Tamara A. v. Montgomery County

Decision Date14 January 2009
Docket NumberNo. 39 Sept. Term, 2008.,39 Sept. Term, 2008.
CourtCourt of Special Appeals of Maryland

Alan S. Albin, Morristown, NJ, for Petitioner.

Sandra Barnes, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Respondent.

ARGUED BEFORE BELL, C.J., HARRELL, BATTAGLIA, GREENE, JJ, and JOHN C. ELDRIDGE (Retired, Specially Assigned), IRMA S. RAKER (Retired, Specially Assigned) and ALAN M. WILNER (Retired, Specially Assigned), JJ.

ALAN M. WILNER, Judge (Retired, Specially Assigned).

Maryland Code, § 10-222(a) of the State Government Article (SG), which is part of the State Administrative Procedure Act, provides, generally, that a party aggrieved by the final decision of a covered agency in a contested case is entitled to judicial review. Section 10-222(b) contains an exception to the "final decision" requirement. It permits immediate judicial review of an interlocutory order in certain enumerated circumstances. The issue before us is whether an interlocutory order by an administrative law judge (ALJ) that denied a motion to dismiss the administrative proceeding on the ground of collateral estoppel satisfied those conditions. We shall hold that it did not.


Petitioner, Tamara A., is the mother of three young children—Nathaniel, Madeline, and Shirah. In February, 2004, shortly before Shirah was born, Judge Savage of the Circuit Court for Montgomery County, sitting as a juvenile court on a petition filed by respondent, Montgomery County Department of Health and Human Services (DHHS), found Nathaniel and Madeline to be children in need of assistance (CINA). There was a dual basis for the CINA finding as to Nathaniel. In October, 2003, out of anger or frustration, Tamara grabbed and pulled on the child's arm, fracturing his humerus. Tamara also had a history of subjecting Nathaniel to a substantial number of unnecessary medical visits, apparently from an unreasonable anxiety on her part over the child's health, which, the evidence showed, was generally good. The court found both the October episode and the unnecessary medical attention to constitute abuse.

The situation with Madeline was different. There was no evidence that she had ever been directly abused or subjected to excessive medical treatment. Nonetheless, relying upon several decisions of the Court of Special Appeals, the juvenile court found that Tamara's treatment of Nathaniel, coupled with evidence of her untreated depression and anger, put Madeline at a "substantial risk of harm," and, on that basis, found her also to be a CINA.1 The court committed the children to DHHS for placement with their maternal grandparents, where they had been living.

Shirah was born on April 14, 2004— some two months after the CINA findings with respect to Nathaniel and Madeline. Immediately upon her birth, the child was removed from Tamara's custody and placed in shelter care, and the next day DHHS filed a petition to have Shirah declared CINA.

At the May 13, 2004, hearing on the CINA petition, before Judge Boynton, DHHS elected to proceed in summary fashion. It presented no evidence other than the record of the proceeding involving Nathaniel and Madeline, of which Judge Boynton took judicial notice. Although Tamara was offered the opportunity to present evidence, she chose not to do so at the adjudicatory phase of the proceeding. After reading the transcripts of the hearings held before Judge Savage five months earlier, Judge Boynton declared that Tamara's "psychiatric or psychological or personality disorder," which led to the dual forms of abuse of Nathaniel, still existed. From that, he concluded that "there is a substantial risk that that same manifestation could occur to [Shirah]" and that Tamara was "unable and unwilling to provide for the need of this child." The judge found that:

"[E]ven though there's been nothing, no direct harm done to Shirah, no direct action taken against her at this time, I believe that the prior pattern which was caused by the existence of conditions that have not yet been treated or changed, creates a substantial risk of harm to the child."

On June 9, 2004, DHHS informed Tamara that, based on an investigation by Child Protective Services, a unit within DHHS, she had been found responsible for "Indicated Child Neglect" with respect to Shirah. The consequence of that finding, if not withdrawn or modified, is that Tamara's name would go into a central registry of persons found to have abused or neglected a child. See Maryland Code, § 5-706.1 of the Family Law Article (FL).2 Tamara was informed that she could appeal the finding by requesting a hearing before Office of Administrative Hearings (OAH) within 60 days, which she did.

At or about the time of the DHHS finding, Tamara noted an appeal from the three CINA determinations, and proceedings before OAH were stayed pending resolution of that appeal. In January, 2005, the Court of Special Appeals affirmed the CINA determinations. See In re Nathaniel A., 160 Md.App. 581, 864 A.2d 1066 (2005), cert. denied, 386 Md. 181, 872 A.2d 47 (2005). With respect to Shirah, the Court of Special Appeals concluded:

"[T]he merits of Shirah's case do not focus on whether there was actual harm to her, but rather, like Madeline's situation, based on the prior conduct of appellant, whether her newborn child is at a `substantial risk of harm,' which would mandate that the child be removed from the parent [citations omitted]. We must determine whether appellant's `ability to care for the needs of one child is probative of [her] ability to care for other children in the family' [citation omitted]. The child may be considered `neglected' before actual harm occurs, as long as there is `fear of harm' in the future based on `hard evidence' and not merely a `gut reaction' [citation omitted]."

Id, at 601, 864 A.2d 1066.

When eventually informed of the appellate decision, OAH lifted the stay and scheduled a hearing for March 22, 2006. On March 10, DHHS filed a motion to dismiss the appeal based on collateral estoppel. DHHS noted that the parties before OAH were also parties in the CINA case and argued that (1) the CINA determination was based on the same evidence that would support the finding of "indicated child neglect," (2) the issue of neglect was "litigated and determined by a valid, final judgment," and (3) Tamara was therefore "collaterally estopped from relitigating the issue in the present case." With the motion to dismiss, DHHS moved to limit the March 22 hearing to consideration of its collateral estoppel defense; that motion was granted.

After reviewing the record, the ALJ concluded that, although the parties in the instant proceeding were also parties in the CINA case and that the CINA finding constituted a final judgment with respect to that litigation, thus satisfying two of the elements of collateral estoppel, the facts decided in that litigation were not the same as those presented in the administrative proceeding. She noted that the CINA finding as to Shirah was based solely on the potential for harm inferable from what occurred with respect to Nathaniel, not on any actual neglect of Shirah, but, notwithstanding that the definition of "neglect" for purposes of the instant proceeding was the same as for the CINA case,3 she found that entry into the registry had to be based on some actual abuse or neglect, not merely the potential for it. Upon that analysis, the ALJ denied the motion.

Considering itself aggrieved by that ruling. DHHS filed a petition for immediate judicial review in the Circuit Court for Montgomery County. Tamara did not contest DHHS's right to immediate judicial review of the order—indeed, she conceded that right—but nonetheless moved to dismiss the petition on the ground that the ALJ's decision was correct and there was no basis for overturning it.4 The court agreed with Tamara, but instead of dismissing the petition, it affirmed the ruling, which had the same effect of placing the matter back before the ALJ to resolve the merits of Tamara's challenge.

DHHS appealed. In a reported opinion, the Court of Special Appeals concluded (1) that the ALJ's ruling on the DHHS motion to dismiss satisfied the requirements of SG § 10-222(b) for immediate judicial review, and (2) that the collateral estoppel defense raised by DHHS was valid and that the ALJ erred in not dismissing the proceeding. Montgomery County v. Tamara A., 178 Md.App. 686, 943 A.2d 653 (2008). We granted Tamara's petition for certiorari to consider whether the Court of Special Appeals erred in its determination that judicial review was immediately available with respect to the ALJ's interlocutory ruling on DHHS's motion to dismiss. We disagree with the intermediate appellate court's analysis and conclusion on that issue and shall direct that the judicial review action be dismissed and that the case be remanded to OAH for resolution of the merits of Tamara's complaint.


The sole issue presented in the petition for certiorari is whether the denial of DHHS's motion to dismiss was subject to immediate judicial review under SG § 10-222(b). We are not concerned here with whether the ALJ's decision was correct. Indeed, Tamara's argument is that the Court of Special Appeals erred in addressing that issue, as it was not properly before either the Circuit Court or the Court of Special Appeals.5

SG § 10-222(b) permits immediate judicial review of an interlocutory administrative order in a contested case only if certain enumerated requirements are met. To be entitled to such immediate review, an aggrieved party must show five things:

(1) The administrative official who entered the order had final decision-making authority;

(2) The party would qualify for judicial review of any related final decision (3) The interlocutory order determines rights and liabilities;

(4) The order has immediate...

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