*1 129A.3d 293 Lauren McCLANAHAN
v. DEPARTMENT WASHINGTON COUNTY OF SOCIAL SERVICES. Term, 79, Sept. 2014.
No. Maryland. Appeals Court Dec. 2015. Denied Feb.
Reconsideration *3 (Rakesh Kilaru, F. Gregory Dorey Jacob and David O’Mel- LLP, DC; veny Meyers Washington Paul Victor Jorgensen, & Middletown, MD), Law Office of Paul Jorgensen, Victor on brief, for Petitioner. (Brian Barnes, Atty. Frosh,
Sandra Asst. Atty. Gen. E. Gen. Baltimore, MD), Maryland, brief, on for Respondent. Clair, Alanna Russell, Jr., G. Esquire, Daniel L. Esquire, Ebner, Lawrence Esquire, Zimolzak, L. Joanne Esquire, LLP, McKenna Long Aldridge DC, & Washington, for Amicus Justice, Inc., Curiae brief of Child Leadership Council on Violence, Star, Child Abuse and Interpersonal Inc., and First on behalf of Petitioner. *4 BARBERA, C.J.,
Argued BATTAGLIA, GREENE, before: ADKINS, MCDONALD,WATTS and GLENN T.
HARRELL, (Retired, JR. Specially Assigned), JJ.
ADKINS, J.
An Judge Administrative Law found that Lauren McClana- (“Mother”) han was responsible for child abuse and could be placed on the registry” “central by maintained the Depart-
695 (“DHR”). This was based Human ment of Resources multiple to health on providers her child taking on Mother father had hurt that her complained after the child occasions Our decision vaginal redness. her, and the child exhibited a proceeding. role of scienter such on the hinges AND PROCEEDINGS FACTS LEGAL Department of Social Ser Washington Cоunty In 2010 (“the of Mother’s investigations conducted Department”) vices (“R”).1 The investi daughter of her neglect abuse alleged R that her allegations by triggered by multiple were gations ex-husband) (Mother’s sexually had abused father biological allegations these reported him.2 she visited Mother her when facilities, subjected eight R was medical where at various These years.4 course of several over the vaginal exams3 not discharge, redness or vaginal evidence of exams showed R, however, not could who examined abuse. Those sexual “hurt her father had that her allegation discount her fully noted, a normal exam professional As one medical bottom.” sexual assault. does not exclude investigation Department opened the child abuse Specifically,
1. had that her father receiving reports that R had said several after investigation neglect Department's child sexually her. The abused the next month when report Department received triggered had faсility that her father alleged that R said at a medical Mother touched her. R, custody joint legal of who was share Mother and her ex-husband 2. born in exams. SAFE is an acro- vaginal exams were SAFE 3. Some of these State, Cooperv. examination. See nym a sexual assault forensic for State, 215-16, 1108, (2013); 209, Jones-Harris v. Md. (2008). n. 4 Md.App. 80 n. 943 A.2d approximately 14 Department conducted ALJ found that the 4. investigated Mother investigations before it of R's father sexual abuse Although as to neglect. the record is unclear alleged abuse and allegation, the vaginal triggered a sexual whether each exam investigations occa- on at least several triggered sexual abuse exams sions. *5 R a ninth a vaginal pediatric practice. received exam at R in a an cough injury. Mother took because of When R “bottom,” that father hurt reported physician her her assis vaginal tant examined her area. The assistant referred Moth er to a medical to further R. But at facility equipped evaluаte Department’s request,5 facility refused to conduct a only SAFE exam on R. This is the evidence that a medical professional refused to examine R out of for her concern then, mental health. Mother testified that since R made more father, allegations against of abuse her but that she was afraid to take her to doctor. in Department experts welfare, asked two clinical child (“Munson”) Zuskin,
Dr. Carlton E. Munson and Ronald E. (“Zuskin”), LCSW-C6 to assess R.7 Munson and diag Zuskin R suffering nosed as from several mental disorders and identi fied Mother as the cause of R’s mental injury.
After its conducting investigations, Department notified Mother it found her responsible for indicated child abuse and indicated child neglect. Exercising her (1984, right appeal § under Md.Code 2012 Repl.Vol.), 5- 706.1(b) Family (“FL”), Law Article Mother requested contested case hearings through the Office of Administrative Hearings challenge both findings. The Administrative Law (“ALJ”) who Judge assigned appeal Mother’s held a hearing for in both cases decision,
In its the ALJ Department’s affirmed thе of indicated child injury. abuse mental Relying heavily on assessments, Munson’s and Zuskin’s the ALJ concluded that Mother’s actions “were either an intentional attempt manip- ulate and influence the outcome of an ongoing custody dispute had, time, 5. The at this commenced the child neglect investigations.
6. LCSW-C means Licensed Certified Social Worker-Clinical. complete investigation
7. A injury requires of child abuse mental assess- by physicians, psychologists, ment two licensed or social workers. (“COMAR”) Maryland Regulations Code of 07.02.07.09B. subconscious efforts father, a result of her or were with R[ ]’s to her.” remain close to have R[ ] caused R’s mental that Mother had concluded
Munson suggestive or unconscious conscious injury by “engaging engaging the father and about abuse utterances to R[ ] *6 ex- Munson also to the father.” alienating activities related problems emotional and behavioral that R suffered plained which “re- allegations,” abuse “frequent of Mother’s because Zuskin reached investigatiоns.” exams repeated sulted state that Moth- Zuskin did not Although conclusions. similar he allegations, false abuse believed “coached” R to make er by responding daughter’s her behavior that Mother reinforced protectiveness with “animal R’s statements of abuse Hershey, a Amy contacted Munson and Zuskin closeness.” incorporated R and their who counseled licensed social worker of R. her into their assessments communications with that she had acted rejected argument Mother’s The ALJ justified the re that no medical evidence reasonably, ruling The ALJ author and R had made. allegations Mother peated in a registry8 Mother central identify Department ized injury. mental for child abuse being responsible as finding of ALJ, however, Department’s modified The The ALJ neglect.” “ruled out child neglect child indicated child already acts constituted Mother’s reasoned that because could not constitute that same conduct injury, mental appeal did not injury. neglect ruling. this Court for decision to the Circuit the ALJ’s appealed
Mother (1984, Repl. by Md.Code Washington County provided as (“SG”). 10-222(a) Article Vol.), Government § of the State concluded that decision, Court the Circuit Affirming the ALJ’s 07.02.07.02B(5) the database contain- Although still refers to COMAR “central investigations as the regarding child abuse ing information § in 2015 and Assembly amended FL 5-701 registry,” General the "centralized registry, now known as central which is renamed the (1984, § Repl.Vol.), 5- Md.Code database.” See confidential ("FL”); § 701(d) 5-714. Family see also FL Law Article Hershey’s privileged statements were not and that the ALJ in permitting did not err Munson and Zuskin from relying on report Hershey. communications with and a from The court also found that Mother had failed to preserve arguments her liability by she was immune from faith making good abuse, report of child that Munson and Zuskin were not qualified experts, as and that Munson’s and Zuskin’s testimo- ny Finally, rejected was inadmissible. the Circuit Court argument Mother’s that a indicated child abuse mental injury requires proof of intent.
In a reported opinion, the Court of Special Appeals affirmed
judgment
of the Circuit Court. McClanahan v. Washing
Servs.,
Cnty. Dep’t
ton
Soc.
218 Md.App.
We Mother’s Petition for Writ of Certiorari consider following the questions:
1. Does Special the Court of Appeals[’] decision that a
parent can
strictly
be
liable for child
injury by seeking
help
medical
for
year
her five
old
based on the child’s disclosures and symptoms, absent
any
finding
parent
the
acted intentionally, reckless-
ly, or
bad faith to
injury,
cause
violate the Due
Clause,
§§
Process
Law
Family
Article
5-701 et seq.,
Taylor
v.
County Department
Social
Harford
of
Services,
213[,
(2004)?
384 Md.
the privileged testimony therapist of a by discussing the assertion privilege by of the attorney child’s in collateral custody child proceeding?
3. Did the ALJ’s against decision Petitioner violate the
immunity provisions Family § of Law Article 5-708 and
699 (1973, § 5-620 of Courts RepLVol.), the] 2013 [Md.Code Article Proceedings [ ]? and Judicial (in part), we yes question we answer to the first Because We shall reverse questions. not address the other need and remand for Special Appeals of of Court judgment further proceedings.
STANDARD OF REVIEW decision, we assume an administrative reviewing When appellate the Circuit Court and intermediate the same role as ” “ court, to the decision.’ Cos agency’s and ‘limit our review 629, 637, 596, Res., 42 A.3d 601 Human 425 Md. by Dep’t v. of (citation omitted). (2012) in a central entry to the of one’s name challenge
“[A] § 5- pursuant [FL] as an ‘indicated child abuser’ registry § 10- meaning [SG] is a contested case within 701 [ ] 202(d)(1)” quasi-judicial capaci in its agency in which the acts Soc. Servs., 213, 384 Md. ty. Taylor Cnty. Dep’t v. Harford (2004). 1026, 1030 case,9 an In a contested when A.2d responsible that a person affirms a ALJ10 10-222(h) abuse, § establishes the stan SG indicated Cnty. Dep’t agency’s decision. Charles dards of review Servs., Vann, v. 382 Md. Soc. 10-222(a)(l) (A the final (2004); “aggrieved by § party see SG of that judicial seek review may decision a contested case” decision.). factual deter challenges agency’s
If a
petitioner
minations,
supports
evidence
we review whether substantial
Vann,
10-222(h)(3)(v);
Md. at
§
finding.
SG
*8
5-706.1(b)(1) (A
“may request a
case
person
§
contested
FL
9. See
abuse.).
hearing
appeal”
child
to
a
of indicated
10-202(b)(l)
(1984,
§
State
Repl.Vol.),
10. See Md.Code
("SG”) (An agency
unit authorized
is an officer or
Article
Government
9-1603,
(The
cases.”);
§§
Chief
9-1604
adjudicate contested
SG
"to
ALJ,
Hearings, assigns
to
ALJs
the Office of Administrative
who heads
hearings.).
contested case
conduct
to
petitioner challenges
apply
A.2d at 318. When a
how
regulations,
reviewing question
statutes and
we are
interpret
638,
at
at 602. In
Cosby,
reviewing
of law.
425 Md.
A.3d
to “an agency’s
we accord “some deference”
legal questions,
of
it administers or of its own
legal interpretation
the statute
Taylor,
Mother
in failing
sion that the ALJ did not err
to include scienter as
injury.
an
of
child
element
indicated
See
McClanahan,
277-83,
DISCUSSION
role
today
engage
statutory interpretation
Our
as we
parent
decide whether a
can be hable for child abuse mental
injury
§
within the
of FL 5-70111 if
meaning
parent
acted
without intent to harm the child.
Department
Mother and the
5-701,
§
of FL
dispute
meaning
scope
as well as the
of
(“COMAR”)
Maryland Regulations
07.02.07.12,
Code of
which
dispositions
investigations
directs the
suspected
argues
Taylor
County
abuse. Mother
v.
Depart
Harford
Services,
(2004),
ment
384 Md.
Social
701 construction statutory “The cardinal rule of intent.” Motor Vehicle legislative ascertain and effectuate Admin, (1991). Shrader, v. 454, 462, 324 Md. 597 A.2d rule, “ordinary must plain meaning give Under the we meaning” statutory language language natural because this intent.” Id. “If source of the intent primary legislative is “the statute, from the words of the our legislature of the is clear normally apply plain meaning ends and we inquiry State, v. 356 Md. A.2d statute.” Huffman (1999). Moreover, construe a statute reasonably we should policy legislature “with reference to the aim or purpose, Shrader, reflected in that statute.” 324 Md. “ unreasonable, illogical at 943. that are or inconsis ‘[RJesults possible common should avoided whenever tent with sense be legisla with the real statutory language, consistent with the tive intention over the intention indicated рrevailing ” (citations omitted); Id. see also 2A literal Nor meaning.’ & Sutherland Statutes and Singer, man J. Singer Shambie ed.2014). (7th Statutory Construction § 46:7 Taylor Statutes, Regulations Terms of of child key statutory language is found the definition § abuse in FL 5-701. Abuse means:
(l) or by any parent or mental of a child physical care or permanent temporary other who has or person child, by any or of a or custody responsibility supervision member, circumstances that indi- family household or under or at cate that the child’s health or welfare is harmed risk of harmed.... being substantial findings §FL three that a
Additionally, 5-701 defines the may investigating report local make after a department suspected abuse:
(m) means a that there is credible evi- finding “Indicated” refuted, abuse, dence, that satisfactorily which has not been occur. neglect, or sexual abuse did
(w) abuse, finding neglect, “Ruled out” means a or sexual abuse did not occur. an
(y) finding “Unsubstantiated” means there is support insufficient amount of evidence *10 indicated or ruled out. 5-707(a)12 § by
FL authorizes DHR to “provide regulation” indicated, for “conditions for whether determining” abuse “is out, ruled or 07.02.07.1213 unsubstantiated.” COMAR sets following regard forth the elements for indicated child abuse ing physical injuries: and mental
A. Indicated Child Abuse.
(1) Physical Injury. Abuse Other than Mental as Except A(3) §in provided regulation, of this a finding indicated physical child abuse is if there is appropriate credible evidence, refuted, satisfactorily which has not been that it is more than not that likely following four elements are present:
(a) A prior physical injury; current or (b) injury caretaker, The was aby parent, caused or house- member; family hold or
(c) The victim a alleged child the time of the incident; and 1993, Assembly In the General authorized the of Human ("DHR”), 5-707(a), through § regulations Resources FL to create indicated, determining establish conditions for whether abuse was unsubstantiated, Reg. or ruled out. See H.B. 1993 Gen. Assemb. Then, (Md.1993). Emergency Sess. a Notice of Action was issued. See (October 1, 07.02.07.08, 1993). Reg. 20 Md. 1547 In then-COMAR departments determining DHR established criteria for local to follow in indicated, unsubstantiated, finding whether to make a or ruled out repealed adopted child abuse. See id. at 1549-50. In DHR regulations pertaining Reg. (July new to child abuse. Md. See 21 8, 1994); 16, 1994). Reg. (Sept. 21 Md. The criteria for the three findings Reg. were moved to COMAR 07.02.07.12. 21 Md. at 1242. Ltd., Chesapeake Surgical,
13. See Hranicka v. 443 Md. (2015) (“When agency’s regula- we construe an rule or tion, ”) principles governing interpretation apply[.]’ 'the our of a statute (citations omitted). (d) extent, injury of the indicate nature, and location The or was at welfare was harmed child’s health or harm. risk of substantial
(3) Injury. A of indicated Abuse-Mental if is there credible injury appropriate mental abuse with refuted, that the evidence, satisfactorily not which has been are following present: four elements an
(a) by characterized injury mental prior A current or identifiable, to the observable, impairment substantial function, may ability to which or psychological child’s mental specific psychiatric, psychological, need for shown be intervention; or sоcial work caretaker,
(b) by parent, was caused The member; family or or household
(c) a child at the time alleged victim was incident; and
(d) injury of the mental indicate nature and extent The or was at substan- or welfare was harmed the child’s health tial risk of harm. added.) 07.02.07.12 also sets forth COMAR
(Emphasis in out14 child abuse ruling criteria for following pertinent injuries: and mental physical cases of child A of ruled out finding Abuse.
C. Ruled Out Child not occur. A if child abuse did appropriate abuse evidence that: on credible may of ruled out be based (1) injury.... no or mental physical There was (2) physical abuse: In the case of injury
(a) for the responsible was not alleged The abuser to, of the follow- not limited one including, but for reasons ing: abuse, we parties do not discuss unsubstantiated
14. Because the regulation. COMAR portion of the See not include that do 07.02.07.12B. (i) the child was accidental and unintended The contact with circumstances, injury under the was not foresee- .... able added.) 5-701(b), §FL keep statutory We
(Emphasis аbuse, of our minds as we definition of the forefront the actions of Mother. regulations construe these and evaluate Servs., Res., Human Balt. Soc. v. Dep’t City Dep’t See (2012) (An Hayward, 426 Md. 45 A.3d ... “authority promulgate regulations must be agency’s consistent, conflict, and not in with the statute the regulations implement. consistently are intended to We have held that the control.”). statute must that the Department points regulations pertaining
The
out
injury
express
to child abuse mental
contain no
scienter
07.02.07.12A(3)(b).
requirement.
only
See COMAR
Scienter
criterion, namely,
in one
to rule out child
appears
abuse
injury:
contact with the child was accidental
physical
“[t]he
circumstances,
and unintended and under the
07.02.07.12C(2)(a)(i).
not foreseeable.” COMAR
There exist
injury.
no similar criteria to rule out child abuse mental
should
COMAR 07.02.07.12C.
insists
we
rely on COMAR 07.02.07.12to conclude that a
mental
parent’s
injury,
state is not material in a case of child
Admin.,
214, 223-24,
Toler v. Motor
citing
Vehicle
373 Md.
(2003) (“[Wjhere
legislature
carefully
has
another,
a term in one
it in
it
employed
place
excluded
excluded.”).
implied
should not be
where
reject
Department’s argument
We
because the statute
any
itself fails to draw
distinction
and mental
physical
between
directive,
injury to a child.
there is no
statutory
Without
why
reason
scienter should
required
(physi-
be
one instance
(mental).
cal), and not the other
Hayward,
See
Md.
*12
658, 45
at
in Taylor
A.3d
236. Our decision
is instructive on
how to interpret
this statute. As the
under-
scores, Taylor
a
our
physical injury
holding
involved
addressed that. But a
can
injury
mental
be accidental to the
Moreover,
a physical
study
Taylor
same extent as
one.
a
liability”
reveals that our concerns about “strict
stemmed in
statute,
“physical”
“mental” and
which treats
from the
part
in the definition
abuse.
injury identically
local
made a
department
an
for the
Taylor,
investigator
In
father,
in
acting
child abuse where
finding of indicated
daughter.
his
a footstool that collided with
anger, kicked
216-18,
1027-28.
the ALJ
appeal,
at
862 A.2d at
On
Md.
that “it is immaterial wheth
department
the locаl
agreed with
to hit
Id. at
daughter].”
intended
[his
er the [father]
omitted).
(italics
that FL
reasoned
at 1029
The ALJ
in
of abuse.
§
includes no scienter element
the definition
5-701
view,
at
In the ALJ’s
COMAR
Id. at
862 A.2d
avoid “responsibili
did not allow the father to
07.02.07.12also
of his
consequences
foreseeable
for the unintended but
ty
committed reversible
act.” Id.
held that the ALJ
intended
We
07.02.07.12C(2)(a)(i),an
to consider COMAR
by failing
error
if
physical injury
out child
ruling
criterion
explicit
or unintentional and
injury
“act
was accidental
causing
A.2d at
id. at
not reckless or deliberate.” See
there.
1033, 1036. Notably,
stop
we did not
was flawed
reasoning
that the ALJ’s
explained
We further
a
or
“any
by parent
intentional act
it could extend
because
harming
consequence
which has the unintentional
caretaker
(emphasis
at
A.2d at 1036
child.” Id.
person’s
§ 5-701 of the
skeptical
were
that “either
original). We
for such
07.02.07.12
Family
intend[ed]
Law Article or COMAR
always to attach to the
liability
strict
standard
draconian
unintentionally
parents
acts of
or caretakers who
intentional
231-32,
We see no reason
so
parental
that a
action has caused
testify
nesses
in context.
child, action must be examined
parent’s
to a
“it material whether there was
Taylor,
As
concluded
we
*13
Id. at
In of our discussion of we are light §FL argument suaded 5-701 ex- Department’s for mental any injury cludes consideration scienter because § it contains no scienter FL 5-701 express requirement. express requirement physical injury contains no scienter then, Department’s theory, either. Under the DHR would in authority place have no the first to exclude accidental injuries in But that physical theory COMAR 07.02.07.12. does not with The has square Taylor. avoided ex- plaining problem regulation the central this case: injury excludes accidental but includes accidental physical injury, § a distinction FL 5-701 not does make. sure, may examples To be there be of mental arising parental from conduct that are so that an reprehensible ALJ just infer intent to harm or might disregard reckless from the family act. One law scholar has discussed classic examples such following conduct manner: Following Taylor, adopted DHR an amendment to COMAR 07.02.07.12C(2)(a)(i), physical the criterion for ruled out child abuse injury, reasoning Reg. which reflected our in this decision. 34 Md. (November 2007) ("The change language is made to restate the clearly, [Taylor].”). previously more consistent with criterion This physical injury ruled out child abuse when the act was unintentional. Servs., Taylor Cnty. Dep’t See v. Soc. 384 Md. Harford (2004). Now the amended criterion rules out such 07.02.07.12C(2)(a)(i). injury if the contact is unintended. COMAR properly criterion considers intent to harm. example, parent pushes 16. For a not is an abuser if she a non-athletic participate sports program, thereby causing depression child to in a or Likewise, inferiority parent a sense of if the child is unsuccessful. not an abuser if he makes decision to move to a different state and depressed family. causes a child to become from friends and loss of like? Elle’s neglect emotional look What does syndrome” is another example. is one The “Cinderella case cases, In parents of emotional abuse. these common form They her to do scapegoat. require one child as a designate not their other children and do household tasks than more do opportunities they same as give privileges her the *14 of ignoring, other children. Both methods abuse include the child, de and which causes rejecting, isolating typically pression and low self-esteem.17 is
The nature of the conduct in this case different. patently that for a parental ostensibly with conduct is We are faced protection. child’s
Indeed,
para-
would
the
Department’s
the
view
undermine
See
statutory purpose
protection.
mount
of Subtitle 7—child
Weaver,
Principle
Subsidiarity Applied:
17. Jessica Dixon
Reform-
of
Children,
Psychological
ing
Legal
Capture
Framework
the
Abuse
the
of
(2011).
Pol’y & L.
described "Elle’s”
18 Va. J. Soc.
Weaver
situation:
thirteen-year-old only
constantly
who
left at the
is a
is
"Elle”
closing
eating
of set
library past
She is restricted from
outside
time.
mostly
refrigerator
the
door. Fed
mealtimes
a lock and chains on
food,
junk
food
the
hotdogs and other
she hoards
from outside
home
room,
gets
fights
her
is
When she
with
in her
mother,
which
a mess.
into
usually
psychiatric facility
children.
up in a
she
winds
complained
police
tantrums to
the first ten
mother
about her
Her
placed on three
called them
tо her home. Elle is
times she
out
medication,
ability to
types
psychotropic
which affect her
different
call,
By
facility
to take
phone
refuses
learn in school.
eleventh
services____ Though library
she does not need their
Elle because
have
concerned about
personnel and teachers at Elle’s school
been
all,
her,
her
nothing
going on
After
appears
that bad
to be
at home.
well-respected
is a
schoolteacher.
mother
[ajfter
visits,
[Although initially nonresponsive],
eventu-
few
she
...
you”
her "I
and locked her
ally
that her mother often told
hate
shares
to talk with
for hours.
tells us that she did not want
in her room
She
CPS,
Neighbors
she is
again.
her
later tell
after
or visit with
mother
removed,
verbally
kicked
that Elle’s
abusive and often
mother
evening
when she was
of the house late in the
without food
Elle out
upset with her.
omitted).
(footnote
(emphasis
original)
call number
Id. at 248-49
in
living
presence,
in the
and
also cites domestic violence
child’s
Weaver
emotionally
рarent
giving
abused
drug-addicted
actions
rise to
with a
as
id. at 259.
children. See
§FL
A
help
why.
parent
5-702. Amici curiae18
elucidate
faith
good
reports suspected
who
child abuse and seeks a
exam can
a critical
“protector
SAFE
be
and advocate”
Justice, Inc.,
child. Brief of Child
et al. as Amici
Curiae
Mother, at
If
Support
statutory
regula
5. we read the
does, however,
tory
Department
parent
scheme as the
faces
inclusion on the central
potential
registry merely by
reporting.
parent
Thus the
receives a
of dishonor
badge
even
if she had no intent to harm the child. The
must
parent
now
potential liability
consider her “own interests and
before” her
child’s welfare.
Id. at 6. And if the reporting parent
is
penalized, then that
has a
parent
report
disincentive to
future
child, then,
protection
abuse. The
will lose the effective
advocacy
parent
her
can provide through reporting.
Id. at 5.
Indubitably,
Family
Subtitle
Law Article was not
designed to dissuade
from
parents
reporting allegations of
reasons,
child abuse. See id. at
9. For these
we conclude
interprets
statutory
child abuse
“ ‘unreasonable,
in a
scheme
manner that
illogical [and]
”19Shrader,
inconsistent with common sense.’
324 Md. at
*15
(citations omitted).
areWe
well aware that “courts should generally
agencies’
defer to
decisions in promulgating new regulations
they
because
presumably make rules based
their
upon
exper
Rest., Inc.,
in particular
tise
a
field.”
v. H
Fogle
& G
337 Md.
441,
(1995).
455,
449,
not, however,
654 A.2d
456
We will
give
agency
effect to
that
regulations
are inconsistent with or
conflict with “the statute the regulations are intended to
implement.” Hayward,
236,
426
atMd.
We
provisions
inconsistent with
they
on
were
regulations
grounds
In
child abuse.
pertaining
Law Article
to
Family
Resources,
City Depart-
Human
Baltimore
Department of
v.
we addressed the
Hayward,
appeal
ment
Social Services
after a
subject
investigation
of a
to a child abuse
person
rights
finding
makes
of unsubstantiated child
department
local
a
abuse,
appeal
has
to
that
right
and
that such
a
person
held
decision).
(with
a
out”
securing
a
“ruled
finding
goal
642, 662-69,
rejected the
Hayward involved challenging for right appeal persons to conference and 660, 45 child abuse. Id. at findings of unsubstantiated limited right appeal But 07.02.26.05B COMAE child unsubstantiated responsible individual “[a]n found original). explained Id. We (emphasis abuse.” “the statutory because language conflicted with the regulation are individuals who not differentiate between statute [did] abuse, those responsible for ‘unsubstantiated’ found conflicted with regulations are not.” Id. Because the who statute, “give regulations” to those we refused effect Id. at must control.”20 that “the statute concluded *16 they because regulations where were unenforceable 20. For other cases Koons, statutes, Mayor City William Council Balt. v. E. violated see & of 813, Inc., 231, 237, (1973) ("The may 310 A.2d 817 Committee 270 Md. Housing permitted by the regulation is prohibit by that which not 226, Rockhill, Inc., Code.”); Treasury 205 Md. Comptroller v. M.E. of 234-35, 93, (1954) (finding regulation Treasury invalid 107 98 A.2d 710 Hayward closely analogous present
A.3d at 242. is to the case we also a that regulation distinguishes becаuse here have purported between child abusers a manner the statute does not. COMAR 07.02.07.12 sets standards different child 5-701(b) injuries. §FL causing physical abusers and mental does not.
Our decision also a from informed case our intermedi Department Fields v. In Human appellate ate court. of Services, County Resources Howard Department Social of abuse, also the an involving applicable required statute contesting individual a of indicated child abuse respond department “to the notice of the local in writing 156, 152, 824, within 176 days.” Md.App. 60 932 A.2d 827 (2007) (italics omitted). regulation, The corresponding howev er, imposed requirement on the individual to respond twice: (1) (2) appeal an form return request appeal the form Id. at (cid:127)within days 157-58, 60 of the issuance of notice. 932 A.2d at 827-28. The appellate intermediate court ruled that regulation of scope what “exceed[ed] [the statute] 160, Id. permitted.” at 932 A.2d at 829.21 The court held that statute”); "because the rule would then conflict with the State Farm cf. Fund, 602, 605-06, Mut. Auto. Ins. v. Md. 277 Co. Auto. Ins. Md. 356 560, (1976) (rejecting A.2d approval 562 Insurance of Commissioner's policy an clearly insurance endorsement "the because endorsement so statute.”). coverage limits in violation Special of a The Court of Appeals apply regulations has also refused to that are inconsistent with Brown, Dep’t Hygiene a statute. See Md. Health & Mental v. 177 440, 466, 1128, (2007) ("[T]o Md.App. A.2d 935 1143 extent 10.09.10.01B(31), [the statute] differs from COMAR it controls over Serv., regulation.”); Comptroller Treasury, United Parcel Inc. v. 69 164, (In (1986) Md.App. establishing A.2d regula issue, Comptroller tion at plain meaning "the has overridden of the followed.”); Accordingly, regulation] Comp statute. [the should not be 581, Treasury Corp., troller Md.App. v. Crown Cent. Petroleum 591— 97, (1982) (concluding Comptroller 451 A.2d 352-55 exceeded his issue). statutory authority creating regulations Russell, Cnty. Dep’t 21. See Md.App. also Cecil Servs. v. of Soc. 607-11, (2004) (holding 100-02 that the should tape respondent have turned over an to the audio before hearing, Department’s notwithstanding argument administrative 07.02.26.02(B)(18) require production tape, COMAR did not
711 or “not consistent with the letter 07.02.26.05 was COMAR 162, By at A.2d at § Id. 932 spirit of [FL 5-706.1].” FL token, 07.02.07.12 not consistent with COMAR is same § 5-701. portion decline to enforce
Accordingly, we (for exculpatory scope that limits 07.02.07.12C its COMAR causing physical injury. injury) alleged to abusers accidental means, This justify § does not such distinction. FL 5-706 in then, as a abuser” DHR’s central that to be included “child at injure to the child or person must either intend registry, child’s welfare. This disregard act in least reckless by standard meets established disregard inteni/reckless Court. injuries Taylor DHR for utilized physical that a Special Appeals of the Court of holding reverse We causing central for actions person registry can be listed on the or to harm the child injury to a child without intent the child’swelfare. disregard reckless Disregard Intent Reckless Standard and Mother’s The an actions were “either The ALJ concluded Mother’s custody manipulate and influence” the attempt intentional to to R a result of her subconscious efforts over “or were dispute have to her.” standard we remain close have R[] name in the parent’s does not inclusion of adopted permit registry parent’s inappropriate as a child abuser if the central at only were the subcon- for abuse reporting motivations level, injured. A stan- mentally even if the child was scious much level veers liability reaching the subconscious dard of Taylor, parental decisions. See liability close to strict too 231, at 1036. at 862 A.2d 384 Md. in the an gain advantage if intended
Even Mother as a battle, registry inclusion the central custody on ongoing l(t) language required § 5-70 such broadly of FL because the defined Knight, George's Cnty. Dep’t Soc. Servs. v. production); Prince (2004) 138-40, (holding COMAR Md.App. 911-13 because, among things, it with FL conflicted invalid other 07.02.26.05 5-706.1(b)). § permitted child abuser not unless Mother intended to harm R or acted in reckless of R’s disregard Acting welfare. with or disregard required intent reckless is the standard we was, apply Taylor, time, adopted by ALJ 225-26, DHR with respect physical injuries.22 See id. at 07.02.07.12C(2)(a)(i) A.2d at (quoting COMAR effec physicаl tive wherein ruled out when “[t]he *18 act causing injury accidental or unintentional not deliberate”).23 reckless or
In a case where the alleged abuser’s conduct falls within the child, realm of conduct that could benefit the as does, medical treatment there be must some evidence that a conclusion that the supports parent was at least reckless vis words, In a-vis the child’s health. a parent’s other conduct must constitute a gross departure from the conduct type of person reasonable would engage under the circumstances. State, 430, 396, (2000) 408, v. Jones 357 Md. 745 A.2d Cf. (“The test that use to if a we determine defendant’s conduct conduct, was reckless is whether the objectively, viewed con gross stitutes a departure type from the of conduct that an law-abiding [sic citizen would ] observe under similar circum stances.”).
CONCLUSION
Accordingly, we
of Special Appeals
reverse the Court
remand these proceedings to the ALJ to make factual findings
law,
and conclusions оf
Opinion.24
consistent with this
22.
regulation
Taylor
say:
The
modified its
after
"The
contact with the child was accidental and unintended and under the
circumstances,
Reg.
was not foreseeable....”
34 Md.
(Nov.
2007).
rejected
foreseeability
We
use
proper
of
as the
standard
Taylor, casting
inappropriate
foreseeability,
it as
“because
even in a
context,
appropriate precursor
negligence,
tort
is an
finding
to a
not
finding
Taylor,
to a
of intent.”
384 Md.
BATTAGLIA and BATTAGLIA, J., which Dissenting Opinion by McDonald, j., joins.
I dissent. respectfully Cnty. v. holding Taylor Majority applies Harford (2004), a Servs., case 384 Md. 862 A.2d Dep’t Soc. child, all of the of a to vacate physical involving *19 (“ALJ”), judge law the of the administrative determinations Court, and rule that Special Appeals Court of Circuit and the committed indicated child found to have a mother cannot be subjected daughter her to abuse, when she injury, investigations well as examinations as repeated invasive sexual of Social Services County Department by Washington the (“the Department”). Ms. regarding of the ALJ following specific findings
The (“R”), her when daughter her behavior toward McClanahan’s old, years five are the of two to daughter ages was between The ALJ Majority than the describes. certainly graphic more hospital R the on nine took to found that Ms. McClanahan Examinations Assault Forensic occasions for Sexual different (“SAFE”)1 year half period: over a three and a that, conducted findings, explained exams are the ALJ “SAFE In her is a of sexual by and when there concern who are SAFE trained doctors genitalia and require exams retraction or assault. SAFE abuse
10. The occasions on which the Appellant reported alleged sexual and medical provider R[ took to a for treat- ] ment are as follows:
(cid:127) 7, 2007, On June the had taken Appellant R[ ]
hospital after from R[ returned her father’s house with ] in vaginal redness irritation her area. hospital The instructed the to take to the Appellant R[ ] Child Advoca- cy Center for a Dwyer SAFE exam. Dr. Ruth Ann performed R[], the examination of which the results of were normal. (Dept.4)
(cid:127) 21, 2008, February On the Appellant had taken to the R[ ]
Child Advocacy for an Center examination after had ]R[ from returned her father’s house with vaginal her area red and swollen and she had reported that her 8- father’s Sean, year-old stepson, Dwyer hurt her. Dr. performed a SAFE and diagnosed vulvitis, exam R[ ] R[ ] with which often caused poor hygiene is not uncommon in prepubescent (Dept.5) children.
(cid:127) On March taken Appellant had R[ ]
Waynesboro Pennsylvania Hospital reporting that R[ ] had stated that her “bottom hurt.” She had reported her put father things vagina. her reported R[ ] treating physician that monster from came the cave and her. touched The physician noted that area vaginal R[ ]’s hymen red but that her was intact. Pictures of R[ ]’s vaginal area were taken during (Dept.6) exam. (cid:127) April On Appellant had taken to Wash- R[ ]
ington County Hospital. Appellant reported that R[ ] had day returned that from her father’s house and had been reporting that hurt “someone her bottom.” The Appellant requested that a be performed SAFE on AR[ ]. *20 SAFE exam performed, was the results of which revealed some in vaginal redness the (Dept.7) area. routinely
are not years conducted on children between two and five old.” (cid:127) to 26, 2008, had taken the Appellant R[] the May On sexual assault Hospital requesting a County
Washington to a reported had Appellant of R[]. examination from her father’s that had returned hospital physician R[ ] hurt” her and that “bottom day reported home that and The Appel- in her bottom.” put lollipop that had a “Sean discharge panties in her that had reported R[ ] lant also to the also volunteered day. (Dept.8). ] that R[ earlier in her bоttom. put lollipop had a doctor that Shawn (Dept.8)
(cid:127) Washington County Hospital performed May On no indicia of on which revealed R[ ]
a SAFE examination (Dept.8) sexual abuse.
(cid:127) 6, 2009, had taken to the Appellant R[ ] On December Pennsylvania. in Chambersburg,
Chambersburg Hospital hurt her “bottom” and that her father reported had R[ ] reported The Appellant with needle there. stuck her (Dept.9) vulva was red swollen. R[ ]’s (cid:127) ], 6, 2009, the doctor examination upon R[ On December vulva; inferior swelling erythema
noted mild A urianaly- no redness. discharge present foul but other was unremarka- requested by Appellant sis that was ble.
(cid:127) 23, 2010, from a visit with her after returned R[ ] On June Chambersburg Hospital
father, R[ took Appellant ] reported R[ had Appellant ] room. The emergency with a needle her “poked her father her stated that that her hospital staff reported front R[] bottom.” (Dept.10). Upon hurts. examination “front bottom” ], and “foul-smell- erythema” noted “mild physician R[ R[ ] retraction of vulva.” ing discharge whitish noted on urinary tract infection Chambers- diagnosed was with а perform not Hospital does burg Chambersburg Hospital. (Dept.10) exams. SAFE
(cid:127) Washington took Appellant R[ ] On June not coopera- R[ ] Hospital for SAFE exam.
County back to the brought her Appellant the exam so the tive for *21 an hospital day reported later that same for exam. R[ ] hospital the that her father “stuck a in her front needle further that reported bottom.” her father touched R[] previous night. the her The SAFE examination revealed majora redness around labia but no trauma was R[]’s (Dept.12) noted.
(cid:127) November the took to Appellant ] On White R[ Pediatric a cough injury. reported
Oak for and After R[ ] “bottom,” that she for Shughart, was there her Jane the (PA), physician’s vaginal assistant examined area. R[]’s She observed redness the area with mucus discharge what to appeared and be a black coarse Ms. Shugar hair. Emergency referred the do Appellant Room to further 1). evaluation. (Appellant Appellant took R[] Washington County Hospital where that reported R[ ] her father with a “pokes puts her needle and on cream her front bottom.” The Washington County Hospital physi- perform cian refused to a SAFE exam based on the request of the department local and its report R[] undergone had previous numerous SAFE exams. (Dept.13)
The ALJ also found the Department had “conducted approximately investigations pertaining allega- and R[ ] tions of abuse” every investigation and that of sexual abuse of byR her father had resulted in a ruled disposition. out Further, the findings questioned ALJ’s the bases the numerous investigations examinations and by initiated Ms. McClanahan:
20. R[] has not symptoms demonstrated sexual behavior that are typical of a child that experienced has sexual abuse by at the level the alleged Appellant. vagina
21. Redness area are not discharge uncommon medical occurrences in children age ]’s R[ are often of poor the result hygiene (Dwyer testimony). 22. R[ ]’s statements of alleged sexual abuse her father made to are return Appellant upon Appellant her to the from visits with her father. statements to profession- R[ ]’s always in the alleged abuse are most made regarding als up and not followed on with Appellant presence at a later time. professional sex to CPS has made disclosure of never R[ ] (McCarthy testi- during any investigations.
workers mony). upon found that R suffered mental based
The ALJ *22 Zuskin, of Dr. Carlton E. Munson and Mr. Ronald E. reports Ms. injury the of that to specifically but attributed source by the evaluation Dr. Munson: provided McClanahan based on of Dr. that has been 27. It is the Munson opinion R[] the the mentally injured injury and that the source of is suggestive in utterances to about Appellant’s engaging R[ ] in activities by engaging alienating father and R[ ]’s abuse 21) (Dept. to the page related father. Dr. It is the of Munson has been opinion R[] injured injury and that the of the is the
mentally source her use of abuse Appellant’s exploitation R[ ] sexual and which encour- allegations, investigations examinations of aberrant behav- the and reinforcement ages development in to by drawing relationship Appellant. ior a closer the R[ ] 19) (Dept. ALJ, indi- thus, finding the Department’s
The affirmed In abuse, McClanahan. injury, by cated child mental Ms. so, Majority which the doing language upon ALJ used motives: regarding seizes Ms. McClanahan’s me by the local has led presented department The evidence an Appellant’s conclude actions were either influence outcome manipulate and attempt intentional father, or were ongoing custody dispute R[ ]’s of an with close of her to have remain R[ ] result subconscious efforts injury A mental finding her. of indicated abuse in the as have resulted Appellant’s actions appropriate mental of R[ ]. however, so, finding doing in obviates ALJ’s Majority, actions, reporting include sexual McClanahan’s which
that Ms. treatment, hospitals R to various allegations, taking subjecting R examinations, to intrusive sexual were inten- tional and “resulted the mental injury of R” and that ALJ specifically found that Ms. McClanahan’s “act of making multiple allegations of sex abuse of by her R[] father and subjecting to repeated R[] sexual abuse exams constitutes injury.” abuse mental
The first holding Majority with which I disagree, however, in Taylor, is that the standard used a child abuse case, physical injury abuse, should be applied a child In Taylor, injury, case. the father’s act of kicking a footstool that hit his daughter without intent to hurt the child did not abuse, constitute child physical injury. case, In that the ALJ 5—701(b)(1)2 applied had Section of the Family Law Article rejected the father’s defense of “accident” as encompassed by the ruled out provision of 07.02.07.12C(2)(a)(i),3 COMAR which stated that:
A finding of ruled out child abuse is appropriate if child abuse did not occur. A ruled out may be based on credible evidence that: *23 5-701(b)
2. Family Section of the Maryland Law Article of the Code (1984, Repl.Vol., 1999 Supp.) provided: defined 'abuse' and (1) physical the injury or mental by any parent of a child or other person permanent temporary who has custody or care respоnsi- or or child, bility supervision for by any of a or family household or member, under circumstances that indicate that the child’s health or harmed; welfare is harmed being or at substantial risk of or (2) child, sexual physical abuse of a injuries whether are sustained or not. Following Taylor, 07.02.07.12C(2)(a)(i) in COMAR was amend- ed language to "restate clearly, the more [Taylor]". consistent with (November 9, Reg. 2007) Md. provides: and it now finding A of ruled appropriate out child abuse is if child abuse did not may occur. A of ruled out be based on credible evidence that: (2) In physical the case of abuse: (a) alleged The responsible abuser was injury not for the for reasons to, including, but not limited following: one of the (i) The contact with the child was accidental and unintended and circumstances, under the injury the was not foreseeable[ ] (2) abuse: physical In the case injury
(a) not for the responsible alleged The abuser to, one of the follow- not limited including, but for reasons ing:
(i) or uninten- injury was accidental causing act the Thе or deliberate[ ] tional and not reckless that the 225-26, determined A.2d at 1033. We Id. “unintentional”, that such the stool was kicking act of father’s ruled out. child abuse was physical to a however, totally inapplicable is Taylor holding,
The case, very its terms abuse, by because injury, mental child 07.02.07.12C(2)(a)(i), now, scope limited in then and COMAR sup- nothing Majority points The injury.” to “physical portion to enforce the that it “decline[s] its conclusion port (for scope exculpatory limits its 07.02.07.12C COMAR injury.” causing physical alleged abusers injury) accidental abuse is Clearly, physical at 304. 129 A.3d Maj. Op. at in of acts of the only types not mental abuse different from victim, but, harm experienced and the perpetrator can injury that physical recognition importantly, most acts while mental or unintended result from accidental cite Majority does not cannot. The by a caretaker of a child together, and mental abuse physical any lumping basis its any. can I discern nor context of apply can Taylor’s holding assuming
Even Majority, vehemently disagree, I which injury, mental with nevertheless, piece on emphasis because of its errs were “a actions that Ms. McClanahan’s by the ALJ opinion abuse, to rule out child efforts” of her subconscious result met the stan- Here, acts Ms. McClanahan’s injury. abuse, injury. not accidental dard of intentional of subconscious ALJ’s discussion Majority equates it stan- “[a] acts when states unintentional motive with *24 much veers subconscious level reaching liability dard of decisions”, Maj. Op. liability parental too close to strict motive and intention. thereby conflating 129 A.3d at conduct that Ms. McClanahan’s said The ALJ never unintentional or unconscious but rather was specific find- ing intention volition in and the acts of Ms. McClanahan when “I have stating: found that [Ms. act of making McClanahan’s] multiple allegations of sex abuse of by her father and R[] subjecting repeated to sexual R[] abuse exams constitutes mental injury.” The ALJ also found that Ms. “exploitation” McClanahan’s of R by “her use of sexual abusе allegations, investigations and examinations” caused R’s men- ALJ, thus, injury. tal consistently found Ms. McClana- han’s conduct to be volitional and intentional.
The important distinction between subconscious motive and
intentional acts has been persuasively
Johnson
articulated
Co.,
v. Metropolitan
Ins.
(D.N.J.1967),
F.Supp.
Life
(3d Cir.1968).
'd,
Johnson,
In regard, this one must be careful distinguish ques- tions of intent questions of motive. Psychoanalytically oriented and other schools of “depth psychology” have made the notions of “unconscious” or “subconscious” motive com- mon parlance. But it is not helpful to define “suicide” as an self-destruction, intentional and then to confuse the slippery notion of “intent” with its underlying causes.
Whatever drives, the constellation of impulses or subcon- scious motives which subject cause the perform given act, unless that act actually inadvertent, is its physical execution is “intentional” in the ordinary sense of the word. short, In my motive for doing, do, or impulse the act thing; one fact I therefore intend to it do and do so is a separate point and one that is not here in doubt. Id. In case, present Ms. McClanahan subject intended to her child to nine sexual examinations investiga- fourteen *25 injuries. Ms. McClana- tions, in mental all of which resulted ALJ, “to motives, manipulate included as found han’s or custody dispute” an ongoing the outcome of and influence actions close to her.” Ms. McClanahan’s to “have remain R[ ] but were intentional inadvertent or beneficent were not to R. caused to state authorizes me Judge
I affirm. McDonald would dissenting opinion. in this expressed the views joins that he