In re McClanahan

• Decision Date: 26 July 2019
• Docket Number: No. 2564,2564
• Parties: IN THE MATTER OF LAUREN MCCLANAHAN
• Court: Court of Special Appeals of Maryland

IN THE MATTER OF LAUREN MCCLANAHAN

No. 2564

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2017

July 26, 2019

Circuit Court for Washington County

Case No. 21-C-17-059293

UNREPORTED

Graeff, Shaw Geter, Ripken, Laura S. (Specially Assigned), JJ.

Opinion by Graeff, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Lauren McClanahan, appellant, challenges the determination made by an Administrative Law Judge ("ALJ") on August 17, 2016, which was affirmed by the Circuit Court for Washington County on February 5, 2018, that she was responsible for indicated child abuse with mental injury of her daughter, R, who was born in 2005. She presents the following questions for this Court's review, which we have rephrased slightly, as follows:

1. Did the ALJ properly apply the mens rea standard announced in the Court of Appeals' McClanahan decision?

2. Does Md. Code (2012 Repl. Vol.) § 5-708 of the Family Law Article entitle Ms. McClanahan to immunity from prosecution?

3. Did the circuit court err in admitting reports from R's guidance counselor because they were privileged?

For the reasons set forth below, we shall affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

I.Background

This is the second time this case has been before the appellate courts. In McClanahan v. Washington Cty. Dep't. of Soc. Servs., 445 Md. 691, 695-98 (2015), the Court of Appeals summarized much of the relevant background of this case, as follows:

In 2010 the Washington County Department of Social Services ("the Department") conducted investigations of Mother's alleged abuse and neglect of her daughter ("R"). The investigations were triggered by multiple allegations by R that her biological father (Mother's ex-husband) had sexually abused her when she visited him. Mother reported these allegations at various medical facilities, where R was subjected to eight vaginal examsover the course of several years.¹ These exams showed evidence of vaginal redness or discharge, not sexual abuse. Those who examined R, however, could not fully discount her allegation that her father had "hurt her bottom." As one medical professional noted, a normal exam does not exclude sexual assault.

R received a ninth vaginal exam at a pediatric practice. Mother took R in because of a cough and an injury. When R reported that her father hurt her "bottom," a physician assistant examined her vaginal area.² [She] referred Mother to a medical facility equipped to further evaluate R. But at the Department's request, that facility refused to conduct a SAFE exam on R. This is the only evidence that a medical professional refused to examine R out of concern for her mental health. Mother testified that since then, R made more allegations of abuse against her father, but that she was afraid to take her to a doctor.

The Department asked two experts in clinical welfare, Dr. Carlton E. Munson ("Munson") and Ronald E. Zuskin, LCSW-C ("Zuskin"), to assess R. Munson and Zuskin diagnosed R as suffering from several mental disorders and identified Mother as the cause of R's mental injury.

After conducting its investigations, the Department notified Mother that it found her responsible for indicated child abuse mental injury and indicated child neglect. Exercising her right of appeal under Md. Code (1984, 2012 Repl. Vol.), § 5-706.1(b) of the Family Law Article ("FL"), Mother requested contested case hearings through the Office of Administrative Hearings to challenge both findings. The Administrative Law Judge ("ALJ") who was assigned to Mother's appeal held a hearing for both cases in 2011.

In its decision, the ALJ affirmed the Department's finding of indicated child abuse mental injury. Relying heavily on Munson's and Zuskin's assessments, the ALJ concluded that Mother's actions "were either an intentional attempt to manipulate and influence the outcome of an ongoing custody dispute with R[ ]'s father, or were a result of her subconscious efforts to have R[ ] remain close to her."

Munson concluded that Mother had caused R's mental injury by "engaging in conscious or unconscious suggestive utterances to R[ ] about abuse by the father and engaging in alienating activities related to the father." Munson also explained that R suffered emotional and behavioral problems because of Mother's "frequent abuse allegations," which "resulted in repeated exams and investigations." Zuskin reached similar conclusions. Although Zuskin did not state that Mother "coached" R to make false abuse allegations, he believed that Mother reinforced her daughter's behavior by responding to R's statements of abuse with "animal protectiveness and closeness." Munson and Zuskin contacted Amy Hershey, a licensed social worker who counseled R and incorporated their communications with her into their assessments of R.³

The ALJ rejected Mother's argument that she had acted reasonably, ruling that no medical evidence justified the repeated allegations Mother and R had made. The ALJ authorized the Department to identify Mother in a central registry as being responsible for child abuse mental injury.

The ALJ, however, modified the Department's finding of indicated child neglect to "ruled out child neglect." The ALJ reasoned that because Mother's acts already constituted child abuse mental injury, that same conduct could not constitute child neglect mental injury. The Department did not appeal this ruling.

Mother appealed the ALJ's decision to the Circuit Court for Washington County as provided by Md. Code (1984, 2014 Repl. Vol.), § 10-222(a) of the State Government Article ("SG"). Affirming the ALJ's decision, the Circuit Court concluded that Hershey's statements were not privileged and that the ALJ did not err in permitting Munson and Zuskin from relying on communications with and a report from Hershey. The court also found that Mother had failed to preserve her arguments that she was immune from liability by making a good faith report of child abuse, that Munson and Zuskin were not qualified as experts, and that Munson's and Zuskin's testimony was inadmissible. Finally, the Circuit Court rejected Mother's argument that a finding of indicated child abuse mental injury requires proof of intent.

In a reported opinion, the Court of Special Appeals affirmed the judgment of the Circuit Court. McClanahan v. Washington Cnty. Dep't of Soc. Servs., 218 Md. App. 258, 96 A.3d 917 (2014), cert. granted, 440 Md. 461, 103 A.3d 593 (2014). In relevant part, the intermediate appellate court concluded that the ALJ did not err by failing to include scienter as an element of indicated child abuse mental injury. Id. at 277-83, 96 A.3d at 928-31.

The court also concluded that Mother had failed to preserve the privilege and immunity issues. Id. at 283-86, 96 A.3d at 931-33.

(Footnotes omitted.)

II.The Court of Appeals' Decision

The Court of Appeals granted Mother's Petition for Writ of Certiorari and reversed this Court's decision. McClanahan, 445 Md. at 699. Mother asked the Court to consider the following questions:

1. Does the Court of Special Appeals['] decision that a parent can be strictly liable for child abuse by mental injury by seeking medical help for her five year old based on the child's disclosures and symptoms, absent any finding that the parent acted intentionally, recklessly, or in bad faith to cause injury, violate the Due Process Clause, Family Law Article §§ 5-701 et seq., and Taylor v. Harford County Department of Social Services, 384 Md. 213 (2004)?

2. Did Petitioner's attorney waive Petitioner's objections to the privileged testimony of a therapist by discussing the assertion of privilege by the child's attorney in the collateral child custody proceeding?

3. Did the ALJ's decision against Petitioner violate the immunity provisions of [FL] Article § 5-708 and [Md. Code (1973, 2013 Repl. Vol.), § 5-620 of the] Courts and Judicial Proceedings Article [ ]?

Id.

The Court addressed only the first question. It concluded that, "to be included as a 'child abuser' in DHR's central registry, a person must either intend to injure the child or at least act in reckless disregard of the child's welfare." Id. at 711. "In other words, a parent's conduct must constitute a gross departure from the type of conduct a reasonable person would engage in under the circumstances." Id. at 712. Accordingly, the Court ofAppeals reversed the judgment of this Court and remanded to the ALJ "to make factual findings and conclusions of law, consistent with [the] opinion." Id.

II.

Proceedings Subject to Appeal

A.Reconsideration by ALJ

On June 30, 2016, the ALJ requested that the parties submit new briefs on the issues, advising that it would render its decision within thirty days from submission of the briefs. On August 17, 2016, the ALJ rendered her decision.

Based on a review of the same record, the ALJ made additional findings of fact that she had not made previously. These findings, in pertinent part, were as follows:

1. Between February 19, 2008 and July 1, 2010, CPS conducted fourteen investigations regarding [R], with all allegations being ruled out.

2. On June 23, 2010, [Mother] took [R] to the Washington County Hospital at approximately 4:00 a.m.

3. At approximately 3:40 p.m. on June 23, 2010, [Mother] returned with [R] to Washington County Hospital for a SAFE examination. [Mother] misrepresented to the Washington County medical staff that the physician at Chambersburg Hospital ER told her to bring [R] to Washington County Hospital for a SAFE exam because there was too much discharge for a urinary tract infection.

4. While at Washington County Hospital on November 17, 2010, [Mother] made no mention that Ms. Shughart had observed a black co[a]rse hair in [R's] genital area during the office visit that day.

5. On May 14, 2010, Mr. McCarthy[, a CPS worker,] spoke

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