Montgomery County Department of Health & Human Services v. Tamara A.

BARBERA, Judge. The Montgomery County Department of Health and Human Services (“Department”), appellant, found Tamara A., appellee, to be responsible for indicated neglect of her daughter, Shirah. Ms. A. challenged that finding by requesting a contested case hearing at the Office of Administrative Hearings (“OAH”). The Department filed a motion to dismiss the administrative proceeding.

The Department argued in the motion that the issue of whether Ms. A. had neglected Shirah had been fully litigated at a hearing in the Circuit Court for Montgomery County, at which the Department sought adjudication of Shirah as a Child in Need of Assistance (“CINA”). The Department represented in the motion to dismiss that the circuit court had declared Shirah a CINA based on a finding that Ms. A.’s conduct toward Shirah’s older siblings placed Shirah’s health or welfare at substantial risk of harm, and this Court affirmed the CINA determination. The Administrative Law Judge (“ALJ”) denied the motion to dismiss, and the Department filed a petition for judicial review of that decision. Ms. A. filed a motion to dismiss the petition for judicial review, arguing that the ALJ’s ruling was not subject to immediate appeal to the courts.

The Circuit Court for Montgomery County denied the motion to dismiss the petition but affirmed the ALJ’s denial of the Department’s motion to dismiss the request for a contested case hearing. ⁶⁹⁰ The Department appealed to this Court and asks: “Did the ALJ err in refusing to give preclusive effect to a fully litigated finding in a CINA proceeding that Ms. A. neglected her daughter, Shirah?” Anticipating that Ms. A. would seek to have the appeal dismissed, the Department further asks: “Is the refusal of the [ALJ] to dismiss a contested case when the same parties have litigated the very same matter in court, ripe for judicial review?” As anticipated, Ms. A. has included in her brief a motion to dismiss the appeal. For the reasons that follow, we deny the motion to dismiss the appeal and reverse the judgment of the circuit court, with the direction that the court remand the case to the OAH for entry of an order dismissing the contested case. BACKGROUND The CINA Determinations Shirah has two older siblings, Nathaniel A. and Madeline C. On February 2, 2004, before Shirah was born, the Circuit Court for Montgomery County, the Honorable Katherine D. Savage presiding, adjudicated Nathaniel A. and Madeline C. each a CINA on the grounds that Ms. A. had abused both of them. Judge Savage specifically found that Ms. A. had subjected both Nathaniel and Madeline to needless medical appointments and procedures, and Ms. A. had forcefully broken Nathaniel’s arm.

Judge Savage also found that Ms. A. had an untreated psychological condition, which made her unable to provide her children with proper care and attention. Shirah was born two months after that hearing and was placed in the immediate care of the Department. By notice dated June 9, 2004, the Department advised Ms. A. that, after an investigation, it determined her to be responsible for indicated child neglect of Shirah. Ms. A. requested a contested case hearing at the OAH.

Meanwhile, the Department initiated proceedings to have Shirah, like her siblings, adjudicated a CINA. The contested case proceedings were stayed during the pendency of the CINA proceedings pursuant to ⁶⁹¹ Maryland Code (1984, 2006 RepLVol.), § 5-706.1 of the Family Law Article (“FL”). The circuit court, the Honorable David A. Boynton presiding, adjudicated Shirah a CINA, based on Maryland Code (1973, 2006 RepLVol.), § 3-801 (f) of the Courts and Judicial Proceedings Article (“CJP”), upon finding her to be a neglected child. Judge Boynton took judicial notice of the record developed at the February 2, 2004 CINA proceeding concerning Nathaniel and Madeline.

Judge Boynton declared Shirah a CINA because “said Child’s siblings have been abused and neglected and [Ms. A.] is unable or unwilling to give proper care and attention to the Child and her needs because: [Ms. A.] appears to suffer from a psychological disorder, which led to certain behavior causing risk of harm to her children, and that disorder remains untreated.... ” The Appeal of the CINA Determinations Ms. A. separately appealed the judgments in the two CINA cases. This Court consolidated the appeals and filed a reported opinion affirming both judgments. In re: Nathaniel A., 160 Md.App. 581 , 864 A.2d 1066 , cert. denied, 386 Md. 181 , 872 A.2d 47 (2005). In that opinion, we considered Judge Savage’s findings that Ms. A. had abused Nathaniel, the oldest child, by subjecting him to dozens of unnecessary medical appointments and procedures and breaking his arm by the intentional application of a great deal of force.

Id. at 588-89, 864 A.2d 1066 . We also considered Judge Savage’s findings that Ms. A.’s “pattern of seeking medical intervention amounts to abuse, as defined in our CINA statutes, as well for Madeline[,]” and Madeline “is at significant risk of this pattern of excessive medical intervention[.]” Id. at 589 , 864 A.2d 1066 . We noted Judge Savage’s further finding that “[Ms. A.’s] untreated psychiatric conditions as set forth by her own experts force me to conclude that she, too, is unable ... at this juncture, to give proper care and attention to her children and their needs.” Id. We quoted Judge Savage’s finding concerning the effect of Ms. A.’s mental state upon the welfare of Nathaniel and Madeline: ⁶⁹² Whatever is motivating [Ms. A.], whatever malady, if there is one, that has caused her to behave as she has in the last 4.5 years with Nathaniel and Madeline, is sufficient, in my mind, call it what you will, it is sufficiently serious to cause a significant risk [of] harm to the children.” Id. at 590 , 864 A.2d 1066 .

Concerning Judge Savage’s determination that Madeline, like Nathaniel, is a CINA, we said: The circuit court’s determination that Madeline was at a substantial risk of being subjected to the same conditions to which Nathaniel was exposed was not clearly erroneous. [Ms. A.] fractured Nathaniel’s arm out of frustration and anger, subjected the child to forty-four unnecessary doctor visits, has a depression problem, and has sought no help nor shown any change in her conditions that would lead us to believe that Madeline would not be subject to the same harm to which Nathaniel was exposed. [Ms. A.’s] inability to appropriately care for Nathaniel is predictive of her ability to care for Madeline. We need not wait until Madeline is actually harmed; rather, based on the conduct of [Ms. A.] towards Nathaniel we may find her to be at risk and, therefore, a CINA. Id. at 596-97 , 864 A.2d 1066 . We upheld Judge Savage’s determination that both Nathaniel and Madeline are CINAs.

We also upheld Judge Boynton’s determination that Shirah is a CINA. We concluded, first, that Judge Boynton could rely on the record developed at the proceedings concerning Nathaniel and Madeline. We also considered the following facts. Ms. A. was a party to the earlier proceedings, was represented by counsel, and had the opportunity to defend herself through cross-examination of the local department’s witnesses.

The facts in Shirah’s case were identical to the facts in the prior cases, and neither party demonstrated that the facts had improved since the prior hearings. The transcripts of the prior hearings were made part of the record, and Judge Boynton drew his own conclusions from that record. Id. at ⁶⁹³ 598 , 864 A.2d 1066 . We observed in particular that, although “[t]he opportunity to present evidence of changed circumstances must be afforded to a parent,” Ms. A. “did not avail herself of that opportunity in this case.” Id. at 601 , 864 A.2d 1066 .

We then considered the merits of Judge Boynton’s finding that Shirah, like her brother and sister, is a CINA. We recognized that, like Madeline’s case, “Shirah’s case [did] not focus on whether there was actual harm to her” but instead focused on whether, based on the prior conduct of [Ms. A.], Shirah “is at a ‘substantial risk of harm,’ which would mandate that the child be removed from the parent.” Id. at 601 , 864 A.2d 1066 . We added: We must determine whether [Ms. A.’s] “ability to care for the needs of one child is probative of [her] ability to care for other children in the family.” The child may be considered “neglected” before actual harm occurs, as long as there is “fear of harm” in the future based on “hard evidence” and not merely a “gut reaction.” Id. (internal citations omitted).

The Contested Case Proceedings Six months after we filed our opinion in In re: Nathaniel A., the OAH vacated its stay of the contested case proceedings. The Department moved to dismiss the case on the grounds of collateral estoppel. The Department argued that the factual issue of whether Ms. A. had neglected Shirah had been fully litigated in the CINA proceeding, resulting in an order affirmed by this Court. Along with its motion to dismiss, the Department submitted Shirah’s CINA petition, the May 13, 2004 Order of Adjudication finding her to be a CINA, and a copy of In re: Nathaniel A. The Department also attached the petitions and CINA orders related to Nathaniel and Madeline.

Ms. A. opposed the Department’s motion to dismiss the contested case. She argued that the CINA finding involving Shirah was based solely on speculative risk of harm, and she ⁶⁹⁴ could not have been found to have neglected Shirah because she had not harmed or taken any action toward her daughter. On April 20, 2006, the ALJ denied the Department’s motion to dismiss. The ALJ found that Judge Boynton’s decision declaring Shirah a CINA was not based on any “actual neglect,” and the “implicit finding of neglect was a legal conclusion based upon [Ms. A.’s] past conduct towards Nathaniel and Madeline.... ” Evidently reasoning that a finding of indicated child neglect required a finding that Ms. A. had actually harmed Shirah, a fact not found by Judge Boynton, the ALJ concluded that the local department had not established that the factual issue to be litigated in the administrative hearing was litigated in the prior CINA proceeding.

The ALJ further reasoned that the two proceedings were not sufficiently similar in purpose for the doctrine of collateral estoppel to apply. The ALJ found that, although a CINA action is focused on the need to protect a child, an OAH proceeding is concerned with whether an individual’s name could be entered on a “central registry” of child abusers and neglectors. The ALJ concluded: [T]he CINA finding as to Shirah in these circumstances, and the factual issues that would be litigated in this contested case proceeding, lack the quality of “sameness” that is necessary for the application of the doctrine of collateral estoppel. For the purposes of determining whether a child is in need of assistance, and should be removed from the home, a parent’s ability to care for one child may be probative of the parent’s ability to care for another child.

In re: William B., 73 Md.App. 68, 77 , 533 A.2d 16 (1987). It cannot, however, be probative of acts that have not yet occurred. The sections of the petition which were referenced in the juvenile court’s disposition quoted above leave no doubt that the issue of whether [Ms. A.] is responsible for “indicated child neglect” of Shirah within the meaning of Md.Code Ann., Fam. Law § 5-701(m) and (r) was not litigated and decided in the CINA proceeding.

The juvenile court’s ⁶⁹⁵ determination was based on historical facts concerning Appellant’s other two children and [Ms. A.’s] psychological problems, and on an assessment of risk of future harm, not of actual past harm, to Shirah. For these reasons, [Ms. A.] is not collaterally estopped from litigating the issue of her responsibility for indicated child neglect of Shirah, and the entry of her name in the central registry, in the present case. The ALJ agreed to stay the OAH proceeding while the Department filed a petition for judicial review in the Circuit Court for Montgomery County pursuant to Maryland Code (1984, 2004 Repl.Vol., 2007 Supp.), § 10-222 of the State Government Article (“SG”). Ms. A. filed a motion to dismiss and opposed the petition on the sole grounds that the CINA finding could not bar her from challenging the finding that she was responsible for “indicated” neglect.

After hearing argument and reviewing the record, the circuit court denied Ms. A.’s motion to dismiss the petition. The court, however, affirmed the ALJ’s ruling on the collateral estoppel issue, reasoning that the “ALJ did not err in concluding as a matter of law that the doctrine of collateral estoppel does not apply to Respondent’s administrative appeal[.]” The court ruled that Ms. A. was entitled to a hearing on the merits. The court issued an order remanding the case to the OAH for a merits hearing. The Department filed this timely appeal.

DISCUSSION I. Ms. A. argues that the order is not subject to judicial