I.B. v. Frederick Cnty. Dept. of Soc. Services

Opinion by Sharer, J. Appellant, I.B. 1 , seeks reversal of an order of the Circuit Court for Frederick County affirming the grant of summary decision, entered by an Administrative Law Judge, finding an "indication of child neglect" sought by the Frederick County Department of Social Services (DSS), appellee. In his timely appeal, I.B., questions: (1) the sufficiency of the evidence to support a summary decision by the ALJ; (2) the failure of the ALJ to hold a hearing on his motion; and (3) whether intent is a requisite element of neglect under Maryland Code (1984, 2012 Repl. Vol., 2015 Supp.), Family Law Article (FL) § 5-701. 2 I. BACKGROUND The underlying facts are not in dispute. In July 2015, I.B. took his children to church, unintentionally leaving his infant daughter in her car seat in the back of the car, on a hot day with the front windows slightly open.

Authorities were called, who removed the child from the car. I.B. acknowledged that, while attending to the other children, he had forgotten that his daughter was in the car. The incident was reported to DSS, which initiated an investigation, ultimately making a finding of indicated 3 child neglect. 4 I.B. requested a contested case hearing pursuant to FL § 5-706.1(b)(1), but, as provided by the statute, that proceeding was stayed pending the outcome of the pending criminal case, in which I.B. was charged with neglect of a minor 5 and confinement of a minor in an unattended vehicle. 6 The State nol prossed the child neglect charge and I.B. pleaded guilty to confinement of a minor, a misdemeanor, subjecting the offender to both a monetary fine and imprisonment. He was afforded probation before judgment. 7 Following disposition of the criminal charges, the stay was lifted in the family law proceeding.

DSS moved for summary decision to dismiss the request for hearing based on the finding of guilt in the criminal proceeding, pursuant to FL § 5-706.1(b)(3)(ii). I.B. opposed the summary decision on the ground that the criminal charge was not similar to the family law neglect offense and that the criminal court did not find him guilty of neglect. The ALJ issued a summary decision granting DSS's motion, relying on the fact that I.B. (1) failed to dispute any evidence that the finding of indicated neglect was based on the same incident as the guilty plea charge, 8 and (2) the provisions of FL § 5-706.1(b)(3)(ii). 9 ALJ's Findings and Decision The ALJ's decision on the motion for summary decision was fully developed and supported in its written decision, but did not detail the sufficiency of the DSS's finding of "indicated neglect." Rather, the ALJ focused on what was undisputed and relevant to the question of whether dismissal of the administrative appeal was appropriate.

The ALJ found: 1. On July 27 [sic], 2015, the Local Department [DSS] received a report of an unattended child found alone within a car at 9:30 a.m. The car with the unattended child inside was parked at [I.B.'s] family church parking lot. 2. The unattended child found inside the car is the biological child of [I.B.]. 3.

The unattended child resided with [I.B.], [its] biological mother and siblings. 4. On August 12, 2015, the Local Department notified [I.B.] that it made a finding of indicated child neglect of the unattended child. 5. On September 22, 2015, the District Court for Frederick County, Maryland found [I.B.] guilty and convicted him for confining an unattended child, pursuant to Md. Code Ann., Family Law § 5-801 (2012). [I.B.] was sentenced to probation before judgment, with supervised probation ending on September 22, 2016. Based on those factual findings and the lack of evidence to the contrary, the ALJ determined that the undisputed evidence shows that [I.B.] was found guilty of a criminal charge that arose out of the incident of July 26, 2015.

The undisputed evidence also shows that the Local Department's finding of indicated neglect was based upon the same incident. Family Law section 5-801 ; Family Law 5-706.1(b)(3)(ii) (2012 Rpl. Vol.). I find, therefore, as a matter of law, that the Local Department's motion for summary decision must be granted.

COMAR 28.02.01.12D. I.B. sought judicial review of the ALJ's decision, which was affirmed by the circuit court. Appellant's Questions I.B. presents three questions for our review of the ALJ's dismissal of the administrative appeal of the finding of "indicated" child neglect. First, I.B. challenges the sufficiency of the factual record to support the ALJ's grant of the summary decision.

Second, he questions whether Maryland law requires a hearing to be held when one of the requisite elements for a finding of abuse or neglect is contested, and when the element in question was not adjudicated in the related criminal proceeding. Finally, I.B. asks this Court to determine whether an implied element of intent or scienter, found by case law in the related child abuse statute of the Family Law Article, exists in the neglect statute of that same article. Standard of Review We have recently explained the appropriate standard for reviewing agency decisions: It is "[b]ecause an appellate court reviews the agency decision under the same statutory standards as the circuit court," Consumer Prot. Div. v. George , [ 383 Md. 505 , 512], 860 A.2d 896 (2004) (quotations and citation omitted), that "we analyze the agency's decision, not the [circuit] court's ruling." Martin v. Allegany County Bd. of Educ. , [ 212 Md. App. 596 , 605], 69 A.3d 1224 (2013) (citation omitted).

We are " '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.' " W.R. Grace & Co. v. Swedo , [ 439 Md. 441 , 453], 96 A.3d 210 (2014) (quoting Bd. of Physician Quality Assur. v. Banks , [ 354 Md. 59 , 67-68], 729 A.2d 376 (1999) ). Mihailovich v. Dep't of Health & Mental Hygiene , 234 Md. App. 217 , 222, 170 A.3d 870 (2017), cert. denied , 457 Md. 396 , 178 A.3d 1241 (2018). The entry of a summary decision is, in our view, akin to summary judgment on review of which "we are concerned with whether there was a dispute as to any material fact and, if not, whether the movant was entitled to judgment as a matter of law." Casey v. Grossman , 123 Md. App. 751 , 765, 720 A.2d 959 (1998). It is to this end, that we must "construe the facts properly before the court, and any reasonable inferences that may be drawn from them, in the light most favorable to the non-moving party[.]" Powell v. Breslin , 195 Md. App. 340 , 346, 6 A.3d 360 (2010) (citations omitted), aff'd , 421 Md. 266 , 26 A.3d 878 (2011).

In our review of a grant of summary judgment "we examine 'the same information from the record and determine the same issues of law as the trial court.' " Cent. Truck Ctr., Inc. v. Cent. GMC, Inc. , 194 Md. App. 375 , 387, 4 A.3d 515 (2010) (quoting La Belle Epoque, LLC v. Old Europe Antidue Manor , 406 Md. 194 , 209, 958 A.2d 269 (2008) ). "If no material facts are in dispute, the appellate court must determine whether the trial court correctly entered summary judgment as a matter of law." Id.

(citation omitted). DISCUSSION 1. Factual Support I.B. first argues that the factual record does not support the ALJ's decision to enter a summary decision to dismiss the appeal. He contends that the exhibits relied upon by DSS to support its motion to dismiss were "wholly deficient regarding the conviction, and contain inconsistencies and inaccuracies that require a contested hearing[.]" DSS responds, first, that I.B.'s dispute of material fact argument was not addressed in his response to the DSS's motion for summary decision, hence, it was not preserved.

It avers that the requirements of COMAR 28.02.01.12D, governing motions for summary decision, require a responding party to identify all disputed material facts at issue. Since I.B. failed to identify a dispute of material fact in his response, DSS argues, he has waived the ability to assert it later on judicial review. Alternatively, DSS argues that even had I.B. not waived this argument, the disputed facts he proffers were not material to the ALJ's decision. The COMAR motion for summary decision provisions are clear that a response to such a motion " shall identify the material facts that are disputed." COMAR 28.02.01.12D(2) (emphasis added).

I.B. did not present any dispute of material facts before the ALJ; rather, he focused on how the criminal charge was not based on neglect and did not share the same elements. Judicial review of an agency decision is limited to evidence and issues presented from the record before it. See also Md. Code, State Gov't § 10-214(a) (providing that, on judicial review "[f]indings of fact must be based exclusively on the evidence of record in the contested case proceeding and on matters officially noticed in that proceeding"). Therefore, I.B.'s belated attempt to challenge the previously uncontested facts and evidence presented to the ALJ, for the first time in his petition and memorandum in support of judicial review, is without merit.

See Allmond v. Dep't of Health & Mental Hygiene , 448 Md. 592 , 606, 141 A.3d 57 (2016) (reiterating "that questions, including Constitutional issues, that could have been but were not presented to the administrative agency may not ordinarily be raised for the first time in an action for judicial review" (quoting Bd. of Physician Quality Assur. v. Levitsky , 353 Md. 188 , 207-08, 725 A.2d 1027 (1999) ) ). Notwithstanding that failure, neither FL § 5-706.1(b)(3)(ii), nor the related COMAR provision, 07.02.26.06C(1), limit what criminal charges relating to the indicated neglect are dispositive of an administrative appeal based on a finding of guilt. See FL § 5-706.1(b)(3)(ii) ("If after final disposition of the criminal charge, the individual requesting the hearing is found guilty of any criminal charge arising out of the alleged abuse or neglect, the Office of Administrative Hearings shall dismiss the administrative appeal." (emphasis added) ). See also COMAR 07.02.26.06C(1) 10 (tracking the language of the statute: "If, after final disposition of the criminal proceeding, the appellant is[ ] ... [f]ound guilty of any criminal charges arising out of the alleged child abuse or neglect, OAH shall dismiss the appeal[.]" (emphasis added) ).

Therefore, when DSS moved for summary decision to dismiss the administrative appeal based on the finding of guilt of the related criminal charge and presented uncontroverted evidence that the finding of guilt of the related criminal charge arose out of the same finding of "indicated neglect," the ALJ was deprived of the discretion to rule other than to dismiss the appeal. In his generic response, without particularity, to the DSS motion to dismiss, I.B. failed to assert the existence of any evidence to controvert that which was presented by DSS and cannot now challenge the sufficiency of the evidence relied on by the ALJ. 2. Hearing Requirement Next, I.B. argues that, if an element necessary for a finding of neglect is in dispute and was not adjudicated in the criminal proceeding, a hearing is required. In support, he relies on Tabassi v. Carroll Cty.

Dep't of Soc. Servs. , 182 Md. App. 80 , 957 A.2d 620 (2008). Tabassi sought judicial review of an ALJ's grant of DSS's motion to dismiss based on the finding of guilt in a related criminal proceeding. While a search warrant was being executed at Tabassi's home, loaded guns were located next to a bed where a 12-year-old girl, unrelated to Tabassi, was sleeping. 182 Md. App. at 83 -84 , 957 A.2d 620 .

DSS noted a finding of indicated neglect, and related criminal charges were filed arising out of those facts. Id. at 83 , 957 A.2d 620 . Tabassi was convicted of reckless endangerment and firearms access by minors. Id. at 85 , 957 A.2d 620 .

Thereafter, DSS moved to dismiss his request for a contested hearing. Id. Based on the criminal conviction, the ALJ dismissed his request. Tabassi then sought judicial review, resulting in affirmance of the ALJ's decision.

Id. On appeal, we vacated the circuit court's order and remanded with directions for the ALJ to hold further proceedings on the question of Tabassi's status as a custodian of the child. Id. at 93 , 957 A.2d 620 . We held that dismissal of an alleged abuser or neglector's administrative appeal is warranted where an accused is found guilty of criminal charges stemming from the same conduct that serves as the basis for a finding of abuse or neglect and the requisite status of the individual to the child has been adjudicated or is not disputed.

Id. At the administrative level, Tabassi's status as to the child was contested and had not been determined. I.B. reads into our holding in Tabassi that, when the elements of the criminal charges are different from the Family Law offenses and if an element of the Family Law offense was not adjudicated in the criminal proceeding, a hearing should be afforded to adjudicate it in the ALJ's proceeding. He fails, however, to recognize that his failure to timely contest any of the facts asserted or evidence offered concerning the elements of indicated child neglect against him.

His reliance on Tabassi is misplaced. The essence of our Tabassi holding is that all elements of indicated neglect, said to be disputed, are to be resolved at the administrative stage of the proceedings. Because I.B. raised no disputed