Departments of Social Services–to main- tain a centralized registry of child abusers.2 The original purpose of the statute was to maintain a centralized computer reposi- tory of information concerning persons against whom a local DSS office had made a finding of abuse for the use of state so- cial workers, police, educational institutions and medical practitioners. Prior to 1995, if a local department of
social services made a finding of abuse or neglect unsubstantiated or indicated, the alleged abuser or neglector was entitled to a “record review” before an adminis- trative law judge (ALJ) to insure that the paperwork was adequate to support the finding. No judicial review was available under the Administrative Procedures Act (APA). The APA does not provide for judicial review of state agencies which deal with concerns in only one county. SG § 10-203(a)(4). In dealing with a new requirement for contested case review for the Child Abuse Registry, the Department of Human Re- sources promulgated regulations to implement the requirement of a contested case hearing which provided only for the same type of record review historically used to dispute the underlying finding of abuse or neglect which was and is not sub- ject to judicial review. This procedure was challenged in C. S. v. Prince George’s County Department of Social Services, 343 Md. 14, 680 A.2d 470, 1996. Amicus briefs filed by the American Civil Liber- ties Union and the state chapter of the American Federation of Teachers. The Court of Appeals struck down the regu- lations, holding that as a contested case hearing was called for in the statute, the APA required appellate review because the Child Abuse Registry was statewide and outside the aforementioned exception of the APA cited above. The Social Services Administration at- tempted to avoid the ruling in C.S., supra., with amazing sleight of hand. The Legis- lature amended the Child Abuse Registry statute to make its maintenance discre- tionary with the Social Services Administration. That agency then “elimi- nated” the registry. Instead they maintained two computer systems where local agencies then entered information
2
See C.S.. v. Prince George’s County Depart- ment of Social Services, 343 Md. 14, 24-25, 680 A.2d 470 (1996). This case gives an outstanding legislative history of the child abuse registry at 24-31. This article uses the court’s recitation of the legislative history where relevant.
Winter 2003
about cases. Despite the fact that the com- puter systems were accessible to all local county departments, the Social Service Administration took the position that it was not a statewide registry because only local departments entered and maintained the information.
This position was
squarely rejected in Montgomery County Department of Social Services v. L.D., 349 Md. 239, 707 A.2d 1331 (1998). Subse- quent to this decision, the Department of Human Resources enacted regulations for contested proceedings with judicial review under the APA.
First Line of Defense The Legal Definition of Abuse and Neglect The first defense in a Child Abuse Reg-
istry case is that the alleged abuse does not meet the legal definition. For the sake of this article, the writer will make the bald assertion that DSS social workers have a remarkably low standard for what constitutes abuse or neglect. A practitio- ner is safe in assuming that a blow or physical contact, such as grabbing an arm, that leaves a mark on the child is consid- ered abuse by DSS. The law does not support this and in practice a number of members of the bench and our commu- nity do not accept this standard. The pertinent Family Law Article sub-
title dealing with child abuse and neglect is the obvious starting point for consider- ing parental or custodial conduct which rises to the level of abuse or neglect. The provisions of the definitions in that sub- title follow. Two points are noteworthy: (1) the statute requires, excepting sexual abuse, that the child’s health or welfare be harmed by the abuse or neglect or the child is placed at substantial risk of being harmed; (2) while corporal punishment is not excluded in the definition, case law points to the exclusion of corporal pun- ishment as abuse by those in loco parentis, excepting teachers. Remarkably, there is little case law de- tailing what constitutes abuse. Most appeals have dealt with procedural and technical matters. The Family Law Article provides the
following definitions: § 5-701. Definitions (a) In general.- In this subtitle the fol- lowing words have the meanings indicated.
(b) Abuse.—“Abuse” means: (1) the physical or mental injury of a child by any parent or other per- son who has permanent or temporary care or custody or re- sponsibility for supervision of a
(Continued on page 20)
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www.plaintiffstructuredsettlements.com Trial Reporter 19
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