McClanahan v. Washington County Department of Social Services

WOODWARD, J. In December 2010, appellee, the Washington County Department of Social Services (the “Department”), found appellant, Lauren McClanahan, responsible for indicated child abuse by mental injury of her then five-year-old daughter, Raven H. (“Raven”). The finding of child abuse stemmed ²⁶¹ from appellant’s repeatedly making sexual abuse allegations against Raven’s father and taking the child to multiple sexual abuse examinations. Appellant appealed the Department’s finding to the Office of Administrative Hearings (“OAH”) in January 2011, and an administrative law judge (“ALJ”) affirmed the Department’s finding in October 2011.

Appellant then sought judicial review of the ALJ’s determination in the Circuit Court for Washington County, which affirmed the ALJ’s decision on May 2, 2013. Appellant filed a timely appeal to this Court on May 30, 2013, and presents four questions for our review, which we have rephrased and consolidated into three: 1 1. Did the record contain competent, material, and substantial evidence sufficient to support the ALJ’s decision? 2. Did the ALJ err by admitting evidence that violated the privilege laws of Maryland and Pennsylvania? 3.

Did the ALJ violate the immunity provisions of the Family Law and Courts and Judicial Proceedings Articles? For the reasons set forth below, we answer question one in the affirmative, and conclude that questions two and three have not been preserved for our review. Accordingly, we affirm the judgment of the circuit court. ²⁶² BACKGROUND Family Background On May 6, 2005, Raven was born to appellant and her then-husband John H. Each parent had substance abuse problems and accused the other of domestic violence. Appellant also accused Mr. H. of sexually abusing her.

On August 2, 2006, appellant and Mr. H. separated after nineteen years of marriage, and they legally divorced on February 25, 2008. After her parents’ divorce, Raven lived with appellant, who had primary physical custody, and had unsupervised visitation with her father three weekends per month and one weeknight per week. Mr. H. remarried, as did appellant. Appellant’s second husband, Michael M., died of a heart attack in December 2009.

Appellant now lives with a live-in partner. Original Abuse Allegations & Investigations During the approximately three-and-a-half year period from June 2007 to November 2010, appellant took Raven to the hospital nine times for physical examinations related to sexual abuse allegations. The examinations shared two common features: first, the evaluations occurred after Raven made sexual abuse allegations following visitation at her father’s home; second, Raven presented with physical symptoms immediately prior to each examination. 2 None of these examinations, however, confirmed that Raven had been sexually abused. At first, Raven alleged that her father or step-brother had molested her or penetrated her with small objects, and later described assaults involving a needle, cream, or the family’s pets.

Raven generally made these accusations in the presence of her mother. The allegation Raven made on June 28, 2010 typified the nature of the child’s claims. On that day, Raven informed her mother and her babysitter that her father “poked me with a needle in my front bottom.” Raven later ²⁶³ told a nurse that she felt “sad [because] of how I got hurt,” and that the needle was “blue [with] 5 green stripes.” 3 Raven displayed very similar physical symptoms at the time of each appointment, including genital redness and swelling, and occasionally vaginal discharge, which indicated a urinary tract infection. 4 At the second forensic examination, on February 21, 2008, Dr. Ruth Ann Dwyer diagnosed Raven with “vulvitis-normal variant in pre-pubertal female,” and the terms “vulvitis” and “vaginitis” were often used to described the irritation experienced by Raven. Both the irritation and the infections observed in Raven are common in children her age, and can often be attributed to poor hygiene.

At the February 2008 visit, Dr. Dwyer noted toilet paper on Raven’s genitals, an indication of poor hygiene, and discussed “routine good hygiene care” with appellant. On more than one occasion, appellant received education about how to prevent the irritation of Raven’s genitals, which included the child’s avoiding bubble baths and wearing underwear overnight. Dr. Dwyer also reported in Raven’s medical chart that a “normal exam does not exclude a history of sexual abuse,” and personally explained to appellant that abuse could not be ruled-out. As indicated above, however, no examination revealed definitive signs of sexual abuse.

In addition, and importantly, from February 2008 until May 2010, the Depart ²⁶⁴ ment conducted fourteen sexual abuse investigations, all of which ruled out sexual abuse. Mental Injury Inquiry & Evaluations of Raven On May 14, 2010, the Department began an investigation into appellant for causing mental injury to Raven. Dr. Carlton E. Munson, a licensed certified social worker with a Ph.D. in clinical social work, evaluated Raven for mental injury on July 16 and August 4, 2010, after receiving a referral from Bruce McCarthy, an investigator from Child Protective Services (“CPS”). Previously, Dr. Munson assessed Raven on July 24 and September 10, 2008 upon referral from CPS.

On October 29, 2010, Dr. Munson finalized his report on Raven, and diagnosed the child as having indications of mental injury. Dr. Munson determined that Raven had a “positive insecure attachment to her mother and father,” and categorized her disorder under Axis I of the Diagnostic and Statistical Manual of Mental Disorders (DSM) as “Parent-Child Relational Problem.” This finding echoed the diagnosis made by Raven’s therapist, Amy Hershey, whom Dr. Munson interviewed. Hershey diagnosed Raven under Axis I as having an “Adjustment Disorder with Mixed Anxiety and Depressed Mood,” related to “dealing with parental conflict and disagreement between households.” Thus, both professionals determined that Raven had a mental injury that implicated her relationship with her family. According to Dr. Munson’s report, Raven’s mental injury manifested itself in various forms of emotional distress.

Dr. Munson observed that Raven demonstrated neediness and insecurity around her immediate family, but in particular around appellant. Raven also displayed symptoms of generalized anxiety. Dr. Munson noted that Raven suffered from abnormally severe sleep disturbances and nightmares. Finally, Dr. Munson commented on the unusual nature of the sexual abuse allegations Raven made during his evaluation and the therapy sessions with Hershey.

According to Dr. Munson, Raven generally made these disclosures to her family ²⁶⁵ and therapists, but not to investigators, and exhibited a willingness to expose herself. Dr. Munson further observed that Raven’s mental injury had impaired Raven’s emotional, social, and intellectual function. Dr. Munson reported that Raven was “currently having functional problems at school.” Dr. Munson gave an IQ test to Raven, which revealed a twenty-six-point discrepancy between the child’s verbal and nonverbal scores. Dr. Munson theorized that the discrepancy could be caused by familial trauma.

Finally, Dr. Munson’s testing demonstrated an “overall decline in meeting milestones” since the evaluations he performed in 2008. At the end of his report, Dr. Munson offered his opinion on the cause of Raven’s mental injury and impairment: Based on the scales administered, the clinical interviews conducted, the collateral interviews conducted, and the documents reviewed, it is my professional opinion that Raven [ ] has been mentally injured and the source of the mental injury gives indication of being due to the mother’s engaging in conscious or unconscious suggestive utterances to Raven about abuse by the father and engaging in alienating activities related to the father. (Emphasis added). In addition to Dr. Munson, McCarthy contacted Ronald E. Zuskin and requested that he conduct an assessment of Raven.

From August 2010 to October 2010, Zuskin, a licensed certified social worker-clinical, reviewed Dr. Munson’s report and interviewed appellant, Hershey, Mr. H., and Mr. H.’s second wife, but did not interview Raven. Zuskin’s assessment of Raven was similar to Dr. Munson’s evaluation. Zuskin adopted Hershey’s diagnosis of “Adjustment Disorder with Mixed Anxiety and Depressed Mood.” Zuskin, like Dr. Munson, also determined that Raven had an unhealthy attachment to her mother, which he described in terms of an “extreme over-involvement, intrusiveness and dominance.” ²⁶⁶ Also like Dr. Munson, Zuskin reported that Raven’s functioning had become impaired: Raven’s relations with authority figures, her peer relations, and her own reactivity to disruption in the environment indicate that not only is her current level of functioning impaired, but that without treatment and significant environmental changes she is a risk of greater disruption and regression. Zuskin also concluded that appellant exploited Raven through making repeated sexual abuse allegations, and that such exploitation caused Raven’s impairment.

Procedural History On December 15, 2010, the Department notified appellant that it had determined that she was responsible for indicated child abuse by mental injury. On January 14, 2011, appellant appealed the Department’s finding of indicated child abuse-mental injury to the OAH. The ALJ held a contested case hearing on the matter on August 16 and September 19, 2011. On October 25, 2011, the ALJ issued a written decision, in which she concluded that (1) the finding of indicated child abuse-mental injury was supported by credible evidence and was consistent with the law, and (2) appellant was responsible for the indicated abuse. 5 On November 23, 2011, appellant petitioned the Circuit Court for Washington County for judicial review of the ALJ’s decision.

On May 2, 2013, the circuit court affirmed the ALJ’s decision. On May 30, 2013, appellant filed a timely notice of appeal to this Court. ²⁶⁷ STANDARD OF REVIEW In Charles County Department of Social Services v. Vann, 382 Md. 286 , 855 A.2d 313 (2004), the Court of Appeals set forth in detail the appropriate standard of judicial review of the final decision of an administrative agency: As a court sitting in judicial review of an administrative agency decision, this Court reviews the decision in the same posture as that of the courts below. That is to say, we reevaluate the decision of the agency under the same statutory standards as would the circuit court, and we do not employ those standards to reevaluate the decision of the circuit or intermediate appellate court. [Maryland Code (1984, 1999 Repl.Vol., 2003 Cum.Supp.), § 10-222(h) of the State Government Article (“SG”) ] sets forth standards of judicial review over agency decisions in contested cases and varies those standards depending on the type of agency determination under scrutiny. With regard to agency factual determinations, the standard of review is whether the finding is “unsupported by competent, material, and substantial evidence in light of the entire record as submitted,” also known as substantial evidence review.

Under substantial evidence review of an agency’s factual findings, a court is limited to ascertaining whether a reasoning mind could have reached the same factual conclusions reached by the agency on the record before it. With regard to agency legal conclusions, judicial review is less deferential to the agency. When an agency makes “conclusions of law” in a contested case, the [Administrative Procedure Act] permits the court, on judicial review, to decide the correctness of the agency’s conclusions and to substitute the court’s judgment for that of the agency’s. Even with conclusions of law, however, an agency’s legal interpretation of the statute it administers or of its own regulations is entitled to some deference from the courts.

Other agency decisions fall -within categories that are neither legal conclusions nor factual findings, and some fall ²⁶⁸ within both. These latter sort commonly are known as “mixed questions of law and fact” or applications of law to facts: The agency has correctly stated the law and its fact-finding is supported by the record, but the question is whether it has applied the law to the facts correctly. When the agency decision being judicially reviewed is a mixed question of law and fact, the reviewing court applies the substantial evidence test, that is, the same standard of review it would apply to an agency factual finding. Id. at 294-96, 855 A.2d 313 (citations omitted).

DISCUSSION I. Substantial Evidence & Legal Error Appellant’s main argument is that the record does not support the factual findings and legal conclusions made by the ALJ. The ALJ concluded her opinion by stating that “Appellant's act of making multiple allegations of sex abuse of Raven by her father and subjecting Raven to repeated sexual abuse exams constitutes child abuse mental injury.” The ALJ supported this conclusion with a lengthy review of the evidence, in which she heavily relied upon the evaluations of Dr. Munson and Zuskin: This matter is complicated from th[e] standpoint [of assessing mental injury, because] the family dynamics and Raven’s psychological state are intertwined and complex. I have given significant weight to both Dr. Munson’s and [ ] Zuskin’s test and reports. Their reports were thorough and provided clear and rational explanations for how the data they collected during their assessments supported their conclusions....

Both of the assessments address the information required by [the regulation concerning mental injury]. (Emphasis added). Accordingly, appellant attacks the ALJ’s findings of fact by challenging the conclusions of Dr. Munson and Zuskin. Notably, appellant does not attack the evaluator’s conclusions regarding the nature of Raven’s mental injury or her impair ²⁶⁹ ment, described above, but instead objects to: (1) the admissibility of the expert opinions and their methodologies generally, and (2) the sufficiency of the experts’ findings regarding the cause of Raven’s mental injury.

Furthermore, as part of her attack on sufficiency of the evidence with regard to causation, appellant challenges the ALJ’s legal conclusion regarding scienter. Appellant argues that the ALJ erred by concluding that she was responsible for indicated child abuse by mental injury without determining whether she acted with the requisite intent. For the reasons set forth below, we reject appellant’s arguments. A. Admissibility “Credibility” Experts & The Frye Standard Appellant’s first claim involves the admissibility of the expert opinions and assessments proffered by Dr. Munson and Zuskin.

Appellant first contends that the assessments of Dr. Munson and Zuskin “intruded into the power of the judge to assess credibility.” More specifically, appellant asserts that the evaluators dismissed Raven’s accusations based on their own assessments of the girl’s credibility. Accordingly, appellant concludes that “[e]xpert testimony that encroaches [on] the judge’s function to adjudicate credibility is inadmissible.” Appellant also argues that “neither Dr. Munson nor [] Zuskin provided the foundation of scientific acceptance for their opinions” as required by Frye v. United States, 293 F. 1013 (D.C.Cir.1923). Appellant claims that neither expert established that his assessment tools demonstrated scientific reliability and validity for the purpose of establishing a mental injury to a child as required by Frye . Appellant’s arguments regarding the experts’ improper credibility assessments and the Frye standard have been waived.

See Delmarva Power & Light Co. v. Pub. Serv. Comm’n of Md., 370 Md. 1, 32 , 803 A.2d 460 , aff'd on other grounds, 371 Md. 356 , 809 A.2d 640 (2002) (“We do not allow issues to be raised for the first time in actions for judicial review of administrative agency orders entered in contested ²⁷⁰ cases because to do so would allow the court to resolve matters ah initio that have been committed to the jurisdiction and expertise of the agency.”). Appellant never raised these issues before the ALJ, and in fact she accepted Dr. Munson and Zuskin as experts and allowed their reports and expert opinions to be admitted into evidence without objection.

B. Description of Bad Acts Appellant next attacks the substance of the evidence presented against her. We observe at this junction that to reach a finding of “indicated” requires that “there is credible evidence, which has not been satisfactorily refuted, that abuse, neglect, or sexual abuse did occur.” Md.Code (1984, 2012 Repl.Vol.), § 5-701(m) of the Family Law Article (“FL”). Child abuse is defined as follows: (b) Abuse.—“Abuse” means: (1) 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; or (2) sexual abuse of a child, whether physical injuries are sustained or not. FL § 5-701(b).

COMAR 07.02.07.12(A)(3) (2014) 6 sets forth the criteria for a finding of indicated child abuse by mental injury: (3) Abuse—Mental Injury. A finding of indicated child abuse with mental injury 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 mental injury characterized by an observable, identifiable, substantial impairment to the child’s mental or psychological ability to function, which may ²⁷¹ be shown by the need for specific psychiatric, psychological, or social work intervention; (b) The mental injury was caused by a parent, a caretaker, or household or family member; (c) The alleged victim was a child at the time of the incident; and (d) The nature and extent of the mental injury indicate that the child’s health or welfare was harmed or was at substantial risk of harm. FL § 5-706 requires that any investigation into mental injury include two assessments by licensed physicians, licensed psychologists, or licensed social workers. FL § 5-706(d)(2).

COMAR 07.02.07.09(B)(1)(b) sets forth the requirements of the assessments: (b) The professional assessment shall include: (i) A determination whether the child has sustained a mental injury; (ii) If applicable, a description of observable, identifiable, and substantial impairment of the child’s mental or psychological ability to function; and (iii) If applicable, an explanation of the act or omission that is believed to have caused the mental injury. (Emphasis added). Based on this statutory and regulatory framework, appellant argues that the Department failed to sufficiently describe the “act or omission that is believed to have caused the mental injury,” and thus concludes that the ALJ had no basis on which to make a finding of indicated child abuse by mental injury. See COMAR 07.02.07.09(B)(11(b)(iii) (emphasis added).

Appellant describes two insufficiencies in this regard that we address in turn. Unconscious Acts Appellant first asserts that the term “act,” as used in COMAR 07.02.07.09(B)(1)(b)(iii), “denotes a finding that the parent’s conduct was voluntary and conscious.” Appellant ²⁷² claims that the Department’s assessments, conducted by Dr. Munson and Zuskin, described Raven’s mental injury as caused by “vague, unintentional acts” that cannot constitute child abuse. For example, appellant contends that Dr. Munson ascribed Raven’s injury to appellant’s unconscious behavior. Appellant supports this position with the following statement from Dr. Munson’s report: Based on the scales administered, the clinical interviews conducted, the collateral interviews conducted, and the documents reviewed, it is my professional opinion that Raven [ ] has been mentally injured and the source of the mental injury gives indication of being due to the mother’s engaging in conscious or unconscious suggestive utterances to Raven about abuse by the father and engaging in alienating activities related to the father.

According to appellant, Zuskin similarly determined that appellant’s repeated sexual abuse allegations amounted to “exploitation of Raven,” which manifested as “animated closesness and protectiveness [that] inadvertently reinforc[ed]” continued sexual abuse allegations by Raven. Appellant mischaracterizes the experts’ conclusions. Dr. Munson and Zuskin do in fact describe intentional acts as the cause of Raven’s mental injury, specifically appellant’s utterances and her making of sexual abuse allegations. When the experts referred to “unconscious” and “inadvertent” behavior, they did not intend to define appellant’s abusive actions, but rather meant to describe either (1) the motivation behind appellant’s actions, or (2) the effects resulting therefrom.

In other words, the evaluators indicated that appellant committed these acts without consciously appreciating that (1) they were motivated by her desire to alienate Raven from her father, and (2) that they would cause Raven to repeatedly make false and detrimental sexual abuse allegations. Dr. Munson and Zuskin did not suggest that the “act” that injured Raven was involuntary, like a hiccup or a Tourette’s outburst. ²⁷³ This interpretation of the assessments is consistent with the ALJ’s understanding of the evidence. After explaining why appellant’s sexual abuse allegations were not justified, the ALJ concluded that appellant’s actions “were a result of her subconscious efforts to have Raven remain close to her.” (Emphasis added). In other words, appellant was motivated by her “subconscious effort” to keep Raven very close.

According to the ALJ, the act that caused the injury, however, was the “act of making multiple allegations of sex abuse of Raven by her father and subjecting Raven to repeated sexual abuse exams.” Speculative Acts & Causation As part of her second argument regarding her alleged misconduct, appellant argues that Dr. Munson’s and Zuskin’s respective references to “utterances” and “exploitation” were unacceptably vague. More specifically, appellant criticizes Dr. Munson’s and Zuskin’s assessments for presenting circumstantial and non-specific evidence of her abusive behavior that was “never seen or described by any eyewitness.” Appellant also accuses the experts of speculating as to the causal link between appellant’s behavior and Raven’s mental injury, arguing, for example, that Dr. Munson used Raven’s repeated sexual abuse allegations as “a launching point to speculate concerning unobserved acts of mental injury by the mother.” Appellant concludes that “nothing scientific showed that the leap from repeated examinations to Raven’s symptoms was to any reasonable degree of certainty.” Appellant is correct that her alleged misconduct cannot be reduced to taking Raven to the repeated examinations. Moreover, Dr. Munson and Zuskin did work backwards to some extent, first diagnosing Raven’s mental injury and then associating that injury with a recognized pattern of abusive relationships. Contrary to appellant’s argument, however, the experts presented evidence establishing that the abusive pattern did in fact exist and that it caused Raven’s injury.

In the process, the assessments made references to specific acts performed by appellant. We explain below. ²⁷⁴ Dr. Munson described the exact nature of Raven’s mental impairment, which, as stated above, appellant does not dispute. He described her as suffering from anxiety and from “positive insecure attachment to her mother,” the latter of which he described as follows: [T]he child has an attachment to the parent, but they feel uncertain about the attachment in terms of whether the parent would play the protective role, will be the protector of them. So, they will also sometimes themselves become protective of the parent if they feel any kinds of distress in the parent.

Dr. Munson based this assessment on clinical evaluations and interviews, and described how Raven had multiple meltdowns in which she exhibited anxiety and protective behavior: During the four-hour evaluation session with [appellant], Raven had three episodes of extreme emotional distress. The first episode occurred when I attempted to escort Raven from the waiting room to the evaluation room. She clutched [appellant], cried and repeatedly stated she did not want to be asked any more questions, and she did not want her mother to have to fill out any more forms. (Emphasis added).

Dr. Munson further observed that Raven’s emotional distress was generally more apparent when the child interacted with appellant than it was when she visited with her father. Zuskin provided the best explanation of the mechanism that caused Raven’s impairment. The literature on false allegations lists a type of falsehood know as “exaggerated positive feedback.” In such instances the child senses the parent’s need to hear certain things said. The parent responds with animated closeness and protectiveness, inadvertently reinforcing such behavior in the child.

Zuskin categorized this pattern of behavior as a form of “exploitation,” manifesting in this ease as “extreme over-involvement, intrusiveness and dominance” on the part of appellant. The positive feedback loop described by Zuskin ²⁷⁵ also explains how appellant’s behavior caused Raven’s symptomatic anxiety and inappropriate protectiveness. Appellant’s “need to hear certain things” put pressure on Raven to provide for her mother and protect her mother from any dissatisfaction when those needs were not