CECIL CTY DEPT. SOCIAL SERVICES v. Russell

• Decision Date: 10 November 2004
• Docket Number: No. 0390,0390
• Citation: CECIL CTY DEPT. SOCIAL SERVICES v. Russell, 861 A.2d 92, 159 Md. App. 594 (Md. App. 2004)
• Parties: CECIL COUNTY DEPARTMENT OF SOCIAL SERVICES v. Danny RUSSELL.
• Court: Court of Special Appeals of Maryland

861 A.2d 92

159 Md. App. 594

CECIL COUNTY DEPARTMENT OF SOCIAL SERVICES v.Danny RUSSELL.

No. 0390, September Term, 2003.

Court of Special Appeals of Maryland.

November 10, 2004.

Sandra Barnes(J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for Appellant.

Edward Andre Richitelli, Elkton, for Appellee.

Panel: MURPHY, C.J., DEBORAH S. EYLER and SHARER, JJ.

SHARER, Judge.

The Cecil County Department of Social Services("DSS") appeals from an order of remand by the Circuit Court for Cecil County in a case involving a finding of indicated child sexual abuse, for the purpose of entering the name of appellee, Danny Russell, on the Social Services Administration central child abuse registry, pursuant to Md.Code Ann., Family Law § 5-714(1999 Rep. Vol. & 2001 Supp.).

An Administrative Law Judge found that the DSS had correctly found "indicated child sexual abuse" in a case in which Danny Russell, appellee, was accused of molesting his daughter's teenage friend.At issue in this appeal is whether, because the DSS had failed to include in the record before the ALJ, an audio recording of a statement made by appellee to investigators, the record was incomplete.The circuit court ruled that failure to provide the audio tape resulted in an incomplete record, and remanded the case to the Office of Administrative Hearings for the receiving of additional evidence, to wit, the audio tape.

Appellant presents for our review three questions, which restated, are:¹

1.Did the circuit court err by ordering remand on the ground that the record was incomplete because of the absence of an audio recording of appellee's statement to investigators?

2.Did the circuit court err by ordering the Office of Administrative Hearings to presume, should the audio recording not be produced, that the information on the audio tape was unfavorable to the DSS?

We answer "No" to both questions, and shall affirm.For the reasons stated herein, we hold that the audio tape of Russell's joint interview with the DSS and Sheriff's Department investigators should have been included in the record provided to Russell and the Office of Administrative Hearings, and shall affirm the decision of the circuit court.Because this case will be remanded to the Office of Administrative Hearings for further proceedings, we need not reach the substantive issues presented by appellant's questions two and three.

FACTS and PROCEDURAL HISTORY

Since we will not address the substantive and sufficiency issues raised, a brief recitation of the facts will serve the purpose of this opinion.

On March 13, 2000, the DSS received information that a 16 year-old girl, "D.," had been sexually abused by her friend's father on two separate occasions.The DSS assigned an assessor and the Sheriff's Department assigned a detective to conduct a joint investigation of the allegations.

On March 15, 2000, the investigators interviewed "D." at her school.Although reluctant to discuss the incidents, "D." eventually identified appellee as her abuser, and informed the investigators that he had touched her inappropriately on two occasions.

The Investigation

The DSS and Sheriff's Department conducted a joint investigation of the allegations, as required by Md.Code Ann., Fam. L. § 5-706, which provides in pertinent part:

§ 5-706. Investigation.

(a)In general — Promptly after receiving a report of suspected abuse of neglect:

(1) the local department or the appropriate law enforcement agency, or both, if jointly agreed on, shall make a thorough investigation of a report of suspected abuse to protect the health, safety, and welfare of the child or children;

* * *

(f)Joint investigation procedure.— (1) The agencies responsible for investigating reported cases of suspected sexual abuse, including the local department, the appropriate law enforcement agencies, and the local State's Attorney, shall implement a joint investigation procedure for conducting join investigations sexual abuse.

The implementation of the mandate of § 5-706(a)(1) is found in Fam. L. § 5-706(e), which provides

(e)Written agreement to specify standard operation procedures.— The local department, the appropriate law enforcement agencies, the State's Attorney within each county and Baltimore City, the department's office responsible for child care regulation, and the local health officer, shall enter into a written agreement that specifies standard operating procedure for the investigation and prosecution of reported cases of suspect abuse.

In compliance with that directive, an interagency agreement was developed and became operative on October 22, 1992.Among the parties to the agreement were the DSS and the Cecil County Sheriff's Department.²

The joint investigation of the allegations against Russell included interviews of "D.," her mother, Russell, Russell's daughter, and two other witnesses.As a result of the interviews, the DSS found Russell responsible for "indicated child abuse" on August 3, 2000.³

The Administrative Hearing

Russell appealed the finding of indicated sexual abuse, asserting that the finding was wrong because he had no "inappropriate contact whatsoever with the alleged victim."A contested case hearing was held by an ALJ from the Office of Administrative Hearings("OAH") on March 30, 2001.

During the course of the hearing, testimony concerning the nature of the joint investigation, and the contents of the DSS record, were provided.The DSS successfully sought admission of the Sheriff's Department report, over Russell's objection.The DSS counsel argued:

Your Honor, this document constitutes a part of the case record that is reviewed and examined by the case worker during the course of her investigation.Quite frankly, this particular document denotes interviews that [the DSS investigator] was actually present for also.[The DSS investigator] works in combination with [the Sheriff's Department investigator], they did the investigation jointly, and this was a product of that investigation and is relevant to the matter.

The Sheriff's Department report contained the statement that "[Russell] was advised that [the] interview would be audio taped,"⁴ and that report became part of the record, as did Russell's written statement, taken during an interview conducted by the DSS and the Sheriff's Department.That statement remained in the custody of the Sheriff until requested by the DSS for inclusion in the record.The audio recording made of Russell's interview was not part of the record.The detective who investigated the allegations on behalf of the Sheriff's Department did not testify before the ALJ.

When cross-examined about the joint interview with Russell, the DSS investigator testified:

Q.And this was a joint investigation you said between you and the Sheriff's Department?

A.Yes.

Q.The interview with Mr. Russell was taped, was it not?

A.Correct.

Q.Do you have a copy of the tape?

A.I do not.

Q.Why not?

A.I don't have that information.

Q.But you have everything else.You've got the Sheriff's report, you have a copy of his written statement, I believe a copy of his Miranda advice.

A. Um-hum.

Q.Why don't you have the tape?

A.I don't have it.

Q. Wouldn't that be certainly the best evidence of what was said during that interview?

A.I don't have that information.

On re-direct examination, the investigator further explained:

Q.And even though the interview [with Russell] was tape recorded, audio tape recorded at the Sheriff's Department, who is in possession of those tapes?

A.The law enforcement officer.

* * *

Q.Is it your understanding that the tape remains in the possession of the Sheriff's office?

A.Yes.

Q.Okay.Any has the tape ever been part of your case record?

A.No.

The ALJ ruled that the DSS's finding that Russell was responsible for "indicated child sexual abuse" was supported by credible evidence and was consistent with the law.As a result, the ALJ ruled that the DSS could "identify [Russell] as an individual responsible for indicated child sexual abuse in a central registry and in its other files."In so ruling, the ALJ made specific findings that Russell and his daughter were not credible witnesses, but that the DSS investigator and victim, "D.," were credible witnesses.⁵After receiving the ALJ's decision, appellee filed a timely petition for judicial review in the Circuit Court for Cecil County.

The Circuit Court Proceedings

On November 16, 2001, a hearing was held in the circuit court.The court held the matter sub curia and issued a Memorandum and Order on March 28, 2003, remanding the case to the OAH for the development of further evidence, specifically the audio tape of the Russell interview.Although the DSS argued before the circuit court, as it does here, that the tape was not part of its record, the court found:

The local department iterates throughout the record that this was a joint investigation between DSS and the Cecil County Sheriff's Department.In fact, [the Department investigator] testified on cross that the investigation was a joint investigation between the local department and the Sheriff's Department.[The Sheriff's Department investigator's] report also states, quite explicitly, that "[t]his writer will conduct a joint investigation with [DSS]."Consistent with both agencies' description of the investigation as a joint endeavor, the local department obtained a copy of [the Sheriff's Department's] report, Appellant's written statement, and Appellant's Miranda form from the Sheriff's Department.Both the written statement and the Miranda form were taken during the interview that was audio taped at the Sheriff's Department.The same is true of notes taken by [the detective], which were later incorporated as part of [the Sheriff's Department] report.The local department provided Appellant with copies of all of these documents as part of the redacted record, in full compliance with [COMAR]§ 07.02.26.11.Moreover, the record

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