Department of Human Resources v. Howard

MURPHY, C.J. This appeal from the Circuit Court for Anne Arundel County presents the question of whether an administrative finding that the mother of a 13-year old boy committed an act of “indicated child abuse” is “appropriate” based upon factual findings that the mother (1) decided to impose corporal punishment on her son in response to his disrespectful behavior towards her, (2) intended to strike the back of her son’s head with her knuckles, as she was looking at the back of his head when she moved her hand towards him, and (3) caused an injury to her son’s eye when he suddenly turned his head and was therefore struck in the face. For the reasons that follow, ⁶²⁵ we hold that the answer to this question is “no,” and we shall therefore affirm the judgment of the circuit court. Factual Background The parties to this appeal are the Anne Arundel County Department of Social Services, appellant (the Department), and Sherri Howard, appellee, who was deemed by the Department to have been responsible for “indicated child abuse” as a result of having struck her then 13-year old son, Alexander, with sufficient force to leave a two-inch by one-inch bruise about his eye. When Alexander showed up at school on April 3, 2003 with a bruised and swollen left eye, he was sent to the school nurse, who placed ice on the swollen eye.

Appellee was called to the school, where she explained to school authorities that she had hit Alexander with her hand the day before because he had “gotten out of hand.” The case of possible abuse came to the attention of the Department of Social Services on April 4, 2003, when the Department received a report of possible child abuse from Alexander’s school. The Department assigned a licensed social worker (LSW) to investigate the incident, and on the afternoon of April 4, she interviewed Alexander at his home. She observed a two-inch bluish black bruise on his left eyelid. Alexander explained that his mother “accidentally” hit him with her knuckles when he was “back talking.” The LSW also spoke with two of Alexander’s siblings: 1) Norweice, age 11; and 2) Treyvon, age 9.

Both of them, as well as Alexander, stated that appellee sometimes punished them by hitting them with a belt “the same number of times as their age.” All three children said that they were sometimes afraid of appellee because they “don’t want to be hit.” The LSW also interviewed appellee, who explained that Alexander was on Ritalin and was in therapy. Appellee stated that she was doing everything she could to help him behave better, but that she would get a call from the school almost on a daily basis complaining about his behavior. According to appellee, on April 2 she attempted to hit Alexander in the back of his head with her knuckles because he was being ⁶²⁶ “smart,” but that she “got him in the eye” by accident when he unexpectedly turned his head. Procedural History On June 4, the Department advised appellee of its finding that, because of the April 2 incident, she was responsible for “indicated abuse.” Appellee requested a contested case hearing before the Office of Administrative Hearings.

A contested case hearing was held on January 20, 2004, before an Administrative Law Judge (ALJ). During the hearing, the LSW testified for the Department, and appellee testified for herself. In an eight page Decision filed on February 27, 2004, the ALJ affirmed the decision of the Department that there was “indicated child abuse” and that appellee should be identified in the central registry as the abuser. The ALJ’s opinion included the following findings and conclusions: Maryland law provides that the Department of Human Resources may identify an individual as responsible for child abuse or child neglect in a central registry if the person has unsuccessfully appealed the entry of his or her name under procedures established by the Department.

Md.Code Ann., Fam. Law § 5~714(e) (Supp.2008). If an appellant is found to be responsible for “indicated” child abuse or neglect, the local department must “identify” the name of the appellant in a central registry by “entering a marker, code, flag, or symbol next to the name of an individual ... to make clear that the individual has been determined ... to be responsible for indicated child abuse or neglect.” COMAR 07.02.26.02B(12); COMAR 07.02.26.14C. If an individual is found to be responsible for “unsubstantiated” child abuse or neglect, the local department may include the name of the appellant in the central registry as part of the “identifying information” related to the investigation of the case.

Md.Code Ann., Fam. Law § 5—714(d); see also Md.Code Ann., Fam. Law § 5—701(i); COMAR 07.02.26.02(13)(d). ⁶²⁷ In “ruled out” cases, the central registry may not contain any “identifying information” related to an investigation of abuse or neglect and the local department must expunge the finding and identification from reports of suspected abuse/neglect and from all assessments and investigative findings. Md.Code Ann., Fam.

Law §§ 5—714(d)(2)(i), 5-707(b)(2). In the instant case, the four elements of indicated physical abuse have been met. [The LSW] observed a sizable bruise on Alexander’s left eyelid when she interviewed him on April 4, 2003. Alexander told [the LSW] that the Appellant accidentally hit him with her knuckles. When interviewed by [the LSW], the Appellant stated Alexander was getting “smart” with her, so she went to hit him in the head.

However, her knuckles caught his eye. At the hearing the Appellant repeated her explanation, but stated that she did not mean to injure or harm Alexander. It was her belief that she was not disciplining Alexander and the Appellant termed the incident a “true accident.” On cross-examination, the appellant described the incident as “one of the few times it was not a hostile situation between us.” The Appellant is Alexander’s mother. Alexander was thirteen years old at the time of the incident.

There is no disagreement as to the events on April 2, 2003. The arguments of the parties revolve around whether the incident meets the statutory regulatory definitions of indicated physical abuse, specifically whether Alexander’s health and welfare were harmed or at substantial risk of harm due to the Appellant’s actions on April 2, 2003. The Appellant’s counsel argues that AADSS equates physical discipline with physical abuse. She contends that physical discipline is appropriate and legal.

Counsel relies on COMAR 07.02.07.12C(2)(a)(i) which holds that physical abuse may be ruled out if “[t]he act causing the injury was accidental or unintentional and not reckless or deliberate.” When the Appellant went to hit Alexander on the side of his head, he turned his head and was mistakenly hit in the eye, ⁶²⁸ causing the bruise. Therefore the act should properly be deemed an accident. The Appellant had no intent to hit Alexander in the eye and no intent to inflict serious injury. In counsel’s view, the local department’s charges are disingenuous because they never took the child to the doctor, demonstrating that they were not really concerned with the child’s health or welfare.

I believe counsel’s argument misses the point. These are not criminal charges that I am adjudicating here. Nowhere in the applicable law or regulations is intent a necessary element to sustain a finding of indicated child abuse. Further, because Alexander had a two by one inch bruise on his left eyelid that persisted for several days, I conclude he was harmed by the Appellant’s actions.

Even more compelling is the unavoidable conclusion that Alexander’s health and welfare were at substantial risk of harm because of the potential that the Appellant’s blow could have injured Alexander’s eye even more severely, causing his retina to become detached, his cornea scratched, or even causing permanent impairment to his vision. Anytime a blow is directed to a child’s head, permanent brain damage is also a possibility. There is no question that the Appellant intended to hit Alexander in the head in order to stop his rude behavior. By her own admission, hitting him was a deliberate action and not an accident.

The fact that he turned his head and the Appellant missed her intended target does not alter her action and make it accidental or unintentional as contemplated by COMAR 07.02.07.12C(2)(a)(i). There was a great deal of testimony and evidence relating to allegations about events which occurred subsequent to the April 2, 2003 incident and the immediate following investigation. That information is not relevant to my conclusions in this case. Therefore, I have not included or discussed that information in this decision, because the only issues before me are whether the finding of indicated child abuse which resulted from the April 2, 2003 incident was ⁶²⁹ correct, and whether the Appellant was properly identified as the person responsible for the indicated child abuse.

CONCLUSIONS OF LAW Based upon the above Findings of Fact and Discussion, I conclude as a matter of law that the local department has established by a preponderance of the evidence that the finding of indicated child abuse is supported by credible evidence and is consistent with the law. Md.Code Ann., Fam. Law § 5-701(b); COMAR 07.02.07.12; COMAR 07.02.26.14. I further conclude that the local department has established by a preponderance of the evidence that the Appellant is an individual responsible for indicated child abuse.

COMAR 07.02.07.10. I further conclude, as a matter of law, that the local department may identify the Appellant in a central registry as an individual responsible for indicated child abuse. Md. Code Ann., Fam. Law § 5—714(e)(l)(ii)l.

COMAR 07.02.26.02B(12); COMAR 07.02.26.14C. (Emphasis added). Appellee petitioned for judicial review, and the circuit court found in her favor in an on-the-record oral opinion that included the following findings and conclusions: The test that we deal with is whether 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. That is the definition of abuse in the COMAR regulations.

And so, a lot of the discussion today and in the briefs has to do with whether or not the definition is important in terms of whether this was corporal punishment or whether it wasn’t corporal punishment, and I fail to see that a person, in this case the petitioner, that her definition should definition [sic]; that if I say it is corporal punishment when I hit my son, then that makes it corporal punishment. And if 1 say it is not, that that some how makes it something different. ⁶³⁰ I think the ALJ—Ms. Barnes disagrees with me, but the ALJ I think came to the conclusion that this was a form. Not perhaps a satisfactory form, but a form of corporal punishment because there was a physical act intended for the purposes of changing the behavior pattern or at least the incident behavior of the child. And the fact that it was reflexive simply, I think, makes a difference in terms of whether there was a spank on the bottom or a rap on the head or some other form.

But I don’t think that that takes this case outside of the analysis in the Vann case, and I think it is a world of difference between this case and the Vann case. In the Vann case the ALJ’s conclusion that was affirmed by the Court of Special Appeals was, “The substantial risk and potential for harm was imminent, in that if the child had ducked to avoid the belt, the buckle could have struck his eye or teeth and could have resulted in more serious even permanent injuries. Once an intended target becomes a moving one, it cannot be predicted with certainty where the blows will land.” So what we have there is dad trying to punish the child with a belt that had a big belt buckle on it, and the child was struggling and running and grabbing the belt and so forth, and the persistent [sic] of the father in persisting to punish him in that way was deemed to be inherently risky. In our case what we have is a relatively innocuous act by the petitioner where she was trying to pop—I think was her description and as the ALJ described it.

By anatomical reference she was trying to hit him on the back of the head with a knuckle. The back of her hand. And unfortunately, as that was happening the child turned his head and an untoward and unpredictable result. Now, is it physically predictable that something like that could happen?

Certainly. Is it reasonable [sic] predictable that if I try to rap somebody on the back of the head he may turn and at that very instant I am going to poke him in the eye? I don’t think that that necessarily flows from that. ⁶³¹ The ALJ, from reading the opinion, comes to a conclusion that I think really fails to give any recognition to the fact that the result was not the sort of logical outcome of the act. Different, I think, substantially from the Vann case. [The ALJ] says that the unavoidable conclusion that Alexander’s health and welfare were at substantial risk of harm because of the potential that the appellant’s blow could have injured Alexander’s eye even more severely causing his retina to become detached, his cornea scratched or even causing permanent impairment to his vision; any time a blow is directed to a child’s head, permanent brain damage is also a possibility.

That, to me, is just an extraordinarily over-broad conclusion reached from facts that the record simply does not support, and I do acknowledge that there has to be deference to the fact finding because this is not a pure application of law, but is a blend of applying law to the facts. But I candidly, with all due respect to the ALJ, do not see how a reasonable fact finder could have reached the conclusion that she did, and accordingly, I am going to reverse the order.... This appeal followed, in which the Department argues that this Court must “uphold the administrative decision, where, as here, a reasonable person could reasonably have concluded that the alleged behavior occurred, and that it satisfied the definition of ‘indicated child abuse.’ ” (Citing Charles County Dept. of Social Services v. Vann, 382 Md. 286, 298-99 , 855 A.2d 313 (2004)). According to appellant, “when, as here, a parent deliberately strikes her child, and the child both sustains injury and is harmed or placed at substantial risk of harm, the law provides for a finding of ‘indicated child abuse’ and permits the local department to retain its confidential records relating to its investigation.” See Md.Code (2004 Repl.Vol.), Fam.

Law (F.L.) §§ 5-701(b), 5-706(c), 5-707, 5-714. ⁶³² Standard of Review Judicial review of the administrative agency decision at issue in this appeal is authorized by Maryland Code (1984, 1999 Repl.Vol.), § 10-222 of the State Government Article. 1 Judicial review of an administrative agency’s decision differs from appellate review of a judgment entered by a trial court. 2 ⁶³³ While the appellate court can affirm the judgment of the trial court for a reason that is supported by the record, even if that reason was not relied upon by the trial court, in judicial review of an agency’s decision, the reviewing court cannot uphold the agency’s decision unless that decision is sustainable for the reasons stated by the agency. United Steelworkers of America v. Bethlehem Steel Corp., 298 Md. 665, 679 , 472 A.2d 62 (1984). In the case at bar, we accept all of the Administrative Law Judge’s first level factual findings. 3 Having done so, we must next “determine if the administrative decision is premised upon an erroneous conclusion of law.” Aviation Administration v. Noland, 386 Md. 556 , 574 n. 3, 873 A.2d 1145 (2005) (quoting United Parcel v. People’s Counsel, 336 Md. 569, 577 , 650 A.2d 226 (1994) “and cases there cited.”) For the reasons that follow, we conclude that the facts found by the ALJ do not support the conclusion of law that appellee committed an act of “indicated child abuse.” Maryland’s Other “Child Abuse” Statutes Although the case at bar involves § 5-701 of the Family Law Article and COMAR regulation 07.02.07.12, which was promulgated pursuant to that statute, the regulation expressly provides that there are cases in which a finding of “ruled out” child abuse is “appropriate” even if the child suffered an injury. COMAR 07.02.07.12(C).

Because a finding of “ruled out” child abuse may be “appropriate” when a child suffers an unintended injury as a result of corporal punishment, the following statutes are relevant to the issue of whether the ⁶³⁴ ALJ’s factual findings support the conclusion that appellee’s conduct constituted “indicated” child abuse. Maryland Code (2002), § 3-601 of the Criminal Law article (“C.L.”), in pertinent part, provides: (a) Definitions.— (1) In this section the following words have the meanings indicated. (2) “Abuse” means physical injury sustained by a minor as a result of cruel or inhumane treatment or as a result of malicious act under circumstances that indicate that the minor’s health or welfare is harmed or threatened by the treatment or act. In order to obtain a conviction, the State must prove “that the defendant caused physical injury as a result of cruel or inhumane treatment [or a malicious act]; and ..., as a result, the [victim’s] health or welfare was harmed or threatened.” MPJI-Cr 4:07.

As the Comment to the Micpel instruction points out, “[i]mplicit in the concept of cruel or inhumane treatment or a malicious act is the incorporation of the common law rule permitting a moderate, reasonable, or appropriate amount of force for the purpose of discipline, considering the age, condition, and disposition of the child, plus other surrounding circumstances.” MPJI-Cr 4:07 at pp. 162-63 (1995 ed.). In a child abuse case, by virtue of its application only to those in loco parentis, see Pope v. State, supra [ 284 Md. 309 , 396 A.2d 1054 (1979) ], an accused begins with a permissible degree of corporal punishment of a child for which he or she as a parent figure cannot be held accountable. Beyond that even, the person is not guilty if his intentions were good, but his judgment bad, in exercising his right to punish. Worthen v. State, 42 Md.App. 20, 40 , 399 A.2d 272 (1979).

See also D. Aaronson, Maryland Criminal Jury Instructions and Commentary (2d ed.) § 4.58 at pp 503-05. Section 4-501 of the Family Law Article, in pertinent part, provides: ⁶³⁵ (a) In general.—In this subtitle the following words have the meanings indicated. (b) Abuse.—(1) “Abuse” means any of the following acts: (i) an act that causes serious bodily harm; (ii) an act that places a person eligible for relief in fear of imminent serious bodily harm; (iii) assault in any degree; (iv) rape or sexual offense as defined by Article 27, §§ 462 through 464 C of the Code or attempted rape or sexual offense in any degree; or (v) false imprisonment. (2) If the person for whom relief is sought is a child, “abuse” may also include abuse of a child, as defined in Title 5, Subtitle 7 of this article.

Nothing in this subtitle shall be construed to prohibit reasonable punishment, including reasonable corporal punishment, in light of the age and condition of the child, from being performed by a parent or stepparent of the child. (Emphasis added). Although § 4-501 is directly applicable to situations in which a protective remedy is being sought on behalf of a child, the language of this statute cannot be ignored. 4 The Maryland General Assembly has expressly codified the parent’s common law right to impose “reasonable corporal punishment, in light of the age and condition of the child.” ⁶³⁶ The Statute and Regulation at Issue Family Law § 5-701, in pertinent part, provides: (b) “Abuse” means:(l) 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.... COMAR regulation 07.02.07.12, which was promulgated pursuant to § 5-701, provides the following guidelines for determining whether a “finding” of abuse is or is not “appropriate” in a particular case: A. Indicated Child Abuse.

(1) ... a finding of indicated child physical abuse is appropriate if there is credible evidence, which has not been satisfactorily refuted, 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. B. Unsubstantiated Child Abuse. A finding of unsubstantiated child abuse is appropriate when there is insufficient evidence to support a finding of indicated or ruled out child abuse. A finding of unsubstantiated may be based, but is not required to be based, on the following: (1) Insufficient evidence of a physical or mental injury, ...

(2) Insufficient evidence that the individual alleged to be responsible for the child abuse was a parent, caretaker, or household or family member; (3) The lack of a credible account by the suspected victim or a witness; ⁶³⁷ (4) Insufficient evidence that the child’s health or welfare was harmed or was at substantial risk of being harmed ... C. Ruled Out Child Abuse. A finding of ruled out child abuse is appropriate if child abuse did not occur. A finding of ruled out may be based on credible evidence that: (1) There was no physical or mental injury or, ...

(2) In the case of physical abuse: (a) The alleged abuser was not responsible for the injury for reasons including, but not limited to, one of the following: (i) The act causing the injury was accidental or unintentional and not reckless or deliberate; or ... (b) The child’s health or welfare was not harmed or at substantial risk of being harmed; ... Code of Maryland Regulations, Tit. 07 § .02.07.12(2005). The Vann Case In Vann, supra, the Court of Appeals was presented with the following operative facts: On May 6, 1999, Charles Vann, respondent, and his wife each received a phone call from the administrators of the daycare center of their six-year-old son.

The daycare providers had called to advise them that their son had brutally punched and kicked a teacher in the stomach. Because the teacher was thought to be pregnant and had suffered serious injuries, the daycare providers sent her to the hospital and demanded that respondent and his wife immediately retrieve their son from the daycare center. That evening, respondent and his wife discussed the situation. This was not the first time their son had misbehaved violently at the daycare center.

Prior to this incident, he had been involved in multiple bouts of fighting with the other students, prompting the providers to transfer him from his original classroom to a new one and, on occasion, to send him home early. Ultimately, the difficulties with the child became so severe that the daycare providers threat ⁶³⁸ ened to, and eventually did, expel him permanently from the center. Respondent and his wife were consternated by their six-year-old’s repeated and unrelenting behavioral issues. Previous attempts to modify the child’s conduct using a graduated discipline regimen—which included sitting him in a corner for fifteen minutes, banning him from access to his video games, prohibiting him from going outside to play with his friends, and restricting his movements to his bedroom—had resulted only in more clashes with the students and teachers, culminating in the punching incident on May 6.

Both parents agreed that corporal punishment was the appropriate discipline for their son’s misbehavior that day. Using his personal belt, respondent, while verbally chastising his son for the incident at the daycare center, struck at his son. But the six-year-old attempted to avoid the blows by running away, hiding under the bed, and grabbing the belt from his father. In the course of the tussle and respondent’s attempts to land the blows, respondent struck him in his lower back with the belt buckle, causing a reddish, moon-shaped bruise about an inch in length.

In all, respondent struck his son two or three times with the belt. The following day, respondent’s son complained to his teacher of back pain. The daycare providers observed the injuries on the child and reported the matter to Child Protective Services. Eventually, an investigator employed by the local Department of Social Services was called to look into the matter.

On May 10, 1999, the investigator interviewed respondent and his wife. On January 13, 2000, the local department advised respondent that he had been charged with indicated child abuse, see FL §§§§ 5—701(b)(1) and 5-701(m); that his name would be submitted to a state centralized registry used for the recording of such findings, see FL §§ 5—714(e); and that he had a right to contest the charge before an administrative court, see FL §§ 5-706.1. See also Montgomery County v. L.D., 349 Md. 239 , 707 A.2d 1331 (1998); C.S. v. Prince George’s County Dept. of Social ⁶³⁹ Services, 343 Md. 14 , 680 A.2d 470 (1996). (footnotes omitted.) Vann, 382 Md. at 289-91 , 855 A.2d 313 .

Based upon this factual background, the Court of Appeals concluded that “a reasoning mind could have reached the conclusion, based on this record, that [Mr. Vann’s] actions created a substantial risk of harm toward his son,” explaining: ... this Court must assess whether a reasoning mind could have reached the conclusion, based upon this record, that respondent’s actions created a substantial risk of harm toward his son. The ALJ’s considered judgment was that the swinging of the buckle end of a belt at a six-year old who was attempting to run away did create such a risk. The record substantiates this finding, and it was not unreasonable. Furthermore, the record establishes that respondent admitted causing the bruise injuries to his son’s lower back; that respondent’s wife saw the reddish bruise marks herself after the corporal punishment; that respondent continued to swing the belt at the child in spite of the child’s frantically running around the room; and that respondent “missed the mark” of his son’s buttocks, hitting instead the lower back with a metal buckle swung at a six-year-old child.

The ALJ found that there existed a danger of the belt striking the eyes and teeth as well as an unacceptable level of uncertainty in terms of the potential for serious injury that is inherent in the swinging of a belt buckle at a moving target. These concerns were also not unreasonable, and the record supports these findings. Vann, 382 Md. at 299-300 , 855 A.2d 313 . The Taylor Case In Taylor v. Harford County Dept. of Social Services, 384 Md. 213 , 862 A.2d 1026 (2004), which was decided after the ruling of the circuit court in the case at bar, the Court of Appeals rejected the proposition that “any random act by a parent could be called child abuse if a child were inadvertently ⁶⁴⁰ injured.” Id. at 231 , 862 A.2d 1026 .

The Taylor opinion was based upon the following operative facts: On the afternoon of November 10, 2002, while appellant was attempting to take a nap on a couch in his home, “L” approached him and asked him to help her with a problem she was having with a computer. Appellant told “L” that she would have to wait until after he had finished his nap. While he was still in the midst of his nap, “L” for a second time approached him about fixing the computer problem. Appellant once again told her that she would have to wait, admitting that this time he “raised his voice and yelled at her.” Later that afternoon, apparently unwilling to wait further, “L” woke appellant for a third time, once more asking him for his help.

Appellant, who had by this time grown irritated at his daughter, got up from the couch and told her that she would have to wait until he finished his nap. While telling “L” this, “to accent his point,” appellant kicked a footstool that was in front of the couch. He had intended to kick the footstool into the couch but instead the kick propelled the footstool over the couch and into the air, where it eventually collided with his daughter, who happened to be standing behind the couch. The footstool hit “L” in the face, causing her nose to bleed and her jaw to be sore, (footnotes omitted.) Taylor, 384 Md. at 216-17 , 862 A.2d 1026 .

Based on these facts, the Court vacated and remanded the case for re-examination of the finding of indicated child abuse. Judge Cathell, writing for the Court, stated: The threshold question ... in a case such as this is whether the act causing injury to a child was done with an intent to injure or was done recklessly and injury resulted. In the case sub judice, intent is relevant only insofar as determining whether there was an intent actually to injure the child. Therefore, by solely invoking a foreseeability of harm test, a concept inextricably tied to a general negligence analysis, in deciding whether [appellee] HCDSS’s finding of indicated child physical abuse was appropriate, the ALJ applied an improper standard to the facts before him. ⁶⁴¹ * * * ... if we were to abide by the methodology by which the ALJ interpreted § 5-701 ... and the pertinent COMAR regulations, it appears that any intentional act by a parent or caretaker which has the unintentional consequence of harming that person’s child would amount to child abuse, and result in the parent being placed on the central registry of individuals responsible for child abuse, basically creating a strict liability standard for parents or caretakers, who unintentionally injure their children....

We doubt that either § 5-701 of the Family Law Article or COMAR 07.02.07.12 intends for such a draconian strict liability standard always to attach to the intentional acts of parents or caretakers who unintentionally injure their children. Part of the blame may lie with the unfortunate wording of COMAR 07.02.07.12C(2)(a)(i) in that most acts, whether or not they have unintended consequences, are intentional. For instance, if someone pushes a door open without realizing someone is just on the other side, and then the door slams that other person in the face, the act of opening the door cannot be said to have been either accidental or unintentional, although the injurious consequences of that act may have been just that. Under the ALJ’s use of “foreseeability,” if an act occurs that results in injury to a child that injury would be foreseeable because the injury occurred.

Another example would be those instances where drivers have run over other persons as they operated vehicles in reverse. The foreseeability of the drivers’s actions would be very relevant in a negligence tort context even though there was no intent to injure. However, under the ALJ’s analysis, if the driver was a parent and the person injured his or her child, the foreseeability standard of negligence would be transmogrified into intent to injure the child and the parent would forever be branded a child abuser. We do not believe that was the intent of the Legislature.

We hold that, under the circumstances here present, the intentional act must be shown to have been either reckless ⁶⁴² in its nature or deliberately intended to harm the child in order for a finding of “indicated child abuse” to be made. ... In respect to intent, it is material whether there was “intent” to injure “L.” There was no direct evidence proffered, other than the act of kicking the footstool, that contradicted the evidence proffered by appellant that he did not intend to injure his daughter. The correct standard therefore was unrelated to intent to injure, but whether appellant’s actions were “reckless. ” ... (Emphasis added.) Taylor, 384 Md. at 230-33 , 862 A.2d 1026 .

The Case at Bar We are persuaded that the following principles have been established by the statutes, regulations, and cases set forth above: 1. The Maryland General Assembly has expressly codified the parent’s common law right to impose “reasonable corporal punishment, in light of the age and condition of the child.” 2. A finding of “indicated child abuse” is not “appropriate” when the evidence establishes that the child’s parent imposed corporal punishment that left the child with an injury unless “[t]he nature, extent, and location of the injury indicate that the child’s health or welfare was harmed or was at substantial risk of harm.” 3. Under COMAR 07.02.07.12(C), a finding of “ruled out child abuse” would be “appropriate” even though an observable injury has resulted from corporal punishment that was intentionally imposed.

This regulation expressly requires the consideration of other “reasons,” such as (1) the reasonableness of the alleged abuser’s expectation that no injury would result from the punishment, (2) the fact that the child’s injury did not require medical treatment, and (3) the lack of expert testimony on the issue of whether the observable injury caused either “harm” or “substantial risk of harm” to the child’s “health or welfare.” ⁶⁴³ 4. A finding of “indicated child abuse” may be “appropriate” when the evidence establishes that the child’s parent imposed corporal punishment that left the child with an injury “[t]he nature, extent, and location of [which] indicate that the child’s health or welfare was harmed or was at substantial risk of harm.” (a) Taylor, supra, makes it clear that an “indicated” finding is certainly appropriate when the parent intended to cause such an injury. (b) Vann, supra, makes it clear that an “indicated” finding is also appropriate when, even though the parent did not intend to cause such an injury, the parent imposed corporal punishment under circumstances in which it is likely that such an injury would result from the punishment imposed. 5 (c) Taylor, supra, also makes it clear that an “indicated” finding is appropriate when, even though the parent did not intend to cause such an injury, the parent imposed corporal punishment with reckless indifference to the ⁶⁴⁴ issue of whether the punishment would produce such an injury. 6 Applying these principles to the ALJ’s factual findings in the case at bar, 7 we begin with the Taylor Court’s “threshold question,” which requires a determination of “whether the act causing injury to [appellee’s] child was done with an intent to injure or was done recklessly and injury resulted.” A review of the record makes it clear that appellee did not swing at the back of her son’s head (1) with intent to injure him, 8 or (2) with knowledge that the likely result of her action would be an injury “[t]he nature, extent, and location of [which] indicate ⁶⁴⁵ that the child’s health or welfare was harmed or was at substantial risk of harm,” or (3) with reckless indifference to the issue of whether her action would cause such an injury. We therefore agree with the circuit court that appellee’s conduct on the occasion at issue did not constitute “indicated child abuse.” JUDGMENT AFFIRMED; APPELLANT TO PAY THE COSTS.

Concurring Opinion by DAVIS, J. Dissenting Opinion by MOYLAN, J. Dissenting Opinion by EYLER, DEBORAH S., J. Concurring Opinion by DAVIS, J. in which ADKINS, KRAUSER, WOODWARD, THIEME, JJ. join. The question as framed before this Court, by appellant, Department of Human Resources, Anne Arundel County Department of Social Services is, “Did substantial evidence support the ALJ’s findings that Mrs. Howard struck her son in the eye, leaving a two-inch bruise, and that the incident constituted ‘indicated child abuse?’ ” More specifically, it posits, “When, as here, a parent deliberately strikes her child, and the child both sustains injury and is harmed or placed at substantial risk of harm, the law provides for a finding of ‘indicated child abuse’.... ” The majority opinion enunciates four benchmark principles distilled from Charles County Dep’t of Social Services v. Vann, 382 Md. 286 , 855 A.2d 313 (2004) and Taylor v. Harford County Dep’t of Social Services, 384 Md. 213 , 862 A.2d 1026 (2004), concluding that it is the child’s health or welfare that must be harmed, based on the nature, extent and location of the injury, rather than simply harm to the child. The majority premises these benchmark principles, in part, on the salient observations excerpted from Taylor to the effect that the threshold question, in that case, was whether the act causing injury to a child was done with intent to injure or was done recklessly and injury resulted and, referring to what ⁶⁴⁶ amounts to strict liability for intentional acts which result in harm to the child, that it was doubtful that either § 5-701 of the Family Law Article or COMAR 07.02.07.12 intends for such a draconian standard to attach. Finally, the majority quotes the Taylor Court’s characterization of the wording of COMAR 07.02.07.12C(2)(a)(i) as “unfortunate.” We are tasked, on this appeal, with answering the above quoted question raised by appellant.

The majority opinion, in my judgment, within the constraints of the COMAR regulation requiring that the basis of the finding be the nature, extent and location of the injury, fully and completely addresses the issue as it should have been framed in considering the question of harm or risk of harm to the child’s health and welfare, rather than simply whether the child sustained an injury and was harmed, as the issue was framed by appellant. Although content that our review has been deftly, fully and adequately discharged by the majority opinion, I write separately because I believe the particular—but not peculiar— facts in this case raise issues regarding the articulation as well as the implementation of the child abuse statute and pertinent regulations. I HARM CAUSED BY UNINTENDED ACT The majority accurately represents, in its fourth benchmark principle, that Taylor holds that an indicated finding is appropriate “when the parent intended to cause such an injury.” While we are constrained by what Taylor refers to as the “unfortunate” wording of the COMAR regulation, I perceive no difference between application of the holding in Taylor , which admittedly involved an intentional act not directed at the child and an act, not patently reckless, where the consequences of the act are not intended by the caregiver. The specific language, quoted from Taylor by the majority, which I believe applies with equal force to the facts of this case, is, “We hold that, under the circumstances here present, the intentional act must be shown to have been either reckless in ⁶⁴⁷ its nature or deliberately intended to harm the child in order for a finding of ‘indicated child abuse.’ ” 9 Notably, child welfare investigator, Clare Poussard, testified on cross-examination before the administrative law judge regarding the nature of the incident at issue: Q. So, you do believe it was an accident that Alex got eventually hit in the eye?

A. Eventually, yes. Q. Okay. And when Alex told you that it was an accident, did you believe him? A.

(No response) Q. You testified that Alex told you and it’s also in your report that Alex told you, I think it was on 4/4, Alex stated that his mother hit him but he said it was accidental? A. Yes, I was told that. Q. Did you believe him? A. Yes.

At a later point in the proceedings before the ALJ, Ms. Poussard acknowledged the lack of a uniform policy regarding the acts which warrant a finding of indicated child abuse: JUDGE: So, when you answered that there really are no guidelines, you meant there really are no guidelines? I mean, in that Ms. McClintick was attempting to get guidelines, there really are not guidelines? Is that correct to say that you’re going to assess a case individually and decide that case— WITNESS: Yes, yes. JUDGE: And so in one case the fact that it was the head might or might not influence you, in another case the fact that there was an injury might or might not— WITNESS: Yes, case specific. ⁶⁴⁸ JUDGE: So, when you answered on redirect, and this is what you said on redirect, you basically said in response to Ms. Light’s question that the child was injured in the course of physical discipline and, therefore, it was indicated child abuse.

Do you still stand by that statement? WITNESS: Yes, because I think that it’s still all the same thing. And when she hit him in the head during physical— * * * WITNESS: Correct. No, it would have to be case specific.

JUDGE: So, you’re basically retracting what you said on redirect? WITNESS: I guess, I mean, at this point— On re-cross examination, Poussard answered in the negative when asked: Q. Let’s assume that you were aware of the fact that appellee slapped Alex in the head with her knuckles but she didn’t leave any mark, and you were investigating this incident because maybe you were present with Alex, would you find child abuse indicated based on these facts? A. No. Notwithstanding the acknowledgment by the child welfare investigator that she believed the incident was an accident, as undisputed by anyone involved in these proceedings, the following colloquy at oral argument before this Court sitting in banc is most telling: [THE COURT]: Ms. Barnes, I know you’re almost out of time, but I’m hung up on a sentence in your supplemental memorandum that seems to me to support the other side and after quoting the COMAR provision about ruling out child abuse if the act causing the injury was accidental or unintentional, you say “This regulation as the Court of Appeals noted was promulgated to reflect legislative intent that a parent not be labeled a child abuser as a result of unintentionally harming a child.” ⁶⁴⁹ [APPELLANT’S COUNSEL]: Correct. [THE COURT]: And isn’t the evidence in this case undisputed that Ms. Howard unintentionally injured the child? [APPELLANT’S COUNSEL]: I don’t believe so. I believe she intentionally struck the child to cause discomfort and pain.

What distinguishes this very clearly from the Taylor scenario and from that regulation and I concede that we inartfully drafted that regulation, was the situation where a parent takes an action and has no intention of even making contact with the child, backing up the car, the hammer, the slamming open the door, the kicking the stool onto the couch. In that situation, if a child were to come onto the scene and be injured, most of us would agree that the legislature never intended that accident to be called child abuse. Outside of that scenario, the agency understood the legislature to be requiring a finding when the elements were satisfied. This is not a situation where the injury was accidental.

If I reach over and hit opposing counsel and she says the injury ... [THE COURT]: Let me ask you a question, I know you have very limited time. Clarify this for me. But corporal punishment is entirely lawful? Is it not in this State?

In other words, what she was doing was lawful as kicking a stool or anything else. Isn’t it correct. I mean the act itself was lawful, really we’re talking about the consequence of the act. The difference between Vann , once you look at it from that perspective, between Vann and Taylor , both are engaging in what kicking a stool or in administering corporal punishment, both are lawful acts.

What moves it beyond lawful, perhaps, or indicated child abuse is the consequences. Is that correct? And if we’re only looking at the consequences, then the consequences are entirely inadvertent, what policy would be served for ñnding that child abuse? It was a lawful act until the damage was done.

Just like Vann , were a lawful act ... [APPELLANT’S COUNSEL]: Swinging the belt and then striking the child. Right. ⁶⁵⁰ [THE COURT]: No, no, no, swinging at a belt and chasing him around is that in itself, now we all agree that if he’s hit in the back of the head, whatever, and there’d been no injury, it wouldn’t be child abuse. The act itself was lawful. Corporal punishment. [APPELLANT’S COUNSEL]: Okay, first Ms. Howard contended that it wasn’t corporal punishment, that she simply reacted instinctively.

I don’t believe that corporal punishment is applicable, but let’s suppose that she was trying ... [THE COURT]: I have to say that most corporal punishment is usually administered instinctively. We don’t give a lot of thought of it, I’m sure in most instances. [APPELLANT’S COUNSEL]: But let me say that the difference is in reasonableness and although this court might conclude that there’s a difference in terms of swinging a belt with a buckle, it is equally reasonable to ... [THE COURT]: I know, but I’m trying to figure out what policy you serve when you have an entirely lawful act which could be smacking a child, if you, if we consider and I think it’s already been admitted, that had they simply slapped her [sic] in the back of the head, and there’d been no injury, there wouldn’t be child abuse. What policy is served by taking an individual and putting them on an indicated child abuse [sic] when the injury itself was entirely inadvertent? [APPELLANT’S COUNSEL]: I understand the question. Here is the answer.

If there was no injury, we don’t even get within child abuse so we don’t ever look at whether it was reasonable. Once we have the injury, we look at whether the corporal punishment was reasonable corporal punishment. It is only reasonable corporal punishment that is lawful in the State of Maryland. A fact-finder could certainly conclude as, I believe this AL J did, that when you use the back of your knuckle, you don’t even look, you swing at the head and you swing with such substantial force that you leave a bruise one by two inch, you are no longer committing a lawful act.

That under the reasonableness analysis, this falls outside the.... ⁶⁵¹ [THE COURT]: Let me ask you a question. If you slap the back of the head, with a knuckle, would that have been child abuse, you know, with no injury? [APPELLANT’S COUNSEL]: With no injury, you’re outside of the statutory definition, so we never get to the ... [THE COURT]: Okay, so we get to what would be an accidental injury. The person tunned their head. She did not intend, to injure her child’s eye at all.

The question presented to the Court of Appeals in Taylor v. Harford County Dep’t of Social Services, 384 Md. 213, 215 , 862 A.2d 1026 (2004), was: I. Did the Maryland legislature when it adopted [Md.Code (1984, 1999 Repl.Vol., 2004 Supp.), §§ 5-701 et seq. of the Family Law Article] and COMAR 07.02.07 et seq. intend that an accidental or unintentional injury caused to a child by a parent or caregiver would be considered child abuse? Appellant argues that the Court’s holding that the intentional act must be shown to have been deliberately intended to harm the child applies only to instances in which the caregiver does not intend to strike the child. When queried by a member of this bench about the policy to be served where the caregiver is engaged in a lawful act and the consequences are not only unintended, but also inadvertent, the only answer offered by counsel for appellant was that the injury, without any consideration of the attendant circumstances, warranted a finding of child abuse. Worthy of reiteration at this point are the following: First, as noted, supra, and in the majority opinion, the facts are not disputed by the parties and were simply adopted by the ALJ.

Thus, as observed by the majority, the fact-finding of the ALJ was not clearly erroneous, given that there was only one version of what occurred. The most significant of those undisputed facts, as acknowledged by the child welfare investigator and appellate counsel, was that appellee did not intend to strike her son above the eye. The significance therein is demonstrated by the fact that, had that been her intention, unquestionably, her position, at best, would be rendered spuri ⁶⁵² ous. It appears from the proceedings before the ALJ, and judicial and appellate review, that the determination of child abuse, according to appellant’s reading of COMAR, is merely a check off procedure, first, of whether there is an injury, then, whether the nature, extent and location of that injury is sufficient to sustain a finding.

Where there is a bruise lasting forty-eight hours, a child abuse finding is justified. The facts, as evidenced by the above excerpts from prior proceedings, I believe, should not support a finding of indicated child abuse where a parent engages in a lawful act, not found to be reckless, and inadvertently causes an unintended injury in the administering of corporal punishment. Although Taylor was confined to the facts of that case, I believe the general precept enunciated should also apply to the case at hand. II HARM OR SUBSTANTIAL RISK OF HARM TO THE CHILD’S HEALTH OR WELFARE As indicated above, the parties to these proceedings have loosely referred to harm or risk of harm to the child.

Family Law Article, § 5—701(b)(1) defines child abuse, however, as physical or mental injury “... under circumstances that indicated that the child’s health or welfare is harmed or at substantial risk of being harmed.” COMAR 07.02.07.12. After the child welfare investigator indicated that it was the policy of the Department to discourage any “physical discipline,” the administrative law judge, seeking clarification as to how appellant adhered to the “health or welfare” component of the statute, engaged in the following colloquy with the child welfare investigator: JUDGE: I have some questions. Are you saying that any time a child would be injured in the course of the administration of physical discipline by a caretaker you would find that abuse was indicated? WITNESS: The child would have to be harmed or placed at substantial risk of harm in combination with that. ⁶⁵³ JUDGE: And what in this case, in particular, convinced you that the child was either harmed or placed at substantial risk of harm?

WITNESS: The bruising to his—the bruising to his eye region and the fact that she went to hit him in the head but it just so happened that her knuckles accidentally caught his eye. JUDGE: Okay, when you first bey an cross examination, [appellant’s counsel] asked you if you believed Alex was at risk of harm from his mother, and you said you didn’t believe he was at risk of harm from his mother. Would you clarify that answer to me, since you found.... WITNESS: And correct me if I’m wrong but I believe that I was getting questions on him in the home and why he didn’t go—this was on why he didn’t go to the doctors because I didn’t think— JUDGE: I want to know why you said that you didn’t believe he was at risk of harm from his mother.

WITNESS: But I don’t know—why he wasn’t at risk of harm from his mother? But I do think that he was injured by his Mom, that’s how I got my finding. JUDGE: That’s what [sic] confusing me. If he was injured, why was he not at risk of harm?

WITNESS: I’m not sure what that question was in response to. JUDGE: All right. When you were being questioned further, you said that you believed that she intended, Ms. Howard intended to cause physical harm because she chose to him [sic] in the head. WITNESS: Yes.

JUDGE: Then you told her that it was not illegal to use physical discipline but it is illegal to leave a mark. And you told her that it was okay to hit with an open hand. So, is it your statement that if she hit him in the face with an open hand and didn’t leave a mark, that would be fine? WITNESS: I wouldn’t have indicated child abuse.

If there wasn’t an injury to his face and he was hit in the head ⁶⁵⁴ with an open hand, I would never have indicated child abuse. There wouldn’t have been a current incidence of physical injury to his face. JUDGE: Is it more the area in which she hit him or the fact that she left an injury? I’m a little bit confused.

WITNESS: It’s both, the combination of the head and the injury. And I think it’s a different thing to be struck on your buttocks than it is your head. The risk of harm is significantly greater if you hit a child in the head than it is on their buttocks. JUDGE: So, it’s the area she chose?

WITNESS: Uh-huh. JUDGE: And the fact that an injury actually occurred, is that what you’re saying? WITNESS: (No audible response.) JUDGE: If she hit him in the buttocks and left a bruise and he want [sic] to school and complained, showed the guidance counselor, look what my mother did to me, she hit me and left this bruise, would you find it indicated? WITNESS: If there were indications that the child was in pain, if it hurt for the child to sit down at school and he couldn’t concentrate because he had extreme amounts of pain in his rear, then there would have to be something— and depending on how big the bruise was on his buttocks.

If this was his entire butt was bruised and he couldn’t sit or even if it was a small bruise and still he couldn’t sit, it was interfering with him learning. Counsel for appellant at the in banc hearing before this Court was again asked to articulate her interpretation of the “health” or “welfare” component of the statute: [THE COURT]: How do you define health and welfare? [APPELLANT’S COUNSEL]: With difficulty, however. [THE COURT]: I mean, are we just talking about a simple injury? [APPELLANT’S COUNSEL]: No ... [THE COURT]: Go ahead. ⁶⁵⁵ [APPELLANT’S COUNSEL]: The statute requires injury-plus. So, obviously injury does not equate with harm. Harm has to mean something additional and I would say, when you have lingering pain, when you have lingering evidence where the child was, there was any evidence the child couldn’t sit still the next day after they were paddled or ... [THE COURT]: And you’re satisfied that health and welfare can be simply the physical component?

It’s nothing more than that, it has nothing to do with the child’s well-being or long term well-being, but it’s just the physical. [APPELLANT’S COUNSEL]: I believe it can be both. In this case, there was no evidence regarding long term effects, however, there are some children, for example, who are terrified to go home and that would be an emotional reaction. [THE COURT]: But health and welfare applies in each and every case. [APPELLANT’S COUNSEL]: It does and sometimes, that’s satisfied by the extent and nature of the injury. Sometimes, that’s satisfied simply by the location of the injury. Sometimes, it’s by the child’s residual psychological effects.

It’s a poorly worded statute in that sense, but our regulation says, look at the nature extent and location of the injury. [THE COURT]: So your position is that you can have harm to the health and welfare with nothing more than a physical injury? [APPELLANT’S COUNSEL]: I believe that’s what the statute intended ... [THE COURT]: And the harm of the health or welfare could be as short as two minutes. As long as it’s there, it’s indicated child abuse. [APPELLANT’S COUNSEL]: The injury ... ⁶⁵⁶ [THE COURT]: It’s like a theft case, as soon as the guy moves the screwdriver from the hardware store shelf, he is guilty of theft. [APPELLANT’S COUNSEL]: Many many ALJs have turned to their dictionary to define harm to health or welfare and I think all we’ve arrived at this point is that it’s something more than the injury, something lingering, something and in the regulations, you look at the nature, extent and location of the injury as it is something more. [THE COURT]: Well, what do you have more than injury in this case? [APPELLANT’S COUNSEL]: We have a very delicate area of the body that had a bruise two days later and a swelling a day later. [THE COURT]: That’s the injury, though. [APPELLANT’S COUNSEL]: And the AL J concluded that that was also harm because it persisted for two days, but I think more important for this Court’s evaluation, any time you strike a child in the facial region and leave such an injury in the eye area, you have exposed that child to a substantial risk of harm. [THE COURT]: So your position is the injury itself in the appropriate case, the observed injury of some duration supports the finding of harm or risk of harm, substantial risk of harm. [APPELLANT’S COUNSEL]: Yes, yes. [THE COURT]: Can there be injury that’s simply infliction of pain? Essentially, the Department relies, as it must, on the nature, extent and location of the injury to establish the health or welfare component. However, the fact that the injury forms the basis for the determination of “health or welfare” does not obviate the requirement to make a determination if indeed the child’s health and welfare have actually been harmed. ⁶⁵⁷ Regarding the circumstances which resulted in the injury, the manner in which appellee struck her son has been mischaraeterized.

The child welfare investigator and the ALJ referred to the appellee’s administration of a “blow” to the head. Appellee, without contradiction from anyone, including Alex, maintained that she “popped him upside the head.” She specifically described her hand as having been open, with her fingers bent slightly simulating a claw. According to appellee, she did not, as has been suggested,