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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 01835 September Term, 2011

B. H. v. ANNE ARUNDEL COUNTY DEPARTMENT OF SOCIAL SERVICES

Zarnoch, Matricciani, Thieme, Raymond G., Jr. (Retired, Specially Assigned), JJ.

Opinion by Matricciani, J.

Filed: December 21, 2012

On April 23, 2010, the Anne Arundel County Department of Social Services ("DSS") received a report of alleged child abuse by B. H., appellant, against his minor child, Brayden. Police officers responded, and B. H. was charged with Child Abuse in the Second Degree, Assault in the Second Degree, and Reckless Endangerment. All charges were placed on the STET docket1 on September 3, 2010. On April 27, 2010, DSS began a civil investigation. The investigation concluded on July 30, 2010, finding that child abuse was indicated as defined in the Family Law Article and by its corresponding COMAR sections. B. H. appealed from that finding and on December 21, 2010, a hearing took place before an Administrative Law Judge ("ALJ"). The ALJ found that DSS met its burden in proving indicated child abuse. B. H. appealed that decision to the Circuit Court for Anne Arundel County. In a memorandum opinion docketed October 4, 2011, the circuit court upheld the ALJ's decision. B. H. noted a timely appeal to this Court on October 25, 2011. Q UESTIONS P RESENTED B. H. presents three questions for our review which we have rephrased and combined for clarity as:2

"A stet in Maryland is a method of placing an indictment or criminal information in a state of suspended animation into which new vitality may be breathed through either prosecutorial or defense resuscitation." State v. Weaver, 52 Md. App. 728, 729 (1982). "The entry of a stet in a criminal case simply means that the State will not proceed against an accused on that indictment at that time." Smith v. State, 16 Md. App. 317, 323 (1972).
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The questions as presented by B. H. are: (continued...)

1. Did the Administrative Law Judge draw an erroneous conclusion of law or fail to base her decision on substantial evidence when upholding a DSS finding of indicated child abuse? For the reasons that follow, we answer no and uphold the decision of the Administrative Law Judge. F ACTUAL AND P ROCEDURAL H ISTORY On the evening of April 22, 2010, B. H. prepared a meal for himself and his two minor children. B. H. made spaghetti with a sauce containing mushrooms. Brayden, B.

(...continued) (1) Maryland law requires that prior to the admissibility of statements from a young child, the finder of fact must conduct an examination and determine whether the child possesses the capacity to observe, understand, recall and relate the events that occurred and that the child also possesses the duty to tell the truth. Did the Administrative Law Judge err by admitting into evidence statements of a four-year-old child without conducting the requisite examination and when DSS failed to establish the necessary foundation required to admit such statements? (2) Maryland law requires that the Administrative Law Judge make specific findings of fact to justify a finding of indicated child abuse and to ensure that those findings of fact are supported by credible evidence. Did the Administrative Law Judge err by failing to make a specific finding of fact to establish that the location, nature or extent of the four-year-old child's alleged injury injured the child or placed the child at a substantial risk of harm and by accepting the version of events as set forth by a four-yearold witness over the events set forth by his eleven-year-old sister and the in-person testimony of the [a]ppellant? (3) Maryland law allows a parent to use reasonable physical discipline, so long as it is a moderate exercise of domestic authority. Did the Administrative Law Judge err in upholding the finding of indicated child abuse when the [a]ppellant utilized reasonable physical force to ensure that his four-year-old child returned to the dinner table to eat dinner?

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H.'s four-year-old son, refused the food because he disliked mushrooms. B. H. responded by informing Brayden that if he did not finish his dinner, he would not get dessert and he would be unable to go outside to play with his friends. Brayden then left the table. B. H. returned Brayden to his seat and told him that his presence at dinner was required while B. H. and his eleven-year-old daughter, Brianna, finished eating. Brayden resisted and B. H. held Brayden by the arm to ensure his attendance at the dinner table. Because B. H. and Mrs. H.3 shared custody of the children, she picked them up from school on the afternoon of April 23, 2010. Once home, Mrs. H. found several bruises on Brayden's neck and a scratch under his chin. That day, Mrs. H. brought Brayden to his pediatrician. The pediatrician documented the injuries discovered by Mrs. H. The pediatrician's office referred the matter to DSS on the evening of April 23, 2010. DSS contacted the police, and on the morning of April 24, 2010, Officer Laura Witherspoon, of the Anne Arundel County Police Department, joined by Officer Josh Ingerebretson, of the Annapolis Police Department, investigated the claim. Although Officer Ingerebretson was present, Officer Witherspoon conducted the investigation and completed the Application for Statement of Charges.4

B. H. and Mrs. H. were going through a divorce during the course of these events. The divorce was granted ultimately, but we shall continue to refer to Brayden and Brianna's mother as Mrs. H for the sake of clarity. The actual charging document is not part of the record on appeal. Case Search revealed charges of Child Abuse in the Second Degree, Assault in the Second Degree, and Reckless Endangerment. -34

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In the presence of Mrs. H., Officer Witherspoon questioned Brayden about his injuries. Officer Witherspoon testified that Brayden informed her "his father had grabbed him by--around his neck and had pulled him down and that he had also somehow bruised his arm in the process of--of either falling or hitting it on something." Officer Witherspoon charged B. H. with three offenses: Child Abuse in the Second Degree, Assault in the Second Degree, and Reckless Endangerment. All charges were placed on the STET docket on September 3, 2010. DSS assigned social worker Lauren Askew to conduct a civil investigation into the incident on its behalf.5 On April 27, 2010, Ms. Askew interviewed Brayden, Mrs. H., and Brianna. The investigation resulted in Ms. Askew finding indicated child abuse. B. H. appealed that finding to an ALJ and a hearing was held on December 21, 2010. At the hearing, Ms. Askew testified to the contents of her interviews. She testified that Brayden told her "his dad tried to make him eat the mushrooms that was [sic] in the spaghetti sauce and that he did not like them." Further, she testified "[s]o he tried to run away from the table. Brayden said that he hurt his elbow by hitting it on the wall while he was running away from dad, at which point dad grabbed him by his neck and brought him

The investigation culminated in a finding of indicated child abuse. B. H. appealed from that finding, resulting in a hearing before an ALJ on December 21, 2010. Ms. Askew testified at that hearing to the statements made to her by the persons she interviewed during the investigation. The references to Ms. Askew's testimony are to that given during the December 21, 2010 hearing. The minor children did not testify at the hearing. -4-

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back to the table." Mrs. H. confirmed this account. Ms. Askew testified to her conversation with Mrs. H., saying "she said that Brayden said that the incident happened, because he refused to eat his mushrooms and that he had hit his elbow on the table, and his dad had held him down to force him to eat the mushrooms." Brayden told Mrs. H. that, in the words of Ms. Askew, "his dad [] held him down to force him to eat the mushrooms." Brianna provided the following account, testified to by Ms. Askew: Brianna told me that they were at dad's house eating spaghetti and that her brother did not want to eat the mushrooms and that dad had told him that he had to eat the mushrooms or that he would not go outside and play if he did not eat them. At which point, Brayden got up from the table and tried to run, but dad grabbed him and picked him up by the arm and place [sic] him back at the table. Brianna went on, as Ms. Askew testified, "[d]ad had put the mushrooms in Brayden's mouth, and Brayden spit the mushrooms out on the floor, because he did not like them and started to cry." Ms. Askew interviewed B. H. on April 29, 2010. He provided a substantially similar narrative. Ms. Askew testified "[h]e stated that Brayden did try to exit the table, but he picked Brayden up from under his arm and carried him back to the table and told him to sit there." B. H. testified directly that after dinner "we watched TV downstairs . . . then we went upstairs, and [the kids] wanted to snuggle on daddy's bed, so I let them . . . I read Brayden a book . . . and then I took them both to their beds." When asked about

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whether B. H. intended to injure Brayden, Ms. Askew agreed that "the intention of Mr. H[] at that point was to have his son eat mushrooms." 6 Ms. Askew's investigation resulted in a finding of indicated child abuse as defined in the Family Law Article and by its corresponding regulations. Abuse means: the physical or mental injury of a child by any 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, under circumstances that indicate that the child's health or welfare is harmed or at substantial risk of being harmed. M D. C ODE A NN., F AM. L AW

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