Hayward v. Department of Human Resources

RAYMOND G. THIEME, JR., Judge, Retired, Specially Assigned. This appeal from the Circuit Court for Baltimore City arises from the denial by the Department of Human Resources for Baltimore City’s Department of Social Services of the requests of two employees for a “conference” pursuant to § 5-706.1(c)(1) of Md.Code (2006 Repl.Vol.), Family Law Article (“FL”). Appellants Angela Hayward, an instructional aide, and William Dixon, a teacher, were employed by the Baltimore City Public School System (“BCPSS”) at all times relevant to this appeal. In December 2005, the Department of Human Resources for Baltimore City’s Department of Social Services (the “Department”) received child abuse allegation reports against both appellants.

After Department investigation, both cases were concluded “unsubstantiated.” Appellants requested a “conference” to review the Department’s redacted investigation records and potentially request corrections and/or supplements, pursuant to FL § 5-706.1(c)(1). The Department denied both requests on the ground that the findings were “unsubstantiated” and neither appellant was “found responsible” for the alleged child abuse and so not entitled to a conference. Denial of the conference request left appellants unable to appeal. Subsequently, appellants filed for Writ of Mandamus in the Circuit Court for Baltimore City, each requesting that the court reverse the Department’s decision and order that it must grant the request for a conference in compliance with FL § 5-706.1(c).

The Department moved to dismiss in both cases, after which appellants moved for summary judgment. The cases were consolidated, and on October 2, 2006, the court granted the Department’s motion, disposing of the cases and leaving appellants with no alternative legal remedy. Subsequently, appellants appealed to this Court and jointly moved to consolidate. This appeal duly followed and appellants pose these two questions for our review: ⁴⁰⁶ QUESTIONS PRESENTED I. DO APPELLANTS HAVE THE RIGHT TO APPEAL THE DEPARTMENT’S UNSUBSTANTIATED FINDINGS, PURSUANT TO MD.

CODE FAM. LAW § 5-706.1(c), EVEN THOUGH THEY WERE NOT “FOUND RESPONSIBLE” FOR UNSUBSTANTIATED CHILD ABUSE?

II

DID THE CIRCUIT COURT FOR BALTIMORE CITY ERR IN DISMISSING APPELLANTS’ COMPLAINTS FOR WRIT OF MANDAMUS? For the following reasons, we answer “yes” to both questions. STATEMENT OF FACTS I. Ms. Angela Hayward Hayward has been employed by BCPSS since 1991 and beginning the 2005-06 school year worked as a Special Education Instructional Aide at Lafayette Elementary School. On December 14, 2005, in a report to the Department, Hayward was accused of physically abusing one of her students.

Department caseworker Jacqueline Martin was assigned to investigate, met with Hayward and counsel on February 2, 2006, and by letter informed her the allegations were found “unsubstantiated” on May 15, 2006. Hayward was told that there was insufficient evidence and that she was not named as the alleged abuser. Appellant’s request for conference pursuant to FL § 5-706.1(c) followed.

II

Mr. William Dixon Mr. Dixon has been employed by BCPSS since 2000 and beginning the 2005-06 school year worked as a teacher at Govans Elementary School. On December 26, 2005, Mr. Dixon was accused of physically abusing one of his students by way of a report to the Department. Department caseworker Lance Green was assigned to investigate, met with Mr. Dixon and counsel on December 22, 2006, and by letter informed Dixon the allegations were found “unsubstantiated” on April 6, 2006. Dixon was told that there was insufficient evidence and ⁴⁰⁷ that he was not named as the alleged abuser.

Appellant’s request for conference pursuant to FL § 5-706.1(c) followed. Both appellants requested separately that the Department provide them with a conference to review the records pursuant to FL § 5-706.1(c), 1 and both were denied. 2 The Department sent letters sent to appellants informing them of that denial. The Department’s denials were sent by Anis Ahmed, Special Coordinator, Intake and Assessment and read: 3 We are in receipt of your letter which requests an appeal regarding the decision of “unsubstantiated” child physical abuse against your client, [appellant]. As a result of your request, I have reviewed the case record and found that your client [appellant], was not identified as the alleged abuser.

Only an individual who is “identified” has the right to appeal the department’s decision. COMAR 07.02.26.05 provides that “An individual found responsible for indicated child abuse or neglect may appeal the finding____” Since your client, [appellant], was not identified as the responsible party [he/she] is not eligible for an appeal. In response, appellants respectively filed complaints for Writ of Mandamus in the circuit court. STANDARD OF REVIEW In Prince George’s County Dept.

Of Social Services v. Knight, 158 Md.App. 130 , 854 A.2d 907 (2004), this Court stated: ⁴⁰⁸ “A court’s role in reviewing an administrative agency-adjudicatory decision is narrow ...; it ‘is limited to determining if there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law.’ Marzullo v. Kahl, 366 Md. 158, 171 , 783 A.2d 169 (2001) (citations omitted). “We respect the expertise of the agency and accord deference to its interpretation of a statute that it administers ...; however, we ‘may always determine whether the administrative agency made an error of law.’ ” Watkins v. Sec’y, Dep’t of Pub. Safety & Correctional Services, 377 Md. 34, 46 , 831 A.2d 1079 (2003) (citation omitted). When considering the validity of a regulation promulgated by an administrative agency, the prevailing standard of review is whether the regulation is “consistent with the letter and spirit of the law under which the agency acts.” The Court of Appeals has consistently held “where the Legislature has delegated such broad authority to a state administrative agency to promulgate regulations in an area, the agency’s regulations are valid under the statute if they do not contradict the statutory language or purpose.” Gleneagles, Inc. v. Hanks, 156 Md.App. 543 , 847 A.2d 520 (2004). Id. at 137 , 854 A.2d 907 (citations omitted); see also Fields v. Dept. of Human Resources, 176 Md.App. 152 , 932 A.2d 824 (2007).

DISCUSSION I. FL § 5-706.1(c) states, in pertinent part: (c) Conference to review redacted record on finding of unsubstantiated abuse or neglect — (1) In the case of a finding of unsubstantiated abuse or neglect, an individual may request a conference with a supervisor in the local ⁴⁰⁹ department by responding to the notice of the local department in writing within 60 days. (2) In response to a timely request for a conference, a local department supervisor shall schedule a conference, to occur within 30 days after the supervisor receives the request, to allow the individual an opportunity to review the redacted record and request corrections or to supplement the record. The statute is clear and mandates the “local department supervisor shall schedule a conference, to occur within 30 days after the supervisor receives the request, to allow the individual an opportunity to review the redacted record and request corrections or to supplement the record.” Id. There is no limiting language in the statute consistent with COMAR rule 07.02.26.05, cited in the Department’s letter.

In Montgomery County Dept. of Social Services v. L.D., 349 Md. 239 , 707 A.2d 1331 (1998) (holding individuals were entitled to full contested case hearings before their names were entered into Automated Master File (AMF) and Client Information System (CIS) databases as suspected child abusers and/or neglecters), the Court of Appeals stated, “[Wjhere the statutory language is plain and free from ambiguity, and expresses a definite and simple meaning, courts do not normally look beyond the words of the statute itself to determine legislative intent.” Montgomery County Dept. of Social Services briefly addresses the process established in FL § 5-706(c) and explains: [WJithin ten days of receiving the request for an administrative hearing, the local department is required to forward to OAH the request for the administrative hearing. § 5-706.1(c). See also § 5-706.2(b) (requiring the Department to forward to OAH all reports and records regarding the case upon the accused’s request for a hearing). If the local department has not changed its findings to “ruled out, ” the records must be transferred to the OAH and the accused can then request an in camera review of the full report or ⁴¹⁰ record by an ALJ “to determine the accuracy and sufficiency of the report or record.” § 5-706.2(a). 349 Md. at 248-49 , 707 A.2d 1331 (emphasis added). In the case at bar, the Department did not find the allegations of child abuse against Hayward or Dixon as “ruled out” or “indicated.” 4 It did find that both cases were “unsubstantiated,” with no particular individual found responsible for the alleged abuse.

The term “ ‘unsubstantiated’ means a finding that there is an insufficient amount of evidence to support a finding of indicated or ruled out.” FL § 5-701(y). Thus, the Department, in finding that abuse allegations were “unsubstantiated,” could not find them “ruled out” by definition, and in turn some level of suspicion remains. Appellee does not deny that the alleged abuse was not “ruled out,” but does contend that, because neither appellant was “identified as the alleged abuser,” as stated in both letters, they do not possess a statutory right to a conference or appeal. Under the rule of L.D., it is clear that without a finding of “ruled out” the individuals involved in a case of indicated or unsubstantiated child abuse or neglect maintain all rights set out in FL § 5 — 706.1(c)(1).

Additionally, in the words of appellee’s brief, “[i]t is ... well settled that ‘the construction of a law by the agency charged with its enforcement, acquiesced in by the legislature, is entitled to great weight and should not be disregarded except for the strongest and most urgent reasons.’ ” Bereano v. State Ethics Com’n, 174 Md.App. 146, 167 , 920 A.2d 1137 (2007) (quoting Jackson Marine Sales, Inc., v. State Dep’t of Assessments and Taxation, 32 Md.App. 213, 217 , 359 A.2d 228 (1976)). And further that “great deference” should be given to the administration’s interpretation of a FL § 5-706.1. The COMAR regulation at issue states, in pertinent part: ⁴¹¹ B. Unsubstantiated Child Abuse or Neglect. An individual found responsible for unsubstantiated child abuse or neglect may appeal the finding by forwarding to the local department, not later than 60 days after the date the local department issued the notice of action, a written request for a conference.

COMAR 07.02.26.05B (emphasis added). Conversely, in the words of the appellants’ brief, COMAR 07.02.26.05B operated on the basis of language not contained in FL § 5-706.1(c). Neither the phrase “found responsible,” nor the word “responsible” exists anywhere in FL § 5-706.1(c).... COMAR 07.02.26.05B conflicts with FL § 5 — 706.1(c)(1) by limiting the rights to appeal in unsubstantiated cases to individuals “found responsible,” whereas FL § 5 — 706.1(c)(1) contains no such limit.

In this conflict FL § 5-706.1(c) must prevail, and COMAR 07.02.26.05B may not be given effect to deprive Appellants of their rights under FL § 5-706.1(c). We agree that “great deference” should be given to the Administration’s interpretation, but we must note that CO-MAR regulations do not bear the same weight as the annotated code. “The Legislature enacts statutes. Administrative agencies adopt, amend and repeal regulations under the authority granted to them by statutes. Unless the Legislature has created an exemption, agencies must follow the procedures in the Administrative Procedure Act when adopting, amending or repealing regulations.” COMAR, Office of the Secretary of State, Division of State Documents, at http:// www.dsd.state.md.us/comar/comar.htm (last modified 15 January 2007).

In Cecil County Dept. of Social Services v. Russell, 159 Md.App. 594 , 861 A.2d 92 (2004), this Court discussed Family Law, Subtitle 7, Child Abuse and Neglect, and pointedly stated, “Where the language of a statute differs from relevant language in a departmental regulation, the statutory language must control.” Id. at 611 , 861 A.2d 92 . ⁴¹² In Knight , the Court of Special Appeals discussed the discrepancies