Montgomery County Department of Health & Human Services v. P.F.

ADKINS, Judge. This is the story of a father who successfully defended himself against accusations that he molested his three year old daughter. It underscores the importance that a thorough, unbiased investigation can play in protecting both children and parents. The Montgomery County Department of Health and Human Services (“MCHHS”), appellant, asks us to overturn an order reversing its finding that P.F., appellee (“Mr.F.”), sexually abused his child.

The order also prevented MCHHS from entering Mr. F.’s name into a central registry reporting child abuse cases in which MCHHS has made a finding that abuse was either “indicated” or “unsubstantiated,” and required MCHHS to expunge from its records any references to Mr. F. as a suspected abuser. An administrative law judge issued the order after finding that “there is no credible evidence that an incident of sexual abuse occurred.... ” The circuit court agreed, and affirmed the administrative order. ²⁴⁶ In this appeal, MCHHS argues that the administrative law judge and the circuit court erred by failing to treat the expert testimony of its social worker and the out of court statements of the child as credible evidence that Mr. F. abused his daughter. We shall affirm the judgment, because (1) the social worker’s opinion that the child had been molested merely vouched for the child’s credibility, and (2) the administrative law judge’s threshold determination that the child’s hearsay statement was not reliable enough to constitute credible evidence of abuse was supported by the evidence. FACTS AND LEGAL PROCEEDINGS On August 4, 1998, MCHHS received a confidential report concerning the possible sexual abuse of a three year old child whom we shall refer to as “Susan.” Susan’s parents, Mr. F. and E.F.

(“Ms.F.”), are divorced. The reporter was Mr. F.’s therapist. She alleged that after Mr. F. spent a recent day ■with Susan, he became concerned that someone, such as a babysitter, may have molested her. According to notes in MCHHS’s file, the therapist said that Mr. F. told her that his fears arose when he went to change Susan’s diaper, and she asked him if he was going to “tickle her pee-pee.” He was worried why a young child would ask such a question.

The therapist told Mr. F. that she felt legally obligated to report his concerns, and advised him to inform Ms. F. Mr. F. said that when he told his ex-wife that his therapist was making a report, she became angry and told him that he had just lost his visitation privileges. Police And MCHHS Investigation One of MCHHS’s social workers, Ann Marie Gumula, began her investigation by telephoning both Mr. F. and Ms. F, and then meeting with both parents and the child. Gumula and a police detective, Ralph Penn, Jr., interviewed first Ms. F. and Susan, and later Mr. F. This turned out to be the investigators’ only contact with Susan. Penn and Gumula prepared separate case reports.

Penn’s report, dated August 21, 1998, both opened and closed the ²⁴⁷ police department’s investigation. Penn first summarized the therapist’s report, which was related to him by MCHHS. Mr. F. reported to his therapist that his ex-wife told him that Susan had said that Mr. F. had hurt her “pee pee” with his finger. According to the report, Mr. F. also told the therapist that “while changing [Susan’s] diaper she asked him if he was going to tickle her pee-pee.

Mr. [F.] told his daughter that daddies don’t tickle their daughter’s pee-pee.” Penn’s report then summarized the interviews with Ms. F., Susan, and Mr. F. According to Penn, Ms. F. reported that she had heard Susan complain about her father hurting her on two occasions. On 08-05-98, the writer along with Ann GUMULA met with [Ms. F.] and her daughter [Susan] ... Mrs. [F.] stated that Mr. [F.] had called her the day before to tell her that he had talked to his psychiatrist about their daughter’s request that he tickle her pee-pee. Mrs. [F.] stated that she now remembers her daughter saying something to her the evening of her trip to the aquarium about her father hurting her.

She said that she could not recall if her daughter said that he hurt her from wiping her or with his finger. She also said that her ex-husband has never been able to wipe [Susan] adequately. Mrs. [F.] stated that the following Friday when her ex-husband came to visit, [Susan] told him either my pee-pee hurt or you hurt my pee-pee. Mrs. [F.] also said that she has never heard her daughter say to her father “are you going to tickle my pee-pee?” Penn then summarized the interview with three and a half year old Susan. [Susan] ... was able to identify a chart of animals, and was able to correct the writer when the animals were misidentified....

When asked to identify a body part’s chart [Susan] was able to correctly identify. She referred to the vaginal area of her body as her “pee-pee”.... When asked if her mother has talked to her about people not touching her, [Susan] said “yes”. When asked if any ²⁴⁸ body touched her that she didn’t like, she said “no”.

When asked if people wiped her in the bathroom, [Susan] said, “No I wear pants.” And when asked if anyone had hurt her pee-pee, the girl answered Mom. When asked where, she said at home. [Susan] was asked if anyone had tickled her pee-pee, she answered “no”. And when asked if her Daddy tickled her pee-pee, the girl said, “No, he put his finger inside my pee-pee.” The girl said that it happened at Uncle McDonald’s, which is what she calls McDonald’s restaurant. She stated that her father was carrying her in his arms, outside of the McDonald’s going in.

When asked if it hurt, the girl replied that it did. And when asked if her father had stuck his finger under her pants the girl again said, “yes”, and when asked if her father put his finger inside her pee-pee she again said, “yes, inside”. The girl was again asked by her interviewers to tell them one more time, “What did daddy do?”. She said, “He put his finger inside my pee-pee.” When asked where, she said “at Uncle McDonald’s”.

When asked, in the bathroom? She said, “No, I told you he was carrying me—outside”. She was asked if she went to the bathroom at Uncle McDonald’s, she said, ‘Tes”. And when asked if her daddy had wiped her, her response was “yes”.

The girl was then asked if this was when he put his finger inside her pee-pee. Her answer was, “No. It was outside Uncle McDonald’s—I told you”. Penn also summarized the meeting he and Gumula had with Mr. F. three days later. Mr. [F.] adamantly denied ever touching his daughter other than to wipe her after she used the bathroom.

He described to the writer what he had done with his daughter on the day he took her to the Baltimore Aquarium. Mr. [F.] stated that he picked his daughter up from her mother’s home on Friday, June [sic] 24th and they drove to the McDonald’s drive-thru.... From there they went to a park.... He said while at the park his daughter informed him that she had to “pee”, so he let her squat in the grass. ²⁴⁹ Mr. [F.] stated that after doing so he wiped his daughter with napkins he had gotten from McDonalds.

After leaving the park, Mr. [F.] said that he and his daughter drove to the Baltimore Aquarium. He said at some point his daughter had to “pee,” and he took the girl to the men’s room. He said that he asked his daughter if he [sic] wanted him to wipe her and she said, “yes”. Mr. [F.] stated that sometime that morning his daughter asked him, “Will you tickle my pee-pee?” Mr. [F.] said that he told his daughter that daddy’s don’t do that.

Mr. [F.] stated that the following Monday he went to his therapist, because he sought guidance on how to deal with his daughter’s statement. He said that he would not have talked to his therapist about this if he had known that she had an obligation to report it. Mr. [F.] stated that he knows that he 1 has anger issues, but he’s not going to buy into being set up for hurting his daughter sexually. He said that he was not going to admit complicity or guilt in doing anything to his daughter....

Penn noted that on August 20, 1998, he “reviewed this case with the State’s Attorney’s Office, who elected not to proceed, thus closing the case by exception.” Ms. Gumula made a series of notes and summary reports during the course of her investigation for MCHHS. She made both handwritten and typewritten notes dated 8/5/98 from her meeting with Susan. The complete text of her typewritten note is as follows: Went through charts of animals and she correctly identified them. Corrected me when I misidentified them.

Would not change her identifications (which were right.) Wanted her mother—told her mother in bathroom—said she’d be in when she came back. She didn’t want to do the charts any more but did a second. Fish—said saw in Aquarium. Who took her?

Dad. ²⁵⁰ Went into body parts chart. Identified correctly. Her front part is peepee and back is bottom. Asked if mother talked about people not touching.

Yes. Has anybody touched you that you didn’t like? No. People wipe you in bathroom? No, I wear pants.

Has anyone hurt peepee? Mom. Where? at home. Has anybody tickled peepee?

No. Did daddy tickle your peepee? No, he put his finger inside my pee pee. Where? At Uncle McDonald’s.

Inside Uncle McD’s? No. He was carrying me in his arms—outside Uncle McDonald’s going in. Did it hurt? Yes.

Was finger under your pants? Yes. Did he put his finger inside your peepee? Yes—Inside.

Tell us one more time. What did daddy do? He put his finger inside my pee pee. Where?

At uncle McD’. In the bathroom? No, I told you he was carrying me—outside. Did you go the bathroom at U.M?

Yes. Did daddy wipe you? Yes. Is this when he put his finger inside your pee pee?

No. It was outside Uncle McD’s—I told you. In a separate summary of her investigation, Gumula elaborated on why she found Susan’s statements to be credible. [Susan] was asked various open-ended questions in an attempt to find out if she had been touched where she should not have been touched.... Sometimes very young children do not understand questions in the way they are intended. Their thinking can be very concrete and they do not have all of the definitions and connotations of words that adults have.

It can be very hard to hit on the exact phrasing that children so young can understand. Sometimes very young children have to be asked a direct question when open-ended questions do not elicit information. This was the case with [Susan]. She denied that anyone ever hurt her pee pee except her mother, at home.

She denied that anyone had ever tickled her pee pee. When asked directly if daddy had ever tickled her pee pee she replied “No, he put his finger inside my pee pee.” ²⁵¹ This statement was a complete surprise. Children do not know about vaginal penetration with fingers or other objects unless they have had some exposure to this occurrence---[Susan] was definite that her father did this to her, and she said it happened when he was carrying her into MacDonalds [sic] the day they went to the Aquarium. She denied that it happened in the bathroom when this suggestion was made, and she maintained that he put his finger inside her vagina when asked several different ways.

She became impatient with investigators’ efforts to define the action in a different way and as taking place at a different time. She was consistent in her disclosure. Gumula’s handwritten notes from the investigation reflect that she had several conversations with both Ms. F. and Mr. F. Gumula noted that in her first conversation with Ms. F., the mother alleged that Mr. F. was an alcoholic, a drug addict, and a pornography addict, and that he was “not employable.” The notes do not reflect that Gumula reported these allegations to Mr. F. during her conversations with him, and they do not reflect any specific responses to these charges by Mr. F. 2 Ultimately, Gumula did record her credibility assessments of both Mr. F. and Ms. F. She concluded that Ms. F. was credible and that Mr. F. lied. She based her conclusions on statements made by both Ms. F. and Mr. F. But she ignored discrepancies in Ms. F.’s statements about matters she considered critical to her credibility determinations.

The most significant discrepancy related to whether, just before Penn and Gumula interviewed the child, Ms. F. informed them that Susan had said something about her father hurting her pee pee with his finger. Penn’s report says that “[Ms. F.] stated that she now remembers her daughter saying something to her the evening of her trip to the aquarium about her father hurting her,” either “from wiping her or with his finger.” It also states that “Mrs. [F] stated that the ²⁵² following Friday when her ex-husband came to visit, [Susan] told him either my pee-pee hurt, or you hurt my pee-pee.” Gumula’s handwritten notes from the same interview state that Ms. F. told them Susan had mentioned something about her father hurting her: “Can’t rememb[er] her exact words— [said] dadd[y] hurt her—can’t rememb[er]—nothing in it to her.” In contrast, Gumula’s typed reports of her investigation do not mention these statements by Ms. F. To the contrary, Gumula reported that Ms. F. denied that Susan ever said anything about her father hurting her: “Mrs. [F.] said [Susan] never mentioned anything about anyone tickling her vagina and never said anything about her father hurting her with his finger. She said if [Susan] had said anything like that, she would have made a report herself.” Ultimately, Gumula ignored this discrepancy in reaching her conclusion that Ms. F.’s denial was credible. 3 Although Penn’s report and Gumula’s handwritten notes both reflected that Ms. F. said she heard Susan say something about Mr. F. hurting her pee pee, and acknowledged that both investigators knew about this allegation before they interviewed Susan, Gumula did not mention this evidence in her reports. Instead, the social worker reported only Ms. F.’s denial that Susan had ever said anything about her father hurting her.

Gumula then concluded that Ms. F.’s denial was credible, and that Mr. F. lied when he alleged that his ex-wife responded to his concerns about why Susan was talking about “tickling her pee ²⁵³ pee” with an allegation that Susan had told her that he hurt her pee pee with his finger. [Mr. F.] said ... Mrs. [F.] had told him [Susan] said that he hurt her pee pee with his finger. (This is something Mrs. [F.] adamantly denied.) He said Mrs. [F.’s] statement worried him and he called her again to talk more about it with her. (This is a further elaboration on what appears to be a lie.

Mrs. [F.’s] distrust of him because of his past behavior was evident, and her statement that she would have made a report if [Susan] had ever said anything like this to her was credible.) [Emphasis added.] Gumula’s two reports reflect that she based her finding that the abuse was “indicated” on her credibility assessments of the child, the mother, and the father. Despite Ms. F.’s inconsistent statements, Gumula chose to believe her rather than Mr. F. [Mr. F.] lied when he said Mrs. [F.] told him [Susan] said he had hurt her pee pee with his finger, and that they had discussed the issue before this report was made. Mr. [F.] began to blame Mrs. [F.] for making allegations and for setting him up, even though this was clearly not so. It is this worker’s opinion that Mr. [F.] did insert his finger into [Susan’s] vagina.

It is this worker’s opinion that Mr. [F.] was bothered by this, either because he did it or because he thought he was going to get caught, and he brought it up to [his therapist] to establish that perhaps someone else was abusing [Susan], saying she asked him if he were going to tickle her pee pee. In her final “Summary for Risk Assessment,” 4 Gumula confirmed that her finding of indicated abuse was based on her credibility conclusions. ²⁵⁴ Mrs. [F.] said [Susan] never told her that her father hurt her pee pee with his finger because she would have reported that herself. So this statement was ... not true. She has not trusted Mr. [F.] for a long time.

Mr. [F.] is the only-one saying anything about hurting [Susan’s] pee pee with his finger, that is until [Susan] told investigators that he stuck his finger into her pee pee and it hurt. It is the opinion of this investigator that Mr. [F.] did indeed stick his finger into [Susan’s]’s vagina as she told investigators in no uncertain terms several times. It is the opinion of this investigator that Mr. [F.] was anxious about what he had done and was afraid of being caught so he brought up the issue of sexual abuse of [Susan] in a way that suggested that perhaps someone else had done something to her but that he had not. He even told this investigator that Mrs. [FJ had told him [Susan] told her that he had hurt her pee pee with his finger (which is what happened) when Mrs. [F.] had never heard that from [Susan].

Mrs. [F.J never heard that until investigators told her after the interview with [Susan] what she had said. In trying to cover up what he had done and in trying to establish the possibility of someone else’s having abused [Susan], Mr. [F.] gave himself away. [Emphasis added.] On August 20,1998, MCHHS advised Ms. F. in writing that “[t]he information obtained during the investigation supports the conclusion that [Susan] was sexually abused by her father. The finding will go on file as ‘indicated’.” Because MCHHS believed that Ms. F. was “in a position to protect [Susan] from further abuse,” and had taken legal steps to do so, the agency closed its case. On September 3, 1998, MCHHS notified Mr. F. that it intended to include his name in its central registry listing cases of indicated or unsubstantiated charges of child abuse or neglect.

Denying the charge, Mr. F. requested a contested hearing. Administrative Proceedings Mr. F. represented himself at the contested case hearing before an administrative law judge (“ALJ”). The only two ²⁵⁵ witnesses were Mr. F. and MCHHS’s social worker, Ms. Gumula. Neither Susan, the therapist, Ms. F., nor Det.

Penn testified. Penn’s report and all notes, reports, summaries, and correspondence in MCHHS’s case file were admitted into evidence. The ALJ accepted Gumula as an expert witness in the area of child abuse and neglect investigation. Gumula testified that when she and Penn interviewed Ms. F., “she told us that when ... her ex-husband called her [to advise her that about the investigation], she understood him to say that he had touched [Susan] on her pee-pee and hurt her.” Gumula also testified that Ms. F. “said that [Susan] never said anything to her about anybody tickling her vagina and .... about her father hurting her vagina ... with his finger.” According to Gumula, Ms. F. “flat out denied that” Susan had said any such thing, or that she had discussed the matter with Mr. F. MCHHS’s counsel then asked Gumula for her opinion, “[b]ased upon your experience and your expertise in the area of child sex abuse investigation,” and on her investigation of the case.

Gumula testified that “[m]y opinion was that [Susan] was credible when she said that her father stuck his finger in her pee-pee.” She testified that she based her opinion on the fact that “[t]his was a very unusual statement for a three year old child to offer,” and that [Susan] was mature enough to resist efforts to have her say that the event happened in the bathroom. MCHHS’s counsel then asked Gumula to reiterate and summarize her conclusions. [MCHHS counsel]: [J]ust to reiterate, you found the evidence credible? A: Yes.... Q: [W]hat factors did you consider in making the finding of indicated child sexual abuse by Mr. [F.]?

A: Well, number one that [Susan] is a child and that Mr. [F.] is her father. That sticking up there is no reason, unless you’re a doctor doing an internal examination to stick your finger in a child’s vagina. Other people do that for— ²⁵⁶ for sexual gratification. And I think Mr. [F.’s] own behavior was a strong impetus to make that finding.

Q: Was it an impetus in your investigation as well as the finding? A: ... [0]nce [Susan] told us that he stuck his finger in her vagina and once Mr. [F.] started to give us—to turn a completely different slant on the whole investigation then we had originally gotten it, then we really began to suspect that Mr. [F.] had done that. The facts that Mr. [F.] had talked about as being factual were not. I mean they were contrary to what we had been told and to what we had said we had been told and Mr. [F.] insisted that this was his ex-wife setting him up, that he was set up to be blamed for this and no matter what we said we couldn’t tell him differently and he’s focused on that.

(Emphasis added.) On cross-examination by Mr. F., Gumula admitted that the investigators did not visit the McDonald’s where the incident was alleged to have occurred. She also confirmed that the physical examination of Susan revealed “no physical findings of anything.” Mr. F. also questioned Gumula about why she found Ms. F. to be credible without inquiring into her personal history (which Mr. F. suggested included two prior, physically abusive ex-husbands, long term mental illness requiring hospitalization and treatment for depression, and a suicide attempt). He also asked why she recorded Ms. F.’s accusations that Mr. F. was an alcoholic, drug addict, pornography addict, and unemployable, but did not advise Mr. F. about these accusations when she interviewed him. Gumula denied that Ms. F.’s statements or accusations about Mr. F. had any bearing on her investigation or on her conclusion that the abuse occurred.

Mr. F. then addressed Gumula’s reliance on Ms. F.’s denial that she had ever raised the possibility that Mr. F. hurt Susan at any time before the August 5th interview with Penn and Gumula. ²⁵⁷ [Mr. F.]:.... I want to go back to your statement that Mrs. [F.] said that if she had heard anything from [Susan] that I had hurt her pee-pee, that she would have made a report? A: That’s what she said, yes. Q: And you find that a credible statement?

A: Yes, I do. Q: Were you and Detective Penn in the same room at the same time interviewing Mrs. [F.]? A: Yes. Q: Can you explain the statement in Detective Penn’s notes which says that Mrs. [F.] stated that she now remembers her daughter saying something to her the evening of the trip to the aquarium about her father hurting her?

A: That may be but not hurting her pee-pee. Q: She said that she cannot recall if her daughter hurt her from wiping her or with his finger. That would refer to the vaginal area, would it not? A: It could but she was very vague about what she heard and as I say that had no bearing....

Mr. F. questioned Gumula’s claim that she did not rely on Ms. F.’s allegations in reaching her decision that the abuse occurred. Q: She told you I confessed.... And that had no bearing? A: No....

Q:.... Is it then your statement that virtually none of what Mrs. [F.J said regarding my character entered into your decision making? A* Not as to whether you put your ñnger into [Susan’s] vagina because [Susan] said it. [Emphasis added.] Mr. F. concluded his cross-examination by questioning why Gumula had not addressed the physical and situational implausibility of the alleged incident. [Mr. F.]:.... Does it make sense to you for a man with this sort of background [i.e., alleged Secret Service security clearances] to insert his finger into the vagina of a fully ²⁵⁸ clothed 35 pound child at high noon outside on a military base?

A: If digital penetration of a child made sense or there was any sense to be made of it, I don’t know that anybody could do it.... [A] parent carrying a child with the child being like this in their arms ... has every opportunity to do something unseen to the child----[TJhere’s every opportunity in carrying a child like this to move your hand in that area without being seen. On direct, Mr. F. testified in his own defense that he did not abuse his daughter, did not lie, and had not changed his story. My story to anyone who has bothered to check out the consistencies in it, has not changed a syllable since I first told it to my therapist. On the occasion of my discussion of the incident with [Ms. F.],____I asked [Ms. F.] how the phrase will you tickle my pee-pee got into [Susan’s] vocabulary....

My concern about this phrase when I spoke to Mrs. [F.] was answered with the direct response. Yes, and she told me you hurt her pee-pee with your finger. I was floored because I had not done this.... Mrs. [F.] then said, I know you didn’t do it and I know you love her to distraction and that’s a direct quote.

But she failed to return several of my phone calls the following weekend after she had made this statement to me.... [O]n the following Sunday, I told my pastor, [my ex-wife] is setting me up for child sex abuse. On the following day, Monday, I went to my counselor and I said that exact same phrase. She said why. I told her story and I said she said that [Susan] had told her that I hurt her pee-pee with my finger and that she didn’t believe me but she wouldn’t return my phone call.

I asked her what I ... [was] supposed to do with this.... She said that she was legally obligated to tell the authorities. I begged her not to knowing [Ms. F.’s] pathology. At this point she did give me 24 hours in order to tell [Ms. F.] ²⁵⁹ to expect that phone call.

Several times that Monday I called [Ms. F.]. My calls were not returned. When I finally got a hold of her on the Tuesday her response had nothing to do with [Susan’s] well being. It had everything to do with being angry at me for having exposed her to the judgment of total strangers as to how the phrase tickle my pee-pee got into my daughter’s vocabulary.

She became very angry and said, you just lost the privilege of seeing your daughter. Slammed the phone down and those are the last words I ever heard from her---- I wish to state that I do not know how [Susan] would interpret whatever happened outside of that McDonalds as what I am accused of.... I picked her up to cross the street. I took her in and we played.

I believe very strongly that [Ms. F.’s] control issues which express themselves through continued interference with my relationship with my daughter are sufficiently intense as to give her the ability to plant the idea in the child’s mind that whatever discomfort that was, was a result of my having touched her inappropriately. I did not touch her inappropriately.... I have maintained and will forever maintain that I believe very strongly that the result of this investigation is a product of Mrs. [F.’s] manipulations. In closing, MCHHS argued briefly that its “indicated” finding was appropriate because “[t]here is credible account by a child ... that she was violated by her father that sexual abuse did occur that he poked his finger up her vaginal area.” Mr. F. argued that Gumula’s investigation was incomplete and compromised by her inappropriate reliance on Mrs. F.’s inconsistent statements, that Gumula had undermined her credibility by denying that Mrs. F. had influenced her conclusions, and that the case boiled down to whether Susan’s reported statement was a sufficient basis for a finding that the abuse occurred.

The ALJ issued a written memorandum and order on November 5, 1999. She concluded that MCHHS’s finding of ²⁶⁰ indicated child sexual abuse was not supported by any credible evidence. Disregarding Gumula’s opinion that the abuse occurred, the ALJ found that “[t]he sole basis for [MCHHS’s finding of indicated abuse] was an account given by the Child, which [MCHHS] found to be credible” because “it was ‘clear and consistently maintained.’ ” She disagreed with MCHHS’s assessment of the child’s account, finding that the following factors “render it unreliable”: • “Contradictory Statements”—The ALJ noted that the child gave contradictory statements when she was asked if “people” wiped her in the bathroom (“No, I wear pants”) and later, when she was asked if her father wiped her in the bathroom at McDonald’s. (“Yes.”) Because “[t]he interviewers did not ask any further questions to resolve these contradictory statements, .... the only explanation for the contradiction is that one of the Child’s two statements on this point was not true.” The ALJ concluded that because “[t]he Child did not tell the truth during the interview[,][h]er account of [Mr. F.’s] actions is thus rendered unreliable.” • “Implausibility Of The Child’s Account”—The ALJ cited three reasons that the child’s statement that Mr. F. put his finger inside her vagina while he was carrying her into McDonald’s was “implausible”: First, the location lacks privacy. [They] were likely to be surrounded by other people at the time the abuse was said to have occurred.

Second, the Child was three years old. To carry a three year old while walking, an adult must usually use both arms to support the weight of the child. It is questionable whether any adult would have the physical ability to place his or her finger in a child’s vagina while carrying her and walking. Third ... the Child’s clothing would likely have blocked [Mr. F.’s] finger.

If the Child had been wearing long pants or even shorts, these articles of clothing would have prevented [Mr. F.] from reaching his finger into the Child’s vagina in the short period of time described. ²⁶¹ The ALJ pointed out that Penn and Gumula also “had questions about the plausibility of the Child’s account,” as evidenced by their follow up questions regarding whether the incident occurred in the bathroom. She criticized them for failing to ask follow-up questions designed to assist in evaluating the plausibility of Susan’s statement. [They] failed to ask the Child to explain how [Mr. F.] had carried her, or to demonstrate the location of [Mr. F.’s] hands. The interviewers also failed to ask the Child what she was wearing, whether it was a dress, or shorts, or long pants. Since these questions were not asked and answered, the Child’s account must be evaluated on its own.

The Child’s account is essentially implausible. • “Inconsistency in Credibility Determination”—The ALJ noted that MCHHS had ignored Susan’s statement that her mother had hurt her, then explained it away at the hearing as an injury that occurred when her mother was washing her. Since [MCHHS] did not address the possibility of sexual abuse of the Child by her mother, I must conclude that [MCHHS] did not consider the statement about the Child’s mother to be credible. Yet there was no explanation of why this statement by the Child was not believed when the Child’s statements about her father’s actions were believed and accepted as fact. Without any alternative explanation of the discrepancy in credibility findings, I can only conclude that [MCHHS] itself found the Child to be an unreliable informant.

For these three reasons, the ALJ found that The Child’s statements do not constitute credible evidence that sexual abuse did occur. Nor is there any other credible evidence in the record that sexual abuse occurred. Since there is no credible evidence that an incident of sexual abuse occurred, [MCHHS’s] finding of indicated sexual abuse cannot be upheld. Nor would a finding of unsubstantiated sexual abuse be appropriate.

COMAR Q7.02.07.12A(2). The proper finding is ruled-out sexual abuse. COMAR 07.02.07.120(1). ²⁶² Circuit Court Proceedings MCHHS attempted to reverse the ALJ’s finding in circuit court. It argued that the AL J erred by focusing on the child’s credibility rather than by relying on Gumula’s expert testimony.

The circuit court rejected MCHHS’s “expert opinion” argument as simply amounting to a demand that the social worker’s opinion be treated as conclusive on both the credibility and the ultimate fact finding issues that are properly reserved for the fact finder. The court also questioned why MCHHS had not investigated any further. Well, what disturbs the Court about the account is ... I don’t even know what the child was wearing....

Was the child wearing slacks, or was the child wearing shorts, or was this child wearing a dress, and why didn’t your experts give us evidence of that?.... [H]ow could this insertion have been made while he is carrying the child assumedly fully clothed?.... Wouldn’t that be the sort of circumstantial evidence that an expert should delve into, rather than simply take a child’s statement, and go no further, and say because I am an expert, and that child wouldn’t lie, that this man has abused his daughter? The circuit court affirmed the ALJ’s “ruled out” determination on the grounds that MCHHS had not met its burden of