Legal Opinions - Maryland Court of Special Appeals: October 20, 2008

Daily Record, The (Baltimore), Oct 20, 2008

MARYLAND COURT OF SPECIAL APPEALS

Administrative

Dismissal of administrative appeal

BOTTOM LINE: Office of Administrative Hearings erred in dismissing appeal under FL [section]5-706.1(b)(3) based on appellant's criminal convictions where the criminal charges did not arise out of the alleged abuse or neglect.

CASE: Tabassi v. Carroll County Department of Social Services, No. 630, September Term, 2007 (filed Oct. 1, 2008) (Judges Thieme (retired, specially assigned), Kenney (retired, specially assigned) & ADKINS).

FACTS: In December 2003, the Carroll County Department of Social Services (DSS) sent Amir Tabassi, pro se, a "notice of action" stating that it found Tabassi responsible for "indicated child neglect."

DSS conducted an investigation of Tabassi upon having received information that officers of the Bureau of Alcohol, Tobacco, Firearms and Explosives, while executing a search warrant for illegal firearms at Tabassi's home, found a 12-year-old unrelated girl living at the home and allegedly sleeping in Tabassi's bed.

Thereafter, a DSS worker went to Tabassi's residence, which was being searched, and observed various weapons being taken from the home. The worker first encountered a 29-year-old woman, named Vera, sitting on the front porch, who stated that she was the sister of the 12-year-old girl inside the residence, and that the two had been staying with Tabassi.

The DSS worker was then informed by troopers searching the home that the 12-year old, named Simone, was found sleeping in Tabassi's bed with loaded firearms on and next to the bed. The DSS worker spoke with Simone; that she lived with her parents, and that her sister and Mr. Tabassi met through a friend; and that Vera had helped watch Tabassi's two small children when they visited from Tennessee. Simone said she had come with her sister from Ohio for the summer.

Simone stated that she did not normally sleep in Tabassi's room, but that the night before they had gone to the airport and returned late. She said she laid down in the bedroom that Tabassi's children sleep in when they were there. She said she could not sleep, however, and got up. At approximately 5-6 a.m., she told the DSS worker, Tabassi got up to go to work and told her she could sleep in his bed, which she did.

Tabassi filed a request for a contested case hearing with the Office of Administrative Hearings (OAH). The OAH dismissed that request as untimely and Tabassi appealed the dismissal.

The Court of Special Appeals subsequently vacated that judgment and remanded the case to the OAH for further proceedings. The OAH, on remand, stayed the proceedings concerning Tabassi's requested contested case hearing, pursuant to FL [section]5-706.1(b)(3)(i), because it had "been advised of criminal proceedings pending[,] arising out of the alleged abuse or neglect appealed in the [OAH] matter[.]"

DSS filed a motion to dismiss Tabassi's appeal based on his being found guilty of reckless endangerment and firearms-access, criminal charges that arose out of the same incident that was the basis for the OAH's finding of indicated child neglect. The OAH dismissed Tabassi's appeal, pursuant to FL [section]5-706.1(b)(3)(ii). The circuit court affirmed the OAH's order of dismissal.

Tabassi appealed to the Court of Special Appeals, which vacated and remanded.

LAW: Tabassi argued that the OAH erred in dismissing his appeal of DSS's finding that he was responsible for indicated child neglect. The OAH relied on FL [section]5-706.1(b)(3) and Tabassi's guilt for the offenses of reckless endangerment and child access to firearms in dismissing his appeal.

FL [section]5-706.1 provides that in the case of a finding of indicated abuse or neglect, "an individual may request a contested case hearing to appeal the finding in accordance with Title 10, Subtitle 2 of the State Government Article by responding to the notice of the local department in writing within 60 days." If a criminal proceeding is pending on charges arising out of the alleged abuse or neglect, moreover, the Office of Administrative Hearings is required to stay the hearing until a final disposition is made. Id. If, after final disposition of the criminal charge, "the individual requesting the hearing is found guilty of any criminal charge arising out of the alleged abuse or neglect, the Office of Administrative Hearings shall dismiss the administrative appeal." Id.

In Montgomery County Dep't of Soc. Servs. v. L.D., 349 Md. 239 (1998), the Court of Appeals considered the procedural protections the Legislature has afforded individuals accused of child abuse or neglect. The Court concluded that individuals accused of child abuse or neglect are entitled to a "full contested case hearing" before their names were entered into databases accessible on a statewide basis. Id. at 275.

The Court based that conclusion on an analysis of FL [section]5- 715, a statute that was repealed in 1999, and its opinion in C.S. v. Prince George's County Dep't of Soc. Servs., 343 Md. 14 (1996). The Court rejected an argument that a full hearing right to the accused would hinder local departments of social services from entering information into databases and that this would cripple their ability to protect children from abuse and neglect. Id. at 275.