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Maryland’s Scarlett Letter (Continued from page 19)


child, or by any household or fam- ily member, under circumstances that indicate that the child’s health or welfare is harmed or at substan- tial risk of being harmed; or


(2) sexual abuse of a child, whether physical injuries are sustained or not. . . . .


(q) Mental injury.—“Mental injury” means the observable, identifiable, and substantial impairment of a child’s mental or psychological ability to function.


(r) Neglect.—“Neglect” means the leaving of a child unattended or other failure to give proper care and attention to a child by any parent or other person who has permanent or temporary care or custody or responsibility for super- vision of the child under circumstances that indicate:


(1) that the child’s health or welfare is harmed or placed at substantial risk of harm; or


(2) mental injury to the child or a sub- stantial risk of mental injury. . . . .


(w) Sexual abuse.— (1) “Sexual abuse” means any act that involves sexual molestation or ex- ploitation of a child by a parent or other person who has permanent or temporary care or custody or re- sponsibility for supervision of a child, or by any household or fam- ily member.


(2) “Sexual abuse” includes: (i) incest, rape, or sexual offense in any degree;


(ii) sodomy; and (iii)unnatural or perverted sexual prac- tices.


Definitions of abuse and neglect may also be found in the domestic violence statutes, FL § 4-501(b)(2), which incor- porates FL § 5-701 but expressly exempts corporal punishment; the CINA statutes, CJP § 3-801(b)(r)(s) and (v); and in the criminal statutes, Article 27, § 35C. The key component is the requirement of actual harm or placing the child at risk of substantial harm. The first issue is what kind of harm are we talking about for ac- tual harm and what is substantial harm when it is only a risk that is created. In a case involving FF, mother and her


son were playing in the morning as they did every morning before school.


play period was part of a carefully struc- 20 This


tured day for the child who was severally ADHD. The play was very active and physical. On this particular morning, the game they played was one played before: mother chased son around the living room attempting to throw a less-than-one- ounce balsa wood spoon which the son would dodge. During the game, mom slipped and the spoon flew out of her hand striking her son just below the eye and leaving a just-distinguishable red mark. Son’s first activity at school that morning was meeting the school psychologist. The school psychologist saw the mark, asked what happened and was advised “Mom hit me with a spoon.” The mark was not present two hours later as proven by pho- tographs. Once in the hold of DSS, no amount of evidence, including clear state- ments from son and mother, could convince DSS that this was a play acci- dent. The ALJ eventually found mother’s version of events credible and DSS’s ver- sion not credible (or even close to credible).


Only two cases appear to discuss these


statutes. In Musser v. Christie, 131 Md.App. 200, 748 A.2d 1027 (2000), mom left her child with maternal grand- mother and disappeared for some days. Evidence was presented in a domestic vio- lence proceeding which showed that this abandonment was a frequent occurrence and both of the mother’s parents, them- selves long-since divorced, testified that mom was an alcoholic. The Court of Special Appeals reasoned,


The trial judge found two of the definitions of “abuse,” which are set forth in the FL article, applicable in this case. By using the definition set forth in FL section 4-501(b)(ii), he found that Ms. Musser had commit- ted “an act that places a person eligible for relief in fear of serious bodily harm.” The trial judge said that this finding was based upon “clear and con- vincing evidence.”


The court, as


mentioned earlier, based that conclu- sion on two findings: (1) that Jessica had been “left for days” in Mrs. Christie’s care without any contact from the respondent and (2) that Ms. Musser later violated the court’s ex parte order. Although there was un- disputed evidence to support both factual findings, those findings simply do not support the court’s ultimate conclusion.


As far as is shown by the evidence,


Jessica is an intelligent, healthy child whose alcoholic mother has shifted onto the shoulders of the maternal grandparents a good portion of the


Trial Reporter


work normally associated with the task of raising a child. As irresponsible as her actions were, there was not a scin- tilla of evidence presented that proved, or even suggested, that any act of Ms. Musser placed Jessica “in fear of im- minent serious bodily harm.”


Musser at 205-206. The other pertinent case clarifies the corporal punishment exception. James W. Taylor was tried in 1994 on five counts of child abuse or common law assault and battery. In State v. Taylor, 347 Md. 363, 701 A.2d 389 (1997), the Court of Ap- peals reaffirmed the language of Bowers v. State, 283 Md. 115, 389 A.2d 341 (1978) which distinguished child abuse from corporal punishment: Long before the advent of contem-


porary child abuse legislation, it was a well-recognized precept of Anglo- American jurisprudence that the par- ent of a minor child or one standing in loco parentis was justified in using a reasonable amount of force upon a child for the purpose of safeguarding or promoting the child’s welfare. So long as the chastisement was moder- ate and reasonable, in light of the age, condition and disposition of the child, and other surrounding circumstances, the parent or custodian would not in- cur criminal liability for assault and battery or a similar offense. On the other hand, where corporal punishment was inflicted with ‘a ma- licious desire to cause pain’ or where it amounted to ‘cruel and outrageous’ treatment of the child, the chastise- ment was deemed unreasonable, thus defeating the parental privilege and subjecting the parent to penal sanc- tions in those circumstances where criminal liability would have existed absent the parent-child relationship. Put another way, a parent was not per- mitted under the common law to resort to punishment which would ex- ceed ‘that properly required for disciplinary purposes’ or which would extend beyond the bounds of modera- tion. ‘Excessive or cruel’ conduct was universally prohibited.


Bowers v. State at 370-371. The case arose because Mr. Taylor opposed the consoli- dation of five separate allegations of abuse or battery into one trial as prejudicial. The court ruled that the prior bad acts as to each count were admissible to show mal- ice and intent under the exception to Maryland Rule 5-404(b).


(Continued on page 22) Winter 2003


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