Court for Wicomico County Case No. 22-C-12-001286
Argued: June 3, 2015
Reargued: December 3, 2015
Barbera, C.J. [*] Battaglia Greene Adkins McDonald
Watts Harrell, Jr., Glenn T. (Retired, Specially Assigned),
the State's Child Abuse and Neglect Law, local
departments of social services are charged, along with law
enforcement, with investigating allegations of child abuse.
At the conclusion of an investigation, the department is to
determine whether child abuse is "indicated, "
"ruled out, " or "unsubstantiated." The
department may make a finding of indicated child sexual abuse
if, among other things, an individual commits an act of
sexual exploitation or molestation against the child while
the individual has "temporary care or custody or
responsibility for the supervision of the child."
case, the Respondent, a martial arts instructor, engaged in
sexually explicit communications by email and telephone with
a 15-year old student who regularly attended his class. All
of this inappropriate behavior occurred outside of class
while the instructor and student were in separate locations,
usually their respective homes. Petitioner Wicomico County
Department of Social Services found that the instructor had
engaged in child sexual abuse under the statute. Following a
hearing, an administrative law judge ("ALJ")
concluded that this finding should be reversed because the
instructor did not have "care or custody or
responsibility for the supervision of" the student when
she was not in his class and there was no evidence of
inappropriate behavior on the instructor's part while the
student was in the instructor's presence – a
decision that the Circuit Court for Wicomico County and Court
of Special Appeals affirmed on judicial review.
record before us, there was substantial evidence to support
the decision of the ALJ and the lower courts. The
instructor's out-of-class behavior was clearly
inappropriate and may have violated some other statute, but
it did not constitute child sexual abuse under the current
defining child sexual abuse and governing the investigation
of allegations of such abuse is set forth in in Maryland
Code, Family Law Article ("FL"), §5-701 et
seq., and in regulations adopted by the Department of
Human Resources pursuant to the statute. Under the statute,
"abuse" includes "sexual abuse of a
child." FL §5-701(b)(2). "Sexual abuse"
is defined, in pertinent part, as "any act that involves
sexual molestation or exploitation of a child by a parent or
other person who has permanent or temporary care or custody
or responsibility for supervision of a child ...." FL
§5-701(x)(1). Examples of acts that involve sexual
molestation or exploitation of a child, such as human
trafficking or rape, follow in the next statutory provision.
FL §5-701(x)(2). This list is not exhaustive. See
Crispino v. State, 417 Md. 31, 44-46, 7 A.3d 1092
(2010). The Department's regulations elaborate that
"sexual molestation or exploitation" means
"sexual contact or conduct with a child" and
includes a list of examples. The pertinent regulation
Sexual Molestation or Exploitation.
(a) "Sexual molestation or exploitation" means
sexual contact or conduct with a child.
(b) "Sexual molestation or exploitation" includes,
but is not limited to:
(i) Exposure, voyeurism, sexual advances, kissing, or
(ii) Sexual crime in any degree including rape, sodomy, or
(iii) Allowing, encouraging, or engaging in obscene or
pornographic display, photographing, filming, or depiction of
a child in a manner prohibited by law; or
(iv) Human trafficking.
local department of social services receives a report of
child abuse, it (or appropriate law enforcement agency, or
both) must investigate. FL §5-706(b). Possible civil
outcomes of the investigation are: (1) abuse is
"indicated, " meaning "a finding that there is
credible evidence, which has not been satisfactorily refuted,
that abuse, neglect, or sexual abuse did occur"; (2)
abuse is "ruled out, " meaning "a finding that
abuse, neglect, or sexual abuse did not occur"; or (3)
abuse is "unsubstantiated, " meaning "a
finding that there is an insufficient amount of evidence to
support a finding of indicated or ruled out." FL
§5-701(m), (w), (y). The Department's regulations
elaborate on the evidence – or lack thereof –
that supports each of those findings. See COMAR
the local department makes a finding of "indicated"
or "unsubstantiated, " the department must inform
the individual alleged to have abused the child of the
finding, and the individual may request a contested case
hearing under the State Administrative Procedure Act
("APA"), Maryland Code, State Government Article
("SG"), §10-201 et seq. See FL
§5-706.1; COMAR 07.02.26. The ALJ may uphold the local
department's finding or modify it. COMAR 07.02.26.14. The
individual or local department may seek judicial review of
the ALJ's decision in accordance with the APA. SG
§10-222; COMAR 07.02.26.14F.
this statute, the local department keeps records of
individuals who have been found responsible for
"indicated" child abuse, or for
"unsubstantiated" child abuse for a specified
period of time, but no further consequences necessarily
follow. See FL §§5-707, 5-714.
definitions of child abuse in the Family Law Article are
similar to those that appear in the statute that creates
criminal liability for child neglect and abuse. See
Maryland Code, Criminal Law Article ("CR"),
§3-601 et seq. For example, criminal child
abuse, which can be in the first or second degree depending
on its severity, is abuse committed by a "parent, family
member, household member, or other person who has permanent
or temporary care or custody or responsibility for the
supervision of a minor." CR §3-601(b)(1), (d)(1).
This criminal provision thus uses the same phrase as the
civil provision in the Family Law Article: a "person who
has permanent or temporary care or custody or responsibility
for the supervision of a minor." This is unsurprising,
as the civil and criminal provisions originated as parts of
the same statute with the same set of
pertinent facts, as they appear in the administrative record,
are uncontested. Respondent B. A. is an instructor at a
martial arts school in Salisbury. He has been a friend of the
family of V. K., since before Ms. K.'s birth in 1995. Ms.
K. took martial arts instruction from Mr. A. as a small child
and, after a break, resumed taking classes with him regularly
in October 2010 when she was 15 years old. During these
classes, according to Ms. K., Mr. A. was "really
friendly" to Ms. K. She testified that Mr. A.
"spen[t] more time with [her] than with everybody else,
" and he spoke with her after class about her
"personal life" and "how [she] was
doing." He referred to her as "Sunlight, " a
pet name that only he used for her.
November 2010, Ms. K. missed class due to illness, and Mr. A.
texted her to ask how she was doing. He added that the class
missed her and that he hoped that she felt better. After
this, the two of them continued to exchange texts, at first
occasionally but over time with increasing frequency. Around
February 2011, they also began to exchange emails. They
created email addresses that did not identify themselves by
name and that they used to communicate only with each other.
Ms. K.'s 18-year old boyfriend, D. P., also had access to
Ms. K.'s account.
February and March 2011, their conversations turned
increasingly to sexual topics. By email, Mr. A. sent Ms. K.
pictures of erotically posed women and told her that he would
like her to pose for pictures, but she declined to do so. Ms.
K. testified that she and Mr. A. had several telephone calls,
including one in which he said that he wanted to teach her a
martial arts kick in class that would cause her to lift her
leg onto a railing so that he could "slyly touch [her]
vagina." In telephone calls and in emails, he told her
that he existed on a spiritual plane and that if she
"felt anything, " he was having sex with her on the
spiritual plane. In another telephone call, which Ms. K. said
lasted approximately five hours, Mr. A. said that he was
"hard" and that he wanted to have sex with her. She
testified that they spoke again by telephone the next morning
and he told her that he was touching himself. On several
occasions, he invited her over to his house, nominally to
"work off" the price of her gi (a martial arts
uniform) by helping him with gardening or other chores, but
she declined to go. During February and March 2011, Mr. A.
expressed concern that others would not understand their
relationship and that Ms. K. should delete the messages that
he sent to her.
to Ms. K., they continued to correspond in much the same vein
until May 2011. Around May 19, 2011, Ms. K. showed her
boyfriend a message from Mr. A. that said that the boyfriend
was not good enough for Ms. K. About two weeks later, the
boyfriend confronted Mr. A. in his office at his martial arts
studio, with Ms. K. present. According to the boyfriend, Mr.
A. alternately apologized for, attempted to excuse, and
denied the inappropriate communications with Ms. K. After
that confrontation, Mr. A. continued to communicate with Ms.
K. outside of class, but he did so with declining frequency
and without sexual content. At some point in 2011, Ms. K.
attempted to switch out of Mr. A.'s class and by
November, she was no longer in his class.
found that none of the sexually inappropriate conduct
occurred during class. In class, Mr. A. did not touch or
speak to Ms. K. in a sexual manner. She reported that he
touched her hips with his hands at least once to help her
with a position, but did no more.
November 3, 2011, the Wicomico County Department of Social
Services ("Department") received a report that Mr.
A. had sent Ms. K. sexually explicit text messages and
emails. On November 4, 2011, Amy Giordano, an experienced
investigator for the Department, conducted recorded
interviews with Ms. K. and her boyfriend about the
allegations. Detective John Seichepine assisted in the
investigation and obtained copies of some of the email
exchanges between Mr. A. and Ms. K. and copies of their
telephone records. Through his attorney, Mr. A. declined to
be interviewed by the investigators. On January 6, 2012,
after completion of the investigation, the Department,
through Ms. Giordano, found Mr. A. responsible for indicated
child sexual abuse based on the out-of-class communications.
requested a hearing. On June 12, 2012, the ALJ held a
contested case hearing. At the hearing, Mr. A.'s attorney
argued that nothing inappropriate occurred while Ms. K. was
under the care of Mr. A. at the martial arts school and that
the sexually explicit communications recounted by Ms. K.
occurred by telephone or electronically during off-hours when
she was in her own home. The Department's representative
conceded that there was no actual sexual contact, but argued
that the abuse lay in Mr. A.'s "grooming" of
Ms. K. during the period he was her instructor.
issued a decision on July 20, 2012. The ALJ found that it was
undisputed that Mr. A. had inappropriate "sexually
exploitive" communications with Ms. K. However, the ALJ
noted that there was a clear temporal break between the
instructor-student relationship of Mr. A. and Ms. K. at the
martial arts studio and the inappropriate sexually explicit
communications that took place when they were not physically
together. Accordingly, the ALJ concluded, Mr. A. did not have
care or custody or responsibility for the supervision of Ms.
K. at the time of the sexually exploitative conduct and thus
did not commit abuse under FL §5-701(x). Pursuant to
COMAR 07.02.26.14D, the ALJ ordered the Department to modify
the finding of "indicated" abuse to "ruled
Department filed a petition for judicial review in the
Circuit Court for Wicomico County. On December 21, 2012, the
Circuit Court held oral argument, and on March 22, 2013, it
affirmed the decision of the ALJ. The Department appealed to
the Court of Special Appeals, which also affirmed the ALJ in
an unreported opinion.
Department then filed a petition for a writ of
certiorari with this Court, which we granted. The
issue presented by the Department in its petition was whether
the Department's original finding could be supported by
"grooming" behavior by Mr. A. during class –
when Mr. A. had responsibility for the supervision of Ms. K.
– in conjunction with the out-of-class communications.
briefing and oral argument on that issue, we requested
supplemental briefing on three questions:
1. In an ongoing instructor-student relationship, can
"temporary care or custody or responsibility for
supervision of a child" pursuant to FL §5-701(x)(1)
be established through remote electronic communications?
2. Can "temporary care" pursuant to FL
§5-701(x)(1) be established without the mutual consent,
expressed or implied, of the one legally charged with the
care of the child and of the one purportedly assuming the
3. Does an instructor who has temporary care or
responsibility for a child on a repeated, ongoing basis,
commit child abuse within the meaning of FL §5-701 by
sexually explicit communications made via texts, telephone
calls or other electronic means to the child, provided there
exists a significant connection between the abusive conduct
and the in-person care or responsibility?
parties filed supplemental briefs and additional oral
argument was held on those questions.
Standard of Review
reviewing the decision of an administrative agency …
we review the agency's decision directly, not the
decision of the circuit court [or the intermediate appellate
court]." Comptroller v. Science Applications
Int'l Corp., 405 Md. 185, 192, 950 A.2d 766 (2008).
Whether conduct permits a finding of indicated child abuse is
a mixed question of law and fact, and we affirm the ALJ's
decision unless it is unsupported by competent, material, and
substantial evidence in light of the entire record as
submitted. Charles County Dep't of Soc. Servs. v.
Vann, 382 Md. 286, 295-96, 855 A.2d 313 (2004). We
afford no special deference, however, to the interpretation
of the ALJ on matters of law. 382 Md. at 295.
Sexually Exploitative Conduct with a Child
task is to review the ALJ's determination that child
sexual abuse should be "ruled out" in this case. As
indicated above, child sexual abuse means "any act that
involves sexual molestation or exploitation of a child by a
parent or other person who has permanent or temporary care or
custody or responsibility for supervision of a child, or by
any household or family member." FL §5-701(x)(1).
There appears to be no question that Mr. A. engaged in
sexually exploitative conduct with a child –
i.e., an individual under the age of
Ms. K. was 15 years old at the time of most of the
communications and turned 16 part way through the relevant
time period. Mr. A. appears to have committed at least one
act enumerated in the definition of "sexual abuse,
" namely encouraging a child to engage in obscene or
pornographic photography or poses. See FL
§5-701(x)(2)(i); COMAR 07.02.07.02B(42)(b)(iii). Other
out-of-class communications between Mr. A. and Ms. K. could
also be characterized as sexually exploitative. Cf.
Walker v. State, 432 Md. 587, 625, 69 A.3d 1066 (2013)
(an adult who passed notes to a child in class exploited her
sexually because "the context and the content" of
the notes was sexual and the adult "received a
benefit" - sexual or romantic pleasure - from the
remaining question is whether Mr. A. fell within the class of
persons covered by the statute at the time of his
inappropriate behavior – i.e., whether he was
a parent, household or family member, or "other person
who has permanent or temporary care or custody or
responsibility for the supervision of a child." FL
§5-701(x)(1). He was not Ms. K.'s parent, nor was he
a household or family member, nor did he have any permanent
responsibility for her. Therefore, the only possibility is
that he was an "other person who has … temporary
care or custody or responsibility for supervision of"
Ms. K. It appears to be undisputed that he did have temporary
responsibility for the supervision of Ms. K. during the time
that she was in his martial arts class. However, the key
question is whether he had such status in relation to Ms. K.
at the time he engaged in sexually exploitative conduct. The
ALJ concluded that he did not – a conclusion affirmed
by the courts below.
Status and Temporal Breaks
resolution of this case depends to some extent on the
construction of the pertinent statutory language –
i.e., what it means to have "temporary care or
custody or responsibility for the supervision of" a
child. As always, we look to the "normal, plain meaning
of the language of the statute." Lockshin v.
Semsker, 412 Md. 257, 275, 987 A.2d 18 (2010). The
statute refers to an "act ... by a ... person who
has ... temporary care or custody or responsibility
for the supervision of a child." FL §5-701(x)(1)
(emphasis added). The present tense indicates that the act
must take place while the person has temporary care
or custody or responsibility for supervision.
Court has previously said that "temporary care or
custody" is equivalent to "inloco
parentis, " a relatively restrictive classification
that "arises only when one is willing to assume all the
obligations and to receive all the benefits associated with
one standing as a natural parent to a child." Pope
v. State, 284 Md. 309, 323, 396 A.2d 1054 (1979)
(quoting Fuller v. Fuller, 247 A.2d 767 (D.C.
1968)). However, ...