Dept. of Social Services v. Taharaka ( 2022 )

Prince George’s County Department of Social Services v. Akeem Taharaka, No. 786,
September Term 2020, filed February 25, 2022. Opinion by Friedman, J.
HEADNOTE:
INFANTS — CHILD PROTECTION — AGENCIES AND PROCEEDINGS —
ADMINISTRATIVE PROCEEDINGS AND REVIEW THEREOF
In evaluating the factors under CP § 11-304(e)(2) to determine whether a child’s statements
are sufficiently reliable to be considered credible evidence of child sexual abuse, an ALJ
may not use archaic stereotypes but should instead apply the factors in a manner that is
consistent with current understandings of child sexual abuse and trauma-informed
credibility assessments.
Circuit Court for Prince George’s County
Case No. CAL 19-30070
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 786
September Term, 2020
___________________________________
PRINCE GEORGE’S COUNTY
DEPARTMENT OF SOCIAL SERVICES
v.
AKEEM TAHARAKA
___________________________________
Kehoe,
Friedman,
Ripken,
JJ.
___________________________________
Opinion by Friedman, J.
___________________________________
Filed: February 25, 2022
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2022-02-25
09:03-05:00
Suzanne C. Johnson, Clerk
The Prince George’s County Department of Social Services identified Akeem
Taharaka as the individual responsible for committing child sexual abuse on A.B.1
Taharaka denied the allegation of abuse and, as is his right, requested a hearing before an
Administrative Law Judge. The ALJ found that Taharaka was credible and that the
statements of his accuser, A.B., were not. The ALJ also found that Taharaka was not a
regular presence in A.B.’s home and, therefore, could not commit child “sexual abuse” as
that term is defined by the relevant statute. We hold that the ALJ erred in reaching these
decisions.
FACTS AND BACKGROUND
Under the Family Law Article, child “sexual abuse” is defined as “any act that
involves sexual molestation or exploitation of a child by a parent or other person who has
permanent or temporary care or custody or responsibility for supervision of a child, or by
any household or family member.” MD. CODE, FAM. LAW (“FL”) § 5-701(x)(1) (2012).2
When a local department of social services receives a report of suspected child sexual
abuse, the department must conduct an investigation. FL § 5-706(b) (2017). The purpose
of the investigation is to “protect the health, safety, and welfare of the child,” id., which
1
The initials “A.B.” have been chosen at random. Neither A.B.’s given name nor
her surname begins with these letters.
2
Because the alleged child sexual abuse occurred in approximately 2013 or 2014,
the substantive statutes and regulations of that time govern the substantive issues. The
procedural issues are governed by the statutes and regulations relevant at the time of the
investigation and administrative appeal. Except where noted otherwise, citations are to the
current version of the Maryland Code.
may include “an evaluation of the parents and the home environment” and “a determination
of any needed services.” Id. § 5-706(d).
A local department of social services must select one of three dispositions when it
finishes its investigation into a report of child sexual abuse: indicated; ruled out; or
unsubstantiated. COMAR 07.02.07.07.A(2). Where there is unsuccessfully refuted,
credible evidence, the department will report that the claim of abuse is “indicated.” FL
§ 5-701(m) (2017). Where the investigation reveals that the abuse did not occur, the
department will report that the claim is “ruled out.” Id. § 5-701(w). And, where there is
insufficient evidence for the department to find that the alleged abuse is either “indicated”
or “ruled out,” the department will report that the claim is “unsubstantiated.”
Id. § 5-701(aa). Where the disposition is “indicated” or “unsubstantiated,” the department
must identify the alleged abuser. FL § 5-706.1. The alleged abuser may then request a
hearing before an Administrative Law Judge, who has the authority to affirm or modify the
department’s disposition. Id.
On October 25, 2018, the Prince George’s County Department of Social Services
received notice from a mandated reporter3 that A.B., then sixteen years old, had disclosed
that approximately five years earlier, “when she was living with her grandmother, that
3
A mandated reporter is a “health practitioner, police officer, educator, or human
service worker, acting in a professional capacity,” who has reason to believe that a child
has been sexually abused. FL § 5-704(a)(1) (2013); COMAR 07.02.07.02(B)(33) (2017).
The mandated reporter’s identity was not disclosed in this record. COMAR
07.02.07.21(H).
2
[Taharaka] took down her pants and raped her.” This information is recorded on an “Intake
Worksheet” that was produced by the Department and is contained in the record. At the
time of the alleged abuse, Taharaka was A.B.’s grandmother’s boyfriend. A.B. lived with
her grandmother both when the alleged abuse occurred and when she reported the abuse.
By the time A.B. reported the abuse, Taharaka and A.B.’s grandmother had long since
ended their relationship.
On October 26th, the Department conducted a brief “minimal facts interview”4 with
A.B. at her high school, at which A.B. disclosed that when she was 10 to 12 years old and
home alone with Taharaka, he “ate her vagina.” A.B. also alleged that she had disclosed
the abuse to her previous guardian, who was not her grandmother, in August of 2018, and
had recently disclosed the abuse to her therapist. A.B.’s statements during that minimal
facts interview were reduced to a writing produced and signed by Elaine Byfield, a
Department social worker, and that is contained in the record.
4
The minimal facts interview, also called the initial interview, is a department’s
first contact with the alleged victim after a report of child sexual abuse is received. FL
§ 5-706(c) (2017).
3
On December 14th, the Department conducted a full forensic interview5 of A.B. at
its Child Advocacy Center.6 The forensic interview was conducted by a specially trained,
neutral Department social worker who, by design, had no prior knowledge of the victim,
perpetrator, or allegations. The interview was videorecorded in its entirety and that video
was later introduced at the hearing. In it, A.B. described the abuse in greater detail. She
stated that while she sat on the couch in her grandmother’s basement, Taharaka sat on the
floor in front of the couch, pulled down her pants, and kept trying to open her legs and put
his fingers in her groin area, and “in [her] vagina.” A.B. reported that she tried to push him
away and said “no.” According to A.B., Taharaka did not stop, touched the outside of her
5
The forensic interview’s purpose is to gather information to determine whether the
child sexual abuse occurred and, if so, the nature of the allegations. MD. CODE, CRIM.
PROC. (“CP”) § 11-928(d)(3)(iii) (stating that forensic interviews are neutral, fact-finding,
and designed to avoid duplicative interviewing). The information gleaned is then used,
among other things, to assist with the response to or investigation of child sexual abuse by
local departments of social services and law enforcement. Id. § 11-928(b).
6
Child Advocacy Centers are child-centered facilities created to provide a
trauma-focused, evidence-based, and multidisciplinary response to child abuse victims
through investigations, medical and mental health treatment, and victim services. Nat’l
Children’s All., Putting Standards into Practice: A Guide for Implementing the 2023
National Standards of Accreditation for Children’s Advocacy Centers 5 (2021),
(https://perma.cc/T9NU-U9PJ). The Centers coordinate with local agencies to create a
multidisciplinary team consisting of law enforcement, prosecutors, child protective
services, medical and mental health professionals, and victim advocates. CP
§ 11-928(b)(3). There is a Center in each county in Maryland. Most of the Child Advocacy
Centers are physically located within local departments of social services and are
accredited by the National Children’s Alliance, the national parent organization, following
fulfillment of ten core standards. Nat’l Children’s All., National Standards of Accreditation
for Children’s Advocacy Centers (2021), (https://perma.cc/BLJ7-HRR2) (describing the
2023 standards for accreditation or periodic reaccreditation, including standards
concerning forensic interviewing, victim support and advocacy, medical evaluations, case
review and coordination, and more).
4
vagina, and then, pulled her underwear to the side, “put his face there,” and began “licking
her vagina.” Allegedly, Taharaka then stood up and unbuckled his pants, which A.B.
perceived as a signal that he wanted her to “suck his penis.” A.B. stated that she turned her
face away from him, and again said “no.” At that point, Taharaka left the basement and
went back upstairs. A.B. stated that this was the only time Taharaka sexually abused her.
After A.B.’s videorecorded forensic interview, A.B.’s grandmother was reported to be
“ambivalent about [A.B.’s] disclosure [and] could not understand why [A.B. had] never
[previously] disclosed the abuse.”
Following the videorecorded forensic interview, the Department reported:
This investigation is being closed INDICATED, with
[Taharaka] identified as the alleged [abuser]. A finding of
indicated child sexual abuse is appropriate if there is credible
evidence, which has not been satisfactorily refuted. A
preponderance of the evidence was presented during the
investigation to support the allegations [A.B.] disclosed one
incident of sexual abuse by [Taharaka]. [A.B.] has not had
contact with [Taharaka] in a few years and does not appear to
have any motivation to make up the allegations. [A.B.] did not
exaggerate her disclosure (i.e.- multiple incidents) …. Based
on the aforementioned, the Department has credible evidence
supporting child sexual abuse and the finding of indicated is
appropriate at this time. The criminal investigation is ongoing
… [and] [a]s a result, this worker is unable to interview
[Taharaka] prior to the close of this case. [Taharaka] will be
interviewed by [law enforcement].
At the close of the investigation, the Department notified Taharaka that he was
found responsible for “indicated child sexual abuse,” and explained that he was entitled to
a hearing before an ALJ. Taharaka requested a hearing.
5
During the hearing, A.B. did not testify. Instead, the ALJ reviewed the Department’s
reports, described above, and heard testimony from the social worker, Elaine Byfield.
Taharaka also testified, as did Taharaka’s sister, who testified that her brother had a
reputation for truthfulness. After the hearing, the ALJ viewed the videorecorded forensic
interview several times.
The ALJ then issued a written decision in which he found that the Department’s
evidence regarding the abuse—the original anonymous report from the mandated reporter,
and A.B.’s accounts of the abuse as told to the Department during the minimal facts
interview and the videorecorded forensic interview—was “of questionable credibility and
that [Taharaka] ha[d] satisfactorily refuted that evidence.” The ALJ ordered that the
Department’s disposition that the abuse was “indicated” be changed to “ruled out,” and
that the identification of Taharaka as the alleged abuser be expunged. See FL § 5-707(b).
The ALJ’s basis for the decision was threefold. First, the ALJ found “that [A.B.’s]
statements regarding the alleged abuse are not sufficiently reliable to be considered
credible evidence of child sexual abuse.” Second, the ALJ found “that the evidence
adduced by the [Department] has been satisfactorily rebutted by the credible testimony of
[Taharaka].” And third, the ALJ found that the Department had not proven by a
preponderance of the evidence that Taharaka was a “regular presence” in A.B.’s
6
grandmother’s house, and thus, under the statutory definition, could not have committed
child sexual abuse against A.B.7
The Department petitioned for judicial review of the ALJ’s decision in the Circuit
Court for Prince George’s County. The Circuit Court, after reviewing the ALJ’s written
decision and the record, issued an order affirming the ALJ’s decision. The Department
noted a timely appeal.
ANALYSIS
In reviewing an administrative appeal, we review the ALJ’s decision, not the
decision of the circuit court, to affirm, modify, or reverse the ALJ. See MVA v. Shea, 415
Md. 1, 17 (2010) (“Our role is not to review the circuit court’s judgment, but rather to
review the decision of the ALJ.”) (cleaned up). We may reverse an administrative decision
7
Under section 5-701(x)(1) of the Family Law Article, to be responsible for child
sexual abuse, a person must be “a parent or other person who has permanent or temporary
care or custody or responsibility for supervision of a child, or by any household or family
member.” A “household member” includes a person who “is a regular presence in [the]
home of a child at the time of the alleged abuse.” FL § 5-701(k) (2012); see also COMAR
07.02.07.02.B(19) (2013). Thus, if the Department failed to prove that Taharaka was a
regular presence in the home, he could not be responsible under this provision of the Code.
The purpose of this provision is “to protect children who have been the subject of abuse”
by, among other things, providing services for the child and their family. FL § 5-702. These
sections of the statute, read together, suggest that the Department’s duty to monitor the
child’s safety, health, and welfare is greatest when the perpetrator may have close, regular
contact with the child, as compared to an outsider or stranger. Of course, whether or not
someone was a “regular presence in [the] home” for purposes of child sexual abuse under
the Family Law Article, they could still be held responsible under criminal provisions.
See, e.g., MD. CODE, CRIM. LAW (“CR”) § 3-304 (rape in the second degree); § 3-307
(sexual offense in the third degree); § 3-308 (sexual offense in the fourth degree). That,
however, is not at issue in this appeal.
7
when a “finding, conclusion, or decision is unconstitutional; … is affected by any other
error of law; is unsupported by competent, material, and substantial evidence in light of the
entire record as submitted; [or] … is arbitrary or capricious.” MD. CODE, STATE GOV’T
(“SG”), § 10-222(h)(3); UPS, Inc. v. People’s Counsel for Balt. Cnty., 336 Md. 569, 577
(1994). An agency’s finding of fact, or mixed finding of fact and law, is unsupported by
substantial evidence if it is unreasonable in light of the entire record. Montgomery Cnty. v.
Butler, 417 Md. 271, 283-85 (2010). An agency decision is arbitrary and capricious where
it is unreasonable or without a rational basis. Md. Dep’t of the Env’t v. Cnty. Comm’rs of
Carroll Cnty., 465 Md. 169, 202 (2019) (citing Harvey v. Marshall, 389 Md. 243, 297
(2005); ARNOLD ROCHVARG, MARYLAND ADMINISTRATIVE LAW, § 20.1 at 255 (2011)
(stating that arbitrary and capricious review applies to all components of the agency’s
decision and is not limited to review of the formal record)). “When an agency reaches a
decision based on several grounds and one or more is invalid, we must appraise whether
the invalid ground may not have infected the entire decision.” State Bd. of Physicians v.
Bernstein, 167 Md. App. 714, 765 (2006) (cleaned up). An administrative order cannot be
upheld “unless it is sustainable on the agency’s findings and for the reasons stated.”
UPS, Inc., 336 Md. at 577.
We hold that the ALJ’s credibility determination that A.B.’s statements were not
credible was arbitrary and capricious. We also hold that the ALJ’s evaluation of Taharaka’s
credibility was based on incomplete information. Finally, we hold that the ALJ’s finding
that Taharaka could not have committed child sexual abuse because he was not a regular
8
presence in A.B.’s home was both unsupported by substantial evidence in the record, and
arbitrary and capricious. We explain.
I. THE ALJ’S DETERMINATION THAT A.B.’S STATEMENTS WERE NOT CREDIBLE
WAS ARBITRARY AND CAPRICIOUS.
To affirm the Department’s disposition of indicated child sexual abuse, the ALJ
must have found, among other things, that there was sexual molestation or exploitation.
COMAR 07.02.07.11(2). As noted above, A.B. did not testify during the hearing, and, thus,
in considering whether the abuse had occurred, the ALJ reviewed A.B.’s prior statements
to the mandated reporter, from the minimal facts interview, and from the videorecorded
forensic interview disclosing and describing the abuse she alleged. Although the ALJ
admitted into evidence A.B.’s statements from all three sources, his opinion makes clear
that he predominantly evaluated the credibility of the statements made by A.B. during the
videorecorded forensic interview. Where relevant, the ALJ also compared these statements
to A.B.’s accounts of the abuse as told to the mandated reporter and during the minimal
facts interview. Accordingly, we will review the ALJ’s credibility determination of A.B.’s
statements as a whole.
The ALJ recognized that for A.B.’s out-of-court statements to be admissible, they
had to satisfy the “tender years” exception to the hearsay rule, MD. CODE, CRIM. PROC.
(“CP”) § 11-304(e)(2),8 which allows the admissibility of out-of-court statements in Child
8
The General Assembly adopted the tender years exception to allow a child’s
out-of-court statements to be admissible without requiring a child victim to testify. 1988
Md. Laws, chs. 548, 549 (currently codified at CP § 11-304). The exception is intended to
9
in Need of Assistance (“CINA”) cases9 if the statements have “particularized guarantees
of trustworthiness.” Id.
Thus, to evaluate A.B.’s credibility, the ALJ went through each of the thirteen
statutory factors in the tender years exception.10 We follow the same format.
Factor No. 1: “The child victim’s personal knowledge of the event”
Factor No. 1 concerns A.B.’s personal knowledge of the event. The ALJ wrote:
To the extent that the events occurred, [A.B.] would have
personal knowledge of the event. However, the alleged events
balance the fundamental rights of the accused with the need to protect child victims from
further trauma. Montgomery Cnty. Dep’t of Health & Human Servs. v. P.F., 137 Md. App.
243, 272 (2001). To determine credibility, courts use a multifactor test to determine the
trustworthiness and reliability of a child victim’s out-of-court statement. CP
§ 11-304(e)(2). This same multifactor test was repurposed by this Court for use by ALJs
in administrative hearings to evaluate the credibility of statements by child victims of any
age when disclosing and describing allegations of child sexual abuse. P.F., 137 Md. App.
at 271-73.
9
Previously, the tender years exception applied in criminal, juvenile, and CINA
cases. 1988 Md. Laws, chs. 548, 549 (criminal only); 1991 Md. Laws, ch. 399 (adding
CINA); 1994 Md. Laws, ch. 169 (adding other juvenile proceedings). Because of court
rulings and legislative changes, however, the tender years exception now applies only in
CINA cases (unless the child victim also testifies at trial). State v. Snowden, 385 Md. 64(2005) (holding that admission of testimonial statements under tender years exception in
criminal cases violates federal Confrontation Clause); 2011 Md. Laws, chs. 87, 88
(restricting tender years exception to CINA cases).
10
As we note in the following discussion, many of these factors are not written in a
way that comports with current understandings of the credibility of victims of child sexual
abuse. We urge the General Assembly to reconsider both these factors and the manner in
which they are expressed. Because we cannot compel the General Assembly to reformulate
the factors, and because this panel cannot uncouple the link created by the P.F. Court
between the factors and ALJs’ analysis of the credibility of victims of child sexual abuse,
however, we must work with these materials. To the extent possible, therefore, we will use
these factors in a manner that is consistent with current understandings regarding
trauma-informed credibility assessments. See Kindley v. Governor of Md., 289 Md. 620,
10
occurred anywhere from three to five years prior to her
disclosure. This fact is important in two ways. First, because
the alleged incident occurred up to five years ago, [A.B.’s]
memory of the incident could be diminished or altered by
subsequent events. In addition, the timing of the alleged event
by [A.B.] has varied throughout her various reporting of the
alleged event. According to the Local Department’s evidence,
[A.B.] first reported on October 25, 2018 that the event
occurred five years prior to the disclosure. However, on
October 26, 2018, [A.B.] told the Local Department that the
event took place when she was “10-12 y[ears] o[ld],” meaning
anywhere from six to four years prior to the disclosure. Finally,
during the forensic interview on December 14, 2018, [A.B.]
reported that she was twelve or thirteen years old at the time,
meaning the event had occurred three or four years earlier.
Accordingly, given that she has given different timeframes for
the alleged event, and that all of her reports were that the event
was at least three, but up to six, years prior to the disclosure,
some concern is raised regarding [A.B.’s] memory for the
event.
First, we agree with the ALJ that “[t]o the extent the events occurred, [A.B.] would
have personal knowledge.”
Second, we see nothing in A.B.’s statements, or anywhere else for that matter, that
supports the ALJ’s conclusion that A.B.’s memory of the alleged incident “could be
diminished or altered by subsequent events.” Although it is common knowledge that
memories can fade over time, there is nothing in this record to suggest that A.B.’s memories
actually have faded.
625 (1981) (in interpreting statutes, “we must consider also that our laws are addressed to
the future”).
11
Third, the ALJ latched on to A.B.’s estimates of the dates when the abuse occurred,
found a discrepancy between the dates, and, as a result, found that this factor weighed
against A.B.’s credibility. At the minimal facts interview, A.B. initially said that the abuse
occurred when she was “ten to twelve years old,” and then later reported during the
videorecorded forensic interview that the abuse happened when she was “twelve or thirteen
years old.” The ALJ failed to acknowledge that these windows of time overlapped
significantly. In both interviews, A.B. estimated that the abuse occurred when she was
around twelve years old. It’s not as if she said it happened when she was five, and then said
it happened when she was fifteen. This was a minor discrepancy, if it was a discrepancy at
all.11 Moreover, it is unrelated as far as we can tell, to her personal knowledge of the events,
11
A trauma-informed credibility assessment can also recognize that victims of child
sexual abuse can’t always tell a perfectly coherent narrative. Teena Sorensen & Barbara
Snow, How Children Tell: The Process of Disclosure in Child Sexual Abuse, 70 CHILD
WELFARE 3, 11 (1991) (“Disclosure of child sexual abuse is best described by this research
as a process, not an event. The common presumption that most abused children are capable
of immediate active disclosure by providing a coherent, detailed account in an initial
investigative interview is not supported ….”); cf. Deborah Epstein, Discounting
Credibility: Doubting the Stories of Women Survivors of Sexual Harassment, 51 SETON
HALL L. REV. 289, 296 (2020) (“PTSD [Post-Traumatic Stress Disorder] inhibits a
survivor’s ability to link parts of a traumatizing story together; she may not be able to recall
events in linear sequence or logically articulate her experience. In addition, an inability to
recall key features of the traumatic event is common among those who develop PTSD. This
undermines survivors’ capacity to produce consistent and fully coherent narratives about
their experiences in a way that can easily be improperly attributed to a lack of credibility.”);
Leigh Goodmark, When Is a Battered Woman Not a Battered Woman? When She Fights
Back, 20 YALE J.L. & FEMINISM 75, 81-82 (2008) (“Some victims’ stories are difficult to
follow: The narratives are not linear ….”). That is not to say that a factual discrepancy
cannot be the basis for a finding that testimony is not credible, rather that a factfinder
should consider the possibility that a discrepancy might be caused by trauma and not only
by falsehood.
12
which is the whole point of Factor No. 1. To the extent that the ALJ weighed Factor No. 1
against a finding that A.B.’s statements were credible, we hold that this finding was
unsupported by substantial evidence and was, therefore, arbitrary and capricious.
Factor No. 2: “The certainty that the statement was made”
The ALJ found that it was certain that the statements were made because they were
videorecorded. There is no doubt that the ALJ’s finding as to Factor No. 2 was reasonable.
Factor No. 3: “Any apparent motive to fabricate or exhibit partiality by
the child victim, including interest, bias, corruption, or
coercion”
Factor No. 3 considers whether A.B. had any motive to fabricate the report of child
sexual abuse. The ALJ determined that this factor weighed against A.B.’s credibility.
Specifically, when A.B. disclosed the abuse, she also disclosed that she was “frustrated
with her grandmother” and that she “did not want to live with her grandmother.” The ALJ
determined that this weighed against A.B.’s credibility because A.B.’s troubled
relationship with her grandmother “could have been a potential motive for [her] to fabricate
13
the disclosure.” Although we might not have counted it as the ALJ did, we perceive the
ALJ’s analysis here to be reasonable.12
Factor No. 4: “Whether the statement was spontaneous or directly
responsive to questions”
Factor No. 4 considers whether A.B.’s report of child sexual abuse was spontaneous
or came in response to questions. The ALJ wrote that “[d]uring the [videorecorded]
12
This is a complex issue, and those considering the credibility of children reporting
sexual abuse should consider all of the ways that familial issues affect child sexual abuse
and reporting. While difficulties at home may provide a motive to fabricate a report, social
science also indicates that children who experience family dysfunction are both (1) more
likely to experience sexual abuse and (2) more likely to delay disclosure or not disclose
their sexual abuse at all. Carl Göran Svedin, Christina Back, & Siv-Britt Söderback, Family
Relations, Family Climate[,] and Sexual Abuse, 56 NORDIC J. PSYCHIATRY 355, 361
(2002) (finding that child sexual abuse was highly linked to family dysfunction and that
“delayed disclosures … or the absence of disclosure … during childhood illustrate how
difficult it is for children to come forward and tell about sexual abuse”); see also Verena
Schönbucher, Thomas Maier, Meichun Mohler-Kuo, Ulrich Schnyder, & Markus A.
Landolt, Disclosure of Child Sexual Abuse by Adolescents: A Qualitative In-Depth Study,
27 J. INTERPERSONAL VIOLENCE 3486, 3505-06 (2012) (“[I]t is reasonable to conclude that
a reliable relationship with parents may be one of the most important predictors of
disclosure to parents …. [P]articipants whose parents were still living together … were
more likely to disclose [child sexual abuse] … to their parents than were participants whose
parents were divorced or separated …. [N]ondisclosure toward parents is often hindered
by impaired quality of the parent-child relationship[;] this finding again supports the
hypothesis that disrupted family relationships or family distress in general can encourage
a child to keep the [child sexual abuse] a secret.”); cf. Diana M. Elliott & John Briere,
Forensic Sexual Abuse Evaluations of Older Children: Disclosures and Symptomatology,
12 BEHAV. SCI. & L. 261, 274 (1994) (finding that maternal nonsupport was a predictor of
a child’s nondisclosure of abuse, and that a mother’s willingness to believe her child is
related to her relationship with the perpetrator); Louanne Lawson & Mark Chaffin, False
Negatives in Sexual Abuse Disclosure Interviews: Incidence and Influence of Caretaker’s
Belief in Abuse in Cases of Accidental Abuse Discovery by Diagnosis of STD, 7 J.
INTERPERSONAL VIOLENCE 532 (1993) (finding that caretaker support and belief in the
allegations is strongly associated with disclosure); Gisela Priebe & Carl Göran Svedin,
Child Sexual Abuse is Largely Hidden from the Adult Society: An Epidemiological Study
14
forensic interview, [A.B.] did not spontaneously report the abuse; rather, [A.B.] had to be
prompted … to tell her story.” There was, however, nothing in the record suggesting that
A.B.’s initial disclosure of the abuse to the mandated reporter—that led to the minimal
facts interview and then to the videorecorded forensic interview—was anything other than
spontaneous. The fact that A.B. was prompted to tell her story during the videorecorded
forensic interview, an interview scheduled for the very purpose of eliciting information
about the alleged abuse, simply does not support a finding that A.B. lacked credibility.13
Moreover, the videorecorded forensic interview was the third time A.B. recounted the
abuse, and it occurred in a Child Advocacy Center with a neutral interviewer, where
interview protocols and methods controlled how the disclosure arose. See supra notes
5 & 6. To the extent that the ALJ determined that this factor weighed against a finding of
A.B.’s credibility, it was arbitrary and capricious.
of Adolescents’ Disclosures, 32 CHILD ABUSE & NEGLECT 1095, 1100 (2008) (“Girl
non-disclosers more often perceived their parents as less caring … than girl disclosers.”).
Thus, judges and ALJs evaluating an alleged victim’s motive to fabricate should take into
consideration the various ways in which difficulties at home can affect reporting.
13
Again, a trauma-informed credibility assessment would consider that victims of
child sexual abuse tell their stories in different ways. See supra note 11. Whether it was
told spontaneously or only after prompting does not necessarily affect credibility. Rosaleen
McElvaney, Disclosure of Child Sexual Abuse: Delays, Non-Disclosure[,] and Partial
Disclosure, 24 CHILD ABUSE REV. 159, 164 (2015) (“Recent research has highlighted the
need for children to be asked direct questions to facilitate their disclosure. Of those children
who did disclose, significant proportions disclosed following prompts rather than it being
initiated by the child.”). We also note that approved methodologies for questioning the
victims of abuse have changed as is discussed at note 19. While we are not free to disregard
this statutory factor, see supra note 10, neither are we willing to exaggerate its importance.
15
Factor No. 5: “The timing of the statement”
Factor No. 5 looks at the timing of A.B.’s statement. The ALJ seems to have
weighed this factor against A.B.’s credibility. The ALJ wrote, “the disclosure occurred at
a time when [A.B.] was having difficulties with her grandmother … [and A.B.] never told
her grandmother or teenaged aunt, with whom she lived at the time [about the abuse].” The
ALJ faulted A.B. for not reporting the child sexual abuse when it occurred, and for having
“difficulties with her grandmother” at the time she made the report.
By including it in this list of factors, the General Assembly tells us that the timing
of a child’s statement may, in the appropriate circumstances, be relevant to evaluating the
child’s credibility. CP § 11-304(e)(2); P.F., 137 Md. App. at 272. Great care must be used
in applying this factor, however, because social science reveals that the victims of child
sexual abuse often do not report sexual abuse until they’re older, if they ever decide to
report the abuse at all.14 The timing of a child’s statement may sometimes be relevant in
14
Thomas D. Lyon, Abuse Disclosure: What Adults Can Tell, in CHILDREN AS
VICTIMS, WITNESSES, AND OFFENDERS: PSYCHOLOGICAL SCIENCE AND THE LAW 19 (Bette
L. Bottoms, Cynthia J. Najdowski, & Gail S. Goodman eds., 2009) (stating that most sexual
abuse is not disclosed during childhood, especially in cases of intrafamilial abuse); Sharon
Lamb & Susan Edgar-Smith, Aspects of Disclosure: Mediators of Outcome of Childhood
Sexual Abuse, 9 J. INTERPERSONAL VIOLENCE 307, 316 (1994) (finding that the mean age
for first disclosure of childhood sexual abuse was 18.02 years and that this length of time
was not related to “severity, frequency, duration of abuse, or perpetrator relationship”);
McElvaney, at 160 (2015) (“There is consensus in the research literature that most people
who experience sexual abuse in childhood do not disclose this abuse until adulthood, and
when disclosure does occur in childhood, significant delays are common.”); Daniel W.
Smith, Elizabeth J. Letourneau, Benjamin E. Saunders, Dean G. Kilpatrick, Heidi S.
Resnick, & Connie L. Best, Delay in Disclosure of Childhood Rape: Results from a
National Survey, 24 CHILD ABUSE & NEGLECT 273, 278, 283 (2000) (finding that 28% of
16
judging their credibility, see supra note 10, but given the variety of experience, can rarely
be dispositive.
On our review of the facts and circumstances in this case, we see nothing in the
timing of A.B.’s reporting that would have made her claims more or less credible.
Moreover, although we find that it was not necessarily unreasonable for the ALJ to rely on
A.B.’s poor relationship with her grandmother, we note that adolescents often have
“difficulties” with their parents, grandparents, and legal guardians. While it may have been
appropriate to consider these “difficulties” in connection with Factor No. 3, above,
concerning a possible motive to fabricate, also counting these relationship difficulties
against her in Factor No. 5 puts too much emphasis on a relatively minor point.15 We hold
child rape victims reported never having told anyone before the research interview and that
“[t]his suggests that children who actually do disclose rape experiences relatively quickly
are atypical, and that professionals should not be surprised when girls and women make
initial disclosures of rape several months, even years, after the reported rape took place”);
Georgia M. Winters, Niki Colombino, Sarah Schaaf, Anniken L. W. Laake, Elizabeth L.
Jeglic, & Cynthia Calkins, Why do Child Sexual Abuse Victims Not Tell Anyone About
Their Abuse? An Exploration of Factors that Prevent and Promote Disclosure, 38 BEHAV.
SCI. & L. 586, 598 (2020) (finding that, out of 105 instances of child sexual abuse, over
90% were never formally reported to law enforcement). But see Tina B. Goodman-Brown,
Robin S. Edelstein, Gail S. Goodman, David P.H. Jones, & David S. Gordon, Why Children
Tell: A Model of Children’s Disclosure of Sexual Abuse, 27 CHILD ABUSE & NEGLECT 525,
533 (2003) (studying alleged child sexual abuse victims whose cases had been referred for
prosecution and finding that, out of 200 cases, 42% of the children had disclosed within 48
hours of the last assault).
15
See supra note 12. Again, those considering the credibility of children reporting
sexual abuse should be careful when weighing how timing of the report is affected by
family dynamics. Cf. Sorensen & Snow, at 13 (1991) (“Common thought has held that [a]
teenager who is restricted or punished may become angry and falsely accuse a parent of
abuse …, but the data, in contrast, suggest that the anger at parental restrictions serves to
override inhibitions and fears and becomes the fuel that drives the adolescent to disclose.”).
17
that, to the extent that the ALJ’s analysis of this factor weighed against A.B.’s credibility,
it was arbitrary and capricious.
Factors No. 6 & 7: “Whether the child victim’s young age makes it unlikely
that the child victim fabricated the statement that
represents a graphic, detailed account beyond the child
victim’s expected knowledge and experience” and “the
appropriateness of the terminology of the statement to the
child victim’s age”
The ALJ determined that, because A.B. was sixteen when she disclosed and
described the child sexual abuse, “the language [A.B.] used and details related by [A.B.]
were not particularly beyond [A.B.’s] knowledge and experience at the time she made the
disclosure.” We perceive the ALJ’s analysis here to be reasonable.16
Factor No. 8: “The nature and duration of the abuse or neglect”
Factor No. 8 concerns the nature and duration of the abuse and neglect. Here, the
ALJ wrote:
[T]he alleged sexual abuse was claimed to have occurred only
one time, despite the fact that [Taharaka] continued to be in a
relationship with [A.B.’s] grandmother for up to a year after
the alleged sexual abuse. Further, the sexual abuse involved
[Taharaka’s] alleged fondling and licking of [A.B.’s] vagina,
and did not include any alleged contact with [Taharaka’s]
genitalia, forced or otherwise. Indeed, [A.B.] reported that
[Taharaka] simply walked back upstairs when [A.B.] turned
her head as he was allegedly unbuckling his pants. Further, no
requests or threats were made by [Taharaka] for [A.B.] to keep
silent regarding the alleged sexual abuse. The Local
16
We note that the General Assembly split what had been Factor No. 6 in previous
iterations into Factors No. 6 and No. 7 in the current CP § 11-304. At the time P.F. was
written, this was only Factor No. 6. 137 Md. App. at 272. We’ve renumbered the factors
to reflect their current numbering in CP § 11-304.
18
Department did not present any testimony or evidence that
one-time sexual abuse of this nature, coupled with a lack of
threat or request for silence, was typical or otherwise consistent
with other cases of sexual abuse.
The ALJ’s analysis here was unreasonable. The ALJ found A.B.’s credibility
lacking under this factor because the alleged child sexual abuse occurred only once, and
because Taharaka engaged in cunnilingus on A.B. but did not force A.B. to engage in
fellatio on him. We disagree that the fact that the alleged abuse happened only once and
involved only one sex act, makes A.B.’s account of the alleged abuse any less credible.
There can be no doubt that sometimes people who engage in child sexual abuse only
do it once. Similarly, there can be no doubt that sometimes people who engage in child
sexual abuse perform oral sexual acts on their victims. That these can and do occur is
irrefutable. That the ALJ found these aspects of the abuse unusual, however, does not make
A.B.’s report less than credible. And to have found that they do is simply a misapplication
of Factor No. 8.
Moreover, if such an interpretation was adopted, it would, in effect, give abusers
one free opportunity to sexually abuse a child. Obviously, A.B.’s story would have been
different and arguably more compelling had there been multiple instances of child sexual
abuse. But the fact that there was only one reported incident does not detract from the
credibility of A.B.’s statements.
The ALJ’s analysis here also implies that if an alleged abuser doesn’t do something
that other abusers do, like telling a victim to stay silent, there will be a presumption that
the abuse didn’t happen. This misplaces the burden of proof and puts a victim at the mercy
19
of the typicality of their abuser’s action or inaction. Were this the case, any report of child
sexual abuse that differed from the archetypal sexual abuse would undermine the
credibility of the child disclosing the abuse. This cannot be the law. Rather, it is an
erroneous application of Factor No. 8. Thus, the ALJ’s analysis that Factor No. 8 weighed
against A.B.’s credibility was arbitrary and capricious.
Factor No. 9: “The inner consistency and coherence of the statement”
Factor No. 9 looks at the inner consistency and coherence of the statement. Here,
the ALJ wrote:
[The Department’s social worker, Elaine Byfield] testified that
this factor weighed in favor of the credibility of [A.B.’s]
disclosure because [A.B.] had given similar reports during [the
minimal facts] interview and during the forensic interview. It
is true that [A.B.] had reported that there had been contact
between [Taharaka’s] mouth and [A.B.’s] vagina during both
[the minimal facts] interview and the forensic interview.
However, there were other inconsistencies that were seemingly
ignored by the Local Department. [A.B.’s] report concerning
the timing of the event was different during each report. In
addition, there are inconsistencies in [A.B.’s] report of the
events that allegedly occurred. Specifically, the [mandated]
reporter indicated that [A.B.] had reported that [Taharaka] had
pulled down [her] “pants and raped her.” During [the minimal
facts] interview, [A.B.] reported that [Taharaka] “ate her
vagina.” Finally, during the forensic interview, [A.B.] reported
that [Taharaka] had not only performed oral sex on [her], but
had also digitally fondled [A.B.] and also tried to make her
“suck his penis.” None of these additional details were
mentioned during the initial report or during [the minimal
facts] interview and represent a significant embellishment of
the alleged event.
20
To the extent the ALJ determined that Factor No. 9 weighed against A.B.’s
credibility, we hold that it was unsupported by substantial evidence and was arbitrary and
capricious.
First, on our review of A.B.’s report, we do not see the inconsistencies and
“significant embellishment” that the ALJ saw. Rather, we see that A.B. included more
details of the alleged child sexual abuse in the videorecorded forensic interview than she
did in the minimal facts interview and more details in the minimal facts interview than she
provided to the mandated reporter in the initial report. But her story did not change. Rather,
we observe a progression in detail as the interviews became more detailed. That’s how the
process is supposed to work—not proof of inconsistency.17 See supra notes 5 & 6.
Second, the ALJ found A.B.’s use of the word “rape” was inconsistent with her other
descriptions of Taharaka’s acts. Specifically, the ALJ noted that the initial report from the
mandated reporter used the word “rape” to describe Taharaka’s acts, while in the minimal
facts interview and the videorecorded forensic interview A.B. described acts of
cunnilingus, digital fondling, and attempted fellatio, as we have related above. We don’t
17
Here, again, the factors given to us by the General Assembly are not completely
consistent with trauma-informed credibility assessments. Social science indicates that child
sexual abuse victims’ statements aren’t always linear or internally consistent. See
supra note 11; see also Emily Denne, Colleen Sullivan, Kyle Ernest, & Stacia N.
Stolzenberg, Assessing Children’s Credibility in Courtroom Investigations of Alleged
Child Sexual Abuse: Suggestibility, Plausibility, and Consistency, CHILD MALTREATMENT
May 2020, at 7 (“There are numerous factors that contribute to inconsistencies in disclosure
that are not evidence of false accusation.”). Factfinders should be careful to consider at
least the possibility that inconsistencies in a child sexual abuse victim’s report are the result
of trauma and not proof of a false report.
21
see this as an inconsistency, first because A.B. used the word “rape” consistently, both as
reported in the mandated reporter’s account and again during her videorecorded forensic
interview. There was no inconsistency. Secondly, as a legal matter, A.B. used the term
correctly. Maryland law defines the term “rape” as any “sexual act,” MD. CODE, CRIM.
LAW (“CR”) § 3-303, which includes, among other things, “cunnilingus,” and “an act in
which … part of an individual’s body penetrates, however slightly, into another
individual’s genital opening.” CR § 3-301(d)(1). See also Rape, MERRIAM-WEBSTER’S
COLLEGIATE DICTIONARY 1030 (11th ed. 2014) (defining rape as “unlawful sexual
activity”); see also Acker v. State, 219 Md. App. 210, 216-17, 218 n.7 (2014) (reporting
that child victim told others that she had been “raped” but meant that defendant touched
her inappropriately). When A.B. used the word “rape,” it was a proper use of the term. To
the extent that the ALJ discounted A.B.’s credibility because of this word choice, that was
an insufficient factual basis to undermine the credibility and coherence of the statement.
We hold that the ALJ’s decision to count Factor No. 9 against A.B.’s credibility
because he thought her progression in detail and varied word choice describing the alleged
abuse inconsistent was unsupported by substantial evidence and was arbitrary and
capricious.
Factor No. 10: “Whether the child victim was suffering pain or distress
when making the statement”
Factor No. 10 looks at whether the child was suffering pain or distress when
reporting the child sexual abuse. After watching the video of the forensic interview, the
ALJ determined that, “[w]hile [A.B.] appeared shy and reluctant to talk during the
22
interview, her demeanor did not appear to change significantly when she went from talking
about mundane issues, such as the composition of her household, to when she described
the alleged sexual abuse.” In effect, the ALJ found that because A.B.’s affect remained
calm, she was less credible.
Social science reveals that the ALJ’s assumptions about how a victim of child sexual
abuse should react are misguided:
• The ALJ found A.B. was not emotional in recounting the abuse and
counted that lack of emotion against her credibility. Studies reveal,
however, that children often “exhibit little emotion when disclosing
abuse.” Stacia N. Stolzenberg, Shanna Williams, Kelly McWilliams,
Catherine Liang, & Thomas D. Lyon, The Utility of Direct Questions in
Eliciting Subjective Content from Children Disclosing Sexual Abuse, 116
CHILD ABUSE & NEGLECT 103964, at 4 (2021). And trauma-related
studies have found that victims of child sexual abuse present in varying
ways and may not appear distressed. Kathryn Rowsell & Melissa F.
Colloff, Are Sad Children More Believable? A Systematic Review of the
Relationship Between Emotional [Demeanor] of Child Victims and Juror
Credibility [Judgments], PSYCHOL., CRIME & L. Sep. 30, 2021, at 3.18
18
Worse, the same studies reveal that when children fail to exhibit emotion during
their abuse disclosures, they are less likely to be viewed as credible by police officers,
prosecutors, and judges. Stolzenberg et al., at 4 (2021); see also Rowsell & Colloff, at 11
(2021) (stating that “an emotional child is more likely to be regarded as credible than a
child who is presenting neutrally”) (citing Alexia Cooper, Jodi A. Quas, & Kyndra C.
Cleveland, The Emotional Child Victims: Effects on Juror Decision-Making, 32 BEHAV.
SCI. & L. 813 (2014); Jonathan M. Golding, Heather M. Fryman, Dorothy F. Marsil, &
John A. Yozwiak, Big Girls Don’t Cry: The Effect of Child Witness [Demeanor] on Juror
Decisions in a Child Sexual Abuse Trial, 27 CHILD ABUSE & NEGLECT 1311 (2003); Sara
Landström, Karl Ask, Charlotte Sommar, & Rebecca Willén, Children’s Testimony and
the Emotional Victim Effect, 20 LEGAL & CRIMINOLOGICAL PSYCHOL. 365 (2015); Pamela
C. Regan & Sheri J. Baker, The Impact of Child Witness Demeanor on Perceived
Credibility and Trial Outcome in Sexual Abuse Cases, 13 J. FAM. VIOLENCE 187 (1998)).
That isn’t the children’s fault, it’s ours. This type of credibility assessment is called the
23
• The ALJ found that A.B.’s affect did not change when the conversation
turned from the mundane to the topic of her abuse and found that the lack
of change counted against her credibility. But studies have also found that
“children’s expressiveness during their testimony [often] changed little
between abuse and non-abuse topics.” Stolzenberg et al., at 4 (2021)
(citing ELLEN GRAY, UNEQUAL JUSTICE: THE PROSECUTION OF CHILD
SEXUAL ABUSE, (Free Press 1993)).
• The ALJ found that A.B. appeared “shy and reluctant to talk” and
concluded that this reluctance undermined her credibility. Reluctance to
speak, however, is another well-documented phenomenon among
children who have been sexually abused. Stolzenberg et al., at 7 (2021)
(discussing how maltreated children “use fewer emotion words when
discussing negative events” and how children experiencing greater
anxiety during events later use “fewer evaluative terms or emotion
words” when describing the events) (first citing Elizabeth C. Ahern &
Thomas D. Lyon, Facilitating Maltreated Children’s Use of Emotional
Language, 3 J. FORENSIC SOC. WORK 176 (2013); then citing Andrea
Follmer Greenhoot, Rebecca Johnson, & Laura A. McCloskey, Internal
States Language in the Childhood Recollections of Adolescents with and
Without Abuse Histories, 6 J. COGNITION & DEV. 547 (2005); Carole
Peterson & Marleen Biggs, Stiches and Casts: Emotionality and
Narrative Coherence, 8 NARRATIVE INQUIRY 51 (1998)).
In all three of these ways, the ALJ misapplied Factor No. 10. Although pain or
distress can reveal or demonstrate credibility, it is inconsistent with current understandings
and therefore unreasonable to hold that the absence of visible pain or distress undermines
credibility. This is a misapplication of Factor No. 10, was legally incorrect and, therefore,
arbitrary and capricious.
“emotional victim effect,” and is problematic because “[a] victim’s emotional presentation
is not a reliable indicator of their accuracy or truthfulness.” Rowsell & Colloff, supra, at 3.
24
Factor No. 11: “Whether extrinsic evidence exists to show the defendant
or child respondent had an opportunity to commit the act
complained of in the child victim’s statement”
Factor No. 11 considers whether there was extrinsic evidence that the abuser had
the opportunity to commit the abuse. The ALJ acknowledged that Taharaka “would
occasionally stay over at [A.B.’s] grandmother’s house and that he would sometimes tutor
[A.B.]” Nonetheless, the ALJ determined that “other than the allegation regarding the one
occurrence of alleged abuse, there was no evidence submitted at the hearing that [Taharaka]
was ever left alone with [A.B.]” (emphasis added). There was, however, significant
evidence in this record (some of which came from Taharaka himself) that Taharaka tutored
A.B., took A.B. shopping, and was left alone with A.B. The ALJ’s finding with respect to
Factor No. 11 was unsupported by substantial evidence and was arbitrary and capricious.
Factor No. 12: “Whether the statement was suggested by the use of leading
questions”
The ALJ found that the questions used by the interviewer were not leading. While
we may not have considered Factor No. 12 as the ALJ did,19 we hold the ALJ’s finding
here to be reasonable.
19
Application of Factor No. 12 presents a difficult question. Obviously, leading
questions that suggest the answers can and should undermine credibility. But we would err
if, in criticizing leading questions, we were too zealous and also threw out the leading
questions that can appear as part of guided forensic interview formats that social science
now recommends as the best way to interview children about possible sexual abuse. See
supra note 13; Stolzenberg et al., at 7 (2021) (“[C]hildren may need to be asked specific
questions … to be able to describe their reactions to abuse.”). For more information about
25
We agree with the Department and hold that the ALJ’s assessment of A.B.’s
credibility based on the twelve factors above was arbitrary and capricious.20 While the
ALJ’s evaluation of some of the factors was reasonable, his evaluation of many of them
was not. We hold that the ALJ’s evaluation of three factors: personal knowledge of the
event (Factor No. 1); inner consistency and coherence of the statement (Factor No. 9); and
opportunity to commit the act (Factor No. 11), in each case was both unsupported by
substantial evidence, and arbitrary and capricious. We also hold that the ALJ’s evaluation
of four factors: the spontaneity of the statement (Factor No. 4); the timing of the statement
(Factor No. 5); the nature and duration of the abuse (Factor No. 8); and suffering pain or
distress while making the statement (Factor No. 10), were each arbitrary and capricious.
Each of these evaluations alone is sufficient to establish overall error. See Bernstein, 167
Md. App. at 765. Cumulatively, the ALJ’s ultimate conclusion that the factors supported a
finding that A.B.’s statements were not credible was arbitrary and capricious. We remand
for a new evaluation of the credibility of A.B.’s statements.
trauma-informed forensic interviewing, see U.S. DEP’T OF JUSTICE, OFFICE OF JUVENILE
JUSTICE & DELINQUENCY PREVENTION, CHILD FORENSIC INTERVIEWING: BEST PRACTICES
(Sept. 2015) (describing forensic interview practices); NAT’L INST. OF CHILD HEALTH &
HUMAN DEV. PROTOCOL: INTERVIEW GUIDE (2017) (same); Am. Prof’l Soc’y on the
Abuse of Children Taskforce, Forensic Interviewing in Cases of Suspected Child Abuse:
Practice Guidelines (2012), (https://perma.cc/5KFZ-WF3K) (same); Int’l Ass’n of Chiefs
of Police, Successful Trauma Informed Victim Interviewing (2020),
(https://perma.cc/7A2V-4JGW) (same). In considering Factor No. 12, a factfinder should
bear in mind that the use of leading questions as part of a guided forensic interview is now
recognized as appropriate in interviewing children about sexual abuse.
20
The ALJ also found Factor No. 13, “the credibility of the person testifying about
the statement,” was inapplicable. There was no error in that determination.
26
II. THE ALJ’S DETERMINATION THAT TAHARAKA WAS CREDIBLE WAS BASED ON
INCOMPLETE INFORMATION.
As described above, the ALJ observed Taharaka’s testimony in which he denied the
sexual assault and found it to be credible. The Department, however, observes that the
ALJ’s opinion relies, as the sole basis for that credibility finding, on his review of
Taharaka’s employment history. The ALJ’s opinion notes that Taharaka “worked for the
Prince George’s County Public Schools as a teacher for almost 30 years” and that in that
position he had worked closely with children and “had never had a complaint made against
him regarding inappropriate behavior.” The ALJ also found that Taharaka’s past
employment—first as an auditor for the Washington Hospital Center, and then as a military
policeman with a top-secret clearance—were relevant and supported a finding that
Taharaka’s testimony was credible.
The Department argues that it is improper for the ALJ to rely exclusively on
Taharaka’s employment history as a proxy for credibility and, as a result, that the ALJ’s
finding in this regard was arbitrary and capricious. We have reviewed the cases on which
the Department relies, and we hold that those cases do not support so definite a proposition.
It is true that the Court of Appeals has held that a factfinder may not give a witness more
credence simply because of the witness’s occupation. Moore v. State, 412 Md. 635, 662
(2010); Langley v. State, 281 Md. 337, 349 (1977). The Court of Appeals has also clarified
those holdings, however, to say that credibility determinations based on a witness’s
occupation are improper, as a cause for juror disqualification, when the witness is testifying
as a police officer or other official witness. Washington v. State, 425 Md. 306, 324-25
27
(2012) (holding that voir dire regarding witnesses’ occupation was not mandatory when
alleged victim and corroborating witness had either served in or been employed by the
military because neither witness was testifying in an official capacity). In this case,
Taharaka was not testifying in his official capacity as a teacher, auditor, or military
policeman. See id. at 324 n.4. Rather, he was simply testifying as a lay witness. Therefore,
we decline to find the ALJ’s determination that Taharaka was credible, based solely on his
employment history, was necessarily arbitrary and capricious.
Nevertheless, we are concerned that Taharaka’s employment history was the sole
basis for the ALJ’s credibility determination. Because we are already remanding this case
for additional consideration of A.B.’s credibility, we think that justice will best be served
by remanding the issue of Taharaka’s credibility without affirmance, reversal, or
modification, see MD. R. 8-604(d), so that the factfinder can make a more holistic appraisal
of Taharaka’s testimony and demeanor. Such an approach is fairer to the parties and
provides a surer basis for a reviewing court to properly assess the ALJ’s credibility
assessment.
III. THE ALJ’S DETERMINATION THAT TAHARAKA WAS NOT A REGULAR
PRESENCE IN THE HOME WAS UNSUPPORTED BY SUBSTANTIAL EVIDENCE IN
THE RECORD, AND ARBITRARY AND CAPRICIOUS.
As reported above, the ALJ also found that Taharaka was not a regular presence in
the home and that, therefore, even if Taharaka had sexually abused A.B., he could not have
28
committed child sexual abuse under the statute.21 This conclusion was unsupported by
substantial evidence in the record, and arbitrary and capricious. SG § 10-222.22
One need not formally live in the same house as the victim to be considered a
household member. A household member is “a person who lives with or is a regular
presence in, a home of a child at the time of the alleged abuse.” FL § 5-701(k) (2012)
(emphasis added). A regular presence could mean once a week for a year, every day for a
month, or once every few days.
The undisputed record reveals that Taharaka was a regular presence in A.B.’s house,
and involved in A.B.’s life, even if over the course of his relationship with A.B.’s
grandmother he only spent the night at A.B.’s grandmother’s house “10-15 times” per year.
Taharaka testified that A.B.’s aunt’s boyfriend “was over [at A.B.’s grandmother’s house]
at least three to four days a week, maybe more.” Taharaka too, then, must have been at the
house at least three to four days a week to have had this knowledge firsthand. Taharaka
21
Maryland law defines child sexual abuse as an act of sexual molestation or
exploitation of a child “by a parent or other person who has permanent or temporary care
or custody or responsibility for supervision of a child, or by any household or family
member.” FL § 5-701(x)(1) (2012); see also supra note 7.
22
The Department’s opening brief does not specifically argue that the ALJ erred in
finding Taharaka was not a regular presence in the home for purposes of child sexual abuse,
FL § 5-701(x)(1) (2012). This issue was mentioned in Taharaka’s opposition brief, which
argued that the ALJ was correct in finding Taharaka was not a regular presence in the home
and thus not a “household member.” The Department’s reply brief argued for the first time
that this was erroneous. Ordinarily, we will not consider an issue raised for the first time
in a reply brief. Gazunis v. Foster, 400 Md. 541, 554 (2007) (citing Jones v. State, 379 Md.
704, 713 (2004). Notwithstanding this general rule, we exercise our discretion to address
this issue. Id.29
was also present at family events, such as an eighth-grade graduation, a police academy
graduation, and a baby shower. Even though Taharaka was not one of A.B.’s relatives, he
described his relationship with A.B. as if she was a relative: “It’s more or less other
members of the family. When I used to take [A.B.] out … I used to take her out with my
daughter … we had a wonderful relationship.” Taharaka also tutored A.B., because
according to Taharaka, “[A.B.] had an issue with mathematics.” Taharaka also performed
“psychological testing” on A.B. “[t]o determine whether or not she had any psychological
issues that dealt with learning.” Taharaka’s testimony alone establishes that he was more
than just an infrequent or irregular houseguest of A.B.’s grandmother.
We hold that the ALJ’s determination that Taharaka was not a regular presence in
A.B.’s grandmother’s home, and thus could not have committed child sexual abuse, was
unsupported by substantial evidence in the record. Moreover, this conclusion was arbitrary
and capricious. We reverse.23
CONCLUSION
The ALJ’s evaluation of the credibility of A.B.’s statements was arbitrary and
capricious. The ALJ’s evaluation of Taharaka’s credibility was based on incomplete
information. Moreover, the ALJ’s conclusion that Taharaka was not a regular presence in
A.B.’s grandmother’s home was unsupported by substantial evidence in the record and was
23
To be clear, we hold that Taharaka was a regular presence in the home and
therefore within the statutory definition of a household member. We leave to the ALJ to
determine on remand whether, while Taharaka was in the home, he committed the acts
alleged.
30
arbitrary and capricious. We, therefore, reverse the Circuit Court’s judgment affirming the
decision of the Office of Administrative Hearings. We remand the matter to the Circuit
Court for Prince George’s County with instructions to remand the matter to the Office of
Administrative Hearings to enter an order that Taharaka was a regular presence in the home
and so that it may take whatever evidence it determines is necessary to reconsider the
credibility of the witnesses and their statements and weigh whether to affirm or modify the
Department’s disposition.
JUDGMENT OF THE CIRCUIT
COURT FOR PRINCE GEORGE’S
COUNTY REVERSED. CASE
REMANDED TO THE CIRCUIT
COURT WITH INSTRUCTIONS TO
VACATE THE DECISION OF THE
OFFICE OF ADMINISTRATIVE
HEARINGS AND REMAND THE
MATTER TO THAT OFFICE FOR
FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS
OPINION. COSTS ASSESSED TO
APPELLEE.
31