Tabassi v. Carroll County Department of Social Services

ADKINS, J. Amir Tabassi appeals an Office of Administrative Hearings (OAH) dismissal of his request for a contested case hearing to challenge a finding by the Carroll County Department of Social Services (DSS), appellee, that he was responsible for “indicated child neglect.” The OAH dismissed Tabassi’s hearing request after Tabassi was found guilty of reckless endangerment and child access to firearms, criminal charges that arose out of the same incident that was the basis for the OAH’s finding of “indicated child neglect.” Md.Code (1984, 2006 Repl.Vol.) § 5-706.1(b)(3) of the Family Law Article (FL) requires the OAH to dismiss an administrative appeal of a ⁸³ DSS finding “[i]f after final disposition of the criminal charge, the individual requesting the hearing is found guilty of any criminal charge arising out of the alleged abuse or neglect[.]” In appealing the dismissal, Tabassi presents the following two questions for our review: I. Did the lower court err in: Affirming the Office of Administrative Hearings’ ... decision [a]nd refusing to reverse the [administrative] law judge’s dismissal order?

II

Is the regulation and the statute: • Unconstitutional? • Contrary to the [a]gency’s [statutory [authority or jurisdiction? • Resulted [sic] from an unlawful procedure? • Arbitrary or capricious? We conclude that the OAH erred in dismissing Tabassi’s administrative appeal under FL § 5 — 706.1(b)(3) based on Tabassi’s conviction for reckless endangerment and child access to firearms in the related criminal proceeding. Tabassi’s guilt on these criminal charges did not require proof that he was a “person who has permanent or temporary care or custody or responsibility for supervision of the child[,]” a necessary element of “neglect” under FL § 5-701(s). Tabassi’s criminal charges, therefore, did not arise “out of the alleged abuse or neglect” in a manner that warranted dismissal of his administrative appeal under FL § 5 — 706.1(b)(3).

Because we remand on issue I, we do not reach issue II. FACTS AND LEGAL PROCEEDINGS In December 2003, the Carroll County Department of Social Services sent Amir Tabassi, the appellant pro se, a “notice of action” stating that it found Tabassi responsible for “indicated child neglect.” DSS conducted an investigation of Tabassi upon having received information that officers of the Bureau of Alcohol, Tobacco, Firearms and Explosives, while executing a search warrant for illegal firearms at Tabassi’s home, found a 12-year-old unrelated girl living at the home and “allegedly ⁸⁴ sleeping in Mr. Tabassi’s bed.” A DSS worker went to Tabassi’s residence, which was being searched, and observed “various weapons” being taken from the home. The worker first encountered a 29-year-old woman, named Vera, sitting on the front porch who stated that she was the sister of the 12-year-old girl inside the residence and that the two had been staying with Tabassi. The DSS worker was then informed by troopers searching the home that the 12-year-old, named Simone, was found sleeping in Tabassi’s bed with loaded firearms on and next to the bed.

The DSS worker spoke with Simone and elicited the following information, documented in the DSS investigation report: [Simone] stated that she lives at [redacted] with her parents Mary and George [redacted]. She is a student at [redacted]. Simone stated that her sister and Mr. Tabassi met through a friend and that Vera had helped watch Tabassi’s two small children when they visited from Tennessee. Simone had come with her sister from Ohio for the summer.

Simone stated that she does not normally sleep in Mr. Tabassi’s room. Simone denied that she had ever slept in Mr. Tabassi’s bed when he was in the bed.... Simone stated that the night before, they had gone to the airport and returned about 1 am. She laid down in the bedroom that Mr. Tabassi’s children sleep in when they are there.

She could not sleep and got up around 2-3 am and got on the computer in the kitchen. After a while she went and laid down in the living room on the sofa. At approximately 5-6 am Mr. Tabassi got up to go to work. He came out to the living room and told her she could go sleep in his bed.

Simone stated that she did so and that there were two loaded guns on the bed with her when she went to sleep. She stated that there were also numerous loaded guns by the bed on the floor and a machine gun. Simone stated that she knew that there were guns in the top dresser drawer and that guns are on a regular basis out in the open. The DSS worker contacted the mother of the two girls and the mother stated that Vera had met Tabassi on the internet, ⁸⁵ that Tabassi told Vera that he wanted to marry her, and requested that she come to Maryland.

The girls’ parents then allowed Simone to come with Vera for the summer because they trusted Vera’s judgment. The DSS worker spoke with Tabassi, who denied that there were any loaded guns left out in the open until the day before the search and that they were always locked up in a safe or cabinet. Tabassi filed a request for a contested case hearing with the Office of Administrative Hearings on March 1, 2004. 1 The OAH dismissed this request as untimely and Tabassi appealed the dismissal. On November 21, 2005, we vacated the judgment and remanded the case to the OAH for further proceedings.

The OAH, on remand, stayed the proceedings concerning Tabassi’s requested contested case hearing, pursuant to FL § 5-706. l(b)(3)(i), because it had “been advised of criminal proceedings pending[,] arising out of the alleged abuse or neglect appealed in the [OAH] matter[.]” On April 26, 2006, DSS filed a Motion to Dismiss Tabassi’s appeal “based on [his] being found guilty of reckless endangerment and firearms-access by minors, criminal charges arising out of the alleged neglect, on August 31, 2004[.]” Tabassi filed an opposition to DSS’s motion to dismiss on May 11, 2006. The OAH dismissed Tabassi’s appeal on May 11, 2006, pursuant to FL § 5-706.1(b)(3)(ii). Tabassi sought judicial review of the OAH’s dismissal in the Circuit Court for Carroll County, and on May 3, 2007, the court affirmed the OAH’s order of dismissal. DISCUSSION Standard Of Review “When reviewing an administrative agency decision, our role ‘is precisely the same as that of the circuit court.’ ” ⁸⁶ Howard County Dep’t of Soc.

Servs. v. Linda J., 161 Md.App. 402, 407 , 869 A.2d 404 (2005) (citation omitted). We review only the decision of the administrative agency and do not evaluate the factual findings and conclusions of law made by the circuit court. See id. We apply a limited standard of review and will not disturb an administrative decision on appeal “if substantial evidence supports factual findings and no error of law exists.” See Howard County v. Davidsonville Area Civic and Potomac River Ass’ns, Inc., 72 Md.App. 19, 34 , 527 A.2d 772 , cert. denied, 311 Md. 286 , 533 A.2d 1308 (1987). “[I]f the issue before the administrative body is ‘fairly debatable’, that is, that its determination involved testimony from which a reasonable man could come to different conclusions, the courts will not substitute their judgment for that of the administrative body.” Eger v. Stone, 253 Md. 533, 542 , 253 A.2d 372 (1969).

We are under no constraint, however, “ ‘to affirm an agency decision premised solely upon an erroneous conclusion of law.’ ” See Berkshire Life Ins. Co. v. Md. Ins. Admin., 142 Md.App. 628, 653 , 791 A.2d 942 (2002) (citation omitted). The OAH’s Dismissal Of Tabassi’s Appeal Tabassi argues that the OAH erred in dismissing his appeal of DSS’s finding Tabassi responsible for indicated child neglect.

The OAH relied on FL § 5-706.1(b)(3) and Tabassi’s guilt for the offenses of reckless endangerment and child access to firearms in dismissing his appeal. The pertinent provisions of FL § 5-706.1(b) provide as follows: (b) In the case of a finding of indicated abuse or neglect, an individual may request a contested case hearing to appeal the finding in accordance with Title 10, Subtitle 2 of the State Government Article by responding to the notice of the local department in writing within 60 days.... (3)(i) If a criminal proceeding is pending on charges arising out of the alleged abuse or neglect, the Office of Administrative Hearings shall stay the hearing until a final disposition is made. ⁸⁷ (ii) If after final disposition of the criminal charge, the individual requesting the hearing is found guilty of any criminal charge arising out of the alleged abuse or neglect, the Office of Administrative Hearings shall dismiss the administrative appeal. Tabassi argues, first, that the OAH could not conclude from the mere criminal docket entries that the issue of neglect had been adjudicated in his criminal case.

Tabassi contends, second, that the OAH, in dismissing his appeal, deprived him of the opportunity to challenge DSS’s finding of neglect in a matter that contravened the legislative intent of FL § 5-701.1. In support of his position, Tabassi cites Montgomery County Dep’t of Soc. Servs. v. L.D., 349 Md. 239 , 707 A.2d 1331 (1998), in which the Court of Appeals considered the procedural protections the legislature has afforded individuals accused of child abuse or neglect. In L.D., the Court concluded that individuals accused of child abuse or neglect were entitled to a “full contested case hearing” before their names were entered into databases accessible on a statewide basis.

See id. at 275 , 707 A.2d 1331 . The Court based this conclusion on an analysis of FL § 5-715, a statute that was repealed in 1999, and its opinion in C.S. v. Prince George’s County Dep’t of Soc. Servs., 343 Md. 14 , 680 A.2d 470 (1996). The Court rejected an argument that a full hearing right to the accused would hinder local departments of social services from entering information into databases and that this would cripple their ability to protect children from abuse and neglect: We believe the Legislature has spoken on this issue, and it is clear it sought a balance between the critical need to investigate and prosecute child abusers and neglectors and the equally critical need to allow persons accused of abuse and neglect the opportunity to clear their names before dissemination throughout the entire state.

See id. at 275, 680 A.2d 470 . Tabassi argues, in light of the recognized legislative intent in L.D., that he was entitled to a hearing before the OAH to ⁸⁸ have the opportunity to clear his name of the accusation of child neglect, because DSS’s claim of neglect was not adjudicated in his criminal case. Tabassi claims support for this proposition from the following Court of Appeals discussion of the legislative history behind FL §§ 5-706.1, 5-706.2, and 5-715, by which the legislature created a new hearing procedure and broadened the scope of registries subject to procedural requirements: This history ... demonstrates the legislature’s concern that before information relating to alleged child abuse can be disseminated state-wide, that information must have been demonstrated to be accurate either through adjudication or an administrative hearing. Clearly, §§ 5-701 to 5-715 grant broad authority to social services and law enforcement agencies to investigate and prosecute cases of child abuse and to prevent its recurrence.

At the same time, the legislature has also shown that this authority must be tempered to ensure that individuals are not labelled [sic] as child abusers on the basis of inaccurate or incomplete information. See C.S., 343 Md. at 28-30 , 680 A.2d 470 . 2 Tabassi maintains, third, that his criminal charges did not arise out of the alleged child neglect and that his guilt for ⁸⁹ these charges, therefore, did not warrant dismissal under FL § 5-706.1(b)(3)(ii). Tabassi contends that this provision is