Department of Human Resources v. Thompson

• Decision Date: 01 September 1994
• Docket Number: No. 489,489
• Citation: 652 A.2d 1183,103 Md.App. 175
• Parties: DEPARTMENT OF HUMAN RESOURCES v. Shirley THOMPSON. ,
• Court: Court of Special Appeals of Maryland

Page 175

103 Md.App. 175

652 A.2d 1183

DEPARTMENT OF HUMAN RESOURCES v. Shirley THOMPSON.

No. 489, Sept. Term, 1994.

Court of Special Appeals of Maryland.

Feb. 3, 1995.

Cathy A. Dryden, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for appellant.

Brian S. Brown (D'Alesandro, Milliman & Yerman, on the brief), Baltimore, for appellee.

Argued before MOYLAN, FISCHER and HOLLANDER, JJ.

HOLLANDER, Judge.

The Child Care Administration of the Department of Human Resources ("CCA"), appellant, denied the application for a family day care registration submitted by Shirley Thompson, appellee. CCA's decision was predicated on an administrative investigation of child abuse conducted by the Department of Social Services ("DSS") and a finding by DSS that appellee's husband had abused the couple's daughter. We now confront the issue of a litigant's right to challenge, at a day care registration hearing, a prior administrative finding of child abuse when no quasi-judicial or judicial tribunal ever determined that the abuse actually occurred and the litigant never had an opportunity to contest the administrative finding.

Ms. Thompson appealed CCA's denial of the day care registration to the Office of Administrative Hearings ("OAH"), and the Administrative Law Judge ("ALJ") affirmed CCA's decision. Thereafter, Ms. Thompson appealed the ALJ's decision to the Circuit Court for Baltimore County. That court reversed the ALJ's decision and remanded the case for a new hearing. This appeal followed.

CCA presents three questions for our review:

"I. Whether the Circuit Court erred in holding that, pursuant to COMAR 07.04.03.01B, the Secretary of Human Resources had delegated her authority to make licensing decisions to the Office of Administrative Hearings rather than delegating her authority to review those decisions."

"II. Whether the Circuit Court erred in remanding the case to the Office of Administrative Hearings to take additional evidence that was not presented to the agency when it made its decision."

"III. Whether the issue of whether the [child] abuse occurred was properly before the Administrative Law Judge."

We answer the first two questions in the negative and the remaining question in the affirmative. For the reasons we discuss below, we hold that, under the particular circumstances of this case, Ms. Thompson was entitled to contest the earlier administrative finding of abuse at her day care registration hearing. Further, we conclude that the decision of the ALJ was erroneous, arbitrary, and capricious and prejudiced substantial rights of appellee. Accordingly, we shall affirm the decision of the circuit court.

Factual Summary

On April 9, 1992, Ms. Thompson filed an application with CCA for a family day care registration. As required, her application listed other members of her household, including her husband, Henry Thompson. In response to the application's question "[h]ave you or any other persons living in the family day care home been reported for child abuse or neglect?" Ms. Thompson responded "No." Ms. Thompson then signed and dated the authorization permitting CCA access to child abuse records in order to evaluate her suitability as a day care provider.

In the course of processing Ms. Thompson's application, CCA received from Baltimore County DSS a Child Protective Services ("CPS") clearance advising that DSS had a 1986 closed protective services case involving the Thompsons. Patricia Perry, a CCA licensing agent, discussed the DSS response with the Thompsons, and told them that CCA needed more information in order to proceed with the application process. Perry's investigation revealed that Mr. Thompson was identified as the "person ... responsible for child abuse or neglect" of the Thompsons' then teenage daughter.

Ms. Thompson signed additional consent forms to permit DSS to release additional information from the CPS file to CCA. DSS provided CCA with two reports detailing the allegations of abuse. One report described an incident that occurred on March 25, 1985 when the principal of Owings Mills Senior High School referred a matter of suspected sexual abuse to DSS. According to that report, the school nurse intercepted a note written to Laura Thompson. "The gist of the notes was encouraging Laura Thompson to seek help from a counselor due to the problems with her father, that is, sex abuse." The school was also concerned because Laura had suffered a broken collar bone one and one-half months before. DSS coordinated an investigation with a detective from the Youth Bureau, and they interviewed Laura Thompson, Laura Thompson's grandfather, Ms. Thompson, and Mr. Thompson. Although Mr. Thompson strenuously denied all allegations of child abuse, DSS concluded that the abuse was indicated. Nevertheless, the juvenile court never adjudicated the Thompson's daughter as a Child In Need of Assistance ("CINA"). Further, neither of the Thompsons' two children was ever removed from the Thompsons' home. Additionally, Mr. Thompson was never criminally charged or prosecuted.

In addition to gathering and evaluating the reports, Perry spoke with Mark Vidor, the Division Supervisor of CPS; Perry's supervisor spoke with Toni Greenberg, the continuing protective services worker at the time of the alleged child abuse. Perry also visited the Thompson home and interviewed Mr. Thompson on several occasions.

On June 26, 1992, following its investigation and subsequent evaluation, CCA issued a letter denying Ms. Thompson's application, based on COMAR 07.04.01.08A(9). That regulation provides that CCA may deny a certificate of registration if "an evaluation of the information provided in records of child abuse and neglect reveals that the applicant ... or a resident is identified as responsible for child abuse or neglect, or is currently under investigation for alleged acts of child abuse or neglect." The denial explained that CCA's decision was "consistent with the State's mandate to protect the child and to resolve all doubts in favor of the child." Ms. Thompson appealed the denial on July 15, 1992.

Perry later received a letter from Laura Thompson Morrison, the Thompson's daughter who was the alleged victim of abuse. The letter, received on July 29, 1992, supported Ms. Thompson's application for a family day care registration. Morrison stated:

I am writing this letter so that my mom, Shirley Yvonne Thompson can obtain her babysitting license to babysit in her home. It has come to my attention that the reason for this letter has to do with what happened eight (8) years ago.

I intentionally told that my father had sexually and physically abused me. My father and I don't have the best of relationship, but I was willing to do anything to get attention from him.

My dad worked alot and when he got home in time for dinner, he was tired. So every time I got into trouble, I at least got some attention from him....

I'm sorry if my childhood antics have caused any problems. I do hope this letter helps my mom obtain her license and in no way should reflect on the love and care she can give to any children that are placed in her home and care.

Perry discussed the letter with Vidor, and after further review, CCA affirmed its denial of Ms. Thompson's application.

Thereafter, on August 26, 1992, OAH heard Ms. Thompson's appeal. At the hearing, CCA presented testimony and exhibits regarding its evaluation of the CPS record and the CPS investigation that resulted in the DSS finding of "abuse indicated." Ms. Thompson and her husband testified in support of appellee's case. Morrison, however, was in Oklahoma, and Ms. Thompson offered Morrison's testimony via telephone because she could not afford to fly Morrison to Maryland. CCA objected to the telephone testimony, and the ALJ denied appellee's request to present her daughter's testimony by telephone, stating [T]he determination to be made by this forum is whether the agency correctly applied State regulations in reaching its decision. That determination is limited to an examination of the basis for the agency's decision to deny the application. Counsel, however, is challenging the actual findings and requests that this forum reinvestigate the allegations and make a determination of whether abuse actually occurred. Such a finding is beyond the scope of this proceeding and it is for this reason that the request for presentation of telephonic testimony was denied.

On September 10, 1992, OAH upheld CCA's denial of Ms. Thompson's application. Ms. Thompson appealed to the circuit court, and on November 24, 1993, that court heard argument. On February 4, 1994, the circuit court reversed OAH and remanded the case for a new hearing.

Discussion

I. The Day Care Regulatory Scheme

Family day care registrations are governed by Md.Code Ann., Family Law Art. ("F.L.") §§ 5-550 through 5-557 (1991 Repl.Vol.) and regulations found at COMAR 07.04.01 et seq. The statutory scheme is designed, inter alia, to safeguard children in day care homes. F.L. § 5-550(b)(1). To that end, "a provider may not operate a family day care home unless both the provider and the home have met the requirements for registration as set forth in [COMAR 07.04.01] and the provider possesses a valid certificate of registration." COMAR 07.04.01.03.

In order to obtain a family day care registration, an applicant must identify all residents in the home and submit a "signed and notarized permission to examine records of child abuse and neglect for information about the applicant ... and residents." COMAR 07.04.01.04. After receiving the application and accompanying documentation, CCA must then determine whether the applicant has complied with the requirements of CCA's regulations by:

(1) Evaluating the application and required documentation (2) Interviewing the applicant;

(3) Inspecting the home proposed for use as a family day care home;

(4) Evaluating the information provided by State...