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

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

Tabassi argued, in light of the recognized legislative intent in L.D., that he was entitled to a hearing before the OAH to have the opportunity to clear his name of the accusation of child neglect, because DSS's claim of neglect was not adjudicated in his criminal case.

Tabassi claimed support for that argument from the C.S. Court's discussion of the legislative history behind FL [section][section] 5- 706.1, 5-706.2, and 5-715, by which the Legislature created a new hearing procedure and broadened the scope of registries subject to procedural requirements. There, the Court reasoned that the history of those statutes "demonstrates the legislature's concern that before information relating to alleged child abuse can be disseminated state-wide, that information must have been demonstrated to be accurate either through adjudication or an administrative hearing." C.S., 343 Md. at 28-30. Clearly, [section][section] 5-701 to 5-715 "grant broad authority to social services and law enforcement agencies to investigate and prosecute cases of child abuse and to prevent its recurrence. At the same time, the Legislature has also shown that this authority must be tempered to ensure that individuals are not labelled [sic] as child abusers on the basis of inaccurate or incomplete information." Id.

FL [section]5-706.1 is the result of a legislative effort to alter the administrative appeals process for individuals suspected of child abuse or neglect in the wake of the Court of Appeals' decision in C.S. See Fiscal Note for H.B. 148 (1999).

The C.S. Court held that alleged abusers had an independent right to a contested case hearing before his or her name could be entered into a central registry. See C.S., 343 Md. at 23-24. The Court concluded that a more limited record review procedure, contained in a provision allowing alleged abusers to request administrative review of the findings made by a local social services department, was insufficient. Id.

The C.S. Court also explained what must be addressed at the contested case hearing: "The sole question at a hearing...must necessarily be whether the alleged incident of abuse or neglect is correctly indicated as 'indicated' or "unsubstantiated'." Id. at 33. In determining that issue, "the ALJ must sift between potentially conflicting information presented by the [Department of Human Resources] and the alleged abuser to determine whether there are sufficient facts to meet the definitions provided in [FL [section] 5- 701(m) and (y)]." Id.

The Legislature's alteration to the administrative appeals process following C.S. did not, in any way, diminish the procedural protections for individuals accused of abuse or neglect, but merely streamlined the appeals process in a manner that preserved an individual's right to a contested case hearing when accused of abuse or neglect. See Fiscal Note for H.B. 148 (1999).

The Legislature, by enacting FL [section]5-706.1 and streamlining the appeals process, did not abandon its concern "that before information relating to alleged child abuse [or neglect] can be disseminated state-wide, that information must have been demonstrated to be accurate either through adjudication or an administrative hearing." See C.S., 343 Md. at 30.