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Wicomico County Department of Social Services v. B.A.

Court of Appeals of Maryland

July 12, 2016


         Circuit 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), JJ.


          McDonald, J.

         Under 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."

         In this 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.

         On the 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 statutory definition.



         A. Statutory Framework

         The law 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).[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 provides:

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 fondling;
(ii) Sexual crime in any degree including rape, sodomy, or prostitution;
(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.


         When a 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

         When 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 The individual or local department may seek judicial review of the ALJ's decision in accordance with the APA. SG §10-222; COMAR

         Under 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.

         The 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 definitions.[2]

         B. Facts

         The pertinent facts, as they appear in the administrative record, are uncontested.[3] Respondent B. A.[4] 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.

         In 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.

         Around 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.

         According 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.

         The ALJ 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.

         C. Procedural History

         Investigation and Finding

         On 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.

         Administrative Hearing

         Mr. A. 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.[5]

         The ALJ 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, the ALJ ordered the Department to modify the finding of "indicated" abuse to "ruled out."[6]

         Judicial Review

         The 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.

         The 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.

         Following 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 "temporary care"?
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?

         The parties filed supplemental briefs and additional oral argument was held on those questions.



         A. Standard of Review

         "When 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.

         B. Sexually Exploitative Conduct with a Child

         Our 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 18.[7] 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 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 notes).

         C. Caretaker Status

         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.

         Caretaker Status and Temporal Breaks

         The 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.

         This 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, ...

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