Taylor v. Harford County Department of Social Services

CATHELL, Judge. This case arises from a January 2003 finding of the Harford County Department of Social Services (“HCDSS”), appellee, that Stephen Taylor, appellant, was responsible for “indicated” child physical abuse as a result of his kicking a footstool that struck his 12-year-old daughter in the face, injuring her. Appellant appealed the HCDSS decision and, on July 15, 2003, a hearing was held before an Administrative Law Judge (“ALJ”) of the Maryland Office of Administrative Hearings. On August 1, 2003, the ALJ issued his decision, which upheld the decision of HCDSS.

Appellant thereafter petitioned the Circuit Court for Harford County for judicial review of the final administrative decision as provided by Md.Code (1984, 1999 Repl.Vol.), § 10-222 of the State Government Article. On February 5, 2004, the circuit court affirmed the final administrative decision. On March 5, 2004, appellant noted an appeal to the Court of Special Appeals. On August 25, 2004, prior to consideration by the Court of Special Appeals, we issued a Writ of Certiorari.

Taylor v. Social Services, 382 Md. 688 , 856 A.2d 724 (2004). Appellant presents one question for our review: “I. Did the Maryland legislature when it adopted [Md. Code (1984, 1999 Repl.Vol., 2004 Supp.), §§ 5-701 et seq. of the Family Law Article] and COMAR 07.02.07 et seq. intend that an accidental or unintentional injury caused to a child by a parent or caregiver would be considered child abuse?” [Alteration added.] ²¹⁶ The ALJ did not examine appellant’s conduct as to whether it was reckless or not, but instead based his conclusion that child physical abuse had occurred because appellant had intentionally kicked the footstool and that under a foreseeability analysis that intent to kick the footstool was the equivalent of an intention to injure and thus met the “intent” standard of the statute and regulation. We hold that where an act by a parent or caregiver is injurious to that person’s child, and the injury was unintentional, under Title 5 of the Family Law Article and COMAR 07.02.07.12, the injurious act should not constitute “indicated” child physical abuse unless it can be shown to have been reckless conduct. Accordingly, we vacate and remand to the ALJ for further consideration consistent with this opinion.

I. Facts A, The Alleged Abuse Incident and Subsequent HCDSS Investigation On November 13, 2002, HCDSS received an allegation of suspected child physical abuse involving the 12-year-old daughter of appellant, “L.” On November 14, 2002, in response to this report, HCDSS had one of its licensed social workers, Ms. Geryl Haberkam, visit with appellant’s family pursuant to an investigation of the alleged child abuse. During her visit with appellant’s family, 1 Ms. Haberkam was able to interview appellant’s wife and four children, including “L,” the child who allegedly had been abused. Based upon these interviews, Ms. Haberkam was able to piece together the following sequence of events that eventually led to “L’s” injuries. On the afternoon of November 10, 2002, while appellant was attempting to take a nap on a couch in his home, “L” approached him and asked him to help her with a problem she ²¹⁷ was having with a computer.

Appellant told “L” that she would have to wait until after he had finished his nap. While he was still in the midst of his nap, “L” for a second time approached him about fixing the computer problem. Appellant once again told her that she would have to wait, admitting that this time he “raised his voice and yelled at her.” Later that afternoon, apparently unwilling to wait further, “L” woke appellant for a third time, once more asking him for his help. Appellant, who had by this time grown irritated at his daughter, got up from the couch and told her that she would have to wait until he finished his nap.

While telling “L” this, “to accent his point,” appellant kicked a footstool that was in front of the couch. 2 He had intended to kick the footstool into the couch but instead the kick propelled the footstool over the couch and into the air, where it eventually collided with his daughter, who happened to be standing behind the couch. The footstool hit “L” in the face, causing her nose to bleed and her jaw to be sore. Upon seeing that his daughter had been injured by his act of kicking the footstool, appellant tended to her injuries and then accompanied her to Franklin Square Hospital, where she was further treated for her injuries. She eventually received three stitches to her nose and was treated for abrasions to the left side of her face.

Ms. Haberkam attempted to meet with appellant to discuss what had occurred, leaving a message for appellant to contact her when he returned from his business trip. Appellant initially did schedule to meet with the social worker on November 19, 2002, but later elected not to meet with her on advice from his attorney. ²¹⁸ At the conclusion of her investigation, Ms. Haberkam made a finding of “indicated” child abuse. 3 On January 29, 2008, HCDSS informed appellant of this finding and of his right to a contested administrative hearing. 4 Appellant thereafter exercised his right to a contested hearing under § 5-706.1(b) of the Family Law Article. B. The Administrative Hearing On July 15, 2003, a contested case hearing was held before an ALJ from the Office of Administrative Hearings. The issues as presented to the ALJ were “whether the finding of indicated child physical abuse is correct, and whether the Appellant is properly identified as the person responsible for the indicated child physical abuse” (alteration added).

During ²¹⁹ her testimony at the hearing, Ms. Haberkam reiterated the facts as set forth in her report concerning the November 14, 2002 investigatory visit to appellant’s home. HCDSS also submitted into evidence Ms. Haberkam’s interview worksheets and notes from the visit, digital photographs of “L’s” injuries, and the November 10, 2002 medical report from Franklin Square Hospital concerning “L’s” injuries. Appellant also testified at the ALJ hearing, claiming that he had only kicked the footstool out of frustration with his daughter and that he had never intended for it to strike her in the face, stating that, in his mind, “it was physically impossible that the stool could clear the couch.” Kevin Cooper, an acquaintance of appellant, testified on appellant’s behalf, describing appellant’s extensive charity work and commenting on appellant’s parenting skills, which Mr. Cooper believed to be impeccable. 5 The ALJ ruled that HCDSS’s finding that appellant was responsible for “indicated child physical abuse” was proper, stating that: “[HCDSS] argues that the Appellant’s action constitutes ‘indicated child abuse.’ It maintains that the Appellant intentionally kicked the stool in the direction of [‘L’], and it is immaterial whether the Appellant intended to hit [‘L’] with the stool. The Appellant counters that his behavior was an accident, under COMAR 07.02.07.12C(2)(a)(i), and therefore child abuse should be ruled out.

I agree with [HCDSS], “The Appellant acknowledges that he was angry with [‘L’] when he kicked the stool and that he intended to teach her a lesson in manners. It was certainly foreseeable that when he kicked the stool in her direction, the stool could have ²²⁰ struck [‘L’]. She was behind the sofa but a short distance away. “The definition of ‘abuse’ under § 5-701(b)(l) [of the Family Law Article] does not require intent to harm. The regulations set forth in COMAR 07.02.07.12 also do not excuse the Appellant from responsibility for the unintended but foreseeable consequences of his intended act.

The Appellant was angry with [‘L’], he intentionally kicked the stool toward [‘L’], and the stool struck her in the face. This was not an accident under COMAR 07.02.07.12C(2)(a)(i). “The uncontroverted facts establish that there was a current physical injury, to [‘L’s’] face. COMAR 07.02.07.12A(l)(a). The injury was caused by the Appellant, her father.

COMAR 07.02.07.12A(l)(b). [‘L’] was twelve years old and under the age of eighteen. COMAR 07.02.07.12A(l)(c). She was actually harmed because the stool damaged her nose, swelled her jaw and left a mark on her cheek. In addition, she faced substantial risk of harm because the blow occurred near her eyes, brain and other vital organs.

COMAR 07.02.07.12A(l)(d). All of the elements of indicated child abuse were met. “Based on the above Findings of Fact and Discussion, I conclude as a matter of law that [HCDSS] has established by a preponderance of the evidence that the finding of indicated child physical abuse is supported by credible evidence and is consistent with the law.... I further conclude that [HCDSS] has established by a preponderance of the evidence that the Appellant is an individual responsible for indicated child physical abuse. “I further conclude, as a matter of law, that [HCDSS] may identify the Appellant as an individual responsible for indicated child physical abuse in a central registry.” [Alterations added.] [Emphasis added.] [Some citations omitted.] ²²¹ Appellant thereafter appealed the final decision of the ALJ to the Circuit Court for Harford County. On February 5, 2004, the circuit court affirmed the decision of the ALJ.

II

Standard of Review In the recent case of Charles County Dep’t of Social Servs. v. Vann, 382 Md. 286 , 855 A.2d 313 (2004), this Court described the appropriate standards of judicial review of the final decision of an administrative agency. We stated: “As a court sitting in judicial review of an administrative agency decision, this Court reviews the decision in the same posture as that of the courts below. That is to say, we reevaluate the decision of the agency under the same statutory standards as would the circuit court, and we do not employ those standards to reevaluate the decision of the circuit or intermediate appellate court. See Division of Labor v. Triangle General Contractors, Inc., 366 Md. 407, 416 , 784 A.2d 534, 539 (2001); Dep’t of Health v. Campbell, 364 Md. 108, 123 , 771 A.2d 1051, 1060 (2001) (noting that it is the final decision at the administrative level, not the decision of the previously reviewing court, which is the focus of each level of judicial review). “Under our holding in C.S.[v. Prince George’s County Dep’t of Social Servs., 343 Md. 14 , 680 A.2d 470 (1996)], a challenge to the entry of one’s name in a central registry as an ‘indicated child abuser’ pursuant to L ] § 5-701 [of the Family Law Article] is a contested case within the meaning of the Maryland Administrative Procedure Act, Md.Code (1984, 1999 Repl.Vol., 2003 Cum.Supp.), § 10-202(d)(l) of the State Government Article.

See Sugarloaf Citizens Ass’n v. Northeast Maryland Waste Disposal Authority, 323 Md. 641 , 594 A.2d 1115 (1991). As a contested case in which the agency was acting in its quasi-judicial capacity— as opposed to ‘quasi-legislative’ agency actions, for which a wholly different set of administrative law principles apply, see [ ] § 10-125 [of the State Government Article]; Fogle v. H&G Restaurant, Inc., 337 Md. 441 , 654 A.2d 449 (1995)— ²²² judicial review is governed by [] § 10-222 [of the State Government Article]. “[ ] Section 10-222(h) [of the State Government Article] sets forth standards of judicial review over agency decisions in contested cases and varies those standards depending on the type of agency determination under scrutiny. See Spencer v. Board of Pharmacy, 380 Md. 515 , 846 A.2d 341 (2004). With regard to agency factual determinations, the standard of review is whether the finding is ‘unsupported by competent, material, and substantial evidence in light of the entire record as submitted,’ also known as substantial evidence review. [ ] Section 10-222(h)(3)(v) [of the State Government Article].

Under substantial evidence review of an agency’s factual findings, a court is limited to ascertaining whether a reasoning mind could have reached the same factual conclusions reached by the agency on the record before it. Board of Physician v. Banks, 354 Md. 59, 67-68 , 729 A.2d 376, 380-81 (1999). “With regard to agency legal conclusions, judicial review is less deferential to the agency. When an agency makes ‘conclusions of law* in a contested case, the APA permits the court, on judicial review, to decide the correctness of the agency’s conclusions and to substitute the court’s judgment for that of the agency’s. [ ] Section 10-222(h)(3)(i)-(iv) [of the State Government Article]; Total Audio-Visual Systems, Inc. v. Dep’t of Labor, 360 Md. 387, 394 , 758 A.2d 124, 127-28 (2000). Even with conclusions of law, however, an agency’s legal interpretation of the statute it administers or of its own regulations is entitled to some deference from the courts.

See Jordan v. Hebbville, 369 Md. 439, 450 , 800 A.2d 768, 775 (2002); MTA v. King, 369 Md. 274, 288-89 , 799 A.2d 1246, 1254 (2002). “Other agency decisions fall within categories that are neither legal conclusions nor factual findings, see, e.g., Spencer, 380 Md. 515 , 846 A.2d 341 (explaining judicial review over discretionary functions of the agency), and some fall within both. These latter sort commonly are known as ‘mixed questions of law and fact’ or applications of law to ²²³ facts: The agency has correctly stated the law and its fact-finding is supported by the record, but the question is whether it has applied the law to the facts correctly. When the agency decision being judicially reviewed is a mixed question of law and fact, the reviewing court applies the substantial evidence test, that is, the same standard of review it would apply to an agency factual finding. Pollock v. Patuxent, 374 Md. 463 , 469 n. 3, 823 A.2d 626 , 630 n. 3 (2003); Ramsay, Scarlett & Co. v. Comptroller, 302 Md. 825, 837-38 , 490 A.2d 1296, 1302-03 (1985); Kohli v. LOOC, Inc., 103 Md.App. 694 , 654 A.2d 922 (1995), rev’d in part on other grounds and remanded, 347 Md. 258 , 701 A.2d 92 (1997); Strother v. Board of Education, 96 Md.App. 99 , 623 A.2d 717 (1993).” Vann, 382 Md. at 294-96 , 855 A.2d at 318-19 (alterations added) (footnote omitted).

The present appeal, as briefed before this Court, is predicated solely upon whether the ALJ, in his determination as to whether appellant was responsible for indicated child physical abuse, applied the correct legal standard in reaching his conclusion that appellant was responsible for the abuse under the applicable statutes and regulations. It is therefore neither a review of the agency’s factual determinations nor can it be said to be a review of a “mixed question of law and fact.” It is purely a legal question. The facts that led to “L” being injured are undisputed. Therefore, we shall proceed to review the agency’s determination de novo.

III

Discussion Appellant contends that his act of kicking the footstool is not meant to be considered child physical abuse under Title 5 of the Family Law Article or the applicable COMAR regulations. Appellant argues that although he did intend to kick the footstool, the fact that the resulting injury to his daughter was unintentional removes his act from the realm of child abuse. Therefore, in order to examine appellant’s claim, we must initially analyze the pertinent statutes and regulations that define what child physical abuse is and what it is not. ²²⁴ Section 5-701 (b) of the Family Law Article defines “abuse,” as it pertains to “Child Abuse and Neglect,” as: “(1) the physical or mental injury of a child by any parent or other person who has permanent or temporary care or custody or responsibility for supervision of a child, or by any household or family member, under circumstances that indicate that the child’s health or welfare is harmed or at substantial risk of being harmed; or (2) sexual abuse of a child, whether physical injuries are sustained or not.” Under § 5-701 of the Family Law Article, there are three distinct outcomes to an investigation into whether child abuse has occurred. First, a finding of “indicated” means “that there is credible evidence, which has not been satisfactorily refuted, that abuse, neglect, or sexual abuse did occur.” Section 5-701 (m) of the Family Law Article.

Second, a finding of “ruled out” means “that abuse, neglect, or sexual abuse did not occur.” Section 5-701(v) of the Family Law Article. Third, a finding of “unsubstantiated” means “that there is an insufficient amount of evidence to support a finding of indicated or ruled out.” Section 5-701 (x) of the Family Law Article. COMAR 07.02.07.12 provides for further clarity as to when each investigation conclusion is appropriate. The regulation states, in pertinent part: “.12 Disposition of Investigation of Suspected Child Abuse.

A. Indicated Child Abuse. (1) Physical Abuse Other than Mental Injury. Except as provided in § A(3) of this regulation, a finding of indicated child physical abuse is appropriate if there is credible evidence, which has not been satisfactorily refuted, that the following four elements are present: (a) A current or prior physical injury; (b) The injury was caused by a parent, caretaker, or household or family member; ²²⁵ (c) The alleged victim was a child at the time of the incident; and (d) The nature, extent, and location of the injury indicate that the child’s health or welfare was harmed or was at substantial risk of harm. B. Unsubstantiated Child Abuse.

A finding of unsubstantiated child abuse is appropriate when there is insufficient evidence to support a finding of indicated or ruled out child abuse. A finding of unsubstantiated may be based, but is not required to be based, on the following: (1) Insufficient evidence of a physical or mental injury, sexual molestation, or sexual exploitation; (2) Insufficient evidence that the individual alleged to be responsible for the child abuse was a parent, caretaker, or household or family member; (3) The lack of a credible account by the suspected victim or a witness; (4) Insufficient evidence that the child’s health or welfare was harmed or was at substantial risk of being harmed; or (5) Despite reasonable efforts, an inability to complete the investigation due to factors such as: (a) Lack of access to the child or individual alleged to be responsible for the child abuse; or (b) Inability to obtain relevant facts regarding the alleged child abuse. C. Ruled Out Child Abuse. A finding of ruled out child abuse is appropriate if child abuse did not occur.

A finding of ruled out may be based on credible evidence that: (1) There was no physical or mental injury or, in the case of suspected sexual abuse, no sexual molestation or exploitation; (2) In the case of physical abuse: ²²⁶ (a) The alleged abuser was not responsible for the injury for