Owens v. Prince George's County Department of Social Services

³³ SALMON, J. On January 25, 2002, the Prince George’s County Department of Social Services (the “Department”) released a written finding that Sonda Owens (hereinafter “Mrs. Owens”) was responsible for “indicated” child neglect with regard to her 15 year old niece, Sandy. On December 4, 2004, an administrative law judge (“ALJ”) upheld the finding of the Department and signed an order allowing the Department to “identify ... [Mrs. Owens] as an individual responsible for indicated child neglect in a central registry and in other files.” In response to the ALJ’s findings, Mrs. Owens filed a petition for judicial review in the Circuit Court for Prince George’s County, but that court, for reasons not here material, dismissed her petition. This Court, in an unreported decision filed November 29, 2006, reversed the dismissal and remanded the case to the circuit court. On remand, the circuit court affirmed the decision of the ALJ.

Mrs. Owens filed a second appeal, in which she advances three arguments, viz: (1) the ALJ erred when he denied her motion to dismiss the Department’s finding of neglect because the Department failed to complete its investigation -within 60 days as required by a Maryland statute; (2) the ALJ erred when he found that Mrs. Owens had accepted responsibility for the care, custody, and supervision of Sandy; and (3) there was a lack of substantial evidence in the record to support the ALJ’s finding that Mrs. Owens ordered Sandy to leave her home in September 2001 and, therefore, there was no evidentiary basis for the ALJ’s finding of indicated child neglect. I An ALJ conducted a hearing on October 28, 2004, concerning Mrs. Owens’ alleged neglect of Sandy. At the hearing three witnesses testified: (1) Patrick Emecheta, an employee of the Department; (2) Mrs. Owens; and (3) Derrick A. Owens, Mrs. Owens’ husband. In addition, the Department introduced into evidence thirty-three pages from its file con ³⁴ cerning the investigation into the allegation that Sandy had been neglected.

Sandy was born in March, 1986 and is now twenty-two years old. She was abandoned by her mother, Tiffany, when she was an infant. Sandy’s father has been in prison for most of Sandy’s life. From the time Sandy was three months old until she was twelve, she lived with her paternal grandmother and step-grandfather in North Carolina.

Sandy’s paternal grandmother died when she was twelve. Thereafter, she continued to live with her step-grandfather for about two years. Sandy was never adopted. In 1999, when Sandy was thirteen years old, she gave birth, in North Carolina, to a daughter.

To further complicate matters, at about the same time, Sandy’s step-grandfather became ill with prostate cancer and could no longer look after Sandy. In December 1999, Mrs. Owens’ sister, Dinicia McNeal, received a call from an elderly aunt who lived in North Carolina. The caller told Ms. McNeil that someone had to come to North Carolina immediately or else Sandy and her infant daughter would be turned over to the North Carolina’s Department of Social Services and would be put in foster care. Ms. McNeil called Mrs. Owens and told her of Sandy’s plight.

The next morning, Mrs. Owens, her husband, and Ms. McNeil left for North Carolina. In Mrs. Owens’ words, she and her sister made the trip because “we were the only family [Sandy] had.” After the threesome arrived in North Carolina, they picked up Sandy at her step-grandfather’s house and then picked up Sandy’s baby at a “care-giver’s house.” Next, without contacting North Carolina authorities, Mrs. Owens, her husband, and Ms. McNeil took Sandy and her baby to Prince George’s County, Maryland. When they arrived in Maryland, Mrs. Owens and Ms. McNeil “jointly” decided that Ms. McNeil would take care of the infant and Mrs. Owens ³⁵ would take care of Sandy. 1 Thereafter, Sandy moved into the home of Mrs. Owens and her husband in Upper Marlboro, Maryland. Also living in the house were the Owens’ two pre-teen daughters. 2 Mrs. Owens thereafter obtained a letter from Sandy’s incarcerated father (Mrs. Owens’ brother) that authorized Mrs. Owens to enroll Sandy in the Prince George’s County school system.

For the next two years (approximately), Mrs. Owens and her husband provided Sandy with a good home. In return, Mrs. Owens received $300.00 per month from the Department-starting in January, 2000. Nevertheless, Mrs. Owens did not profit from caring for Sandy because she voluntarily paid the $300.00 to Ms. McNeil in order to help the latter pay for daycare expenses for Sandy’s daughter. In late August or early September, 2001, when Sandy was fifteen and one-half years old, Sandy left Mrs. Owens’ house and went to live with a neighbor named Tina Latamore.

The reason Sandy left was a matter of dispute at the hearing before the ALJ. Mr. Emecheta testified that the Department received a report that Mrs. Owens had put Sandy out of the house because she had broken into the Owens’ home five times. Mr. Emecheta was assigned to investigate the report of neglect. On September 11, 2001, Mr. Emecheta went to the home of Ms. Latamore, the person with whom Sandy had been staying for about a week.

Ms. Latamore advised that she had temporarily taken Sandy in because Mr. and Mrs. Owens had kicked ³⁶ Sandy out of the house. Ms. Latamore advised that although she had provided Sandy with a temporary place to stay and with food, she was no longer willing to care for her. The next day, September 12, 2001, Mr. Emecheta interviewed Sandy, who told him that she had been living with Mrs. Owens and her husband but that they would not let her back into their home. According to Mr. Emecheta, on the same day, September 12, 2001, he spoke with Mrs. Owens and her husband.

Mrs. Owens advised that she had taken Sandy in at the request of a North Carolina Social Service Agency because Sandy’s grandparents had died. At the time Mrs. Owens had taken Sandy into her care, the whereabouts of Sandy’s mother were unknown and Sandy’s father was incarcerated. Both Mr. and Mrs. Owens said that Sandy was out of control and had broken into their house four or five times. Mrs. Owens also told Mr. Emecheta in his September 12th interview that although she had taken care of Sandy for the past two years, she would not take her back.

Mr. Emecheta also interviewed Sandy’s mother, Tiffany, who said that she thought that Sandy’s grandparents had adopted Sandy. Mr. Emecheta researched that point and found that there was no record of an adoption in North Carolina. Tiffany further advised Mr. Emecheta that even though she was Sandy’s biological mother, she did not know her daughter and did not want to take her in because to do so would disturb the peace of her new family. The “new” family included a husband and five children.

According to Mr. Emecheta’s testimony, he had four sources upon which he based his conclusion that Mrs. Owens had “kicked out” Sandy from her home about a week before his interview with appellant on September 12, 2001. Those sources were: Ms. Latamore, Sandy, Mrs. Owens, and Mr. Owens. 3 ³⁷ Mr. Emecheta further testified that he met with Mrs. Owens and her husband for a second time on October 4, 2001, at a CINA (Child in Need of Assistance) hearing held at the courthouse in Prince George’s County. During that conversation he told Mrs. Owens that he would not charge her with neglect if she would agree to take Sandy back into her care. Mrs. Owens refused.

Mrs. Owens and her husband testified that they did not kick Sandy out of their home. Instead, Sandy, on her own volition, started to spend more and more time at Ms. Latamore’s home. According to the Owens’ account, Sandy would stay at the neighbor’s house in the company of her boyfriend, William, age seventeen. Sandy sometimes stayed with Ms. Latamore for several nights in a row.

Mrs. Owens further testified that she and her brother had contacted the Department earlier in September 2001 and asked what options were available in order to give Sandy “some help.” The Department advised that there was an independent living program that might be available but they needed to bring Sandy to the Department so that it could be determined whether she was eligible for that program. Mrs. Owens attempted to take Sandy into the Department but Sandy refused to cooperate. Mrs. Owens also testified that on September 5, 2001 she, her husband, and her brother (Michael Adams) went across ³⁸ the street to Ms. Latamore’s house. They paid this visit because Sandy had failed to come home the previous evening.

Ms. Latamore was at work. Their knock on the door was answered by Sandy’s boyfriend. The boyfriend advised that Sandy “wasn’t coming out and wasn’t going anywhere.” Mrs. Owens then summoned the police. The police arrived at Ms. Latamore’s house but the officers were unsuccessful in getting Sandy to come out.

Both Mrs. Owens and her husband contradicted Mr. Emecheta’s testimony that he had talked to them on September 12, 2001. According to the Owens’ testimony, they only talked to Mr. Emecheta once and that was at the October 4, 2001, CINA hearing.

II

The Sixty Day Requirement The Department received its first report of suspected neglect concerning Sandy on September 5, 2001. The Department’s investigation was not completed until January 25, 2002, which was 142 days after receipt of the first report of neglect. Maryland Code (2004), Family Law Article (“FL”), section 5-706 reads, in material part, as follows: § 5-706. Investigation.

(a) In general. — Promptly after receiving a report of suspected abuse or neglect of a child who lives in this State that is alleged to have occurred in this State: (1) the local department or the appropriate law enforcement agency, or both, if jointly agreed on, shall make a thorough investigation of a report of suspected abuse to protect the health, safety, and welfare of the child or children; or (2) the local department shall make a thorough investigation of a report of suspected neglect to protect the health, safety, and welfare of the child or children. (b) Time for initiation; actions to be taken. — Within 24 hours after receiving a report of suspected physical or ³⁹ sexual abuse of a child who lives in this State that is alleged to have occurred in this State, and within 5 days after receiving a report of suspected neglect or suspected mental injury of a child who lives in this State that is alleged to have occurred in this State, the local department or the appropriate law enforcement agency shall: (1) see the child; (2) attempt to have an on-site interview with the child’s caretaker; (3) decide on the safety of the child, wherever the child is, and of other children in the household; and (4) decide on the safety of other children in the care or custody of the alleged abuser. (c) Scope. — The investigation under subsection (b) of this section shall include: (1) a determination of the nature, extent, and cause of the abuse or neglect, if any; (2) if mental injury is suspected, an assessment by two of the following; (i) a licensed physician, as defined in § 14-101 of the Health Occupations Article; (ii) a licensed psychologist, as defined in § 18-101 of the Health Occupations Article; or (iii) a licensed social worker, as defined in § 19-101 of the Health Occupations Article; and (3) if the suspected abuse or neglect is verified: (i) a determination of the identity of the person or persons responsible for the abuse or neglect; (ii) a determination of the name, age, and condition of any other child in the household; (iii) an evaluation of the parents and the home environment; (iv) a determination of any other pertinent facts or matters; and (v) a determination of any needed services. ⁴⁰ (g) Time for completion. — (1) To the extent possible, an investigation under subsections (b) and (c) of this section shall be completed within 10 days after receipt of the first notice of the suspected abuse or neglect by the local department or law enforcement agencies. (2) An investigation under subsections (b) and (c) of this section which is not completed uñthin 30 days shall be completed within 60 days of receipt of the first notice of the suspected abuse or neglect.

(Emphasis added.) Mrs. Owens stresses that section 5-706(g)(2) uses the word “shall.” She asserts that by the use of this term the General Assembly intended that the time limit be mandatory. According to appellant, because of the mandatory nature of the requirement, dismissal of the neglect charge “was the appropriate sanction.” The ALJ rejected Mrs. Owens’ request to dismiss for the following reasons: (1) no penalty is attached for the Department’s failure to abide by the 60-day time limit to conduct the investigation pursuant to COMAR 07.02.07.09; 4 (2) appellant ⁴¹ was not deprived of her right to appeal; and (3) appellant suffered no prejudice. Many Maryland appellate decisions have wrestled with the meaning and effect of the word “shall” as used in various statutes. Judge Thomas Hunter Lowe, speaking for this Court in Pope v. Secretary of Personnel, 46 Md.App. 716 , 420 A.2d 1017 (1980), provided a good summary of the case law as of 1980: —the trend— The word “shall” has probably occupied the erudition of the Court of Appeals more than any other single term.

In recent years the Court of Appeals has with increasing rigidity applied the principle of statutory construction that use of the word “shall” is presumed mandatory. Hirsch v. Dept. of Nat’l Resources, 288 Md. 95 , 416 A.2d 10 (1980); In re James S., 286 Md. 702 , 410 A.2d 586 (1980); State v. Hicks, 285 Md. 310 , 403 A.2d 356 (1979); Johnson v. State, 282 Md. 314 , 384 A.2d 709 (1978); United States Coin & Currency v. Dir., 279 Md. 185 , 367 A.2d 1243 (1977); Moss v. Director, 279 Md. 561 , 369 A.2d 1011 (1977); Bright v. Unsat. C. & J. Fund Bd., 275 Md. 165 , 338 A.2d 248 (1975). A practical qualifying pressure valve — “unless the context of the statute would indicate otherwise” — is invariably adhered to a recitation of that principle.

See, e.g., Maryland St. Bar Ass’n v. Frank, 272 Md. 528, 533 , 325 A.2d 718 (1974); Ginnavan v. Silverstone, 246 Md. 500, 505 , 229 A.2d 124 (1967). ⁴² While the context of fewer and fewer statutes “indicate otherwise,” one of the contextual factors relied upon, “thought not controlling,” to hold the use of “shall” directory is when a statute provides no penalty for failure to act within a prescribed time. See Maryland St. Bar Ass’n v. Frank, supra at 533, 325 A.2d 718 ; but see In re James S., supra. The case law provides very little in the nature of when or how to prognosticate where the exception should overcome the presumption. State v. Hicks, for example, acknowledged a statute governing the assignment of criminal cases for trial in which the term “shall” was held to be directory in Young v. State, 266 Md. 438 , 294 A.2d 467 (1972), for the reason that the Legislature had not explicitly provided the extreme sanction of dismissal for administrative noncompliance. 285 Md. at 316 , 403 A.2d 356 .

By having enacted a rule using the identical language of the statute which also lacked explicit sanctions, the Court of Appeals decided in Hicks that in the context of its rule, “shall” was intended to be mandatory. Id. There is, however, a thread of continuity in one line of cases perceived and commented upon by Judge Smith writing for the Court in In re James S., supra. Since 1908, the Court of Appeals has stood firmly upon the premise that Art. IV, § 15 of the Maryland Constitution is directory only when it admonishes that the Court of Appeals “shall” file its opinions within three months of argument.

McCall’s Ferry Co. v. Price, 108 Md. 96, 113 , 69 A. 832 (1908). Similarly, a like provision for the circuit courts has been consistently interpreted as directory and not mandatory. Maryland St. Bar Ass’n v. Hirsch, 274 Md. 368, 374 , 335 A.2d 108 (1975), cert. denied, 422 U.S. 1012 , 95 S.Ct. 2638 , 45 L.Ed.2d 676 (1975); Davidson v. Katz, 254 Md. 69, 78 , 255 A.2d 49 (1969); Pressley v. Warden, 242 Md. 405, 406-407 , 219 A.2d 25 (1966); Myers v. State, 218 Md. 49, 51 , 145 A.2d 228 (1958), cert. denied, 359 U.S. 945 , 79 S.Ct. 731 , 3 L.Ed.2d 678 (1959); Suttleman v. Bd. of Liq. Lic.

Com’rs., 209 Md. 134, 140 , 120 A.2d 388 (1956); Snyder v. Cearfoss, 186 Md. 360 , 46 A.2d 607 (1946). These cases were discussed by ⁴³ Judge Smith in Resetar v. State Bd. of Education, 284 Md. 537 , 399 A.2d 225 (1979), while giving similar consideration to a county board of education mandate upon itself. “The Board shall ... render a decision ... within thirty (30) days....” The thread apparent in each of these cases which continued to digress from the contemporary trend, is that the directory duty imposed is on the “arbiter of the controversy” as opposed to the adversary. In re James S., supra at 708, 410 A.2d 586 . Id. at 717-18, 420 A.2d 1017 (footnotes omitted) (emphasis added).

More recently in Woodfield v. West River Improvement Ass’n, 395 Md. 377, 388-90 , 910 A.2d 452 (2006), the Court of Appeals focused on the use of the word “shall” as used in Maryland Code (2005 Repl.Vol.), Article 2(B), section 16-101(e)(3). In Woodfield , the statute provided: Unless extended by the court for good cause, the local licensing board’s decision made under subsection (a) of this section shall be affirmed, modified, or reversed by the circuit court within 90 days after the record has been filed in the court by the local licensing board. (Emphasis added). In Woodfield , Judge Wilner, speaking for the Court, said: We shall consider first the issue of whether the circuit court lost jurisdiction or authority to render a decision once the 90-day period specified in § 16 — 101(e)(3) of Art. 2B expired.

As an alternative ground for holding that authority was not lost, a majority of the Court of Special Appeals concluded that the statute was “directory” rather than “mandatory.” We shall not decide the issue precisely on that basis, because, though certainly traditional, the mandatory/directory approach to determining the consequences of a failure to comply with a statutory command is an artificial one that addresses the appropriate question in a circular fashion. In Tucker v. State, 89 Md.App. 295, 297-98 , 598 A.2d 479 (1991), which dealt with a somewhat similar matter — the ⁴⁴ failure of a judicial panel to render a decision within the time set in a statute — the Court of Special Appeals observed: “In dealing with statutory commands, including time provisions such as these, courts often speak in terms of whether they are ‘mandatory’ or merely ‘directory’____ The suggestion implicit from such an analysis is that, if the command is ‘mandatory,’ some fairly drastic sanction must be imposed upon a finding of noncompliance, whereas if the command is ‘directory,’ noncompliance, will result in some lesser penalty, or perhaps no penalty at all. That, indeed, is really the issue. When a legislative body commands that something be done, using words such as ‘shall’ or ‘must,’ rather than ‘may’ or ‘should,’ we must assume, absent some evidence to the contrary, that it was serious and that it meant for the thing to be done in the manner it directed.

In that sense, the obligation to comply with the statute (or rule) is both mandatory and directory. The relevant question in such a case is whether the sanction sought for noncompliance is an appropriate one.” See also Thanos v. State, 332 Md. 511, 522 , 632 A.2d 768 (1993); State v. Green, 367 Md. 61, 82 , 785 A.2d 1275 (2001); Gorge v. State, 386 Md. 600, 613 , 873 A.2d 1171 (2005), quoting with approval from Tucker . The Tucker Court noted that this Court had essentially adopted that view, with respect to commands found in the Maryland Rules, in its promulgation of Maryland Rule 1-201. The court observed that, although Rule l-201(a) applies only to the construction of the Maryland Rules, the standards espoused in it are equally applicable to statutory commands, and that “[e]ven when applying a ‘mandatory/directory’ standard, the courts have essentially looked to the context of the enactment and ultimately to the legislative intent in determinating what, if any, sanction to impose for noncompliance.” Tucker v. State, supra, 89 Md.App. at 298 , 598 A.2d at 481 .

Thus, “[i]f the legislative body has provided a sanction for noncompliance, its intent is clear, and that sanction, if lawful, i.e., constitutional, has ordinarily ⁴⁵ been applied[,]” but “[i]f no clear sanction has been provided, the court has attempted to discern the overall purpose of the statute and then determine which, if any, sanction will best further that purpose.” Id. at 388-89 , 910 A.2d 452 (footnote omitted) (emphasis added). Similar to the situation presented in Woodfield , in the case sub judice, the statute at issue does not provide a sanction for noncompliance "with the 60 day requirement. Therefore, we shall look to the overall purpose of the statute to determine whether dismissal would further the statute’s purpose. Id.

Section 5-706 of the Family Law Article is found under subtitle 7, which is entitled Child Abuse and Neglect. Section 5-702, which sets forth the legislative policy and the purpose of subtitle 7, reads as follows: The purpose of this subtitle is to protect children who have been the subject of abuse or neglect by: (1) mandating the reporting of any suspected abuse or neglect; (2) giving immunity to any individual who reports, in good faith, a suspected incident of abuse or neglect; (3) requiring prompt investigation of each reported suspected incident of abuse or neglect; (4) causing immediate, cooperative efforts by the responsible agencies on behalf of children who have been the subject of reports of abuse or neglect; and (5)