Shoemaker v. Smith

• Decision Date: 10 March 1999
• Docket Number: No. 44,44
• Parties: Diane SHOEMAKER et al. v. Judee G. SMITH et al.
• Court: Maryland Court of Appeals

725 A.2d 549

353 Md. 143

Diane SHOEMAKER et al. v. Judee G. SMITH et al.

No. 44, September Term, 1998.

Court of Appeals of Maryland.

March 10, 1999.

Charles S. Fax (Andrew J. Toland, Dana M.S. Wilson, Shapiro and Olander, on brief), Baltimore, for Petitioners.

Phillip F. Scheibe, County Atty.; John F. Breads, Jr., Senior Asst. County Atty., Anne Arundel County, Annapolis; Barbara L. Holtz, Acting County Atty., Sean D. Wallace, Deputy County Atty., Jay H. Creech, Associate County Atty., Upper Marlboro, for Prince George's County, MD, Virginia W. Barnhart, County Atty., John E. Beverungen, Asst. County Atty., Towson, for Baltimore County, MD, Amicus Curiae.

Joseph A. Schwartz, III, Baltimore, for Respondents.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER, WILNER and CATHELL, JJ WILNER, Judge.

The immediate issue before us is a procedural one—whether the Court of Special Appeals erred in dismissing petitioners' appeal from an interlocutory order denying their motion for summary judgment, upon a finding that the appeal did not fall within the collateral order doctrine. The motion for summary judgment was based on a claim of immunity under the Maryland Tort Claims Act (Maryland Code, § 12-105 of the State Government Article and § 5-522 of the Courts and Judicial Proceedings Article), and, to resolve the procedural issue, we need to determine the standard of "malice" for purposes of § 5-522 and consider the effect of certain findings made by Judge Alexander Williams, of the United States District Court for the District of Maryland, in a related action. We shall affirm the judgment of the Court of Special Appeals.

BACKGROUND

This lawsuit had its genesis in an investigation by personnel of the St. Mary's County Department of Social Services (DSS) and the county Sheriff's Department into possible child abuse allegedly perpetrated by Danny Smith against his three children, Donna, Ben, and Travis. The investigation culminated in an attempt, on June 17, 1992, by Sheriff's Deputies Diane Shoemaker, Mickey Bailey, and Robert Hall and DSS social worker Monica Bankins, to remove Ben and Travis, then ages 15 and 10, respectively, from their home. During the removal operation, the boys, who did not want to leave and who resisted, were forcibly restrained, handcuffed, threatened, driven away, and detained without benefit of counsel for several hours at a police station. Not until their lawyer arrived and took charge of them were they presented to a court and released to their parents. All proceedings with respect to them were eventually dismissed. Through their mother, Judee Smith, the boys filed two lawsuits—one in U.S. District Court and this one in the Circuit Court for St. Mary's County. The Federal action was dismissed against all defendants. The only defendants before us, as petitioners in this appeal, are Sheriff's Deputies Shoemaker and Bailey.

On October 31, 1991, Ms. Bankins received a call from one Cathy Meyers, who was then serving as a psychotherapist for Donna, and who apparently reported the prospect of sexual abuse of Donna by her father. Ms. Bankins and Deputy Shoemaker interviewed Donna that same day. Although Ms. Bankins said that Donna did not give them a lot of information at that time, Bankins's notes indicate that Donna accused her father of having touched her in the vaginal area and having tickled her between the legs. She also recounted having been hit by her father with a leather strap while she was in the bathtub. When those events occurred is not clear. Donna, then 17 years old, had been in out-patient therapy for a number of years and, on two earlier occasions, had been hospitalized for psychiatric problems. There is some reference in the record to a protective service investigation that had been closed about five years earlier, but there are no details with respect to the investigation.

The next day, Ms. Bankins and Deputy Shoemaker interviewed Mrs. Smith, who described Donna as a "real discipline problem" and "very angry," but acknowledged that she and her husband did spank. Ms. Bankins had Mrs. Smith sign a service agreement to follow through with counseling with Cathy Meyers and not to use belts or any type of corporal punishment on Donna. There is no evidence that the Smiths repudiated or failed to comply with that agreement. Within a week, after a further interview with Donna, Ms. Bankins filed a CINA (child in need of assistance) petition in the juvenile court, and Donna was removed from the home. She eventually ended up at Sheppard-Pratt Hospital in Baltimore. At the time, in November, the focus was entirely on Donna, although Ms. Bankins developed some concern about Ben and Travis as well, simply because they were siblings in the same household. She told Mrs. Smith at the shelter hearing for Donna that she wanted to talk to the boys, but Mrs. Smith, believing that Donna was fabricating her story of abuse, felt that such an interview was not necessary.

In conjunction with the CINA case, Donna and her parents were evaluated by Dr. Nicholas Kirsch, a psychologist. In his report of December 23, 1991, Dr. Kirsch recounted Donna's charge of sexual abuse by her father, including vaginal penetration. Although he made clear that the tests he administered could not determine conclusively whether sexual abuse had occurred or, if it had occurred, who the perpetrator was, the results were "consistent with a personality system severely damaged in certain areas due to severe psychological terror and abuse." The test results, he said, were highly suggestive of a dissociative disorder, possibly multiple personality disorder "that are perhaps always the result of chronic sexual and/or physical abuse during childhood." Dr. Kirsch reported inconclusive results with respect to both parents. It was "virtually impossible" to determine whether Mr. Smith physically or sexually abused Donna. The test results were consistent both with a profile for known offenders and with a healthy, well-adapted profile but appeared "to lend most support to the hypothesis that the probability of Mr. Smith committing sexual or physical abuse is in the moderate-high range relative to the general adult male population." As to Mrs. Smith, he said it was unlikely that she would consciously allow abusive relationships in her family, but he then opined that she had a personality profile "with a higher than average chance of accommodating the sort of chronic but secretive abuse that is alleged in this case." Dr. Kirsch recommended that Donna not reside or have unsupervised visits with her father.

Her concern heightened by Dr. Kirsch's report, Ms. Bankins, together with Deputy Shoemaker but without any advance notice to Mr. or Mrs. Smith, attempted to interview Ben and Travis at their schools on January 6, 1992. Travis's school refused to permit the surprise interview.¹ The investigators succeeded in talking with Ben for about five minutes before Mr. Smith arrived and terminated the interview. During the brief conference, Ben told Ms. Bankins and Deputy Shoemaker that Donna was lying and that she used to make up stories about him. On January 21, 1992, Deputy Shoemaker, along with other law enforcement officers, entered the Smith home in order to execute a search warrant. The record before us does not reveal who issued the warrant, on what basis, or what the officers were searching for. What is relevant is what occurred in the home, and, for that, we may take as fact, for purposes of this appeal, the finding by Judge Williams:

"Several officers entered through the front door, however, others entered through a door in the downstairs area where they found Benjamin and Travis playing. The officers ordered the boys to go upstairs, to sit with their hands in their laps in plain sight, not to move and not to speak. When Benjamin asked questions about what was going on and Travis began to cry uncontrollably, [Officer] Hall and other officers threatened that if they were not quiet the officers would handcuff them and take them to a boys' home. Eventually Hall, Shoemaker and other officers left the Smith home with Mr. Smith in custody."

Several events followed this intrusion into the home. Mr. Smith was arrested, held for an hour or so, and then released. In February, Ms. Bankins and the county attorney representing DSS filed CINA petitions against Ben and Travis. The petitions alleged (1) that "[b]ased on the parents interference with the lawful police investigation of abuse within the family, it was impossible to rule out physical or emotional abuse of the younger sibling in the house when a report of abuse was made regarding an older child in the family," (2) "[a] report of corporal punishment of [the children] with use of a belt," (3) a "[s]tatement by the father that admits the use of corporal punishment," and (4) the "inability of the mother to keep the children safe." It is not clear what, if anything, came of the CINA petitions. An attorney, David Densford, was appointed by the court to represent the children. Because of the publicity and intrusions, the Smiths sent the boys to stay for a while with their grandparents in Texas. The authorities, though informed of that fact, made no attempt to have the children returned or to pursue matters in Texas. According to Travis, they remained in Texas for two months and then returned to their parents' home.

Contemporaneously with the CINA petitions, Mr. Smith was charged criminally with a variety of offenses committed against Donna, including rape, sexual offenses, and child abuse. Those charges were dismissed in August, 1993 after a trial that resulted in a hung jury.

In March, 1992, Ms. Bankins received a Report of Suspected Child Abuse from Dr. Joyanna Silberg, a therapist for Donna at Sheppard-Pratt Hospital. Donna had recounted to Dr. Silberg episodes of Satanic rituals through "the church" occurring at different parents' homes, including her home. She...