McClanahan v. Washington County Department of Social Services

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 737
September Term, 2013
LAUREN MCCLANAHAN
v.
WASHINGTON COUNTY DEPARTMENT
OF SOCIAL SERVICES
Eyler, Deborah S.
Woodward,
Reed,
JJ.
Opinion by Woodward, J.
Filed: July 31, 2014
In December 2010, appellee, the Washington County Department of Social Services
(the “Department”), found appellant, Lauren McClanahan, responsible for indicated child
abuse by mental injury of her then five-year-old daughter, Raven H. (“Raven”). The finding
of child abuse stemmed from appellant’s repeatedly making sexual abuse allegations against
Raven’s father and taking the child to multiple sexual abuse examinations.
Appellant appealed the Department’s finding to the Office of Administrative Hearings
(“OAH”) in January 2011, and an administrative law judge (“ALJ”) affirmed the
Department’s finding in October 2011. Appellant then sought judicial review of the ALJ’s
determination in the Circuit Court for Washington County, which affirmed the ALJ’s
decision on May 2, 2013. Appellant filed a timely appeal to this Court on May 30, 2013, and
presents four questions for our review, which we have rephrased and consolidated into three:1
1
Appellant’s original questions read as follows:
1. Whether the OAH decision was supported by competent,
material, and substantial evidence in light of the entire record,
or was otherwise arbitrary or capricious?
2. Whether purported subconscious efforts by a mother to have
her daughter remain close to her are sufficient to find that the
mother is responsible for indicated mental injury of a child
under the child abuse laws?
3. Whether the OAH decision resulted from or was affected by
the ALJ’s decision to admit evidence in violation of both
Maryland and Pennsylvania law governing privilege?
4. Whether the OAH decision against the Petitioner violated the
immunity provisions of Family Law Article § 5-708 and Courts
and Judicial Proceedings Article § 5-620?
1. Did the record contain competent, material, and substantial
evidence sufficient to support the ALJ’s decision?
2. Did the ALJ err by admitting evidence that violated the
privilege laws of Maryland and Pennsylvania?
3. Did the ALJ violate the immunity provisions of the Family
Law and Courts and Judicial Proceedings Articles?
For the reasons set forth below, we answer question one in the affirmative, and
conclude that questions two and three have not been preserved for our review. Accordingly,
we affirm the judgment of the circuit court.
BACKGROUND
Family Background
On May 6, 2005, Raven was born to appellant and her then-husband John H. Each
parent had substance abuse problems and accused the other of domestic violence. Appellant
also accused Mr. H. of sexually abusing her. On August 2, 2006, appellant and Mr. H.
separated after nineteen years of marriage, and they legally divorced on February 25, 2008.
After her parents’ divorce, Raven lived with appellant, who had primary physical
custody, and had unsupervised visitation with her father three weekends per month and one
weeknight per week. Mr. H. remarried, as did appellant. Appellant’s second husband,
Michael M., died of a heart attack in December 2009. Appellant now lives with a live-in
partner.
Original Abuse Allegations & Investigations
During the approximately three-and-a-half year period from June 2007 to November
2
2010, appellant took Raven to the hospital nine times for physical examinations related to
sexual abuse allegations. The examinations shared two common features: first, the
evaluations occurred after Raven made sexual abuse allegations following visitation at her
father’s home; second, Raven presented with physical symptoms immediately prior to each
examination.2 None of these examinations, however, confirmed that Raven had been
sexually abused.
At first, Raven alleged that her father or step-brother had molested her or penetrated
her with small objects, and later described assaults involving a needle, cream, or the family’s
pets. Raven generally made these accusations in the presence of her mother. The allegation
Raven made on June 23, 2010 typified the nature of the child’s claims. On that day, Raven
informed her mother and her babysitter that her father “poked me with a needle in my front
bottom.” Raven later told a nurse that she felt “sad [because] of how I got hurt,” and that the
needle was “blue [with] 5 green stripes.” 3
Raven displayed very similar physical symptoms at the time of each appointment,
including genital redness and swelling, and occasionally vaginal discharge, which indicated
2
Appellant also took Raven to eight appointments with her pediatrician for symptoms
similar to those that prompted the physical exams.
3
Raven elaborated on this allegation by stating that her father used the needle on her
because “he had to sew up my front bottom and back bottom up because the [family’s pet]
goat bit through it.” Such fantastical sounding allegations were not standard for Raven, but
also not uncommon. For example, Raven also told hospital staff on another occasion that a
“monster came from a cave and touched her.”
3
a urinary tract infection.4 At the second forensic examination, on February 21, 2008, Dr.
Ruth Ann Dwyer diagnosed Raven with “vulvitis–normal variant in pre-pubertal female,”
and the terms “vulvitis” and “vaginitis” were often used to described the irritation
experienced by Raven.
Both the irritation and the infections observed in Raven are common in children her
age, and can often be attributed to poor hygiene. At the February 2008 visit, Dr. Dwyer
noted toilet paper on Raven’s genitals, an indication of poor hygiene, and discussed “routine
good hygiene care” with appellant. On more than one occasion, appellant received education
about how to prevent the irritation of Raven’s genitals, which included the child’s avoiding
bubble baths and wearing underwear overnight.
Dr. Dwyer also reported in Raven’s medical chart that a “normal exam does not
exclude a history of sexual abuse,” and personally explained to appellant that abuse could not
be ruled-out. As indicated above, however, no examination revealed definitive signs of
sexual abuse. In addition, and importantly, from February 2008 until May 2010, the
Department conducted fourteen sexual abuse investigations, all of which ruled out sexual
abuse.
4
The one exceptional forensic finding consisted of a “black course hair” found on
Raven’s genitals on November 17, 2010, during a doctor’s visit at which Raven referenced
sexual abuse. Physician’s Assistant Jane Shughart determined that the hair “did not look like
a hair from a head.” Under instructions from Shughart, appellant took Raven to Washington
County Hospital, where a police officer interviewed Raven. The hospital did not examine
Raven or the hair based on instructions from the Department.
4
Mental Injury Inquiry & Evaluations of Raven
On May 14, 2010, the Department began an investigation into appellant for causing
mental injury to Raven. Dr. Carlton E. Munson, a licensed certified social worker with a
Ph.D. in clinical social work, evaluated Raven for mental injury on July 16 and August 4,
2010, after receiving a referral from Bruce McCarthy, an investigator from Child Protective
Services (“CPS”). Previously, Dr. Munson assessed Raven on July 24 and September 10,
2008 upon referral from CPS.
On October 29, 2010, Dr. Munson finalized his report on Raven, and diagnosed the
child as having indications of mental injury. Dr. Munson determined that Raven had a
“positive insecure attachment to her mother and father,” and categorized her disorder under
Axis I of the Diagnostic and Statistical Manual of Mental Disorders (DSM) as “Parent-Child
Relational Problem.” This finding echoed the diagnosis made by Raven’s therapist, Amy
Hershey, whom Dr. Munson interviewed. Hershey diagnosed Raven under Axis I as having
an “Adjustment Disorder with Mixed Anxiety and Depressed Mood,” related to “dealing with
parental conflict and disagreement between households.” Thus, both professionals
determined that Raven had a mental injury that implicated her relationship with her family.
According to Dr. Munson’s report, Raven’s mental injury manifested itself in various
forms of emotional distress. Dr. Munson observed that Raven demonstrated neediness and
insecurity around her immediate family, but in particular around appellant. Raven also
displayed symptoms of generalized anxiety. Dr. Munson noted that Raven suffered from
5
abnormally severe sleep disturbances and nightmares. Finally, Dr. Munson commented on
the unusual nature of the sexual abuse allegations Raven made during his evaluation and the
therapy sessions with Hershey. According to Dr. Munson, Raven generally made these
disclosures to her family and therapists, but not to investigators, and exhibited a willingness
to expose herself.
Dr. Munson further observed that Raven’s mental injury had impaired Raven’s
emotional, social, and intellectual function. Dr. Munson reported that Raven was “currently
having functional problems at school.” Dr. Munson gave an IQ test to Raven, which
revealed a twenty-six-point discrepancy between the child’s verbal and nonverbal scores.
Dr. Munson theorized that the discrepancy could be caused by familial trauma. Finally, Dr.
Munson’s testing demonstrated an “overall decline in meeting milestones” since the
evaluations he performed in 2008.
At the end of his report, Dr. Munson offered his opinion on the cause of Raven’s
mental injury and impairment:
Based on the scales administered, the clinical interviews conducted,
the collateral interviews conducted, and the documents reviewed, it
is my professional opinion that Raven [ ] has been mentally
injured and the source of the mental injury gives indication of being
due to the mother’s engaging in conscious or unconscious
suggestive utterances to Raven about abuse by the father and
engaging in alienating activities related to the father.
(Emphasis added).
In addition to Dr. Munson, McCarthy contacted Ronald E. Zuskin and requested that
6
he conduct an assessment of Raven. From August 2010 to October 2010, Zuskin, a licensed
certified social worker-clinical, reviewed Dr. Munson’s report and interviewed appellant,
Hershey, Mr. H., and Mr. H.’s second wife, but did not interview Raven.
Zuskin’s assessment of Raven was similar to Dr. Munson’s evaluation. Zuskin
adopted Hershey’s diagnosis of “Adjustment Disorder with Mixed Anxiety and Depressed
Mood.” Zuskin, like Dr. Munson, also determined that Raven had an unhealthy attachment
to her mother, which he described in terms of an “extreme over-involvement, intrusiveness
and dominance.”
Also like Dr. Munson, Zuskin reported that Raven’s functioning had become
impaired:
Raven’s relations with authority figures, her peer relations, and her
own reactivity to disruption in the environment indicate that not only
is her current level of functioning impaired, but that without treatment
and significant environmental changes she is a risk of greater
disruption and regression.
Zuskin also concluded that appellant exploited Raven through making repeated sexual abuse
allegations, and that such exploitation caused Raven’s impairment.
Procedural History
On December 15, 2010, the Department notified appellant that it had determined that
she was responsible for indicated child abuse by mental injury. On January 14, 2011,
appellant appealed the Department’s finding of indicated child abuse-mental injury to the
OAH. The ALJ held a contested case hearing on the matter on August 16 and September 19,
7
2011. On October 25, 2011, the ALJ issued a written decision, in which she concluded that
(1) the finding of indicated child abuse-mental injury was supported by credible evidence and
was consistent with the law, and (2) appellant was responsible for the indicated abuse.5
On November 23, 2011, appellant petitioned the Circuit Court for Washington County
for judicial review of the ALJ’s decision. On May 2, 2013, the circuit court affirmed the
ALJ’s decision. On May 30, 2013, appellant filed a timely notice of appeal to this Court.
STANDARD OF REVIEW
In Charles County Department of Social Services v. Vann, 382 Md. 286 (2004), the
Court of Appeals set forth in detail the appropriate standard of judicial review of the final
decision of an administrative agency:
As a court sitting in judicial review of an administrative agency
decision, this Court reviews the decision in the same posture as that
of the courts below. That is to say, we reevaluate the decision of the
agency under the same statutory standards as would the circuit court,
and we do not employ those standards to reevaluate the decision of the
circuit or intermediate appellate court.
***
[Maryland Code (1984, 1999 Repl. Vol., 2003 Cum. Supp.),
§ 10-222(h) of the State Government Article (“SG”)] sets forth
standards of judicial review over agency decisions in contested cases
and varies those standards depending on the type of agency
5
The Department also investigated appellant for child neglect, and, on October 4,
2010, made a finding of indicated child neglect. Appellant appealed this finding as well, and
the ALJ determined that the finding of indicated child neglect should be modified to ruled-
out child neglect. The Department did not seek judicial review of the ALJ’s decision in this
regard.
8
determination under scrutiny. With regard to agency factual
determinations, the standard of review is whether the finding is
“unsupported by competent, material, and substantial evidence in light
of the entire record as submitted,” also known as substantial evidence
review. Under substantial evidence review of an agency’s factual
findings, a court is limited to ascertaining whether a reasoning mind
could have reached the same factual conclusions reached by the
agency on the record before it.
With regard to agency legal conclusions, judicial review is less
deferential to the agency. When an agency makes “conclusions of
law” in a contested case, the [Administrative Procedure Act] permits
the court, on judicial review, to decide the correctness of the agency’s
conclusions and to substitute the court’s judgment for that of the
agency’s. Even with conclusions of law, however, an agency’s legal
interpretation of the statute it administers or of its own regulations is
entitled to some deference from the courts.
Other agency decisions fall within categories that are neither
legal conclusions nor factual findings, and some fall within both.
These latter sort commonly are known as “mixed questions of law and
fact” or applications of law to facts: The agency has correctly stated
the law and its fact-finding is supported by the record, but the
question is whether it has applied the law to the facts correctly. When
the agency decision being judicially reviewed is a mixed question of
law and fact, the reviewing court applies the substantial evidence test,
that is, the same standard of review it would apply to an agency
factual finding.
Id. at 294-96 (citations omitted).
DISCUSSION
I. Substantial Evidence & Legal Error
Appellant’s main argument is that the record does not support the factual findings and
legal conclusions made by the ALJ. The ALJ concluded her opinion by stating that
“[a]ppellant’s act of making multiple allegations of sex abuse of Raven by her father and
9
subjecting Raven to repeated sexual abuse exams constitutes child abuse mental injury.” The
ALJ supported this conclusion with a lengthy review of the evidence, in which she heavily
relied upon the evaluations of Dr. Munson and Zuskin:
This matter is complicated from th[e] standpoint [of assessing mental
injury, because] the family dynamics and Raven’s psychological state
are intertwined and complex. I have given significant weight to
both Dr. Munson’s and [ ] Zuskin’s test and reports. Their reports
were thorough and provided clear and rational explanations for how
the data they collected during their assessments supported their
conclusions. . . . Both of the assessments address the information
required by [the regulation concerning mental injury].
(Emphasis added).
Accordingly, appellant attacks the ALJ’s findings of fact by challenging the
conclusions of Dr. Munson and Zuskin. Notably, appellant does not attack the evaluator’s
conclusions regarding the nature of Raven’s mental injury or her impairment, described
above, but instead objects to: (1) the admissibility of the expert opinions and their
methodologies generally, and (2) the sufficiency of the experts’ findings regarding the cause
of Raven’s mental injury.
Furthermore, as part of her attack on sufficiency of the evidence with regard to
causation, appellant challenges the ALJ’s legal conclusion regarding scienter. Appellant
argues that the ALJ erred by concluding that she was responsible for indicated child abuse
by mental injury without determining whether she acted with the requisite intent. For the
reasons set forth below, we reject appellant’s arguments.
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A. Admissiblity
“Credibility” Experts & The Frye Standard
Appellant’s first claim involves the admissibility of the expert opinions and
assessments proffered by Dr. Munson and Zuskin. Appellant first contends that the
assessments of Dr. Munson and Zuskin “intruded into the power of the judge to assess
credibility.” More specifically, appellant asserts that the evaluators dismissed Raven’s
accusations based on their own assessments of the girl’s credibility. Accordingly, appellant
concludes that “[e]xpert testimony that encroaches [on] the judge’s function to adjudicate
credibility is inadmissible.”
Appellant also argues that “neither Dr. Munson nor [ ] Zuskin provided the foundation
of scientific acceptance for their opinions” as required by Frye v. United States, 293 F. 1013(D.C. Cir. 1923). Appellant claims that neither expert established that his assessment tools
demonstrated scientific reliability and validity for the purpose of establishing a mental injury
to a child as required by Frye.
Appellant’s arguments regarding the experts’ improper credibility assessments and
the Frye standard have been waived. See Delmarva Power & Light Co. v. Pub. Serv.
Comm’n of Md., 370 Md. 1, 32, aff’d on other grounds, 371 Md. 356 (2002) (“We do not
allow issues to be raised for the first time in actions for judicial review of administrative
agency orders entered in contested cases because to do so would allow the court to resolve
matters ab initio that have been committed to the jurisdiction and expertise of the agency.”).
11
Appellant never raised these issues before the ALJ, and in fact she accepted Dr. Munson and
Zuskin as experts and allowed their reports and expert opinions to be admitted into evidence
without objection.
B. Description of Bad Acts
Appellant next attacks the substance of the evidence presented against her. We
observe at this junction that to reach a finding of “indicated” requires that “there is credible
evidence, which has not been satisfactorily refuted, that abuse, neglect, or sexual abuse did
occur.” Md. Code (1984, 2012 Repl. Vol.), § 5-701(m) of the Family Law Article (“FL”).
Child abuse is defined as follows:
(b) Abuse. — “Abuse” means:
(1) the physical or mental injury of a child by any 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, under circumstances that indicate that the child’s health or
welfare is harmed or at substantial risk of being harmed; or
(2) sexual abuse of a child, whether physical injuries are
sustained or not.
FL § 5-701(b).
COMAR 07.02.07.12(A)(3) (2014)6 sets forth the criteria for a finding of indicated
child abuse by mental injury:
(3) Abuse—Mental Injury. A finding of indicated child abuse
with mental injury is appropriate if there is credible evidence, which
6
Unless otherwise indicated, all citations to COMAR refer to the 2014 regulations.
12
has not been satisfactorily refuted, that the following four elements
are present:
(a) A current or prior mental injury characterized by an
observable, identifiable, substantial impairment to the child’s mental
or psychological ability to function, which may be shown by the need
for specific psychiatric, psychological, or social work intervention;
(b) The mental injury was caused by a parent, a caretaker, or
household or family member;
(c) The alleged victim was a child at the time of the incident;
and
(d) The nature and extent of the mental injury indicate that the
child’s health or welfare was harmed or was at substantial risk of
harm.
FL § 5-706 requires that any investigation into mental injury include two assessments
by licensed physicians, licensed psychologists, or licensed social workers. FL § 5-706(d)(2).
COMAR 07.02.07.09(B)(1)(b) sets forth the requirements of the assessments:
(b) The professional assessment shall include:
(i) A determination whether the child has sustained a mental
injury;
(ii) If applicable, a description of observable, identifiable, and
substantial impairment of the child’s mental or psychological ability
to function; and
(iii) If applicable, an explanation of the act or omission that
is believed to have caused the mental injury.
(Emphasis added).
Based on this statutory and regulatory framework, appellant argues that the
13
Department failed to sufficiently describe the “act or omission that is believed to have caused
the mental injury,” and thus concludes that the ALJ had no basis on which to make a finding
of indicated child abuse by mental injury. See COMAR 07.02.07.09(B)(1)(b)(iii) (emphasis
added). Appellant describes two insufficiencies in this regard that we address in turn.
Unconscious Acts
Appellant first asserts that the term “act,” as used in COMAR
07.02.07.09(B)(1)(b)(iii), “denotes a finding that the parent’s conduct was voluntary and
conscious.” Appellant claims that the Department’s assessments, conducted by Dr. Munson
and Zuskin, described Raven’s mental injury as caused by “vague, unintentional acts” that
cannot constitute child abuse.
For example, appellant contends that Dr. Munson ascribed Raven’s injury to
appellant’s unconscious behavior. Appellant supports this position with the following
statement from Dr. Munson’s report:
Based on the scales administered, the clinical interviews conducted,
the collateral interviews conducted, and the documents reviewed, it is
my professional opinion that Raven [ ] has been mentally injured and
the source of the mental injury gives indication of being due to the
mother’s engaging in conscious or unconscious suggestive
utterances to Raven about abuse by the father and engaging in
alienating activities related to the father.
According to appellant, Zuskin similarly determined that appellant’s repeated sexual abuse
allegations amounted to “exploitation of Raven,” which manifested as “animated closesness
and protectiveness [that] inadvertently reinforc[ed]” continued sexual abuse allegations by
14
Raven.
Appellant mischaracterizes the experts’ conclusions. Dr. Munson and Zuskin do in
fact describe intentional acts as the cause of Raven’s mental injury, specifically appellant’s
utterances and her making of sexual abuse allegations. When the experts referred to
“unconscious” and “inadvertent” behavior, they did not intend to define appellant’s abusive
actions, but rather meant to describe either (1) the motivation behind appellant’s actions, or
(2) the effects resulting therefrom. In other words, the evaluators indicated that appellant
committed these acts without consciously appreciating that (1) they were motivated by her
desire to alienate Raven from her father, and (2) that they would cause Raven to repeatedly
make false and detrimental sexual abuse allegations. Dr. Munson and Zuskin did not suggest
that the “act” that injured Raven was involuntary, like a hiccup or a Tourette’s outburst.
This interpretation of the assessments is consistent with the ALJ’s understanding of
the evidence. After explaining why appellant’s sexual abuse allegations were not justified,
the ALJ concluded that appellant’s actions “were a result of her subconscious efforts to have
Raven remain close to her.” (Emphasis added). In other words, appellant was motivated by
her “subconscious effort” to keep Raven very close. According to the ALJ, the act that
caused the injury, however, was the “act of making multiple allegations of sex abuse of
Raven by her father and subjecting Raven to repeated sexual abuse exams.”
Speculative Acts & Causation
As part of her second argument regarding her alleged misconduct, appellant argues
15
that Dr. Munson’s and Zuskin’s respective references to “utterances” and “exploitation” were
unacceptably vague. More specifically, appellant criticizes Dr. Munson’s and Zuskin’s
assessments for presenting circumstantial and non-specific evidence of her abusive behavior
that was “never seen or described by any eyewitness.”
Appellant also accuses the experts of speculating as to the causal link between
appellant’s behavior and Raven’s mental injury, arguing, for example, that Dr. Munson used
Raven’s repeated sexual abuse allegations as “a launching point to speculate concerning
unobserved acts of mental injury by the mother.” Appellant concludes that “nothing
scientific showed that the leap from repeated examinations to Raven’s symptoms was to any
reasonable degree of certainty.”
Appellant is correct that her alleged misconduct cannot be reduced to taking Raven
to the repeated examinations. Moreover, Dr. Munson and Zuskin did work backwards to
some extent, first diagnosing Raven’s mental injury and then associating that injury with a
recognized pattern of abusive relationships. Contrary to appellant’s argument, however, the
experts presented evidence establishing that the abusive pattern did in fact exist and that it
caused Raven’s injury. In the process, the assessments made references to specific acts
performed by appellant. We explain below.
Dr. Munson described the exact nature of Raven’s mental impairment, which, as
stated above, appellant does not dispute. He described her as suffering from anxiety and
from “positive insecure attachment to her mother,” the latter of which he described as
16
follows:
[T]he child has an attachment to the parent, but they feel uncertain
about the attachment in terms of whether the parent would play the
protective role, will be the protector of them. So, they will also
sometimes themselves become protective of the parent if they feel any
kinds of distress in the parent.
Dr. Munson based this assessment on clinical evaluations and interviews, and
described how Raven had multiple meltdowns in which she exhibited anxiety and protective
behavior:
During the four-hour evaluation session with [appellant], Raven had
three episodes of extreme emotional distress. The first episode
occurred when I attempted to escort Raven from the waiting room to
the evaluation room. She clutched [appellant], cried and repeatedly
stated she did not want to be asked any more questions, and she did
not want her mother to have to fill out any more forms.
(Emphasis added). Dr. Munson further observed that Raven’s emotional distress was
generally more apparent when the child interacted with appellant than it was when she visited
with her father.
Zuskin provided the best explanation of the mechanism that caused Raven’s
impairment.
The literature on false allegations lists a type of falsehood know as
“exaggerated positive feedback.” In such instances the child senses
the parent’s need to hear certain things said. The parent responds with
animated closeness and protectiveness, inadvertently reinforcing such
behavior in the child.
Zuskin categorized this pattern of behavior as a form of “exploitation,” manifesting
in this case as “extreme over-involvement, intrusiveness and dominance” on the part of
17
appellant. The positive feedback loop described by Zuskin also explains how appellant’s
behavior caused Raven’s symptomatic anxiety and inappropriate protectiveness. Appellant’s
“need to hear certain things” put pressure on Raven to provide for her mother and protect
her mother from any dissatisfaction when those needs were not met.
The experts pointed to evidence demonstrating that the positive feedback loop existed
between appellant and Raven. Zuskin stated that the “cycle of making statements about
abuse seems inextricably linked to visitation,” because Raven’s disclosures always occurred
during reunions with appellant. This indicated to Zuskin that the abuse allegations were
“rituals for re-establishing closeness,” i.e. reinforcing mutual protectiveness that comprised
the positive feedback loop. Zuskin also noted that a link existed between the timing of
appellant’s accusations of abuse and declines in Raven’s conditions. For example, Raven
experienced a “regression around the time of another sexual abuse allegation/investigation
being made,” after she had recovered from a previous regression triggered by her stepfather’s
death.
The positive feedback loop was also indicated as a cause of Raven’s mental injury,
because Dr. Munson and Zuskin excluded other possible sources of injury. Zuskin observed
that Raven’s allegations did not include the “elaborative detail” associated with statements
about sexual abuse typically revealed by three- to five-year old children. Dr. Munson noted
that Raven “showed no sexual behavior symptoms that are typical of a child that has
experienced sexual abuse” and also observed that Raven’s affectionate relationship with her
18
father was not typical of a child who was being sexually abused by that parent. Hershey
informed Zuskin that “Raven does not present with sexual-abuse specific symptoms or
behaviors, but more generalized symptoms of trauma.” Finally, according to the ALJ, there
was “absolutely no medical evidence of any injury consistent with ongoing sexual abuse.”
Dr. Munson also determined that inheritable mental illness as the source of Raven’s
impairment was unlikely, because children her age do not normally present with such
disorders. Dr. Munson asserted that, with regard to Raven’s “developmental setbacks,” the
“only factor present is the repeated allegations of sexual abuse initiated by the mother.”
Lastly, the assessments of Dr. Munson and Zuskin provide specific examples of
appellant’s misconduct. Both Dr. Munson and Zuskin pointed to appellant’s making
allegations of abuse and taking Raven to exams, actions that they placed in the context of the
positive feedback loop as a trigger for Raven to assert an unhealthy protectiveness of her
mother.
There were also examples of negative utterances. During the forensic exams,
appellant expressed frustration about the legal process not taking the sexual abuse allegations
seriously. On one occasion, appellant told the forensic nurse at Chambersburg hospital that
“the Judge wont [sic] help her. They keep sending her back with her dad.” Such comments
gave Raven the impression that her mother was seeking something from the exams that she
was not receiving, which Raven would then try to provide. Similarly, appellant rated Raven
as having highly elevated trauma indicators on Dr. Munson’s assessment, which suggested
19
to Dr. Munson that appellant may have been “faking bad”and creating a negative image of
Raven.
We conclude that the reports of Dr. Munson and Zuskin provide sufficient evidence
of what acts appellant committed and how those acts caused Raven’s mental injury. The ALJ
accepted the “exaggerated positive feedback” loop as the cause of Raven’s mental injury:
It is the opinion of Dr. Munson that Raven has been mentally injured
and that the source of the injury is [ ] [a]ppellant’s exploitation of
Raven by her use of sexual abuse allegations, investigations and
examinations which encourages the development and reinforcement
of aberrant behavior by drawing Raven in a closer relationship to [ ]
[a]ppellant.
***
Zuskin attributed the injury to [ ] [a]ppellant’s exploitation of Raven.
He explained that [ ] [a]ppellant’s sexual abuse allegations that have
resulted in exams and investigations constitute “extreme over
involvement, intrusiveness, and dominance.” . . . He stated that in his
opinion Raven sensed [ ] [a]ppellant’s need to hear such statements
and when [ ] [a]ppellant responded with animated protectiveness and
closeness, she was reinforcing Raven’s behavior.
Therefore, we hold that a reasoning mind, taking into account the facts presented and
any reasonable inferences drawn therefrom, could have made the same findings as the ALJ.
Accordingly, the ALJ’s decision was supported by “competent, material, and substantial
evidence.” SG § 10-222(h) (1984, 2009 Repl. Vol.).
C. Lack of Scienter
Appellant argues that the ALJ erred by failing to determine whether appellant had
intentionally or recklessly injured Raven. In other words, appellant contends that a finding
of indicated child abuse must include some element of scienter. Appellant claims that
20
without a scienter requirement, the sphere of parental action that could cause abuse by mental
injury would become unconscionably vast:
Likewise, the parent’s choice of the wrong school, public or private,
or insistence on home schooling, could be indicated child abuse if
some agency-appointed physician, psychologist, or social worker
disagreed and opined that such had caused an “impairment”of the
child’s “mental or psychological ability to function.”
Appellant asserts that, under In re Yve S., 373 Md. 551 (2003), such a broad
application of the State’s power to find indicated child abuse is unconstitutional, because it
would infringe on a “parent’s Fourteenth Amendment liberty interest in raising his or her
children as he or she sees fit, without undue interference by the State.” According to
appellant, a scienter requirement of either intent or recklessness would be an appropriate
limitation on the State’s power.
Appellant also claims that the scienter requirement already exists in the context of
indicated physical child abuse. Appellant cites to Taylor v. Harford County Department of
Social Services, in which the Court of Appeals determined that, “where an act by a parent or
caregiver is injurious to that person’s child, and the injury was unintentional, under Title 5
of the Family Law Article and COMAR 07.02.07.12, the injurious act should not constitute
‘indicated’ child physical abuse unless it can be shown to have been reckless conduct.” 384
Md. 213, 216 (2004) (emphasis added).
The Department counters that Taylor does not apply to the case sub judice, because
Taylor involved indicated physical child abuse, and not abuse by mental injury. The
21
Department observes that the physical abuse regulation relevant to the Taylor decision
contained an explicit scienter element. By contrast, the Department asserts, the mental injury
regulation does not contain any scienter requirement, and that the “legislative history
confirms the plain statutory meaning.” 7
The parties’ arguments essentially pit the statute and regulations against the Taylor
decision. After careful consideration of each argument, we agree with the Department that
no scienter requirement is required for a finding of indicated child abuse by mental injury.
Scienter in Title 5 of the Family Law Article & COMAR
7
The Department also claims that the scienter issue is not preserved for appellate
review, because appellant did not raise it before the ALJ. Like the circuit court, we reject
this argument. The scienter issue is integral to the legal disposition of this matter and thus
is preserved. See Eng’g Mgmt. Servs., Inc. v. Md. State Highway Admin., 375 Md. 211, 235
(2003). The Court of Appeals stated in Engineering Managment Services, Inc.:
The [agency] argues, and the Court of Special Appeals agreed, that
the issue of the [Board’s] failure to promulgate rules was not
preserved for review as [the appellant] failed to raise the issue during
the proceedings before the [Board]. Judicial review of administrative
decisions generally is limited to the issues raised before the agency.
We reach this issue, however, not because [the appellant] raised
it on appeal, but rather because it is an integral, and thus
unavoidable, component of our determination of the properly
raised issue of whether the [Board’s] grant of summary
disposition was appropriate in this case. This is because the
[Board’s] failure to adopt pertinent procedural rules in the case sub
judice interferes with the ability of the courts to perform their
constitutional function of review.
Id. at 235 (citations omitted).
22
The Department correctly states that the statute and regulations pertaining to indicated
child abuse by mental injury do not include a scienter element. As indicated above, a parent
must simply have “caused” the mental injury. COMAR 07.02.07.12(A)(3)(b). The statute
defines “mental injury” as an “observable, identifiable, and substantial impairment,” but does
not describe the mental state associated with inflicting the injury. FL § 5-701(r).
Also, as the Department pointed out, the statutory and regulatory scheme does not
reveal any intention on the part of the legislature or agency to require a scienter element in
cases of indicated child abuse by mental injury. For example, the definition of “ruled out”
child abuse in COMAR 07.02.07.12 specifically requires the presence of scienter vis-a-vis
physical injury, but does not extend such requirement to mental injury:
C. Ruled Out Child Abuse. A finding of ruled out child abuse is
appropriate if child abuse did not occur. A finding of ruled out may
be based on credible evidence that:
(1) There was no physical or mental injury or, in the case of
suspected sexual abuse, no sexual molestation or exploitation;
(2) In the case of physical abuse:
(a) The alleged abuser was not responsible for the injury for
reasons including, but not limited to, one of the following:
(i) The contact with the child was accidental and
unintended and under the circumstances, the injury was not
foreseeable[.]
***
COMAR 07.02.07.12(C) (emphasis added). The presence and then absence of language
defining or describing child abuse by physical injury and by mental injury is significant in
23
the construction of the regulation:
“[W]hen the legislature [or agency] uses certain language in one part
of the statute and different language in another, the court assumes
different meanings were intended. In like manner, where the
legislature has carefully employed a term in one place and
excluded it in another, it should not be implied where excluded.
The use of different terms within related statutes generally
implies that different meanings were intended.”
Toler v. Motor Vehicle Admin., 373 Md. 214, 223-24 (2003) (first alteration in original)
(emphasis added) (quoting 2A Norman J. Singer, Sutherland Statutes and Statutory
Construction § 46.06 (6th ed. 2000)); see also Brown v. Brown, 287 Md. 273, 277 (1980)
(“Generally speaking, the same rules that are applicable to the construction of statutory
language are employed in interpreting constitutional verbiage[.]”).
The legislative history of the mental injury statute itself is also instructive. As
appellant observed, the legislature adopted child abuse by mental injury in 1994 for “the
purpose of . . . altering the definitions of child abuse and neglect; . . . requiring the
investigation to include a certain assessment if mental injury is suspected[.]” 1994 Md.
Laws, Chap. 728, at 3232-33. Appellant notes that these changes were necessary in order to
maintain compliance with federal law and eligibility for federal funds. The federal
regulation, however, never defined mental injury. See 45 C.F.R. § 1340.2(d) (2013).
Ultimately, the statute and regulations pertaining to mental injury simply do not contain a
scienter requirement.
24
The Taylor Decision
As the Department indicated, the Taylor decision involved only physical abuse,
specifically where a father intentionally kicked a foot stool in anger, which unintentionally
struck his daughter in the face. Taylor, 384 Md. at 217. The Harford County Department
of Social Services found the father responsible for indicated child physical abuse, and an ALJ
upheld the decision. Id. at 215.
The case required the Court of Appeals to address an earlier version of statutory
definition of “ruled out” child abuse. See id. at 223-26. In relevant part, the previous version
of COMAR 07.02.07.12(C) provided:
C. Ruled Out Child Abuse. A finding of ruled out child abuse is
appropriate if child abuse did not occur. A finding of ruled out may
be based on credible evidence that:
(1) There was no physical or mental injury or, in the case of
suspected sexual abuse, no sexual molestation or exploitation;
(2) In the case of physical abuse:
(a) The alleged abuser was not responsible for the injury for
reasons including, but not limited to, one of the following:
(i) The act causing the injury was accidental or
unintentional and not reckless or deliberate[.]
***
COMAR 07.02.07.12(C) (2004) (emphasis added). As stated above, subparagraph 2(a)(i)
currently reads: “The contact with the child was accidental and unintended and under the
circumstances, the injury was not foreseeable[.]” COMAR 07.02.07.12(C)(2)(a)(i).
25
Getting ahead of the agency, the ALJ in Taylor applied a foreseeability standard and
concluded that “physical abuse had occurred because appellant had intentionally kicked the
footstool and that under a foreseeability analysis that intent to kick the footstool was the
equivalent of an intention to injure and thus met the ‘intent’ standard of the statute and
regulation.” 384 Md. at 216. Based on the then-existing language of COMAR
07.02.07.12(C)(2)(a)(i), the Court of Appeals held that the ALJ should have applied a
recklessness standard, instead of a foreseeability standard, to determine whether the father’s
unintended injury of his child constituted indicated physical abuse. Id. at 232-33.
Although the Taylor Court’s holding was limited to the determination of “ruled out”
physical abuse, the language of the decision suggested a much broader application.
Appellant claims that the language of Taylor requires a finding of intent or recklessness for
all child abuse. Appellant relies on the following passage from Taylor:
The threshold question that must be determined in a case such
as this is whether the act causing injury to a child was done with an
intent to injure or was done recklessly and injury resulted. In the
case sub judice, intent is relevant only insofar as determining whether
there was an intent actually to injure the child.
***
Furthermore, if we were to abide by the methodology by which
the ALJ interpreted § 5-701 of the Family Law Article and the
pertinent COMAR regulations, it appears that any intentional act
by a parent or caretaker which has the unintentional consequence
of harming that person’s child would amount to child abuse, and
result in the parent being placed on the central registry of
individuals responsible for child abuse, basically creating a strict
liability standard for parents or caretakers who unintentionally
26
injure their children. . . . We doubt that either § 5-701 of the
Family Law Article or COMAR 07.02.07.12 intends for such a
draconian strict liability standard always to attach to the
intentional acts of parents or caretakers who unintentionally
injure their children.
Id. at 230-31 (bold emphasis added).
Although in the cited passage above the Court of Appeals does not expressly limit the
application of a scienter requirement to physical abuse, we refuse to read a scienter
requirement into mental abuse where the statute and regulations are silent.8 The Taylor
8
It instructive to note that physical abuse cannot occur unless the child bears the brunt
of the parent’s force, whether the parent intended to strike the child, (a purposeful smack to
the head), or not, (a collision with a poorly kicked footstool). The regulations concerning
child abuse by mental injury, however, clearly contemplate mental injury being caused by
actions not directed at the child:
(2) If an investigation of abuse or neglect suggests issues relating
to a child’s emotional or psychological well-being, a separate
investigation of mental injury may be conducted after consideration
of any of the following:
(a) Implied or overt threat of death or serious injury to the child
or other individuals;
(b) Implied or overt threat in the form of pet or animal torture;
(c) Constant denigration of the child;
(d) Extensive emotional or physical isolation or confinement
of the child; or
(e) Domestic violence in the home.
COMAR 07.02.07.08(C)(2) (emphasis added).
27
Court’s admonition against strict liability is strong, but cannot compel this court to usurp the
role of the legislature or agency and write in a crucial element of the law that does not exist.
See Toler, 373 Md. at 223-24. The ALJ therefore did not err by failing to include scienter
as an element of indicated child abuse by mental injury.
II. Privilege
Appellant contends that the ALJ erred by allowing McCarthy, Dr. Munson, and
Zuksin to testify about their communications with Hershey, the social worker who provided
therapy to both Raven and appellant. Appellant contends that her communications with
Hershey, as well as those of Raven, are privileged under Maryland Code (2006, 2013 Repl.
Vol.), § 9-121 of the Courts & Judicial Proceedings Article (II) (“CJ”). Because Hershey is
licensed in Pennsylvania, where the therapy took place, appellant also contends that
Pennsylvania privilege law prohibits the disclosure of her family’s therapy sessions with
Hershey. Appellant argues that the ALJ summarily denied her privilege assertion without
conducting the necessary inquiry into the existence and coverage of the privilege.
The Department responds that the social-worker privilege does not apply to Hershey
because CJ § 9-121 applies to individuals “licensed as certified social worker[s] under
[Maryland] Title 19 of the Health Occupations Article” and appellant failed to establish that
Hershey was licensed anywhere other than Pennsylvania. The Department also contends that
no Pennsylvania privilege would apply, and even if such privilege did apply, there is an
exception for the disclosure of Hershey’s opinions and reports for the purpose of any child
28
abuse proceeding.
Appellant’s argument is not preserved for our review, because she failed to raise
before the ALJ any privilege under Maryland or Pennsylvania law.9 When appellant objected
to testimony from McCarthy regarding his conversations with Hershey and the use of her
report, appellant did not assert any privilege. Instead, appellant referenced the fact that
communications with Hershey had been deemed privileged in the collateral child custody
proceeding. Because Raven had not waived her privilege in that proceeding, appellant
expressed concern that she would not be able to call Hershey as witness, and thus her ability
to rebut McCarthy’s testimony would be undermined. The colloquy read as follows:
[DEPARTMENT]: All right. Did you ever speak to Raven’s
therapist?
[MCCARTHY]: I did. I also obtained a written statement
of her -- summarizing her work with
Raven up until that time, which was
December 2010.
[DEPARTMENT]: And what did she state?
[APPELLANT’S
COUNSEL]: Your Honor, I’d like to object to this, and
here’s why. In the collateral civil
custody case, the best interest attorney
for Raven did not waive Raven’s
privilege. And at that lawyer’s
direction, no evidence was therefore
9
Appellant also failed to establish that Hershey was a licensed social worker in
Maryland. Thus Maryland Code (2006, 2013 Repl. Vol.), § 9-121 of the Courts & Judicial
Proceedings Article (II) does not apply.
29
permitted as to what Raven’s therapist
said or didn’t say, what findings she
made or didn’t make.
So, I’d ask that since we can’t -- even if
we had been inclined to subpoena
Raven’s therapist, the best interest
attorney would not permit that. And so,
the therapist would have effectually
come here and said, I can’t testify
because I’m under -- I’m under an
assertion of privilege by the child’s
agent, the best interest attorney.
This isn’t evidence we would even be
able to rebut. It just -- if it comes in,
sadly, it’ll just come in. And I don’t
think it’s even appropriate for it to come
in. I haven’t talked to Ms. Sadikian
(phonetic), the attorney for the child in
that other case. But that’s my motion,
Your Honor.
[ALJ]: Do you want to respond?
[DEPARTMENT] I believe it would come in under the
hearsay [rules]. And this -- I know
that custody is a totally different
animal. And it was part of his notes and
part of the investigation in collateral who
he talked to and what they said.
[JUDGE]: I’m going to overrule the objection. You
can go ahead.
***
[MCCARTHY]: Well, I had a brief telephone
conversation with her, and I summarized
-- what I just read is my summary of what
30
she told me. And she followed that up
with a written summary, which is
contained in the record.
[APPELLANT’S
COUNSEL] Your Honor, I’m going to respectfully
not continue to make this objection over
and over again. I would like -- Your
Honor’s overruled my objection. I
would like leave in light of that to
bring Amy Hershey. Maybe just leave
that one issue open for her testimony,
because, again, we’ve been --
[JUDGE]: Okay. Well, we’ll get to that . . . in your
case.
No specific privilege applicable to the instant case was ever mentioned, and appellant
even suggested calling Hershey during her own case. In addition, appellant did not object
to the admission of the reports of McCarthy, Dr. Munson and Zuskin, all of which
incorporated their communications with Hershey.
In sum, appellant failed to assert any privilege during the administrative proceeding
as she was required to do. See, e.g., Catler v. Arent Fox, LLP, 212 Md. App. 685, 702-03,
cert. denied, 435 Md. 502 (2013) (concluding that in the context of attorney-client privilege,
it is well-established that the burden of establishing the privilege is on the party asserting the
privilege). Instead, her counsel relied on the failure to waive Raven’s privilege in the civil
custody matter. Thus we conclude that the privilege issue was not preserved for appellate
review. See Delmarva Power & Light Co., 370 Md. at 32.
31
III. Immunity
Finally, appellant claims that she should be granted immunity, because she was
required to report child abuse to the Department. Again, appellant failed to raise such issue
before the ALJ. Appellant claims, nevertheless, that the issue has been preserved under
Motor Vehicle Administration v. Lytle, because the claim is “expressly encompassed in the
final decision of the ALJ.” 374 Md. 37, 55 (2003) (internal quotation marks omitted).
An issue can be preserved without having been previously raised if the resolution of
that issue is integral to the legal determination of the case. Eng’g Mgmt. Servs., Inc. v. Md.
State Highway Admin., 375 Md. 211, 235 (2003). A legal defense, such as immunity, that
does not appear in the statute or in the implementing regulations does not qualify as integral
and can be waived. Thus appellant’s immunity claim has not been preserved.
For the reasons set forth above, we uphold the decision of the ALJ that appellant was
responsible for child abuse by mental injury.
JUDGMENT OF THE CIRCUIT COURT
FOR WASHINGTON COUNTY AFFIRMED;
APPELLANT TO PAY COSTS.
32