Fields v. Department of Human Resources Howard County Department of Social Services

SALMON, J. In the summer of 2005, the Howard County Department of Social Services (“HCDSS”) found Clyde Fields “responsible for indicated child abuse.” 1 Fields filed an appeal of HCDSS’s decision with the Office of Administrative Hearings (“OAH”). The OAH ruled that Fields was twenty days late in filing his appeal and, due to his late filing, dismissed the appeal. Fields filed a petition for judicial review in the Circuit Court for Howard County. The circuit court affirmed the OAH’s order of dismissal.

Fields advances the argument in this appeal that the procedures adopted by HCDSS that are set forth in COMAR 07.02.27.05A, impose upon parties seeking to pursue appeals a burden that is not allowed by statute. We agree with Fields ¹⁵⁴ and hold that the procedural steps for pursuing an appeal set forth in the aforementioned COMAR regulation as implemented by HCDSS are more burdensome than the appeal process described in Section 5-706.1(b)(l) of the Family Law Article (“FL”) of the Maryland Code (1999 RephVol.). L FACTS Fields received a “Notice of Action Opportunity to Appeal” (“notice”) from appellee, HCDSS. The notice was dated September 6, 2005, and informed Fields that HCDSS had found him responsible for “indicated” child sexual abuse.

Insofar as is here relevant, the notice also said: IF YOU HAVE BEEN FOUND RESPONSIBLE FOR INDICATED CHILD ABUSE OR NEGLECT: • You may appeal the indicated finding by requesting, within 60 days of the date of this notice, a hearing at the Office of Administrative Hearings. • If you do not file an appeal within 60 days, are unsuccessful in your appeal, or are convicted of a crime arising out of the alleged child abuse or neglect, you may be identified as responsible for indicated child abuse or neglect in a central registry, which is a part of the agency’s confidential computerized database. On the reverse side of the notice, the appeals process was described: To request a contested case hearing: You must return the enclosed Appeal Request to the Department. The Department will promptly mail you a Contested Case Hearing Request form. You must submit the Contested Case Hearing Request form, with a filing fee of $50.00, to the Office of Administrative Hearings within 60 days on the front of this notice[, which was September 6, 2005].

Fields returned the Appeal Request form, checking the box that read: I am appealing a finding of INDICATED child abuse or neglect. Please send me a Contested Case Hearing Re ¹⁵⁵ quest form. I understand that I must return the Contested Case Hearing Request form to the Office of Administrative Hearings not later than 60 days after the date of the Notice of Action (see date above). (Emphasis added.) It is unclear from the record when Fields mailed the Appeal Request form or when HCDSS received it.

The record does show that it was received on or before October 12, 2005, because HCDSS mailed a Contested Case Hearing Request form (“contested case form”) to Fields on October 12. Fields received the contested case form on October 15, 2005. At the top of the form were the following words: To file an appeal, complete this entire form. Provide all requested information, sign the form, and mail it to the above address.

You must include with this appeal form a $50.00 filing fee made payable to the Maryland State Treasurer and a copy of the “Notice of Action/Opportunity for an Appeal” form that you received from the Department of Social Services. Fields retained an attorney who mailed the contested case form, the notice, the $50.00 filing fee, and a letter signed by his client on November 23, 2005. The OAH received the contested case form on November 28, 2005. In the letter attached to the contested case form, Fields said: Unfortunately, because these forms were mailed to me on [October 12, 2005], I was not able to retain a lawyer to represent me until November 22, 2005, and as a result of which the contested case hearing request forms where [sic] not filed within sixty (60) days of each of the dates of notice of actions which are enclosed herewith.

Unfortunately, I believed that I had sixty (60) days from the date of the contested case hearing request forms (October 12, 2005) were mailed to me to respond. I would hope that this inadvertence on my part does not jeopardize my appeal in the above cases as I have a meritorious defense to each of the DSS findings of Child Abuse in each of the above ¹⁵⁶ matters.[ 2 ] Consequently, I have requested that my attorney submit the Contested Case Hearing Request forms now in the hopes that this appeal can be perfected. By written order of an Administrative Law Judge (“ALJ”), OAH dismissed the appeal because Fields failed to submit the contested case form to OAH prior to the expiration of the sixty-day period, which the ALJ calculated to be November 8, 2005. 3 ANALYSIS Title 5 of FL is entitled “Children.” Subtitle 7 of Title 5 concerns “Child Abuse and Neglect.” Section 5-706.1 of FL provides that an individual who has been notified of a finding by a local department of social services of “indicated or unsubstantiated abuse or neglect” of a child can contest such findings. FL Section 5-706.1(b)(l) states: In the case of a finding of indicated abuse or neglect, an individual may request a contested case hearing to appeal the finding in accordance with Title 10, Subtitle 2, of the State Government Article of the Maryland Code (2004 Repl.

Vol.) (“SGA”) by responding to the notice of the local department in writing within 60 days. (Emphasis added.) The provision in Title 10, Subtitle 2, of the State Government Article (“SGA”), that is here relevant is Section 10-207, which provides, in pertinent part: § 10-207. Notice of agency action. (a) In general. — An agency shall give reasonable notice of the agency’s action. ¹⁵⁷ (b) Contents of notice. — The notice shall: (1) state concisely and simply: (i) the facts that are asserted; or (ii) if the facts cannot be stated in detail when the notice is given, the issues that are involved; (2) state the pertinent statutory and regulatory sections under which the agency is taking its action; (3) state the sanction proposed or the potential penalty, if any, as a result of the agency’s action; (4) unless a hearing is automatically scheduled, state that the recipient of notice of an agency’s action may have an opportunity to request a hearing, including: (i) what, if anything, a person must do to receive a hearing; and (ii) all relevant time requirements; and (5) state the direct consequences, sanction, potential penalty, if any, or remedy of the recipient’s failure to exercise in a timely manner the opportunity for a hearing or to appear for a scheduled hearing.

As can be seen, Section 10-207 simply instructs the agency as to the information it must provide to the person against whom the agency has taken an adverse action. Nothing in Title 10, Subtitle 2, of SGA gives the local department of social services the authority to require that a person who wishes to contest an agency decision do anything more than what FL Section 5 — 706.1(b)(1) requires, i.e., respond to DSS’s notice (of a finding of abuse, etc.) in writing within sixty days. Section 5-714(h) of FL states that the Secretary of Human Resources “shall adopt regulations necessary to protect the rights of individuals suspected of abuse or neglect.” Purporting to act under the mandate set forth in Section 5-714(h), COMAR 07.02.26.05 was adopted by the Secretary. It states, in relevant part: A. Indicated Child Abuse or Neglect.

An individual found responsible for indicated child abuse or neglect may appeal the finding by: ¹⁵⁸ (1) Requesting in writing an appeal form from the local department; and (2) Not later than 60 days after the date the local department issued the notice of action, returning the appeal form to the OAH with: (a) The required filing fee, and (b) A copy of the notice of action. C. Failure of a party to comply with the requirements in this regulation shall result in dismissal of the appeal. Fields contends that COMAR 07.02.26.05A, at least insofar as it has been implemented by the HCDSS, is invalid because it adds steps inconsistent with the statutory requirements set forth in FL Section 5-706.1, which only requires an individual to “request a contested case hearing ... by responding to the notice [provided by DSS] in writing within 60 days.” (Emphasis added.) According to Fields, the COMAR regulation, instead, not only requires that a petitioner notify DSS of their intention to file an appeal, but (a) a petitioner must request an appeal form from the agency the petitioner is filing the appeal against, (b) the agency that is having the appeal filed against it must then respond to the petitioner with the “appeal form” even though there is no time limit on how long the agency has to respond to the petitioner’s request, and (c) the petitioner must then (hope) to file this form and the required fee within 60 days. Fields takes the position that his appeal should not have been dismissed because he did request a contested case hearing to appeal the finding by responding to the notice of the local department within sixty days.

In Prince George’s County Department of Social Services v. Knight, 158 Md.App. 130, 140 , 854 A.2d 907 (2004), we had occasion to analyze COMAR 07.02.26.05A. Knight had received a letter dated March 4, 2002, stating that she had been found responsible for indicated