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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND

No. 25 September Term, 2009

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

Wright, Graeff, Alpert, Paul E. (Retired, Specially Assigned), JJ.

Opinion by Alpert, J.

Filed: October 1, 2010

After the Anne Arundel County Department of Social Services ("DSS"), appellee and cross-appellant, found "indicated" child sexual abuse by S.B., appellant and cross-appellee,1 against his girlfriend's five and seven year old sons, an administrative law judge (ALJ) changed that finding to "unsubstantiated." The Circuit Court for Anne Arundel County denied DSS's motion to dismiss Mr. B.'s petition for judicial review on timeliness grounds and affirmed the ALJ's decision. Mr. B. appeals, arguing that the evidentiary record requires that the allegations of abuse must be designated as "ruled out" and that the ALJ erred in relying on the children's hearsay statements.2 DSS counters that there is substantial evidence to support the ALJ's

As a measure of privacy, we have used initials and first names to identify appellant and cross-appellee, as well as the children and their family members.
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We have restated and consolidated Mr. B.'s questions, which he presented as

follows: I. Whether the tender years statutory procedure denied the appellant of the Confrontation Clause. U.S.C.A. Const. Amend. 6; West's Ann. Md. Code, Criminal Procedure 11-304. II. Whether the [local department] failed in [its] burden to prove [its] case through production of witnesses and evidence that conform to the state and federal constitutions. III. Whether the Office of Administrative Hearings [OAH] correctly assessed the factors used for guidance from Montgomery County Department of Health & Human Services v. P.F., 137 Md. App. 243, 273, 768 A.2d 112, 129 (2001) ("P.F.") IV. Whether the lower Court erred in affirming the Administrative Decision to find the Appellant of "Unsubstantiated" child sexual abuse.

decision that the allegations of child sexual abuse are "unsubstantiated" rather than "ruled out" and that the ALJ properly evaluated, admitted, and relied upon the children's hearsay statements. In a cross-appeal, DSS alternatively argues that the circuit court erred in failing to dismiss Mr. B.'s petition for judicial review, because it was filed two days after the thirty day deadline. Although Mr. B.'s challenges to the ALJ 's decision lack merit, ultimately we conclude that his petition for judicial review should have been dismissed as untimely. FACTS AND LEGAL PROCEEDINGS These proceedings involve a divided family engaged in a custody tug-of-war over three young boys. In October 2006, Mr. B. was living with J.M. ("Mother") and her sons Kyle (born August 28, 2001), Tyler (born June 23, 1999), and Michael (born November 15, 1997) (the "Children"). Although Mr. B. is not the boys' biological father, they called him "Daddy." The Children had previously lived with their Mother in the home of her mother, B.L. ("Grandmother'), both when B.L. was living with her current husband D.L. ("StepGrandfather") and, before they divorced in 2000, when she lived with her former husband, G.M. ("Grandfather").3 The family schism is between Mr. B. and Mother, on the one hand, and Grandmother, Grandfather, and Step-Grandfather on the other hand.

V. Whether the lower Court erred in determining that the [OAH] decision was not "arbitrary" Natural Resources v. U.S., 966 F.2d 1291, 97, (9th Cir. `92) Grandmother and Grandfather divorced in 2000. Until then, Michael and Tyler lived with Mother at the grandparents' residence. After the divorce and Kyle's birth, the Children and Mother lived with Grandmother and Step-Grandfather, although Grandfather continued his active role in their lives. 2
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After reviewing the administrative record, the circuit court gave the following account of the abuse allegations, DSS investigation, and administrative proceedings: At the conclusion of an August 26, 2006 outing with the Children, Grandfather and Grandmother refused to take the Children to Mother. They did so because, during the outing, the children made statements leading them to believe that Mr. [B.] had sexually abused them. At the time, Kyle was 4, Tyler was 7, and Michael was 8. When Grandparents refused to return the Children, Ms. [M.] called the police. Grandmother told the police about her concerns. The police, in turn, contacted the Anne Arundel County Department of Social Services ("DSS"), which then began an investigation. On August 28, 2006, the DSS assigned Rashida Sims to investigate the allegations. Ms. Sims interviewed the Grandparents, Step-Grandfather and the Children. During those interviews, Grandparents and Step-Grandfather relayed statements made by the Children stating that Mr. [B.] had engaged in sexual activities with Kyle and Tyler. Kyle and Tyler substantiated what the Grandparents told Ms. Sims; Michael maintained he was never sexually abused and was unaware of what happened to Kyle and Tyler. . . . On November 16, 2006, the DSS notified Mr. [B.] that it found him to be a person allegedly responsible for indicated child neglect. Mr. [B.] was also informed that he had a right to request a contested case hearing to challenge DSS's decision. On December 1, 2006, Mr. [B.] requested such a hearing. On March 20 and 28, 2007, a contested case hearing was held at the DSS office in Annapolis, Maryland, before ALJ Ann C. Kahinde. At the start of the hearing, Mr. [B.] counsel moved to withdraw his appearance; Mr. [B.] agreed, and proceeded pro se.

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On May 14, 2007, the ALJ issued a written decision based on the following findings of fact: 7. The maternal grandfather told Ms. Sims that after the [August 26, 2006] outing, he was driving Michael home and the maternal grandmother was driving Tyler and Kyle. The maternal grandmother called him on his cellphone and said that Tyler had told her that, "daddy plays with my bird and makes it big and Kyle, too." . . . 10. Ms. Sims also met with the maternal grandmother at the maternal grandfather's home on August 28 [2006]. [The maternal grandmother] said that in early August [2006], she told one of the boys to wrap a towel around his waist after changing out of a swimsuit and he stated, "let me show you what daddy does." 11. The maternal grandmother told Ms. Sims that on August 26, 2006, she asked the boys about daddy touching them, and Tyler made a statement that "daddy licked his butt." 12. On August 30, 2006, Ms. Sims and a detective interviewed all three children separately at the Child Advocacy Center. . . . All three boys refer to the penis as "bird." 13. Ms. Sims asked Kyle about touches he liked and does not like. Kyle said he did not know and shrugged his shoulders. Ms. Sims asked him if he was touched in a way that he did not like and Kyle said "yes." Ms. Sims asked Kyle who did the touching and he said "Daddy." He was asked where on his body and Kyle pointed to the "butt" on the picture. Ms. Sims asked Kyle what he was touched with and he responded a "hand." 14. In response to Ms. Sims's questions, Kyle told her that the touching had happened on more than one occasion and that sometimes Michael was home and Tyler sees it happen. Kyle also told Ms. Sims that it happens in the home where daddy works "down in the basement, it is all painted down there." Kyle told Ms. Sims he did not know where on his body he was touched. 4

15. In the same interview, Kyle initially told Ms. Sims that he was not asked to touch his daddy. Later, he told Ms. Sims that his daddy asked him to touch his (his daddy's) bird and he touched his daddy's bird. 16. [Mr. B.] and his father own another house down the street from where he lives with the children's mother. [Mr. B.] and his father have gutted the property and are renovating it. . . . The walls of the basement were unpainted cinderblock. 17. Ms. Sims and the detective then interviewed Tyler. After talking about other types of touches, Ms. Sims asked Tyler if he had been touched on his butt or his bird or if he had been asked to touch anyone else. Tyler responded "no." Ms Sims said, "mom-mom [maternal grandmother] said something happened that you didn't like, is that true?" Tyler stated, "dad made his bird big and then that stuff and then he put it in me and Kyle's butts, we were crying." Ms. Sims asked Tyler how he knew that his daddy put his bird in his butt? Tyler said his dad tells him to turn over and he spits on his bird and "on our butts" and "then he rubs his bird on it." 18. Tyler also told Ms. Sims that [Mr. B.] went into a closet "to make his bird big." Tyler stated there is a television with a blue screen or video camera in the closet. 19. Ms. Sims inspected the inside of the home where [Mr. B.] and the mother of the children reside. Ms. Sims did not find a television or video camera in any of the closets. . . . 21. On August 30, 2006, Ms. Sims and the detective interviewed the maternal grandfather, the maternal grandmother, and the step-grandfather. 22. The step-grandfather told Ms. Sims that the children were at their house in early August swimming in the pool. The stepgrandfather was accidentally hit in the private area with the ball and Tyler said, "play with it and make white stuff come out." The step-grandfather asked Tyler where he got that from and Tyler said "daddy on his bed." The step-grandfather contradicted Tyler and Kyle and said, "yup he did." 5

23. The maternal grandmother told Ms. Sims that she and her husband tried to figure out where the statements came from and she asked Tyler and Kyle on August 26, 2006, if their daddy ever touched them. She said Kyle told her "yes" that his daddy put his bird in his mouth. 24. On August 31, 2006, Ms. Sims met with [Mr. B.] and the children's mother. The children's mother told Ms. Sims she has found the children playing with each other's bird in the bathtub. She alleged inappropriate sexual activities by her father (nude parties, nude swimming, allowing her children to view inappropriate movies and go to adult stores) and that the children were banned from the public library after they visited pornographic sites on the computer because the maternal grandfather was not properly supervising them. . . . . 25. On September 11, 2006, the boys were examined by a forensic pediatrician. There were no physical findings to establish trauma to the anus or penis of the three boys. Cultures were taken to test for sexually transmitted diseases; the cultures were negative. . . . 30. On October 12, 2006, Ms. Sims interviewed Tyler at his school. Ms. Sims told Tyler that it was suggested he had been told what to say in his interview, exposed to sexually inappropriate content, taken to sex stores and R-rated movies. Tyler denied that these things were true and said what he had said about his dad [was] true. 31. On October 12, 2006, Ms. Sims also interviewed Kyle at his school. Ms. Sims told Kyle that it was suggested he had been told what to say in his interview, exposed to sexually inappropriate content, taken to sex stores and R-rated movies. Kyle responded several times, "I don't know." 32. On October 12, 2006, Ms. Sims also interviewed Michael at his school. Michael was upset when he saw Ms. Sims. His mother had told him the day before that she would call Ms. Sims and have the three boys placed in a non-relative's home. Ms. Sims asked Michael about sexual interactions and he denied ever touching his brother's privates. Michael said it was true 6

that he and his brothers were not listening or following his mother's directions. Michael denied being taken to R-rated movies or being asked to leave the library. On the basis of these factual findings, the ALJ changed the finding of "indicated" child sexual abuse to "unsubstantiated." The ALJ reviewed the evidence in detail over eight pages of her written decision, making the following observations:

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