Human Resources v. Howard

• Decision Date: 18 May 2006
• Docket Number: No. 2099, September Term, 2004.,2099, September Term, 2004.
• Citation: 897 A.2d 904,168 Md. App. 621
• Parties: DEPARTMENT OF HUMAN RESOURCES, Anne Arundel County Department of Social Services v. Sherri HOWARD.
• Court: Court of Special Appeals of Maryland

897 A.2d 904

168 Md. App. 621

DEPARTMENT OF HUMAN RESOURCES, Anne Arundel County Department of Social Services v. Sherri HOWARD.

No. 2099, September Term, 2004.

Court of Special Appeals of Maryland.

May 18, 2006.

COPYRIGHT MATERIAL OMITTED

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

Ilona McClintick, Baltimore, for appellee.

Panel: MURPHY, C.J., DAVIS, HOLLANDER, SALMON, JAMES R. EYLER, KENNEY, DEBORAH S. EYLER, ADKINS, KRAUSER, BARBERA, SHARER, MEREDITH, WOODWARD, CHARLES E. MOYLAN, JR. (Retired, specially assigned), and RAYMOND J. THIEME, JR., (Retired, specially assigned), JJ.

MURPHY, C.J.

This appeal from the Circuit Court for Anne Arundel County presents the question of whether an administrative finding that the mother of a 13-year old boy committed an act of "indicated child abuse" is "appropriate" based upon factual findings that the mother (1) decided to impose corporal punishment on her son in response to his disrespectful behavior towards her, (2) intended to strike the back of her son's head with her knuckles, as she was looking at the back of his head when she moved her hand towards him, and (3) caused an injury to her son's eye when he suddenly turned his head and was therefore struck in the face. For the reasons that follow, we hold that the answer to this question is "no," and we shall therefore affirm the judgment of the circuit court.

Factual Background

The parties to this appeal are the Anne Arundel County Department of Social Services, appellant (the Department), and Sherri Howard, appellee, who was deemed by the Department to have been responsible for "indicated child abuse" as a result of having struck her then 13-year old son, Alexander, with sufficient force to leave a two-inch by one-inch bruise about his eye. When Alexander showed up at school on April 3, 2003 with a bruised and swollen left eye, he was sent to the school nurse, who placed ice on the swollen eye. Appellee was called to the school, where she explained to school authorities that she had hit Alexander with her hand the day before because he had "gotten out of hand." The case of possible abuse came to the attention of the Department of Social Services on April 4, 2003, when the Department received a report of possible child abuse from Alexander's school.

The Department assigned a licensed social worker (LSW) to investigate the incident, and on the afternoon of April 4, she interviewed Alexander at his home. She observed a two-inch bluish black bruise on his left eyelid. Alexander explained that his mother "accidentally" hit him with her knuckles when he was "back talking." The LSW also spoke with two of Alexander's siblings: 1) Norweice, age 11; and 2) Treyvon, age 9. Both of them, as well as Alexander, stated that appellee sometimes punished them by hitting them with a belt "the same number of times as their age." All three children said that they were sometimes afraid of appellee because they "don't want to be hit."

The LSW also interviewed appellee, who explained that Alexander was on Ritalin and was in therapy. Appellee stated that she was doing everything she could to help him behave better, but that she would get a call from the school almost on a daily basis complaining about his behavior. According to appellee, on April 2 she attempted to hit Alexander in the back of his head with her knuckles because he was being "smart," but that she "got him in the eye" by accident when he unexpectedly turned his head.

Procedural History

On June 4, the Department advised appellee of its finding that, because of the April 2 incident, she was responsible for "indicated abuse." Appellee requested a contested case hearing before the Office of Administrative Hearings. A contested case hearing was held on January 20, 2004, before an Administrative Law Judge (ALJ). During the hearing, the LSW testified for the Department, and appellee testified for herself. In an eight page Decision filed on February 27, 2004, the ALJ affirmed the decision of the Department that there was "indicated child abuse" and that appellee should be identified in the central registry as the abuser.

The ALJ's opinion included the following findings and conclusions:

Maryland law provides that the Department of Human Resources may identify an individual as responsible for child abuse or child neglect in a central registry if the person has unsuccessfully appealed the entry of his or her name under procedures established by the Department. Md.Code Ann., Fam. Law § 5-714(e) (Supp.2003). If an appellant is found to be responsible for "indicated" child abuse or neglect, the local department must "identify" the name of the appellant in a central registry by "entering a marker, code, flag, or symbol next to the name of an individual . . . to make clear that the individual has been determined . . . to be responsible for indicated child abuse or neglect." COMAR 07.02.26.02B(12); COMAR 07.02.26.14C.

If an individual is found to be responsible for "unsubstantiated" child abuse or neglect, the local department may include the name of the appellant in the central registry as part of the "identifying information" related to the investigation of the case. Md.Code Ann., Fam. Law § 5-714(d); see also Md.Code Ann., Fam. Law § 5-701(i); COMAR 07.02.26.02(13)(d).

In "ruled out" cases, the central registry may not contain any "identifying information" related to an investigation of abuse or neglect and the local department must expunge the finding and identification from reports of suspected abuse/neglect and from all assessments and investigative findings. Md.Code Ann., Fam. Law §§ 5-714(d)(2)(i), 5-707(b)(2).

. . . .

In the instant case, the four elements of indicated physical abuse have been met. [The LSW] observed a sizable bruise on Alexander's left eyelid when she interviewed him on April 4, 2003. Alexander told [the LSW] that the Appellant accidentally hit him with her knuckles. When interviewed by [the LSW], the Appellant stated Alexander was getting "smart" with her, so she went to hit him in the head. However, her knuckles caught his eye. At the hearing the Appellant repeated her explanation, but stated that she did not mean to injure or harm Alexander. It was her belief that she was not disciplining Alexander and the Appellant termed the incident a "true accident." On cross-examination, the appellant described the incident as "one of the few times it was not a hostile situation between us."

The Appellant is Alexander's mother. Alexander was thirteen years old at the time of the incident. There is no disagreement as to the events on April 2, 2003. The arguments of the parties revolve around whether the incident meets the statutory regulatory definitions of indicated physical abuse, specifically whether Alexander's health and welfare were harmed or at substantial risk of harm due to the Appellant's actions on April 2, 2003.

The Appellant's counsel argues that AADSS equates physical discipline with physical abuse. She contends that physical discipline is appropriate and legal. Counsel relies on COMAR 07.02.07.12C(2)(a)(i) which holds that physical abuse may be ruled out if "[t]he act causing the injury was accidental or unintentional and not reckless or deliberate." When the Appellant went to hit Alexander on the side of his head, he turned his head and was mistakenly hit in the eye, causing the bruise. Therefore the act should properly be deemed an accident. The Appellant had no intent to hit Alexander in the eye and no intent to inflict serious injury. In counsel's view, the local department's charges are disingenuous because they never took the child to the doctor, demonstrating that they were not really concerned with the child's health or welfare.

I believe counsel's argument misses the point. These are not criminal charges that I am adjudicating here. Nowhere in the applicable law or regulations is intent a necessary element to sustain a finding of indicated child abuse. Further, because Alexander had a two by one inch bruise on his left eyelid that persisted for several days, I conclude he was harmed by the Appellant's actions. Even more compelling is the unavoidable conclusion that Alexander's health and welfare were at substantial risk of harm because of the potential that the Appellant's blow could have injured Alexander's eye even more severely, causing his retina to become detached, his cornea scratched, or even causing permanent impairment to his vision. Anytime a blow is directed to a child's head, permanent brain damage is also a possibility.

There is no question that the Appellant intended to hit Alexander in the head in order to stop his rude behavior. By her own admission, hitting him was a deliberate action and not an accident. The fact that he turned his head and the Appellant missed her intended target does not alter her action and make it accidental or unintentional as contemplated by COMAR 07.02.07.12C(2)(a)(i).

There was a great deal of testimony and evidence relating to allegations about events which occurred subsequent to the April 2, 2003 incident and the immediate following investigation. That information is not relevant to my conclusions in this case. Therefore, I have not included or discussed that information in this decision, because the only issues before me are whether the finding of indicated child abuse which resulted from the April 2, 2003 incident was correct, and whether the Appellant was properly identified as the person responsible for the indicated child abuse.

CONCLUSIONS OF LAW

Based upon the above Findings of Fact and Discussion, I conclude as a matter of law that the local department has established by a preponderance of the evidence that the finding of indicated child abuse is supported by credible evidence and is consistent with the law. Md.Code Ann., Fam. Law § 5-701(b); COMAR 07.02.07.12; COMAR 07.02.26.14. I further conclude that the local department...