Dep't of Human Res. v. Cosby

• Decision Date: 11 July 2011
• Docket Number: No. 256,Sept. Term,2010.,256
• Parties: DEPARTMENT OF HUMAN RESOURCES, Allegany County Department of Social Servicesv.Johnette COSBY.
• Court: Court of Special Appeals of Maryland

200 Md.App. 54

24 A.3d 199

DEPARTMENT OF HUMAN RESOURCES, Allegany County Department of Social Services

v.Johnette COSBY.

No. 256

Sept. Term

2010.

Court of Special Appeals of Maryland.

July 11, 2011.

Sandra I. Barnes (Douglas F. Gansler, Atty. Gen. on the brief), Baltimore, MD, for Appellant.Ramon Rozas, Cumberland, MD, for Appellee.Panel: DEBORAH S. EYLER, WOODWARD and GRAEFF, JJ.

WOODWARD, J.

In this appeal, the Department of Human Resources, Allegany County Department of Social Services (“the Department”), appellant, seeks to uphold the decision of the Office of Administrative Hearings (“OAH”) that dismissed appellee Johnette Cosby's appeal of the Department's finding that she was responsible for indicated child neglect of her adoptive son, Michael.¹ COSBY SOUGHT TO CHallenge the department's findIng of indicated child neglect in an appeal before the OAH. In a prior Child in Need of Assistance (“CINA”) ² proceeding, the Circuit Court for Allegany County found Cosby responsible for neglect of Michael. In the OAH proceeding, the Department filed a motion to dismiss Cosby's appeal based on collateral estoppel. The OAH administrative law judge (“ALJ”) granted the Department's motion to dismiss, and Cosby filed a petition for judicial review in the circuit court. The court reversed the OAH's decision to dismiss Cosby's appeal.

In the instant appeal, the Department presents one question for review by this Court, which we have rephrased: Where there was a prior finding of child neglect in a CINA case to which Cosby was a party, did the ALJ err in a subsequent administrative proceeding when he granted the Department's motion to dismiss Cosby's appeal of the Department's finding of indicated child neglect based on collateral estoppel?

For the reasons set forth herein, we shall uphold the OAH's decision and thus reverse the judgment of the circuit court.

BACKGROUND

On October 7, 2008, the Department notified Cosby that, after it had conducted a “Child Protective Services investigation,” the Department found her responsible for indicated child neglect. According to the Department's “Child Neglect Report,” Cosby's case was being recorded as “an INDICATED CHILD NEGLECT,” because there was a “current instance of failure to give proper care and attention to the child, and the nature, extent, or cause indicate [d that] the child's health or welfare was harmed or placed at substantial risk of harm.” Specifically, the Department reported that, on September 23, 2008, Cosby's adoptive son, Michael, “got into a verbal altercation with [Cosby]'s live-in paramour ... [that] became physical in nature; however, no injuries were left on either party.” At the time of the incident, Michael was 17 years old and two weeks away from turning 18. Cosby advised the Department that she did not want Michael to return to her home and was not open to work with the Department on this matter. The Department had arranged for Michael to live with another family at that time and after he turned 18. Cosby, however, refused to allow this arrangement and advised that she wanted Michael placed in foster care “as a punishment.” Because Cosby, as Michael's sole legal custodian, refused to allow Michael to “come back home,” the Department placed Michael into foster care.

On October 8, 2008, after a shelter care hearing, the circuit court granted shelter care and placed Michael in the temporary care and custody of the Department. After an adjudication hearing on October 17, 2008, the master sustained the allegations in the Department's petition that Cosby was responsible for neglect of Michael. The circuit court ratified the report of the master on November 10, 2008. After a disposition hearing before the master, the circuit court adjudicated Michael CINA in an order dated December 15, 2008. Cosby did not appeal the court's determination that Michael was CINA.

Before Michael was adjudicated CINA, Cosby filed a “Contested Case Hearing—Request Form” with the OAH on December 1, 2008, in which she appealed the Department's finding that she was responsible for indicated child neglect, pursuant to Maryland Code (1984, 2006 Repl.Vol.), § 5–706.1 of the Family Law Article (“F.L.”). In her appeal, Cosby stated that “[t]here was insufficient evidence to make and [sic] indicated finding;” “there was no neglect as a matter of law and fact and [ ] the Department erred in making an indicated finding.”

On February 23, 2009, at a hearing before the ALJ, the Department made an oral motion to dismiss, arguing that the case should be dismissed on the basis of collateral estoppel because of a previous CINA case that involved Cosby and Michael. The ALJ did not rule on the motion and instructed the Department to file a written motion.

In a written motion to dismiss dated March 6, 2009, the Department contended that Cosby's appeal must be dismissed, because (1) it was a necessary condition precedent to a finding of CINA that the court find that the child had been neglected; (2) the court adjudicated Michael CINA and thus the issue of neglect was decided in the prior CINA litigation; (3) Cosby was properly before the court, had the benefit of counsel, and the opportunity to be heard on the issue during the CINA proceeding; (4) the finding of CINA was a final judgment; and (5) the CINA case involved the same parties as in the appeal before the OAH. The Department concluded that Cosby thus was “precluded from re-litigating the issue of neglect.”

The Department further asserted that F.L. § 5–706.1 “d[id] not bar the applicability of the doctrine of collateral estoppel.” Although acknowledging the deletion of a provision in F.L. § 5–706.1 that had required dismissal of an appeal of a finding of indicated neglect where the child had been found CINA, the Department contended that the change in law “d[id] not reflect a legislative determination that a CINA finding may not preclude a subsequent hearing on a finding of child abuse or neglect.”

In an order dated March 25, 2009, the ALJ granted the Department's motion to dismiss. The ALJ found that (1) the parties in the present case and the CINA proceeding are identical; (2) Cosby had a full opportunity at the CINA hearing to litigate whether she was responsible for neglect; (3) the issue litigated in the CINA proceeding was identical to the issue in the appeal before the OAH; and (4) there was no evidence that Cosby had appealed the CINA findings. Relying on Montgomery County Department of Health and Human Services v. Tamara A., 178 Md.App. 686, 943 A.2d 653 (2008) (“ Tamara A. I ”), rev'd on other grounds, 407 Md. 180, 963 A.2d 773 (2009), the ALJ concluded that Cosby's request for a hearing to challenge the Department's finding that she was responsible for indicated child neglect was barred by collateral estoppel. Thus the ALJ affirmed the Department's finding of indicated child neglect.

On April 2, 2009, Cosby filed a motion to reconsider, and the Department filed a response. In an order dated May 14, 2009, the ALJ acknowledged that, in Tamara A. v. Montgomery County Department of Health and Human Services, 407 Md. 180, 963 A.2d 773 (2009) (“ Tamara A. II ”), the Court of Appeals reversed Tamara A. I. The ALJ, however, agreed with the Department that the reasoning in Tamara A. I as to the application of the collateral estoppel doctrine was still good law, because, according to the ALJ, the Court of Appeals had reversed Tamara A. I on the grounds that “neither the Circuit Court nor the Court of [Special] Appeals had jurisdiction to hear the ‘interlocutory’ appeal filed by the Montgomery County Department of Health and Human Services.” The ALJ thus concluded that as a matter of law, Cosby's challenge to the Department's finding that she was responsible for indicated neglect was barred by collateral estoppel.

On April 22, 2009, Cosby filed a petition for judicial review in the circuit court. Cosby argued that the ALJ's decision to grant the Department's motion to dismiss “was arbitrary, unreasonable, unsupported by substantial evidence, and not a valid exercise of its discretion.” After a hearing on January 25, 2010, the court signed a Memorandum and Order on March 5, 2010, reversing the ALJ's granting of the Department's motion to dismiss and remanding the case for further proceedings. The court determined that “the ALJ's reliance upon the analysis and holding of Tamara A. [I] was inappropriate in light of the Court of Appeals reversal,” and that from a reading of the statute and the Court of Appeals' dicta in Tamara A. II, Cosby “was entitled to further proceedings on her appeal.”

The Department filed a timely notice of appeal to this Court. Additional facts will be set forth below as necessary to resolve the question presented.

DISCUSSION

To begin, Cosby concedes that, if the defense of collateral estoppel can be raised by the Department in the case sub judice, then Cosby is precluded from challenging the Department's finding that she was responsible for indicated neglect of Michael. Therefore, the only issue before us on appeal is whether the defense of collateral estoppel is available to the Department in a F.L. § 5–706.1 proceeding.

The Parties' Contentions

The Department argues that, under the doctrine of collateral estoppel, Cosby is barred from relitigating the issue of neglect after she had already been found responsible for neglect in the CINA proceeding. According to the Department, Cosby argues that the doctrine of collateral estoppel does not apply to the instant case, because the General Assembly “signaled its intent that a CINA finding would not preclude an administrative challenge to a finding of child abuse or neglect” when it “removed the requirement [from F.L. § 5–706.1] that OAH dismiss an appeal if a child was found CINA, and it instead directed OAH to ‘schedule further proceedings.’ ” Relying on a letter written by former OAH Chief Administrative Law Judge John W. Hardwicke, the ...