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

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

Here, Tabassi's guilt of reckless endangerment and child access to firearms did not remove his right to have DSS's finding of neglect reviewed by the OAH under FL [section]5-706.1(b)(3)(ii). Tabassi's guilt of those crimes did not require proof that Tabassi was a parent of, caretaker for, custodian of, or responsible for Simone. See FL [section]5-701(s). Therefore, it did not obviate the need for an opportunity to appeal DSS's finding of neglect such that dismissal was warranted under FL [section]5-706.1.

A reasonable interpretation of FL [section]5-706.1(b)(3) is that dismissal of an alleged abuser or neglector's administrative appeal is warranted where an accused is found guilty of criminal charges stemming from the same conduct that serves as the basis for a finding of abuse or neglect and the requisite status of the individual to the child has been adjudicated or is not disputed.

Tabassi, however, insisted that he was not a caretaker of or responsible for Simone when he engaged in the crimes of which he was found guilty. He should have the opportunity to challenge DSS's finding regarding his status before he was found and listed as responsible for indicated child neglect in a central registry.

COMMENTARY: DSS contended that Tabassi was not entitled to a contested case hearing because he was found guilty of criminal charges that "stemmed from the same incident that gave rise to DSS's finding of indicated abuse or neglect."

DSS maintained that its interpretation was supported by Howard County Dep't of Soc. Servs. v. Linda J., 161 Md. App. 402, 407 (2005), in which the Court of Special Appeals concluded that the OAH properly dismissed a request for a contested case hearing to challenge alleged child abuse pursuant to FL [section]5- 706.1(b)(3)(ii) after a foster parent pleaded guilty to second degree assault and received probation before judgment. Second- degree assault, however, unlike the definition of child abuse in the Family Law Article, contains no requirement that the perpetrator have a special relationship with the victim or that the victim be a child.

The decision in Linda J., was not dispositive of the question of whether the OAH properly dismissed Tabassi's appeal under FL [section]5-706.1(b)(3)(ii). "[T]o deny Linda J.'s request for a hearing," that Court held, "appellant must show two things: first, that Linda J.'s criminal charges arose out of her alleged abuse of her foster daughter and, second, that Linda J. was 'found guilty' of those charges." Id. at 409. Since there was no dispute, in that case, that the charges at issue arose out of Ms. J.'s alleged abuse of her foster daughter, the Court was " left only with the question of whether she was 'found guilty' of those charges." Id.

The propriety of the OAH's dismissal of Tabassi's appeal, unlike the dismissal in Linda J., turned on whether Tabassi's criminal charges arose out of the alleged neglect in a manner that obviated the need for a contested case hearing, and not on whether he was "found guilty" of his charges.