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blacked out. Thus, witnesses with excul- patory information do not have to provided to the Appellant. The Appel- lant is not afforded the opportunity to depose these witnesses or to investigate their credibility nor is the Appellant privy to any the information given by these witnesses before trial. Because of this regulation completely depriving the Ap- pellant of discovery, the local department is put in the position of possessing all the relevant information and the Appellant none. The counter-argument given by the Department of Social Services is that the person designated to be labeled an abuser can review the redacted record and “fig- ure out” who is who since they are presumably familiar with the facts of what happened. For obvious reasons, this is not always true.


Legality of redaction of the record In addition to elimination of discov-


ery the regulations add insult to injury by limiting access to the few documents the Appellant is actually entitled to. The “record” that the Appellant is entitled to is redacted by the agency. Originally, the record was at least redacted by the admin- istrative law judge assigned to the case. The discovery issues become particu- larly disturbing when considering Montgomery County Department of Health and Human Services3


v. P.F., 137 Md. App.


243 (2001). In this case a father faced being listed on the child abuse registry for based solely on the statements of his three- year-old daughter and his ex-wife. Despite inconsistent statements by both the daughter and the ex-wife the social worker made a determination that child abuse was indicated and recommended that the father be placed on the registry. In P.F. the child had asked her father if he was “going to tickle her pee-pee.” The father told his therapist who then reported the statement to MCHHS and an inves- tigation on alleged sexual abuse ensued. During the investigation the child made a statement that her mother had hurt her “pee-pee” while giving her a bath. The child’s statement about her mother was deemed unreliable by the investigator but the statement by the child that her father stuck his finger in her “pee-pee” while carrying her, fully clothed, in inclement weather, in public, outside a McDonald’s was deemed reliable.


3


Under the State Code, the Montgomery County Department of Health and Human Services has supplanted the local county Department of Social Services.


Winter 2003


The mother also made inconsistent statements but the investigator deemed her credible. The Court found it evident that the investigator made her finding that abuse was “indicated” based on her cred- ibility assessments of the child, the mother and the father rather than on the facts of the case. The ALJ in P.F. rejected MCHHS’ determination and found child abuse “ruled-out” and ordered that the father’s name be expunged from all records. MCHHS appealed to the Cir- cuit Court arguing that the ALJ erred by focusing on her own determination of the child’s credibility rather than the “expert opinion” of the social worker. The Cir- cuit Court rejected MCHHS’s “expert opinion” argument as amounting to a de- mand that the social worker’s opinion be treated “as conclusive on both the cred- ibility and the ultimate fact finding issues that are properly reserved for the fact finder.”


MCHHS the appealed to the Court


of Special Appeals, their position being summarized in the opinion as the follow- ing, “that the ALJ had to consider its expert’s opinion as “credible evidence” of child abuse even when it is clear that the opinion was predicated upon what the ALJ determined was an unreliable out of court statement by a three year old. According to MCHHS, as long as it presents its expert to testify that she believed the child’s statement, then the ALJ could not make a finding of ‘ruled-out.’” Fortunately for the father in this case


the Court found that, while the child’s hearsay statement was admissible, it does not mean that the ALJ was required to give it the same weight that MCHHS at- tached to it. In fact, the Court stressed that the ALJ was the finder of fact and is charged with drawing her own inferences and conclusions from the child’s reported statement.


The system appears to have worked in


P.F. However, most cases are not always as clear. In many cases investigators speak to several people as well as medical ex- perts and/or teachers or counselors. None of the investigation is divulged to an ac- cused abuser by way of names of people interviewed or information that may fall in favor of the accused. All the names in the report are redacted and the investiga- tor can choose what he/she wishes to write in the report, all other records are kept sealed even from the defendant. Addi- tionally the defendant has a particularly difficult burden in calling the child as a witness in his/her case.


Trial Reporter Admissibility of hearsay Any frequent practitioner in adminis-


trative law proceedings recognizes the admissibility of hearsay evidence. COMAR 28.02.01.18.(C). In allowing that hearsay, certain procedural due pro- cess requirements must be met. One of those requirements is the opportunity of the accused to confront the witnesses against him/her. The Sixth Amendment right of an accused to confront the wit- nesses against him is a fundamental right and is made obligatory on the states by the Fourteenth Amendment. Pointer v. State of Tex., 85 S.Ct. 1065, 380 U.S. 400, 13 L.Ed.2d 923, mandate conformed to 391 S.W. 2d 62. The Pointer decision found that use of a transcript of a wit- ness’ testimony in a preliminary hearing was a denial of Sixth Amendment rights. Maryland has also determined that, while administrative hearings have their own procedures and do not adhere to for- mal evidentiary and procedural rules, those hearings can not be held in a fash- ion that violates due process guarantees. The Court in Tron v. Prince Georges County quoting Comm’n on Medical Dis- cipline v. Stillman, 291 Md. 390, 422, 435 A.2d 747 (1981) stated:


While administrative agencies are not bound to observe the “technical com- mon law rules of evidence,” they are prevented from doing so as long as the evidentiary rules are not applied in an arbitrary or oppressive manner that deprives a party of his right to a fair hearing. Id. at 262.


(Continued on page 24) 23


Ultimately the result of all the “secrecy”


in the investigation and discovery phase of these cases is that the local department is actually in the position of being the “credibility expert,” despite Maryland’s long held rule that testimony from a wit- ness relating to the credibility of another witness is to be rejected as a matter of law. Bohnert v. State, 312 Md. 266. By virtue of the fact that the defendant arrives at the hearing with very little information and no ability to meaningfully cross-ex- amine the witnesses, the ALJ is often left only with the word of the local department’s social worker. In most cases the alleged victim is not allowed to testify for either party, but the social worker can testify as to what the victim told her dur- ing the investigation–the credibility of the witness is filtered through the view of the social worker who may or may not be completely forthcoming with information that may exonerate the defendant.


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