MARYLAND DEPARTMENT OF HUMAN SERVICES
v.
OLUCHI AKUNNE
Court of Special Appeals of Maryland
October 19, 2021
Circuit Court for Baltimore City Case No. 24-C-18-005199
Fader, C.J., Nazarian, Shaw Geter, JJ.
OPINION [*]
NAZARIAN, J.
Oluchi Akunne was a supervisor in the Baltimore City Department of Social Services ("DSS"), which is part of the Maryland Department of Human Services (the "Department").[1] She worked in DSS's Family Preservation Services unit ("Family Preservation"), and her duties included supervising caseworkers within that unit. One of those caseworkers was assigned to the case of a substance-exposed newborn whose father killed him in June 2017. After this tragic death, DSS investigated and, after finding Ms. Akunne performed her duties in connection with the case inefficiently and negligently, terminated her employment with prejudice. Ms. Akunne appealed the disciplinary action, and, after a contested case hearing, the Office of Administrative Hearings ("OAH") upheld Ms. Akunne's termination.[2]
Ms. Akunne filed a petition for judicial review in the Circuit Court for Baltimore City. The circuit court reversed the OAH's decision on procedural grounds without reaching the merits and ordered the Department to reinstate Ms. Akunne to her former position with full back pay and benefits. The Department timely appealed. We reverse the judgment of the circuit court and remand to that court with instructions to affirm the decision of the OAH.
I. BACKGROUND
At the heart of this dispute lies the death of an infant. Many are responsible for that tragedy, not least the infant's parents, who the State represents were charged criminally and convicted in connection with his death. As for the Department, the OAH administrative law judge ("ALJ") observed in his memorandum opinion that there were "colossal errors" and "systematic failures at every level throughout [DSS]" that led to the infant's death. And the ALJ acknowledged that Ms. Akunne and her co-workers were "over-worked and overwhelmed." But as the ALJ also observed, this case does not present an opportunity to parse the many failings, but instead to determine whether the Department "acted appropriately and within the law by terminating [Ms. Akunne] with prejudice." With that in mind, we set forth the relevant factual background, which is based on OAH's fact findings unless we indicate otherwise.
Ms. Akunne testified that she came to the United States in 2002 when she was seventeen years old. She enrolled in community college and later received a full scholarship to Morgan State University. She received a master's degree in social work and had worked for DSS for about ten years at the time of the infant's death. She earned positive performance ratings, including those on two evaluations dated during the relevant time period (dated December 14, 2016 and June 19, 2017).
Ms. Akunne's official title within Family Preservation was "Team Administrator" or "TA," and she had held that position since June 2015. Her exact duties and responsibilities were the subject of some dispute before the OAH, but she does not contest
that they included supervising Family Preservation caseworkers.[3]
The infant, E.J., was born substance-exposed on December 27, 2016 to A.P. ("Mother") and P.J. ("Father"). E's case had initially been assigned to another unit within DSS, Child Protective Services ("CPS"), and CPS transferred the case to Family Preservation on or about February 10, 2017. Rhonda Parker, an employee in the Family Preservation unit, accepted the case file. The file contained references to CPS's prior involvement with the family. It referenced Mother and Father's three other children who had been removed from the home. It also referenced findings of indicated neglect by Mother and indicated child abuse by Father as to some or all of those children.[4] The file contained a CPS Safety Plan, signed by Mother, that provided that E was to have "[n]o unsupervised visits" with Father. The Safety Plan was to be reevaluated on January 14, 2017 (ostensibly by CPS, although the ALJ's decision does not say so) but never was.
When CPS transferred the case to Family Preservation in February 2017, E's case was assigned to Ms. Akunne as supervisor. Ms. Akunne assigned E's case to caseworker Lamont Highsmith, who met, or attempted to meet, with Mother on a roughly weekly or biweekly basis up until about two weeks before Father killed E. As summarized by the ALJ, Ms. Akunne testified that she "had problems" with Mr. Highsmith "from the start," and that "he did not know the policy, he did not know how to do case notes, he was not coming to work, he did not make timely entries or have knowledge of his cases and she suspected he was not visiting clients and was cutting and pasting others' contact notes." And indeed, the ALJ found that many of Mr. Highsmith's contact notes for E's case were not entered into the statewide database known as "CHESSIE"[5] until May 2017. Mr. Highsmith made those entries in response to a "Corrective Action Plan" that Ms. Akunne delivered to him on May 9, 2017. Ms. Akunne was scheduled to meet with him on May 23 to go over his cases, including E's, but they communicated by email instead. Ms. Akunne acknowledged not reading the notes that Mr. Highsmith entered into CHESSIE after May 9 in response to the Corrective Action Plan.
The ALJ recounted in detail Mr. Highsmith's contact notes concerning E's case. The contact notes for the following dates included references to Mother living with Father: April 18, 2017; April 27, 2017; May 3, 2017; May 10, 2017; May 17, 2017; and May 24,
2017.[6] The May 17 and May 24 notes indicated that Father had joined in the conversation with Mr. Highsmith. The contact notes also recounted Mr. Highsmith's visits to Mother in connection with an anonymous report that someone had called in to CPS in or about late March 2017. The caller asserted that Mother was using cocaine and was leaving E alone in the care of Father.[7] The ALJ found that Mr. Highsmith's April 7, 2017 contact note indicated that he went to Mother's home for his weekly visit and to discuss the CPS report. The ALJ further indicated that "[Mother] did not answer the door and a neighbor indicated that he had not seen [Mother] for a couple of days." The April 10 note indicated that Mr. Highsmith met with Mother and discussed the CPS report. Mother "denied she was using drugs and said the report was 'totally false, '" and Mr. Highsmith "indicated that [Mother] did not appear to be under the influence of any substance and was well-groomed." The April 27 note indicated that Mr. Highsmith did not meet with Mother, who was not home, and that the man who answered the door informed Mr. Highsmith that Mother and Father had moved in about two weeks previously. CPS also had generated contact notes in connection with the March 2017 report-notes that were likewise entered into CHESSIE later than they should have been, on or about May 11 and 12, 2017-that indicated that Father and Mother were living together.
E was killed on June 9, 2017. Upon learning that day of the fatality, Ms. Akunne's direct supervisor, Delores Mack, reviewed the paper case file. The ALJ observed that, based on her review, Ms. Mack believed that Ms. Akunne "should have contacted CPS Safety to review the file before [Family Preservation] took the case." Jennifer Berry, Family Preservation's Program Manager, also reviewed Mother's case file, [8] and the ALJ observed that she "noted numerous red flags that should have alerted [Ms. Akunne] to potential danger including the prior abuse and neglect findings, the Emergency Plan, the CPS MFRA determination of 'moderate' risk, and the genogram of who was in the home."[9]
Ms. Mack referred Ms. Akunne for disciplinary action, and Denise Warren-Artis, a human relations officer, conducted an investigation that included interviewing Ms. Akunne, Ms. Mack, and Ms. Berry. At her June 16, 2017 interview, Ms. Akunne signed an agreement waiving and indefinitely extending the Department's thirty-day period to impose disciplinary action. See SP § 11-106(b). At the same meeting, Ms. Akunne was provided the opportunity to offer mitigation, and she submitted a written statement. She indicated that at the time E's case was transferred from CPS to Family Preservation (February 10, 2017), the case file contained references to Father's status as unknown or estranged and to the risk to E's safety as being low
Upon completing her investigation, Ms. Warren-Artis recommended initially to Molly Tierney, DSS's then-director, that Ms. Akunne be suspended, but changed that recommendation later to termination. On July 26, 2017, Ms. Tierney recommended to the Department's Secretary, Lourdes Padilla, that Ms. Akunne's employment be terminated. On or about August 16, 2017, Ms. Akunne was placed on administrative leave.
Shortly after, Robin Harvey became DSS's acting Director. Ms. Harvey recommended to Secretary Padilla that Ms. Akunne be terminated with prejudice. Ms. Harvey testified at the OAH hearing that before she decided to recommend
termination, she reviewed the investigation report and relevant documents and spoke with several individuals about the case. As the ALJ recounted, Ms. Harvey concluded that Ms. Akunne had failed to supervise Mr. Highsmith properly, that she should have been aware of the danger to the child, that she lacked insight into her own failures to act, and that she failed to accept any responsibility for what happened:
Ms. Harvey delegated the investigation to Denise Warren-Artis pursuant to the Delegation of Authority on file (Mgmt. Ex. 19 and 20), but reviewed the investigation report, recorded interview with the Employee, the SBC/SOP Protocol, the Safety Plan, and the Employee's statement; and spoke with Ms. Berry about the CPS...
