McClanahan v. Wash. Cnty. Dep't of Soc. Servs.

445 Md. 691

129 A.3d 293

Lauren McCLANAHAN

v.WASHINGTON COUNTY DEPARTMENT OF SOCIAL SERVICES.

No. 79, Sept. Term, 2014.

Court of Appeals of Maryland.

Dec. 22, 2015.

Reconsideration Denied Feb. 19, 2016.

Gregory F. Jacob and David Dorey (Rakesh Kilaru, O'Melveny & Meyers LLP, Washington DC; Paul Victor Jorgensen, Law Office of Paul Victor Jorgensen, Middletown, MD), on brief, for Petitioner.

Sandra Barnes, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Respondent.

Alanna G. Clair, Esquire, Daniel L. Russell, Jr., Esquire, Lawrence Ebner, Esquire, Joanne L. Zimolzak, Esquire, McKenna Long & Aldridge LLP, Washington, DC, for Amicus Curiae brief of Child Justice, Inc., Leadership Council on Child Abuse and Interpersonal Violence, and First Star, Inc., on behalf of Petitioner.

Argued before: BARBERA, C.J., BATTAGLIA, GREENE, ADKINS, McDONALD, WATTS and GLENN T. HARRELL, JR. (Retired, Specially Assigned), JJ.

ADKINS, J.

An Administrative Law Judge found that Lauren McClanahan ("Mother") was responsible for child abuse and could be placed on the "central registry" maintained by the Department of Human Resources ("DHR"). This finding was based on Mother taking her child to health providers on multiple occasions after the child complained that her father had hurt her, and the child exhibited vaginal redness. Our decision hinges on the role of scienter in such a proceeding.

FACTS AND LEGAL PROCEEDINGS

In 2010 the Washington County Department of Social Services ("the Department") conducted investigations of Mother's alleged abuse and neglect of her daughter ("R").¹ The investigations were triggered by multiple allegations by R that her biological father (Mother's ex-husband) had sexually abused her when she visited him.² Mother reported these allegations at various medical facilities, where R was subjected to eight vaginal exams³ over the course of several years.⁴ These exams showed evidence of vaginal redness or discharge, not sexual abuse. Those who examined R, however, could not fully discount her allegation that her father had "hurt her bottom." As one medical professional noted, a normal exam does not exclude sexual assault.

R received a ninth vaginal exam at a pediatric practice. Mother took R in because of a cough and an injury. When R reported that her father hurt her "bottom," a physician assistant examined her vaginal area. The assistant referred Mother to a medical facility equipped to further evaluate R. But at the Department's request,⁵ that facility refused to conduct a SAFE exam on R. This is the only evidence that a medical professional refused to examine R out of concern for her mental health. Mother testified that since then, R made more allegations of abuse against her father, but that she was afraid to take her to a doctor.

The Department asked two experts in clinical child welfare, Dr. Carlton E. Munson ("Munson") and Ronald E. Zuskin, LCSW–C⁶ ("Zuskin"), to assess R.⁷ Munson and Zuskin diagnosed R as suffering from several mental disorders and identified Mother as the cause of R's mental injury.

After conducting its investigations, the Department notified Mother that it found her responsible for indicated child abuse mental injury and indicated child neglect. Exercising her right of appeal under Md.Code (1984, 2012 Repl.Vol.), § 5–706.1(b) of the Family Law Article ("FL"), Mother requested contested case hearings through the Office of Administrative Hearings to challenge both findings. The Administrative Law Judge ("ALJ") who was assigned to Mother's appeal held a hearing for both cases in 2011.

In its decision, the ALJ affirmed the Department's finding of indicated child abuse mental injury. Relying heavily on Munson's and Zuskin's assessments, the ALJ concluded that Mother's actions "were either an intentional attempt to manipulate and influence the outcome of an ongoing custody dispute with R[ ]'s father, or were a result of her subconscious efforts to have R[ ] remain close to her."

Munson concluded that Mother had caused R's mental injury by "engaging in conscious or unconscious suggestive utterances to R[ ] about abuse by the father and engaging in alienating activities related to the father." Munson also explained that R suffered emotional and behavioral problems because of Mother's "frequent abuse allegations," which "resulted in repeated exams and investigations." Zuskin reached similar conclusions. Although Zuskin did not state that Mother "coached" R to make false abuse allegations, he believed that Mother reinforced her daughter's behavior by responding to R's statements of abuse with "animal protectiveness and closeness." Munson and Zuskin contacted Amy Hershey, a licensed social worker who counseled R and incorporated their communications with her into their assessments of R.

The ALJ rejected Mother's argument that she had acted reasonably, ruling that no medical evidence justified the repeated allegations Mother and R had made. The ALJ authorized the Department to identify Mother in a central registry⁸ as being responsible for child abuse mental injury.

The ALJ, however, modified the Department's finding of indicated child neglect to "ruled out child neglect." The ALJ reasoned that because Mother's acts already constituted child abuse mental injury, that same conduct could not constitute child neglect mental injury. The Department did not appeal this ruling.

Mother appealed the ALJ's decision to the Circuit Court for Washington County as provided by Md.Code (1984, 2014 Repl.Vol.), § 10–222(a) of the State Government Article ("SG"). Affirming the ALJ's decision, the Circuit Court concluded that Hershey's statements were not privileged and that the ALJ did not err in permitting Munson and Zuskin from relying on communications with and a report from Hershey. The court also found that Mother had failed to preserve her arguments that she was immune from liability by making a good faith report of child abuse, that Munson and Zuskin were not qualified as experts, and that Munson's and Zuskin's testimony was inadmissible. Finally, the Circuit Court rejected Mother's argument that a finding of indicated child abuse mental injury requires proof of intent.

In a reported opinion, the Court of Special Appeals affirmed the judgment of the Circuit Court. McClanahan v. Washington Cnty. Dep't of Soc. Servs., 218 Md.App. 258, 96 A.3d 917 (2014), cert. granted, 440 Md. 461, 103 A.3d 593 (2014). In relevant part, the intermediate appellate court concluded that the ALJ did not err by failing to include scienter as an element of indicated child abuse mental injury. Id. at 277–83, 96 A.3d at 928–31. The court also concluded that Mother had failed to preserve the privilege and immunity issues. Id. at 283–86, 96 A.3d at 931–33.

We granted Mother's Petition for Writ of Certiorari to consider the following questions:

1. Does the Court of Special Appeals['] decision that a parent can be strictly liable for child abuse by mental injury by seeking medical help for her five year old based on the child's disclosures and symptoms, absent any finding that the parent acted intentionally, recklessly, or in bad faith to cause injury, violate the Due Process Clause, Family Law Article §§ 5–701 et seq., and Taylor v. Harford County Department of Social Services, 384 Md. 213 (2004) ?

2. Did Petitioner's attorney waive Petitioner's objections to the privileged testimony of a therapist by discussing the assertion of privilege by the child's attorney in the collateral child custody proceeding?

3. Did the ALJ's decision against Petitioner violate the immunity provisions of Family Law Article § 5–708 and [Md.Code (1973, 2013 Repl.Vol.), § 5–620 of the] Courts and Judicial Proceedings Article [ ]?

Because we answer yes to the first question (in part), we need not address the other questions. We shall reverse the judgment of the Court of Special Appeals and remand for further proceedings.

STANDARD OF REVIEW

When reviewing an administrative decision, we assume the same role as the Circuit Court and intermediate appellate court, and " ‘limit our review to the agency's decision.’ " Cosby v. Dep't of Human Res., 425 Md. 629, 637, 42 A.3d 596, 601 (2012) (citation omitted).

"[A] challenge to the entry of one's name in a central registry as an ‘indicated child abuser’ pursuant to [FL] § 5–701 [ ] is a contested case within the meaning of [SG] § 10–202(d)(1)" in which the agency acts in its quasi-judicial capacity.

Taylor v. Harford Cnty. Dep't of Soc. Servs., 384 Md. 213, 221, 862 A.2d 1026, 1030 (2004). In a contested case,⁹ when an ALJ¹⁰ affirms a finding that a person is responsible for indicated child abuse, SG § 10–222(h) establishes the standards of review of the agency's decision. Charles Cnty. Dep't of Soc. Servs. v. Vann, 382 Md. 286, 295, 855 A.2d 313, 318 (2004) ; see SG § 10–222(a)(1) (A party "aggrieved by the final decision in a contested case" may seek judicial review of that decision.).

If a petitioner challenges the agency's factual determinations, we review whether substantial evidence supports the finding. SG § 10–222(h)(3)(v) ; Vann, 382 Md. at 295, 855 A.2d at 318. When a petitioner challenges how to apply and interpret statutes and regulations, we are reviewing a question of law. Cosby, 425 Md. at 638, 42 A.3d at 602. In reviewing legal questions, we accord "some deference" to "an agency's legal interpretation of the statute it administers or of its own regulations." Taylor, 384 Md. at 222, 862 A.2d at 1031. Even if we grant some deference to the agency's legal interpretations, we must correct a legal conclusion that is erroneous. Cosby, 425 Md. at 639, 42 A.3d at 602.

Mother challenges the intermediate appellate court's conclusion that the ALJ did not err in failing to include scienter as an element of indicated child abuse mental injury. See McClanahan, 218 Md.App. at 277–83, 96 A.3d at 928–31. Thus, we review only a legal question.

DISCUSSION

Our role today is to engage in statutory interpretation...