S.B. v. Anne Arundel County Department of Social Services

PAUL E. ALPERT, J. (Retired, Specially Assigned). After the Anne Arundel County Department of Social Services (“DSS”), appellee and cross-appellant, found “indicated” child sexual abuse by S.B., appellant and cross-appellee, 1 against his girlfriend’s five and seven year old sons, an admin ²⁹⁰ istrative law judge (ALJ) changed that finding to “unsubstantiated.” The Circuit Court for Anne Arundel County denied DSS’s motion to dismiss Mr. B.’s petition for judicial review on timeliness grounds and affirmed the ALJ’s decision. Mr. B. appeals, arguing that the evidentiary record requires that the allegations of abuse must be designated as “ruled out” and that the ALJ erred in relying on the children’s hearsay statements. 2 DSS counters that there is substantial evidence to support the ALJ’s decision that the allegations of child sexual abuse are “unsubstantiated” rather than “ruled out” and that the ALJ properly evaluated, admitted, and relied upon the children’s hearsay statements.

In a cross-appeal, DSS alternatively argues that the circuit court erred in failing to dismiss Mr. B.’s petition for judicial review, because it was filed two days after the thirty day deadline. Although Mr. B.’s challenges to the ALJ’s decision lack merit, ultimately we conclude that his petition for judicial review should have been dismissed as untimely. FACTS AND LEGAL PROCEEDINGS These proceedings involve a divided family engaged in a custody tug-of-war over three young boys. In October 2006, Mr. B. was living with J.M.

(“Mother”) and her sons Kyle ²⁹¹ (born August 28, 2001), Tyler (born June 23, 1999), and Michael (born November 15, 1997) (the “Children”). Although Mr. B. is not the boys’ biological father, they called him “Daddy.” The Children had previously lived with their Mother in the home of her mother, B.L. (“Grandmother”), both when B.L. was living with her current husband D.L. (“Step-Grandfather”) and, before they divorced in 2000, when she lived with her former husband, G.M.

(“Grandfather”). 3 The family schism is between Mr. B. and Mother, on the one hand, and Grandmother, Grandfather, and Step-Grandfather on the other hand. After reviewing the administrative record, the circuit court gave the following account of the abuse allegations, DSS investigation, and administrative proceedings: At the conclusion of an August 26, 2006 outing with the Children, Grandfather and Grandmother refused to take the Children to Mother. They did so because, during the outing, the children made statements leading them to believe that Mr. [B.] had sexually abused them. At the time, Kyle was 4, Tyler was 7, and Michael was 8.

When Grandparents refused to return the Children, Ms. [M.] called the police. Grandmother told the police about her concerns. The police, in turn, contacted the Anne Arundel County Department of Social Services (“DSS”), which then began an investigation. On August 28, 2006, the DSS assigned Rashida Sims to investigate the allegations.

Ms. Sims interviewed the Grandparents, Step-Grandfather and the Children. During those interviews, Grandparents and Step-Grandfather relayed statements made by the Children stating that Mr. [B.] had engaged in sexual activities with Kyle and Tyler. Kyle and Tyler substantiated what the Grandparents told Ms. ²⁹² Sims; Michael maintained he was never sexually abused and was unaware of what happened to Kyle and Tyler---- On November 16, 2006, the DSS notified Mr. [B.] that it found him to be a person allegedly responsible for indicated child neglect. Mr. [B.] was also informed that he had a right to request a contested case hearing to challenge DSS’s decision.

On December 1, 2006, Mr. [B.] requested such a hearing. On March 20 and 28, 2007, a contested case hearing was held at the DSS office in Annapolis, Maryland, before ALJ Ann C. Kahinde. At the start of the hearing, Mr. [B.] counsel moved to withdraw his appearance; Mr. [B.] agreed, and proceeded pro se. On May 14, 2007, the ALJ issued a written decision based on the following findings of fact: 7.

The maternal grandfather told Ms. Sims that after the [August 26, 2006] outing, he was driving Michael home and the maternal grandmother was driving Tyler and Kyle. The maternal grandmother called him on his cellphone and said that Tyler had told her that, “daddy plays with my bird and makes it big and Kyle, too.” ... 10. Ms. Sims also met with the maternal grandmother at the maternal grandfather’s home on August 28 [2006]. [The maternal grandmother] said that in early August [2006], she told one of the boys to wrap a towel around his waist after changing out of a swimsuit and he stated, “let me show you what daddy does.” 11. The maternal grandmother told Ms. Sims that on August 26, 2006, she asked the boys about daddy touching them, and Tyler made a statement that “daddy licked his butt.” 12.

On August 30, 2006, Ms. Sims and a detective interviewed all three children separately at the Child Advocacy Center____ All three boys refer to the penis as “bird.” 13. Ms. Sims asked Kyle about touches he liked and does not like. Kyle said he did not know and shrugged his shoulders. Ms. Sims asked him if he was touched in a way ²⁹³ that he did not like and Kyle said “yes.” Ms. Sims asked Kyle who did the touching and he said “Daddy.” He was asked where on his body and Kyle pointed to the “butt” on the picture.

Ms. Sims asked Kyle what he was touched with and he responded a “hand.” 14. In response to Ms. Sims’s questions, Kyle told her that the touching had happened on more than one occasion and that sometimes Michael was home and Tyler sees it happen. Kyle also told Ms. Sims that it happens in the home where daddy works “down in the basement, it is all painted down there.” Kyle told Ms. Sims he did not know where on his body he was touched. 15. In the same interview, Kyle initially told Ms. Sims that he was not asked to touch his daddy.

Later, he told Ms. Sims that his daddy asked him to touch his (his daddy’s) bird and he touched his daddy’s bird. 16. [Mr. B.] and his father own another house down the street from where he lives with the children’s mother. [Mr. B.] and his father have gutted the property and are renovating it.... The walls of the basement were unpainted cinder-block. 17. Ms. Sims and the detective then interviewed Tyler. After talking about other types of touches, Ms. Sims asked Tyler if he had been touched on his butt or his bird or if he had been asked to touch anyone else.

Tyler responded “no.” Ms Sims said, “mom-mom [maternal grandmother] said something happened that you didn’t like, is that true?” Tyler stated, “dad made his bird big and then that stuff and then he put it in me and Kyle’s butts, we were crying.” Ms. Sims asked Tyler how he knew that his daddy put his bird in his butt? Tyler said his dad tells him to turn over and he spits on his bird and “on our butts” and “then he rubs his bird on it.” 18. Tyler also told Ms. Sims that [Mr. B.] went into a closet “to make his bird big.” Tyler stated there is a television with a blue screen or video camera in the closet. ²⁹⁴ 19. Ms. Sims inspected the inside of the home where [Mr. B.] and the mother of the children reside.

Ms. Sims did not find a television or video camera in any of the closets.... 21. On August 30, 2006, Ms. Sims and the detective interviewed the maternal grandfather, the maternal grandmother, and the step-grandfather. 22. The step-grandfather told Ms. Sims that the children were at their house in early August swimming in the pool. The step-grandfather was accidentally hit in the private area with the ball and Tyler said, “play with it and make white stuff come out.” The step-grandfather asked Tyler where he got that from and Tyler said “daddy on his bed.” The step-grandfather contradicted Tyler and Kyle and said, “yup he did.” 23.

The maternal grandmother told Ms. Sims that she and her husband tried to figure out where the statements came from and she asked Tyler and Kyle on August 26, 2006, if their daddy ever touched them. She said Kyle told her “yes” that his daddy put his bird in his mouth. 24. On August 31, 2006, Ms. Sims met with [Mr. B.] and the children’s mother. The children’s mother told Ms. Sims she has found the children playing with each other’s bird in the bathtub.

She alleged inappropriate sexual activities by her father (nude parties, nude swimming, allowing her children to view inappropriate movies and go to adult stores) and that the children were banned from the public library after they visited pornographic sites on the computer because the maternal grandfather was not properly supervising them.... 25. On September 11, 2006, the boys were examined by a forensic pediatrician. There were no physical findings to establish trauma to the anus or penis of the three boys. Cultures were taken to test for sexually transmitted diseases; the cultures were negative____ 30.

On October 12, 2006, Ms. Sims interviewed Tyler at his school. Ms. Sims told Tyler that it was suggested he had been told what to say in his interview, exposed to sexually ²⁹⁵ inappropriate content, taken to sex stores and R-rated movies. Tyler denied that these things were true and said what he had said about his dad [was] true. 31. On October 12, 2006, Ms. Sims also interviewed Kyle at his school.

Ms. Sims told Kyle that it was suggested he had been told what to say in his interview, exposed to sexually inappropriate content, taken to sex stores and R-rated movies. Kyle responded several times, “I don’t know.” 32. On October 12, 2006, Ms. Sims also interviewed Michael at his school. Michael was upset when he saw Ms. Sims.

His mother had told him the day before that she would call Ms. Sims and have the three boys placed in a non-relative’s home. Ms. Sims asked Michael about sexual interactions and he denied ever touching his brother’s privates. Michael said it was true that he and his brothers were not listening or following his mother’s directions. Michael denied being taken to R-rated movies or being asked to leave the library.

On the basis of these factual findings, the ALJ changed the finding of “indicated” child sexual abuse to “unsubstantiated.” The ALJ reviewed the evidence in detail over eight pages of her written decision, making the following observations: • Step-Grandfather did not testify and was interviewed only once, along with Grandmother. The record did not disclose whether the two were interviewed separately. His account of the boys’ statements at the pool — “play with it and make white stuff come out” like “daddy on his bed” — suggested that the children may have witnessed masturbation, but did not suggest that they had been touched on their “butts and birds,” as the DSS claimed at the hearing. • The ALJ found it “puzzling” that, in light of their mutual desire “in wanting to raise the children outside the influence of’ Mr. B., Grandmother “did not mention the incident at the swimming pool to” Grandfather when she learned about it from Step-Grandfather. • Ms. Sims’s notes of what Grandmother told her about the boys’ statements in response to her questions on August 26 ²⁹⁶ did not contain everything that Grandmother testified the children told her. The ALJ was uncertain whether Grandmother did not tell Ms. Sims about these statements or whether Ms. Sims did not record everything Grandmother told her. • Although a police detective was present for Ms. Sims’s first interviews with the boys, he provided no information, by way of notes or testimony.

For that reason, the only information came from Ms. Sims, who “was not qualified as an expert in child abuse investigations.” Although the ALJ elicited that she has a master’s degree in counseling and that she used the protocol “Finding Words” to interview the children, DSS did not present Ms. Sims’s qualifications other than working at DSS for one year. • Ms. Sims asked appropriately “open-ended and non-leading” questions to Kyle, leading to his statement that “Daddy” touched him on his “butt” with a “hand.” • Kyle described the abuse as occurring at the house “where daddy ‘works down in the basement, it is all painted down there.’ ” Ms. Sims confirmed that the house exists, but did not inspect that property. Mr. B.’s father testified credibly that “the basement has never been painted.” • When Tyler was interviewed by Ms. Sims, he answered, “no” when he was first asked whether he had been touched on his butt or his bird. Ms. Sims then “used a very leading question,” stating, “mom-mom said something happened that you didn’t like, is that true?” Tyler then gave a graphic description of Mr. B. becoming aroused, ejaculating, and anally penetrating both he and Kyle. • Tyler’s initial denial was not consistent with Mr. B.’s accusation that the child was coached. Nor was his inclusion of graphic details without further prompting. • Although Tyler told Ms. Sims that Mr. B. went into a closet “to make his bird big,” and that there was a television with a blue screen and a video camera in the closet, no such equipment was found in the home where they lived.

But the ALJ noted that “anyone who had engaged in that activity ²⁹⁷ would immediately get rid of the evidence ... when they knew social services would be coming to the house to investigate.” Mr. B. and his father both testified, however, that the closets were not “walk-ins” and would be difficult for an adult to enter. • Michael denied abuse by Mr. B., knowledge of abuse of his brothers, and inappropriate activity by Grandfather. But the ALJ observed that it was possible that Michael was not abused because he was older and had “a greater capacity (due to age and education) to accurately describe the abuse. And all the children agreed that Kyle and Tyler went with Mr. B. to the renovation house more frequently than Michael. • When Ms. Sims re-interviewed Tyler in October, he denied that he had been told what to say or exposed to sexually inappropriate content by his Grandfather. He insisted that “what he had said about his dad was true,” which the ALJ found “especially important in light of the fact that when he was re-interviewed Tyler was now living back with his mother,” even though Tyler presumably knew that she “supported [Mr. B.’s] innocence.” (By that time, Mr. B. had moved out so the children would be returned to Mother.) • Although Kyle answered, “I don’t know” to nearly all questions Ms. Sims asked in the October re-interview, the ALJ did not find this proved or disproved that his original statement had been coached.

Given his young age (five years old), that he had been moved back and forth between Grandfather and Mother, and that Mother told the children “that she would call Ms. Sims and have them removed somewhere else if their behavior did not improve,” it was “not surprising” that “Kyle did not want to say anything.” Recognizing that the children’s descriptions of genital arousal, contact, ejaculation, and anal penetration were critical evidence in the absence of any other witnesses or physical evidence of abuse, the ALJ carefully evaluated the trustworthiness of these hearsay statements over an additional eight pages of her decision. To determine whether the children’s ²⁹⁸ accounts were sufficiently trustworthy to be treated as credible evidence of sexual abuse, the ALJ reviewed the statements in light of twelve statutory factors considered in determining the admissibility of hearsay statements by child abuse victims under the age of twelve in criminal and juvenile court proceedings under Maryland Code (2001, 2009 Cum.Supp.), section ll-304(e) of the Criminal Procedure Article (“CP”) — a procedure we approved in Montgomery County Dep’t of Health & Human Servs. v. P.F., 137 Md.App. 243, 273 , 768 A.2d 112 (2001) (hereafter cited as “P.F.”) The ALJ found the following factors to be indicative of trustworthiness: • The children reported that they had personal knowledge of the events they described, and each separately “stated that the other one was aware of what their daddy did because the other one was present.” • “[Tjhere was no challenge from [Mr. B.] that these statements were not made by Tyler and Kyle to Ms. Sims.” • The ALJ was “not persuaded” that, even if Mother’s allegations of inappropriate conduct by Grandfather were true, such behavior could “account[] for the details in the children’s statements[.]” The graphic accounts of sexual abuse were “beyond the child’s expected knowledge and experience,” and the ALJ weighed this factor “decidedly against [Mr. B.’s] position that the statements were the result of coaching by the grandparents.” The ALJ stated, “Assuming for the sake of argument that everything the children’s mother said about her father was true, it still does not provide a credible foundation for wh[y] five and seven year old children would be able to graphically describe an adult male ejaculating and anal penetration.” • The boys used age-appropriate terminology. “The boys consistently used the terms ‘butts’ and ‘birds’ and Tyler did not have a word for ejaculate other than ‘stuff which appears appropriate for a boy of seven years.” • The ALJ had “no reason” to question the credibility of Ms. Sims. ²⁹⁹ On the other hand, the ALJ weighed the following factors against the trustworthiness of the children’s statements: • “[T]he grandparents, especially the grandfather, wanted custody of the children.” Grandfather stated “that he didn’t care what it took, he would get custody,” and his “desire to obtain custody was a motive to encourage the children to make statements against [Mr. B.].” • The spontaneous statement that Tyler made to his Step-Grandfather at the pool in early August — “play with it and make white stuff come out” — “did not involve a disclosure by the boys that they were touched by [Mr. B.] as counsel for the local department claimed.” • After the pool incident, none of the children’s disclosures were spontaneous. To the contrary, “all of the children’s statements were in response to being questioned by either their grandparents or by Ms. Sims.” • Ms. Sims and Grandmother used leading questions to elicit Tyler’s disclosures. • The ALJ “questioned] why [Ms. Sims] was not more probing in her contacts with the maternal grandfather,” especially because “some of the information she was obtaining from him might not have been as objective as she initially thought,” given his strong interest in obtaining custody. Finally, the ALJ explained that the following factors were either equivocal or not helpful in evaluating the trustworthiness of the children’s statements: • The “timing of the statements” did not aid the ALJ in evaluating their trustworthiness.

Although Tyler and Kyle made statements to Grandmother in the car on August 26, this occurred after an outing with the grandparents, raising the possibility that they were coached. On the other hand, Mother and Mr. B. had been limiting the amount of time the children spent with Grandparents, making it difficult for Grandparents to coach them “to make very detailed statements with only one day of preparation.” The timing of the statements both children later made in October was “not helpful because they had been returned to their mother ³⁰⁰ shortly before the re-interview” and Mother told them “they would be moved somewhere else if their behavior did not improve[.]” • The “nature and duration of the [alleged] abuse” neither supported nor disproved trustworthiness, because the children “were vague as to how many times the abuse occurred,” with Tyler stating that it “happened a long time ago” when it was both “hot and cold outside.” Because Ms. Sims did not explain whether she tried to obtain more specific information, the ALJ did not consider this factor. • The “internal consistency” of both children’s statements was “mixed.” For example, Kyle first said he was not asked .to touch Mr. B.’s bird but later in the interview said Mr. B. did ask to be touched and Kyle did so, while in his October interview, he said, “I don’t know.” Similarly, when asked if he had been touched on his butt or bird, Tyler first answered “no,” but after Ms. Sims told him his Grandmother “said something happened that you didn’t like,” he said, “dad made his bird big and then that stuff and then he put it in me and Kyle’s butts, we were crying” and that “his dad tells him to turn over and he spits on his bird and ‘on our butts’ and ‘then he rubs his bird on it.’ ” The ALJ noted that, although Tyler’s statements were “coherent, ... there was no way to judge their internal consistency because Ms. Sims did not testify that she asked the same question in different ways to see if she would elicit the same or different responses.” • The ALJ could not evaluate “whether Kyle and Tyler were suffering pain or distress when they made the statements because Ms. Sims did not describe their emotional state[.]” • As for “opportunity to commit” the abuse described by the children, the ALJ noted that, although the children said the abuse occurred both at home and at the nearby house Mr. B. was renovating, the neighbor next door to the renovated house testified that the boys routinely played outside with her grandchildren, in her sight. The ALJ concluded that although Mr. B. may have had only “limited” opportunities, ³⁰¹ the neighbor’s testimony did not establish that he “was never alone in the house with Kyle and Tyler” or otherwise “account for where [the] children were during the cold months” they accompanied Mr. B. to the house. Ultimately, the ALJ concluded that the children’s descriptions of sexual abuse had been sufficiently challenged by Mr. B. that an “indicated” finding was not warranted.

But she also concluded that these statements were still sufficiently credible that she could not find by a preponderance of the evidence that the abuse did not occur, as required to make a finding of