 or section 5-705 “shall report the suspected abuse or neglect to any local department,” § 5-705.1(c)(l), which for purposes of section 5-705.1 means a department of social services for a county in Maryland. FL § 5-705.1(a). The local department receiving the report must promptly forward it “to the appropriate agency outside of this State that is authorized to receive and investigate reports of suspected abuse or neglect.” FL § 5-705.1(d).

Thus, a mandated reporter must report, to a Maryland county local department of social services, suspected abuse or neglect that happened outside of Maryland against a child who lives outside of Maryland, but the report is not to be investigated by that department; instead, it is to be forwarded to the appropriate authority outside of Maryland for investigation. In summary, the reporting duties imposed by sections 5-704, 5-705, and 5-705.1, taken together, apply to the universe of children suspected of being abused or neglected, regardless of where the abuse or neglect is thought to have happened or where the child victim lives. Under section 5-705.1, when the suspected abuse or neglect is thought to have ¹⁸⁴ happened out of state and the child victim lives out of state, however, the report will be made to a Maryland local department but will be forwarded to, and investigated by, the appropriate out-of-state authority. Investigations of Reports As noted, section 5-706 governs investigations of reports of suspected child abuse and neglect by Maryland local departments of social services and, in cases of abuse, local law enforcement agencies.

Subsection (a), which we have quoted above and is central to this case, imposes upon a local department, in the case of neglect, and the local department or law enforcement agency, in the case of abuse, a duty to investigate “a report of suspected abuse or neglect of a child who lives in this State that is alleged to have occurred in this State[.]” Subsections (b) and (c) establish the timing, mandated steps, and scope of the required investigation. Subsection (j) of section 5-706 establishes a separate mode of investigation that is triggered when a local department receives a report of suspected abuse or neglect of a child who lives in Maryland when the abuse or neglect happened outside of Maryland. In such a situation, the local department must forward the report to the appropriate out-of-state agency for investigation and, if asked, cooperate with that agency in its investigation. Cooperation may include interviewing the child for safety and providing services to the child and the child’s family.

So, when a child living in Maryland is the victim of suspected abuse or neglect outside of Maryland, the local department to whom a report is made may participate in the investigation, but only if invited to do so by the out-of-state authority. The 2003 Statutory Amendments The pertinent sections of subtitle 7, including section 5-706(a), were substantially amended in 2003, four years before the alleged child sexual abuse in this case. David concedes, as he must, that, if the report of suspected child abuse that was made against him had been made before the 2003 amendments ¹⁸⁵ became effective, the Department would have been authorized by section 5-706, in its form at that time, to investigate the report and make a finding as to whether the suspected abuse happened. His contention that the Department lacked to the authority to investigate the report made against him, after the 2003 amendments were in force, rests entirely upon the language changes to section 5-706 effected by those amendments.

Therefore, in order to fully discuss David’s contention in this case, we must explain the changes that were made by the 2003 amendments to the relevant sections in subtitle 7. Before 2003, none of the relevant sections defined the coverage of subtitle 7 with reference to the place of the alleged abuse or neglect or the residence (or present location) of the child victim. Section 5-703 simply stated that the scope of subtitle 7 was “in addition to and not in substitution for the provisions of Title 3, Subtitle 8 of the Courts and Judicial Proceedings Article.” 5 It said nothing about the subtitle’s application. Just as they do today, sections 5-704 and 5-705 imposed reporting duties upon certain professionals (the former) and with two exceptions all other people (the latter), with the reporting duties covering all reports of suspected abuse or neglect of a child, regardless of where the abuse or neglect took place or the child’s residence or present location.

Section 5-705.1 (report of abuse that happened out of state to a victim living out of state) did not exist; and section 5-706 mandated only that all reports of suspected abuse or neglect be investigated, either by the local department (neglect) or by the local department or law enforcement agency (abuse), without any reference to the place of abuse or neglect or the victim’s residence or present location. The events leading up to the enactment of the 2003 amendments actually began in 1991. On July 22 of that year, Maryland Attorney General J. Joseph Curran, Jr., wrote to ¹⁸⁶ Pamela F. Corckran, Chairperson of the Governor’s Council on Child Abuse and Neglect, bringing to the council’s attention the “issue whether the law requires a report of child abuse or neglect that took place outside of Maryland, when no child victim is in Maryland.” Letter of July 22, 1991 (“July 1991 Letter”), at 1. In his letter, Attorney General Curran reasoned that because the agencies to which reports must be made under sections 5-704 and 5-705 as they then existed all were Maryland agencies, those sections could not reasonably be read to require reporting of suspected abuse or neglect of children outside of Maryland, at least when the children were not residents of or presently located in Maryland.

Id. at 2. The Attorney General explained that it was not reasonable to interpret the statutes to require reporting to out-of-state agencies, especially given that the making of a report gives rise to a duty to investigate under section 5-706, and “unless a child potentially in need of protection is now in Maryland (regardless of where the alleged incident occurred),” Maryland law could not be read to require reports of out-of-state child abuse or neglect to Maryland agencies. July 1991 Letter, at 2. Observing that it appeared that the “General Assembly never focused on the issue of out-of-state incidents,” he suggested that the council consider seeking legislation to remedy the deficiencies in the law.

Id. at 2-3. Eleven years later, in 2002, media coverage about St. Luke Institute, a psychiatric hospital in Silver Spring, prompted legislative action. Psychiatrists at St. Luke Institute were treating Catholic priests who had sexually abused children in other states, and had come to Maryland for treatment. The acts of abuse had been perpetrated outside of Maryland and the child victims were located outside of Maryland.

The treating psychiatrists took the position that, under the circumstances, they were not required by Maryland law to make reports of child sexual abuse to Maryland local departments of social services (or to law enforcement, or to any Maryland or out-of-state authority). This position was consistent with the opinion stated in the July 1991 Letter. ¹⁸⁷ Because in the course of the media coverage about the St. Luke Institute issue misunderstandings arose about the meaning of the July 1991 Letter, on June 25, 2002, the Office of the Attorney General (“OAG”) issued an opinion letter clarifying the reporting requirements of the law as it then existed (“June 2002 Letter”). The June 2002 Letter explained that section 5-704 in its then-current form “requires health care practitioners to report suspected child abuse if the abuse occurred in Maryland or, wherever the abuse occurred, if the child is now in Maryland.” June 2005 Letter, at 1. The letter went on to state, “The statutory mandate [to report] is inapplicable only if a health care practitioner has reason to believe that the abuse occurred exclusively outside Maryland and the victim is not currently in Maryland.” Id.

The June 2002 Letter summarized then-existing Maryland law as requiring Maryland health care providers to report suspected child abuse (or neglect), in either of the following situations: ... [1] A practitioner has reason to believe that a child, was abused in Maryland even once, no matter how long a,go the alleged abuse occurred, no '¡natter whether most instances of the abuse occurred out-of-state, and no matter whether the child is now in Maryland ... [2] A practitioner has reason to believe that a child was abused in another state but is now in Maryland. June 2002 Letter, at 2-3 (emphasis in original). In the next legislative session, HB 550 was introduced to cover the reporting gap that existed for child abuse or neglect suspected to have happened outside Maryland of a child who does not reside or is not present in Maryland, i.e., the situation with respect to the child victims of the priests who were receiving psychiatric treatment at St. Luke Institute. See 2003 Laws of Maryland, ch. 308.

The revised “Fiscal and Policy Note” for HB 550 explains in the “Bill Summary” section: This bill provides that if abuse or neglect is alleged to have occurred outside of Maryland and the victim is currently under age 18 and lives outside of Maryland, then a health ¹⁸⁸ care practitioner, police officer, educator, or human services worker, or other person, except as otherwise provided by statute, who would otherwise be required to report the suspected abuse or neglect, must report the suspected abuse or neglect to any [local department of social services in Maryland] as soon as possible. Fiscal and Policy Note (Revised) to HB 550, at 1-2. In two paragraphs distinguishing, under the proposed new law, the steps a local department must take upon receiving a report of suspected child abuse or neglect alleged to have happened outside of Maryland to a child not living in Maryland from the steps a local department must take upon receiving a report of suspected child abuse or neglect alleged to have happened outside of Maryland to a child living or present in Maryland, the “Bill Summary” section states: Promptly after receiving a report of suspected abuse or neglect that occurred outside Maryland regarding a victim who is currently a child and lives outside of Maryland, the [local department of social services] must forward the report to the appropriate agency outside of Maryland that is authorized to receive and investigate reports of suspected abuse. Promptly after receiving a report of suspected abuse or neglect that is alleged to have occurred outside of Maryland to a child victim who lives in Maryland, the [local department of social services] must forward the report to the appropriate agency outside of Maryland that is authorized to receive and investigate reports of suspected abuse or neglect.

The [local department of social services] must cooperate to the extent requested with the investigating out-of-state agency. If determined appropriate by the [local department of social services], [it] must interview the child to assess whether the child is safe and provide services to the child and the child’s family. Id. at 2. Upon enactment of HB 550, these provisions, as summarized in the Fiscal Note, became new section 5-705.1 ¹⁸⁹ and new subsection 5-706(j), pertaining to out-of-state abuse and neglect, which we have discussed above.

Nothing in the history of events leading up to the passage of HB 550 or in the legislative history for the bill casts doubt upon the authority of a local department to which a report of suspected child abuse or neglect in Maryland is made to investigate the report, regardless of whether the victim resides in Maryland or outside Maryland. Indeed, HB 550 included a new “applicability” subsection (present section 5-703(b)), tracking, virtually word for word, the OAG’s assessment, in the June 2002 Letter, of when subtitle 7 applies, and making plain that it applies to any instance of suspected child abuse or neglect in Maryland, without reference to where the victim lives. Nevertheless, also as pari of the 2003 enactment, section 5-706 was rewritten to insert, in several subsections, the language on which David’s argument rests and that he maintains eliminated the previously existing authority of a local department to investigate a report of child abuse or neglect suspected to have happened in Maryland to a child not living in Maryland. Subsection (a), pre-amendment, directed the local department or law enforcement agency to conduct an investigation “[plromptly after receiving a report of suspected abuse or neglect.” The 2003 amendments changed that language to direct the local department or law enforcement agency to conduct an investigation “[plromptly after receiving a report of suspected abuse or neglect of a child who lives in this State that is alleged to have occurred in this State.” (New language in bold.) Likewise, in subsection (b), concerning the time frame for taking investigative action and the actions to be taken, the pre-amendment language directed the steps required [wfithin 24 hours after receiving a report of suspected physical or sexual abuse and within 5 days after receiving a report of suspected neglect or suspected mental injury....

After the 2003 amendments, that same portion of subsection (b) now directs the steps required ¹⁹⁰ [wjithin 24 hours after receiving a report of suspected physical or sexual abuse of a child who lives in this State that is alleged to have occurred in this State, and within 5 days after receiving a report of suspected neglect or suspected mental injury of a child who lives in this State that is álleged to have occurred in this State____ (New language in bold.) Finally, in subsection (i), entitled “Written report of findings,” the pre-amendment language directed that, “[wjithin 5 business days after completion of the investigation of suspected abuse, the local department ... shall make a complete written report of its findings to the local State’s Attorney.” After the 2003 amendments, that same section now directs that, “[wjithin 5 business days after completion of the investigation of suspected abuse of a child who lives in this State that is