B.H. v. Anne Arundel Cnty. Dep't of Soc. Servs.
| Decision Date | 21 December 2012 |
| Docket Number | Sept. Term, 2011.,No. 01835,01835 |
| Citation | 58 A.3d 533,209 Md.App. 206 |
| Parties | B.H. v. ANNE ARUNDEL COUNTY DEPARTMENT OF SOCIAL SERVICES. |
| Court | Court of Special Appeals of Maryland |
OPINION TEXT STARTS HERE
Gregory P. Jimeno, Glen Burnie, MD, for Appellant.
Sandra Barnes (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellee.
Panel: ZARNOCH, MATRICCIANI, and RAYMOND G. THIEME, JR. (Retired, Specially Assigned), JJ.
On April 23, 2010, the Anne Arundel County Department of Social Services (“DSS”) received a report of alleged child abuse by B.H., appellant, against his minor child, Brayden. Police officers responded, and B.H. was charged with Child Abuse in the Second Degree, Assault in the Second Degree, and Reckless Endangerment. All charges were placed on the STET docket 1 on September 3, 2010.
On April 27, 2010, DSS began a civil investigation. The investigation concluded on July 30, 2010, finding that child abuse was indicated as defined in the Family Law Article and by its corresponding COMAR sections. B.H. appealed from that finding and on December 21, 2010, a hearing took place before an Administrative Law Judge (“ALJ”). The ALJ found that DSS met its burden in proving indicated child abuse. B.H. appealed that decision to the Circuit Court for Anne Arundel County. In a memorandum opinion docketed October 4, 2011, the circuit court upheld the ALJ's decision. B.H. noted a timely appeal to this Court on October 25, 2011.
B.H. presents three questions for our review which we have rephrased and combined for clarity as: 2
[209 Md.App. 211]1. Did the Administrative Law Judge draw an erroneous conclusion of law or fail to base her decision on substantial evidence when upholding a DSS finding of indicated child abuse?
For the reasons that follow, we answer no and uphold the decision of the Administrative Law Judge.
On the evening of April 22, 2010, B.H. prepared a meal for himself and his two minor children. B.H. made spaghetti with a sauce containing mushrooms. Brayden, B.H.'s four-year-old son, refused the food because he disliked mushrooms. B.H. responded by informing Brayden that if he did not finish his dinner, he would not get dessert and he would be unable to go outside to play with his friends. Brayden then left the table. B.H. returned Brayden to his seat and told him that his presence at dinner was required while B.H. and his eleven-year-old daughter, Brianna, finished eating. Brayden resisted and B.H. held Brayden by the arm to ensure his attendance at the dinner table.
Because B.H. and Mrs. H.3 shared custody of the children, she picked them up from school on the afternoon of April 23, [209 Md.App. 212]2010. Once home, Mrs. H. found several bruises on Brayden's neck and a scratch under his chin. That day, Mrs. H. brought Brayden to his pediatrician. The pediatrician documented the injuries discovered by Mrs. H. The pediatrician's office referred the matter to DSS on the evening of April 23, 2010. DSS contacted the police, and on the morning of April 24, 2010, Officer Laura Witherspoon, of the Anne Arundel County Police Department, joined by Officer Josh Ingerebretson, of the Annapolis Police Department, investigated the claim. Although Officer Ingerebretson was present, Officer Witherspoon conducted the investigation and completed the Application for Statement of Charges.4
In the presence of Mrs. H., Officer Witherspoon questioned Brayden about his injuries. Officer Witherspoon testified that Brayden informed her “his father had grabbed him by—around his neck and had pulled him down and that he had also somehow bruised his arm in the process of—of either falling or hitting it on something.” Officer Witherspoon charged B.H. with three offenses: Child Abuse in the Second Degree, Assault in the Second Degree, and Reckless Endangerment. All charges were placed on the STET docket on September 3, 2010.
DSS assigned social worker Lauren Askew to conduct a civil investigation into the incident on its behalf.5 On April 27, 2010, Ms. Askew interviewed Brayden, Mrs. H., and Brianna. The investigation resulted in Ms. Askew finding indicated child abuse. B.H. appealed that finding to an ALJ and a hearing was held on December 21, 2010. At the hearing, Ms. Askew testified to the contents of her interviews. She testified that Brayden told her “his dad tried to make him eat the mushrooms that was [sic] in the spaghetti sauce and that he did not like them.” Further, she testified
Mrs. H. confirmed this account. Ms. Askew testified to her conversation with Mrs. H., saying “she said that Brayden said that the incident happened, because he refused to eat his mushrooms and that he had hit his elbow on the table, and his dad had held him down to force him to eat the mushrooms.” Brayden told Mrs. H. that, in the words of Ms. Askew, “his dad [ ] held him down to force him to eat the mushrooms.”
Brianna provided the following account, testified to by Ms. Askew:
Brianna told me that they were at dad's house eating spaghetti and that her brother did not want to eat the mushrooms and that dad had told him that he had to eat the mushrooms or that he would not go outside and play if he did not eat them. At which point, Brayden got up from the table and tried to run, but dad grabbed him and picked him up by the arm and place [sic] him back at the table.
Brianna went on, as Ms. Askew testified, “[d]ad had put the mushrooms in Brayden's mouth, and Brayden spit the mushrooms out on the floor, because he did not like them and started to cry.”
Ms. Askew interviewed B.H. on April 29, 2010. He provided a substantially similar narrative. Ms. Askew testified “[h]e stated that Brayden did try to exit the table, but he picked Brayden up from under his arm and carried him back to the table and told him to sit there.” B.H. testified directly that after dinner “we watched TV downstairs ... then we went upstairs, and [the kids] wanted to snuggle on daddy's bed, so I let them ... I read Brayden a book ... and then I took them both to their beds.” When asked about whether B.H. intended to injure Brayden, Ms. Askew agreed that “the intention of Mr. H[ ] at that point was to have his son eat mushrooms.” 6
Ms. Askew's investigation resulted in a finding of indicated child abuse as defined in the Family Law Article and by its corresponding regulations. Abuse means:
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.
Md.Code Ann., Fam. Law § 5–701(b)(1). Indicated Child Abuse means:
(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 it is more likely than not 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;
(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.
COMAR § 07.02.07.12(A) (2012). In support of her finding, Ms. Askew testified that it was based on “[t]he statements that were presented to myself, the pictures 7 and, of course, talking to Mr.—the appellant and the kids.” Ms. Askew testified to each of the regulation 07.02.07.12(A) factors. She testified that there was a current injury, 8 that Brayden was under the age of 18 at the time of the incident, and that the injury was caused allegedly by his father. To satisfy part (d) of the regulation, Ms. Askew said:
[t]he nature of the incident in regards to when Mr. H[ ] was shoving the mushrooms down Brayden's neck—I mean, down his mouth—Bray—as I reported, Brayden could have choked on the mushrooms, which had—could have caused him to die by blocking the airways. So that's how—he was placed—his harm and welfare—his welfare was placed in substantial risk.
Finally, Ms. Askew was asked “during the course of your investigation, was the appellant able to satisfactorily refute the—this—this matter to—your satisfaction, so that you could, you know, change your disposition?” She responded, “no.”
The ALJ issued an order dated January 21, 2011.9 The ALJ found that in this case, “[a]ppellant's actions rise to abuse.” The ALJ “accept[ed] Bianna's and Brayden's hearsay statements to the [ ] [DSS] investigator over the [a]ppellant's testimony and believe[d] that the [a]ppellant chased Brayden and forced food into his mouth.” The ALJ “found Brayden's statement that the [a]ppellant grabbed him on the neck persuasive because [the ALJ] [did] not believe, and there [was anything] in the record to convince [the ALJ] that the child would lie and carry on the lie....”.
The opinion concluded that appellant injured Brayden's neck. The ALJ reasoned that “Brianna and Brayden's statements, the photographs, and the medical report are credible evidence” of the injury. The ALJ said:
I have considered that the [a]ppellant is an adult confronting a four-year-old boy. The [a]ppellant's size and strength relative to Brayden's size and strength magnifies the [a]ppellant's force and, if he is angry or out of control, renders that force physically dangerous to a small child. Thus, the [a]ppellant's actions placed Brayden's health and welfare at substantial risk of harm.
Applying the COMAR factors, the ALJ found that:
[a]ppellant did not...
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