Petition for Writ of Certiorari — Cassilly v. Maryland Department of Human Resources
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IN THE
Supreme Court of the Gnited States
OCTOBER TERM, 1989
DEBORAH CASSILLY, in her capacity as
owner and operator of Bo Peep Day Nursery,
Petitioner,
v.
MARYLAND DEPARTMENT OF HUMAN RESOURCES,
MARYLAND DEPARTMENT OF HEALTH AND MENTAL
HYGIENE, HARTFORD COUNTY HEALTH DEPARTMENT,
_~ Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE COURT OF APPEALS OF MARYLAND
MICHAEL D. BARNES*
JAMES P. MERCURIO
JAMES H. HULME
JONATHAN M. MILLER
ARENT, Fox, KINTNER, PLOTKIN
& KAHN
1050 Connecticut Ave., N.W.
Washington, D.C. 20036-5339
(202) 857-6170
Counsel for Petitioner
*Counsel of Record
PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203
yo
QUESTION PRESENTED
In a proceeding to revoke a day care license on the
grounds that young children were sexually abused, is
it a violation of the Due Process Clause for the tri-
bunal to deny the licensee’s motion to have her own
accredited expert interview the children and there-
after base revocation of the license upon the chil-
dren’s out-of-hearing statements and the testimony of
experts for the State who were permitted to interview
the children and interpret their accounts?
ii
TABLE OF CONTENTS
TABLE OF AUTHORS ERS wvcccsnscsssscososcncasssssseossscons
OPINIONS BEAT sccessssoscerssocssccsocessdsampessnctssenssanesss
STATEMENT OF JURISDICTION ..............cccccceseeeees
CONSTITUTIONAL AND STA.UTORY PROVISIONS
INVOLVED ccccccssssscennesvinnnennstninaindsiannnicinmenmbinanibhanten
STATEMENT OF THE GARE cccscscnsscsescocsvoncnssscssosses
REASONS FOR GRANTING THE WRIT ...................
I. THIS PETITION PRESENTS ISSUES SIMILAR
TO THE ISSUES THIS COURT WILL REVIEW
IN IDAHO v. WRIGHT BUT INTRODUCES AD-
DITIONAL ALTERNATIVES. ............ccccecceeeeeees
THE BO PEEP DECISION MISAPPLIES MAT-
THEWS ©. BEaPRAAGED covssiciccsssncsnscnssecssnssesses
II.
A.
B.
The Maryland Court of Appeals Under-
stated the Private Interests At Stake ..
The Maryland Court of Appeals Severely
Misconceived the Risk of Erroneous Re-
sult and the Probable Value of the Pro-
cedures Suggested .........ccscccescsscscsesersesess
. The Maryland Court of Appeals Confused
the Government’s Interest in Efficient Pro-
cedures With the Government’s Interest in
Only Licensing Day Care Centers Where
Children Are Not Sexually Abused ..........
CONCLUSION cccccesccssxssotsessentboninenpniionmmanmennaiianns
iil
13
13
18
18
20
23
25
ili
TABLE OF AUTHORITIES
Page
Ake v. Oklahoma, 470 U.S. 68 (1985) .................02. 18,23
Anderson v. State, 749 P.2d 369 (Alaska App. |
SIE sei hicehindehinhaceudlibassdvedcesbbisenekssbicsiabiésinsnhaxccesese 23
Arnett v. Kennedy, 416 U.S. 134 (1974) .......... 19
Board of Regents v. Roth, 408 U.S. 564 (1972) ..... 19
Coy v. Iowa, 108 S.Ct. 2798 (1988) ...................000. 17
Haggins v. Warden, Fort Pillow State Farm, 715
F.2d 1050 (6th Cir. 1983), cert. denied, 464
Beis cE SIE linnaapernnnstnnasannnnciinistebensessennennes 15
Idaho v. Wright, 775 P.2d 1224, 116 Idaho 382
(1989), cert. granted, 58 U.S.L.W. 3443 (U.S.
Jan. 16, 1990KNo. 89-260) ...........cccccccsscssseevees 13,14
In Re Ruffalo, 390 U.S. 544 (1968) ......... 19 .
Little v. Streater, 452 U.S. 1 (1981)... 18
Maryland v. Craig, 316 Md. 551, 560 A.2d 1120,
1125 (1989) cert. granted, 58 U.S.L.W. 3443-
(U.S. Jan. 16, 1990) (No. 89-478) «0.0.0.0... 17
Mathews v. Eldridge, 424 U.S. 319 (1976) .... 10,18,23,24
Maul v. State Bd. of Dental Examiners, 668 P.2d
i a aeialicahannna 19
Michael H. v. Gerald D., 109 S.Ct. 2333 (1989) ... 24
Morgan v. Foretich, 846 F.2d 941 (4th Cir.
RCS ARETE STS CIES oe ce Oa 15,25
Nelson v. Farrey, 874 F.2d 1222 (7th Cir. 1989),
cert. denied, 110 S.Ct. 835 (1990) ................ 16,17,21
Ohio v. Roberts, 448 U.S. 56 (1980) ...........0.... 14
Pennsylvania v. Ritchie, 480 U.S. 39 (1987) ......... 23
People v. District Court of El Paso County, 776
RE PMI, ROIID seninctscansconsstnncicessnesesssses 15
Perez v. State, 536 So.2d 206 (Fla. 1988), cert. de-
nied, 108 S.Ct. SSBB (19BB) ..........ccccccccsessceeees 15
iv
Table of Authorities Continued
Shively v. Stewart, 65 Cal.2d 475, 55 Cal. Rptr. 217
EE Fe CE teccntninctitetnneenscetatinieinanncinn
Snell v. Commonwealth State Examining Board, 490
Pa. 277, 416 A.2d 468 (1980) ...........cccsccscsssees
State v. Boston, 46 Ohio St. 108, 545 N.E.2d 1220
REUNITE “sdisalacsaiacnapsiedecihics piikkiieenpiaanate teal cai
COUT <imcminininnsallbionbinasnianeienngininebinhamitetuabaasenonss
CEUINED sieniansviensanssinitatepnineuinuieetinisisinuesakanepssnntnes
CREED scchondndiniasninintignbbsatsnsinehiehnbeatnamnaniininlibbiinuses
Turner v. Commonwealth, 767 S.W.2d 557 (Ky.
1988) cert. denied, 110 S.Ct. 260 (1989) ........
United States v. Cree, 778 F.2d 474 (8th Cir.
UE Skctechnaispiciisdilicesiieiaaatliasirelita indian eerie i ig
TUE ynianipiiincsnntianiinibiieninaaaapaiaiamaiiaainemnneiinnnts
Walters v. National Ass’n of Radiation Survivors,
SC II cinipicninenndeiisidesnscnasnnctanesiasiiens
U.S. CONSTITUTION, STATUTES AND
REGULATIONS
U.S. Constitution, Amend. XIV, Sect. 1.0.0...
OTHER AUTHORITIES
Benedek & Schetky, Problems in Validating Alle-
gation of Sexual Abuse. Part i: Factors Af-
fecting Perception and Recall of Events, 26 J.
of the Am. Academy of Child & Adolescent
PIII Rn aE OE
Cantwell, Child Sexual Abuse: Very Young Perpe-
trators, 12 Child Abuse & Neglect 579
GE -echsntsevcastovnctiuicisemasannicianapineeinntiasaninicasianias
Page
19
20
15
15
17
21
Table of Authorities Continued
FINKELHOR, D. et al., SEXUAL ABUSE IN Day CARE:
A NATIONAL StuDy, FINAL REPORT, vii (Uni-
versity of New Hampshire, 1988) ...................
Green & Schetky, True and False Allegations of
Child Sexual Abuse, in CHILD SEXUAL ABUSE:
A HANDBOOK FOR HEALTH CARE AND LEGAL
PROFESSIONALS 104, 108-09 (D. Schetky & A.
Cree, GEE. TG) sanintiinieeeeeieenn
Hutton, Child Sexual Abuse Cases: Reestablishing
the Balance Within the Adversary System, 20
U. Mich. J. Law Reform 491, 505 (1986) ......
James, Child Protection Workers’ Role in Erro-
neous Alegations of Child Abuse, 146 Am. J.
eg BE RE ON
Mantell, Clarifying Erroneous Child Sexual Abuse
Allegations, 58 Am. J. Orthopsychiatry 618
CRIED sescscinsssssisnssesinpiniaiehaeleeae
Spiegel, Child Abuse Hysteria and the Elementary
School Counselor, 22 Elementary School Guid-
ance & Counseling 275, 279-80 (1987) ............
U.S. DEpT. oF HEALTH AND HUMAN SERVICES,
StuDY OF NATIONAL INCIDENCE AND
PREVALENCE OF CHILD ABUSE AND NEGLECT:
ROBE, Gee Cee sdsenstinvicaticccunesne ieee
Yates & Musty, Preschool Children’s Erroneous Al-
legations of Sexual Molestation, 145 Am. J.
PVR TD CEBU wicvccnininscsnsscnsecenensectnsnenss
Page
20,21
= =
«
=
;
wag :
a
IN THE
Supreme Court of the Gnited States
OCTOBER TERM, 1989
No.
DEBORAH CASSILLY, in her capacity as
owner and operator of Bo Peep Day Nursery,
Petitioner,
Vv.
MARYLAND DEPARTMENT OF HUMAN RESOURCES
MARYLAND DEPARTMENT OF HEALTH AND
MENTAL HYGIENE, HARFORD COUNTY
HEALTH DEPARTMENT,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE COURT OF APPEALS OF MARYLAND
OPINIONS BELOW
The opinion of the Court of Appeals of Maryland
is reported as Maryland Department of Human Re-
sources v. Bo Peep Day Nursery, 317 Md. 5738, 565
A.2d 1015, 58 U.S.L.W. 2312 (1989) and is repro-
duced at Appendix la.
The opinion of the Circuit Court for Harford
County, Maryland, is unpublished and is reproduced
at Appendix 36a.
The administrative decisions in this case, including
the final decision of the State of Maryland, Depart-
ment of Health and Mental Hygiene and Department
of Human Resources, the proposed decision of the
Hearing Examiner, and the initial decision of the Har-
ford County Health Department revoking Petitioner’s
day care license, are unpublished, and are reproduced
at Appendix 76a, 77a and 136a, respectively.
STATEMENT OF JURISDICTION
The opinion of the Court of Appeals of Maryland
was issued on November 18, 1989. This Court’s ju-
risdiction is invoked under 28 U.S.C. § 1257(a).
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED
The Fourteenth Amendment to the United States
Constitution, Section 1, provides in pertinent part as
follows:
[NJor shall any State deprive any person of
life, liberty or property, without due process
of law....
STATEMENT OF THE CASE
Deborah Cassilly (Petitioner) held a license issued
by the State of Maryland that permitted her to op-
erate a day care center. Her license was revoked upon
administrative findings that some of the children at-
tending her center, almost all of whom were three
or four years old, were victims of physical and sexual
abuse. The children did not testify at the hearing, but
their parents and experts who interviewed the chil-
dren testified to statements the children made outside
the hearing and expressed opinions, based upon the
interviews, that abuse occurred at Petitioner’s day
care center. Petitioner’s pre-hearing request to have
accredited experts of her choosing interview the chil-
dren was denied. After issuance of the final admin-
istrative order revoking her license, Petitioner sought
review by the Circuit Court for Harford County,
Maryland. That Court held that Petitioner’s right to
due process under the Fourteenth Amendment of the
United States Constitution was violated, since the
credibility of the children’s out-of-hearing statements
was essential to the case. Appendix 36a, 52a-60a. That
decision was in turn reversed by the Maryland Court
of Appeals, which found that no due process right
had been violated. Appendix la, 20a-28a.
The background of the case regarding the issue
before the Court is straightforward. Bo Peep Day
Nursery (‘Bo Peep’’), was a day care center located
in Bel Air, Harford County, Maryland. It was con-
ducted by Petitioner as licensee and director. Appen-
dix 2a. The center occupied the first two floors of a
three-story building, with the top floor containing an
apartment that was occupied until July 1987, by
Petitioner, her husband, and their two children. Dur-
ing the winter of 1986-87, total enrollment at Bo Peep
was eighty children, with up to sixty children present
at any one time. Appendix 3a. Petitioner had worked
at Bo Peep since 1979, her first year in college, and
purchased the center in 1984. Appendix 2a.
On June 18, 1987, the mother of two children at-
tending the nursery sent a letter to the Maryland
Department of Social Services alleging that one of
her children was sexually abused at Bo Peep. Ap-
pendix 37a n.l. The State, in response, organized a
meeting on June 25, 1987, of parents of children en-
rolled at the nursery, at which the State advised the
parents of the allegations made against Bo Peep and
alerted them as to ‘‘warning signs’’ of sexual abuse.
Appendix 94a. Shortly thereafter, on July 6, 1987,
Petitioner received a letter from the Harford County
Health Department advising her that her license was
being suspended. Petitioner appealed the suspension
order to the Maryland Department of Health and
Mental Hygiene, which held hearings in August and
September, 1987, before William F. Clark, as Hearing
Examiner. Mr. Clark issued a proposed decision up-
holding the suspension, and a final agency decision
suspending the license was issued on March 23, 1988.
This suspension was then appealed to the Circuit
Court for Harford County but the issue became moot,
since the license was permanently revoked while the
case was pending in the Circuit Court. Appendix 45a-
47a.
The present petition arises out of the revocation
proceedings. On March 26, 1988, the Harford County
Health Department sent Petitioner a letter ‘‘perma-
nently revoking and denying renewal” of her day care
license. Appendix 136a. This decision was followed by
an administrative hearing, once again before Mr.
Clark, which extended over nine days, between May
11 and June 8, 1988. Appendix 78a. Prior to these
hearings, on May 2, 1988, Petitioner’s attorney re-
quested that the State make the children involved in
the allegations of sexual abuse at Bo Peep available
for interviews by Petitioner’s own health experts and
advised the Hearing Examiner that, should this re-
quest be denied, he would ‘‘move to exclude from the
proceeding, on the grounds of violation of due process
and fundamental fair play, the use by the State of
any evidence derived from information to which we
were denied access.’’ Appendix 5a-6a.
The Hearing Examiner denied Petitioner’s request
to have her own expert interview the children, but
nevertheless relied extensively on out-of-hearing
statements by the children related during the hearing
by their parents and by experts who testified for the
State. The Hearing Examiner also relied on opinion
testimony that purported to interpret statements
made to these witnesses and expressed conclusions
that the children’s statements indicated to them that
physical and sexual abuse occurred at Bo Peep. Al-
legations of physical and sexual abuse were made
against the Petitioner’s husband, who lived with the
Petitioner in the family apartment on the third floor,
against a senior staff person at the center, and to a
lesser extent, against Petitioner herself.
The Hearing Examiner issued a proposed decision
on August 23, 1988 upholding revocation of
Petitioner’s license. He relied upon the testimony of-
fered by the State’s experts both as to statements
made by the children and the experts’ interpretations
of them, expressly finding that ‘‘the observations
made by these licensed therapists who testified about
their sessions with the children is more credible than
the expert opinion offered by the Appellant’s witness,
who merely read a cold record.”” Appendix 104a. The
Hearing Examiner attached special importance to the
role of the expert in interpreting statements of small
children. In fact, he alluded to that role, as follows,
in his analysis of the conflicting expert testimony and
his reasons for relying upon the State’s experts rather
than Petitioner’s:
[Petitioner’s expert’s] opinion must also be
discounted because he has not given suffi-
cient consideration to the fact that the state-
ments of the children cannot uniformly be
taken literally, but must be interpreted in
light of the children’s perceptions and de-
velopmental levels, given the fact that these
children, on account of their young age, do
not possess the experience, mental] capacity
or vocabulary to efficiently and accurately
convey their observations like adults do.
Appendix 104a-105a.
The Hearing Examiner cited the testimony of par-
ents and therapists, along with the testimony of two
physicians to whom the State had referred many of
the children who attended Bo Peep.’ In a number of
cases these witnesses described symptoms that they
stated were consistent with sexual abuse. Appendix
103a. The Hearing Officer did not, however, link any
child’s description of sexual abuse with a particular
physical sign on the child, and no testimony was heard
from the children themselves. The Hearing Examiner
emphasized the similarities between the testimony re-
ceived and the findings of a study by the University
of New Hampshire on sexual abuse in day care, Ap-
pendix 103a, 110a-135a, and used this study to justify
his conclusions concerning the kinds of evidence which
he found to be indicative of sexual abuse. See Ap-
pendix 103a, 110a.
' Petitioner filed a motion on June 30, 1988 seeking to have
the Circuit Court for Harford County order physical examina-
tions by Petitioner’s own expert of the children alleged to have
been sexually abused. This motion was denied on October 25,
1988.
~]
The Hearing Examiner’s proposed decision was
adopted by the Department of Health and Mental
Hygiene and the Department of Human Resources,
Appendix 76a, and was immediately appealed to the
Circuit Court for Harford County, Maryland. The Cir-
cuit Court found that the agency proceeding did not
afford Petitioner due process of law and ordered the
decision reversed and remanded.
The Circuit Court explained that:
[T]he children’s out-of-hearing statements
were foundational to the case as the State
would not have had a case without these
statements. Any evidence from which it could
be concluded that the abuse took place at Bo
Peep rested upon the credibility on [sic] the
out-of-hearing statements of the children. The
psychologist, social workers and parents all
based their opinions and testimony on the
childrens’ statements. Without these state-
ments, the psychologist and social workers
could not have implicated Bo Peep.
Appendix 52a (emphasis in original). Even though
there were allegedly medical signs consistent with
physical abuse on a few of the children attending Bo
Peep, the State needed to provide evidence linking
these signs to abuse at the center. Appendix 52a.
Recognizing this fact, the Circuit Court continued:
Since the credibility of the childrens’ out-of-
hearing assertions was key to the case, the
defense asked for the opportunity to have
their psychologist speak to the children. Pre-
sumably, this would have permitted the de-
fense to test the credibility or believability
of the evidence that was never directly be-
fore the Hearing Officer (out-of-hearing
statements). The request was denied... .
Even though not afforded the opportunity to
examine the children, the Appellant’s psy-
chologist was permitted to review the evi-
dence presented by the State and opined upon
the credibility of the out-of-hearing declara-
tions. The Hearing Officer took this testi-
mony as meaningless, since Dr. Donner
merely read ‘‘a cold record”’....
Appendix 52a-538a. The Circuit Court observed that
‘Maryland decisional law has long held that hearsay
evidence is admissible in the administrative setting.’’
Appendix 55a. Nevertheless, the Court insisted that
‘“‘due process in a contested administrative setting re-
quires an opportunity to meet or rebut adverse evi-
dence and when there is no such opportunity, it is
error for the administrative agency to rely on the
unchallenged adverse evidence.’’ The Court concluded
that:
Appellant was denied due process of law since
there was no meaningful opportunity to test
the credibility of the childrens’ out-of-hearing
statements. As previously discussed, their
statements were foundational to the case.
What is a meaningful opportunity will vary
from case to case. We first observe that
cro<s-examination did little to test credibility
since the respective declarants were not at
the hearing. In this situation, a meaningful
opportunity would have resulted if Dr. Don-
ner could have interviewed the children. This
—
request was denied. His testimony was to-
tally discounted due to his lack of personal
contact. The State will argue that the Hear-
ing Officer had no authority to order the in-
terviews. This is correct, but the Hearing
Officer should not have considered any of the
evidence which was dependent on the foun-
dationa] out-of-hearing statements where cir-
cumstances prevented an opportunity to
challenge.... As previously noted, there
would be insufficient evidence to conclude
that abuse took place at Bo Peep absent the
out-of-hearing assertions.
Appendix 58a-59a.
After the Circuit Court’s decision the State filed a
notice of appeal to the Maryland Court of Special
Appeals. While that appeal was pending, however,
and before any briefs were filed, the State filed a
petition for writ of certiorari to the Court of Special
Appeals seeking immediate review of the Circuit
Court’s judgment by the Maryland Court of Appeals,
and immediate review was granted.
The Maryland Court of Appeals considered the issue
whether Petitioner had a due process right to have
her experts interview the children whom it was al-
leged were injured at Bo Peep and decided against
her. The opinion discusses much of the testimony
The Court of Appeals noted that the issue of whether
Petitioner might have requested subpoenas to have the children
testify at the hearing was not before it. Appendix 21a n.6. The
State would have had strong arguments for quashing the sub-
poenas, given that almost all the children were only three or
four-years old at the time of the alleged abuse, on grounds of
10
offered in reference to child number 7 as an example
of the allegations against Bo Peep, including her
statements to her therapist that she was placed on
the kitchen table and sprayed in her private areas
with a ‘“‘water machine”’ which shoots colored water,
Appendix 19a n.5, and that a pink or orange ball had
been placed inside her, Anpendix 18a. The Court also
noted that the child frequently told her therapist that
she was “‘just kidding’’ after making a statement re-
garding abuse suffered at Bo Peep Nursery, but that
the therapist explained that this was a way of re-
pressing the reality of what had happened. Appendix
18a. The Petitioner’s expert provided alternative ex-
planations for all of the child’s statements. But the
Court found that the fact-finder’s reliance upon the
out-of-hearing statements was not a violation of due
process.
The Maryland Court of Appeals analyzed the issue
under the three-factor analysis of Mathews v. Eld-
ridge, 424 U.S. 319 (1976), holding that Petitioner
only had a property interest at stake and that the
State had an important interest in regulating day care
and jooking after the interests of children. The Court
emphasized above all, however, that there would be
no gain in terms of the quality of the decisionmaking
process in allowing an interview by the Petitioner’s
expert.
the harmful psychological effects testifying might have on a
child, and on the basis of the incompetence of the children to
testify. Although the children were a year older by the time of
the revocation hearings, it is likely that many would have been
unable to offer coherent testimony. Thus Petitioner’s attorneys’
decision to proceed though interviews by medical experts, as a
more productive procedure than cross-examination at an open
hearing. was not questioned by any of the lower courts.
1]
The Court’s reasoning on this point analyzed four
ways that the Court believed exhausted the possible
ways in which Petitioner could have been prejudiced.
These ways were stated as follows:
First, the content of the declarant’s state-
ment may be false. Secondly, an adult wit-
ness, either intentionally or unintentionally,
may have inaccurately conveyed the declar-
ant’s statement to the decision maker. Third,
the adult witness may have drawn an erro-
neous conclusion from the declarant’s accu-
rately reported statement. Fourth, the adult
witness may have accurately communicated
the declarant’s statement, as far as it goes,
but may have omitted other matter never
explored, or deemed- by the witness to be
insignificant, but which would be significant
to some other evaluator.
Appendix 25a-26a.
Each possibility was then taken up and discussed
separately. The first possibility—‘‘that some or all of
the children are lying’’—was disposed of by the
Court’s acceptance of a controverted thesis of child
psychology. The Court, quoting from a psychology
journal article, stated:
Young children almost never initiate false al-
legations without influence from an adult.
Commonly an adult, either unconsciously or
consciously, is intent on proving to them-
selves or others that the allegations of abuse
are true. The child is thus influenced by the
adult to present with a false allegation.
12
Appendix 26a. Due process, in the opinion of the
Court, was satisfied, because, ‘‘Bo Peep either cross-
examined or had the opportunity to cross-examine or
subpoena any adult who may have influenced any child
falsely to describe an occurrence at Bo Peep.’’ Ap-
pendix 27a.
The second and third possibilities for error identi-
fied by the Court—inaccurate conveyance of the child’s
statement and erroneous conclusions from an accu-
rately-quoted statement—were brushed aside by the
Court with the reasoning that those who testified con-
cerning statements made by the children were subject
to cross-examination and that testimony given by the
State’s witnesses permitted Petitioner to develop such
limited rebuttal as Petitioner did present. The Court
thus disposed of the first three ‘‘possibilities’”’ of error
by relying upon the assumption that ‘“‘children never
lie unless adults influence them’’ and concluding that
the State’s adult witnesses gave Petitioner enough
information about the content and meaning of the
children’s statements—and their demeanor while mak-
ing the statements—even though neither Petitioner
nor her experts were granted the right to question
the children. Appendix 27a.
As to the fourth possibility for error—omissions by
the adult witness—the Court stated:
[A]lthough there was undoubtedly some risk
that an adult witness might not have ex-
plored or communicated some facet of a
child’s life which Bo Peep’s expert would con-
sider relevant, Bo Peep had the opportunity,
by cross-examination of the adult witnesses,
to explore omissions by them, and Bo Peep
13
had the opportunity to argue that omissions
had invalidated the witnesses’ conclusions.
Appendix 27a. The Court then added that ‘“‘it appears
that Bo Peep’s desire to test the ‘credibility of state-
ments’ is a desire to discover additional data which
could be used by its expert to support conclusions
favorable to Bo Peep and thereby perhaps enhance
the possibility that the decision maker would accept
those favorable opinions.’’ Appendix 27a. The unex-
ceptional nature of this ‘“‘desire’’ goes without ac-
knowledgement in the Court’s opinion. Instead, the
Court, while not disputing the Circuit Court’s insist-
ence that the children’s out-of-hearing statements are
essential to the State’s case, held that the possibility
that Petitioner would have improved its case by ex-
pert interviews of children who allegedly suffered
abuse at Bo Peep ‘“‘is slight because of the number
of children at Bo Peep who bear physical signs consis-
tent with their having been sexually abused.’’ Ap-
pendix 27a.
REASONS FOR GRANTING THE WRIT
I. THIS PETITION PRESENTS ISSUES SIMILAR TO THE
ISSUES THIS COURT WILL REVIEW IN IDAHO vy.
WRIGHT BUT INTRODUCES ADDITIONAL ALTERNA-
TIVES.
The instant case presents many of the same ques-
tions present in Jdaho v. Wright, 116 Idaho 382, 775
P.2d 1224 (1989), cert. granted, 58 U.S.L.W. 34438
(U.S. Jan. 16, 1990) (No. 89-260), but in the context
of an administrative proceeding where Petitioner’s use
of experts and her ability to cross-examine the State’s
experts were also severely hampered by the State.
In Idaho v. Wright, the Idaho Supreme Court held
14
that admission of an out-of-court statement of a young
victim of sexual] abuse made to an examining pedia-
triclan was unconstitutional. Admission of the testi-
mony was held to be in violation of the Confrontation
Clause because the interview was unrecorded, leading
questions were used and the examining pediatrician
had a preconceived idea of what the child should be
disclosing, 775 P.2d at 1227. The Idaho Supreme
Court found that under such circumstances the state-
ments could not be regarded as providing the ‘“‘par-
ticularized guarantees of trustworthiness’ required to
withstand objection pursuant to the Confrontation
Clause,’ 775 P.2d at 1230. See Ohio v. Roberts, 448
U.S. 56, 65-66 (1980), establishing the “‘particularized
guarantees of trustworthiness’’ requirement.
In contrast, the Maryland Court of Appeals has
upheld revocation of Petitioner’s day care license—
and the consequent loss of her reputation, her busi-
ness and her livelihood—where the hearing examiner’s
decision was founded upon out-of-hearing statements
that were not recorded, that in many cases were made
only after extensive questioning of the child, and that
in most cases were made to parents who had been
recently alerted by the State at the June 25, 1987
meeting that Bo Peep Nursery was under investiga-
tion, or were made to professionals alerted by parents
or other professionals regarding the possibility of sex-
ual abuse. Furthermore, the statements made to the
pediatrician in Jdaho v. Wright required little inter-
pretation. The child specifically stated that she and
her father touched each other’s sexual organs, tes-
timony which was far more indicative of a common
form of sexual abuse than most of the testimony re-
ceived regarding sexual abuse at Bo Peep, see supra
15
p. 7, 10-11 and Appendix 19a. Many of the out-of-
hearing statements recounted by the State’s experts
below required interpretation by the testifying ex-
pert.®
The courts have been unable to produce a satis-
factory solution to the problem of child hearsay in
sexual abuse cases. Some courts have used liberal
application of hearsay exceptions to admit the out-of-
court statements of children even when they have
recognized that the children were incompetent to tes-
tify as witnesses in court. See Morgan v. Foretich,
846 F.2d 941, 946 (4th Cir. 1988); Haggins v. Warden,
Fort Pillow State Farm, 715 F.2d 1050, 1057 (6th
Cir. 1983), cert. denied, 464 U.S. 1071 (1984); People
v. District Court of El Paso County, 776 P.2d 1083,
1087-88 (Colo. 1989); Perez v. State, 586 So.2d 206,
210-211 (Fla. 1988), cert. denied, 109 S.Ct. 3253
(1989); State v. D.R., 109 N.J. 348, 587 A.2d 667,
677-79 (1988). Other courts have refused to find ‘‘par-
ticularized guarantees of trustworthiness” under es-
sentially identical circumstances. See State v. Boston,
46 Ohio St. 108, 545 N.E.2d 1220, 1238-39 (1989);
State v. Ryan, 108 Wash.2d 165, 691 P.2d 197, 203
(1984). The admission of the out-of-court statements
of young children presents a serious due process prob-
lem, and the instant case suggests a solution which
has not been previously presented to this Court. Un-
der the rule adopted by the Circuit Court below—but
rejected on appeal—the out-of-court statements of
’ For example, much of the abuse recounted by child number
7 was performed by ‘Big Foot’’. This child was also allegedly
subjected to harmful treatment by a ‘“‘water machine” which
was brought down from the attic and placed on the kitchen
table. Appendix 19a.
16
young children would be admissible so long as the
defendant was given a reasonable opportunity to have
a competent medical professional interview the chil-
dren.
There is no easy format for eliciting reliable tes-
timony from young children. An interview of the al-
leged victims by the defendant’s experts, however, is
probably the most meaningful form possible for chal-
lenging the out-of-court statements of children and
the in-court statements of the State’s experts. Many
courts are presently relying on the out-of-court state-
ments of small children to provide them with basic
evidence in child abuse cases, insisting that such
statements are just as reliable as in-court testimony.
For example, in Nelson v. Farrey, 874 F.2d 1222 (7th
Cir. 1989), cert. denied, 110 S.Ct. 835 (1990), involv-
ing the sexual abuse of a three-year old who was
found by the trial court to be unavailable to testify
because of the emotional trauma testimony would in-
volve, the Seventh Circuit held:
Events conspired to prevent [the defendant]
from having a chance to cross-examine his
principal accuser. He was convicted on hear-
say evidence. But we should not allow labels
and lawyers’ pieties to delude us into believ-
ing that cross-examination of a four-year-old
child concerning sexual abuse by her father
a year earlier is a more effective method of
discovering the truth than listening to and
weighing the testimony of a competent psy-
chologist who interviewed the child over a
period of many months in a setting designed
to elicit truthful communication. There is no
basis for believing that [the child’s]} testifying
le
17
would have enhanced the accuracy of the ju-
ry’s determination. “[A] growing number of
experts argue that the testimony of child-
abuse victims is more reliable if they cannot
see the defendant.”’
874 F.2d at 1230 (emphasis in original). See also
United States v. Cree, 778 F.2d 474, 478 (8th Cir.
1985); United States v. Nick, 604 F.2d 1199, 1204
(9th Cir. 1979); cf. Coy v. Iowa, 108 S.Ct. 2798, 2809
(1988) (Blackmun, J. dissenting), noting that the psy-
chological impact on a child of testifying in court may
undermine the truth-finding function of the trial itself;
Maryland v. Craig, 216 Md. 551, 560 A.2d 1120, 1125
(1989) cert. granted, 58 U.S.L.W. 3443 (U.S. Jan. 16,
1990) (No. 89-478). But see State v. Gilbert, 109 Wis.2d
501, 8326 N.W.2d 744 (1982).
The Seventh Circuit’s reasoning in Nelson, that call-
ing a three- or four-year old victim to the stand is
less useful than an interview by a psychologist, is
correct, but it is inconceivable that due process should
require placing the defendant completely at the mercy
of the State’s experts. Such an approach assumes that
the State’s experts are infallible in their observations
and may, with no checks on the process, act as
a) therapists; b) investigators; c) preservers of the
chilu’s account; d) expert witnesses and interpreters
of the child’s account; and e) advocates for the child,
all rolled into one. See Hutton, Child Sexual Abuse
Cases: Reestablishing the Balance Within the Adver-
sary System, 20 U. Mich. J. Law Reform 491, 505
(1986). In the instant case, Petitioner proposed a so-
lution in the form of interviews by her experts, one
of the few practical alternatives that allows the State
to present its case yet also allows the defense a right
18
of confrontation consistent with both the interests of
the child and the need to adopt fair procedures to
protect the rights of the accused.
Il. THE BO PEEP DECISION MISAPPLIES MATHEWS vy.
ELDRIDGE
The three-part standard articulated in Mathews v.
Eldridge, 424 U.S. 319, 335 (1976) governs the in-
stant case. Due process in any kind of adjudicatory
proceeding, whether criminal, civil or administrative,
requires a weighing of 1) the private interests at
stake; 2) the risk that the procedures used will pro-
duce an erroneous result and the probable value of
the suggested procedural safeguard; and 3) the gov-
ernmental interests affected. See Ake v. Oklahoma,
470 U.S. 68, 77 (1985) (criminal proceeding imposing
the death penalty), Little v. Streater, 452 U.S. 1, 6
(1981) (civil paternity action) and Mathews v. Eld-
ridge, 424 U.S. at 335 (social security disability ben-
efits). Th. Maryland Court of Appeals acknowledged
the applicability of the Mathews v. Eldridge factors,
but employed them in a manner which is inconsistent
with Mathews v. Eldridge and its progeny.
A. The Maryland Court of Appeals Understated the Private
Interests At Stake.
The Maryland Court of Appeals described the pri-
vate interest at stake in the instant case as
Petitioner’s ‘‘continued operation of a day care center
on the premises.’’ Appendix 23a. That narrow interest
certainly was the focus of the proceedings, but the
real interests in the case were much greater.
Petitioner holds a bachelor’s degree in early childhood
education, Appendix 2a, and was both licensee and
director of the center. Appendix 37a. Petitioner had
satisfied the exacting state requirements to act as a
19
director for centers licensed for more than 40 chil-
dren.‘ She is held responsible by both the public and
the State for any misconduct that is thought to have
occurred at Bo Peep. Important personal liberties are
destroyed whenever government action creates a se-
rious likelihood of stigma that may affect future em-
ployment opportunities, Arnett v. Kennedy, 416 U.S.
134, 155-158 (1974); Board of Regents v. Roth, 408
U.S. 564, 573 (1972). In recognition of this fact, pro-
ceedings for the revocation of a professional license
have been regarded as quasi-criminal in nature, see
e.g., In re Ruffalo, 390 U.S. 544, 551 (1968) (disbar-
ment proceedings); Shively v. Stewart, 65 Cal.2d 475,
55 Cal. Rptr. 217, 220, 421 P.2d 65, 68 (1966) (phy-
sician’s license); Maul v. State Board of Dental Ex-
aminers, 668 P.2d 933, 937 (Colo. 1983) (dental
‘Md. Regs. Code 10.05.01.53 (1989) provides:
Directors in centers licensed for more than 40 chil-
dren shal] meet all of the following requirements:
A. Be at least 21 years old;
B. Be a graduate of an accredited 4 year college
or university;
C. Have had 2 years of experience under supervi-
sion working with a group of children in a licensed
early childhood program and shal] have demonstrated
ability to work with parents and other adults in the
community;
D. Have completed 64 classroom hours in early
childhood curriculum and child development specifi-
cally directed to the needs of children, 2 to 6 years
old;
E. They shal] either indicate continued training or
hold a valid Child Development Associate Credential
from the Child Development Associate Consortium.
20
license); Snell v. Commonwealth State Examining
Board, 490 Pa. 277, 416 A.2d 468, 470 (1980) (dental
license). In the present case Petitioner not only has
been destroyed professionally, but has been branded
2 “‘child abuser.”’
B. The Maryland Court of Appeals Severely Misconceived
the Risk of Erroneous Result and the Probable Value
of the Procedures Suggested.
The Maryland Court of Appeals and the Hearing
Examiner proceeded on the assumption that children
do not lie unless prompted or misled by an adult.
Showing ardent faith in a single current of psycho-
logical literature the Court of Appeals stated:
The first possibility is that some or all of
the children are lying. The authors of the
article, ‘“‘Assessing the Credibility of Young
Children’s Allegations of Sexual Abuse: Clin-
ical Issues,” supra, discuss the situations
commonly associated with false allegations.
‘Young children almost never initiate false
allegations without influence from an adult.”
Appendix 26a. Then the Court reasoned that since
the Petitioner had the opportunity to cross-examine
the expert witnesses and parents concerning the man-
ner in which they might have influenced the children
to make out-of-hearing statements, the Petitioner had
nothing to gain by her requested opportunity to in-
terview the children directly. Appendix 27a.
This logic is extremely weak. First, the concept that
children never lie without the influence of an adult
does not enjoy general scientific acceptance. Children
may lie for a variety of reasons both related and
unrelated to the adults around them, see, Mantell,
21
Clarifying Erroneous Child Sexual Abuse Allegations,
58 Am. J. of Orthopsychiatry 618 (1988); Yates &
Musty, Preschool Children’s Erroneous Allegations of
Sexual Molestation, 145 Am. J. Psychiatry 989 (1988);
Green & Schetky, True and False Allegations of Child
Sexual Abuse, in CHILD SEXUAL ABUSE: A HANDBOOK
FOR HEALTH CARE AND LEGAL PROFESSIONALS 104,
108-09 (D. Schetky & A. Green, eds. 1988); Benedek
& Schetky, Problems in Validating Allegations of Sex-
ual Abuse. Part 1: Factors Affecting Perception and
Recall of Events, 26 J. of the Am. Academy of Child
& Adolescent Psychiatry 912 (1987). Adoption of the
notion that children never lie as a legal fiction should
not be used to eliminate essential due process safe-
guards in child abuse cases.
Second, even if one assumes as a proven scientific
fact that children never lie unless they have somehow
been influenced by an adult, the interview of the child
by defendant’s psychologist will often be the only
fashion through which the influences upon the child
will be made apparent. Sometimes children will be
coached by an adult abuser to attribute abuse to a
third party, see Nelson v. Farrey, 874 F.2d at 1225
(7th Cir. 1989); sometimes there may be tensions in
a child’s home environment which lead to false ac-
cusations or to fantasies which some psychologists
interpret as indicative of abuse; sometimes pressures
from a therapist or resulting from the State’s inves-
tigation lead to accusations,’ Mantell, supra at 620;
* Most of the children making out-of-hearing statements re-
garding physical or sexual abuse at Bo Peep came from homes
where the parents had undergone a recent divorce or where
there was a serious problem of alcohol abuse. See the testimony
analyzed by the hearing examiner regarding children 4, 6, 15
lll
22
Spiegel, Child Abuse Hysteria and the Elementary
School Counselor, 22 Elementary School Guidance &
Counseling 275, 279-80 (1987); James, Child Protec-
tion Workers’ Role in Erroneous Allegations of Child
Abuse, 146 Am. J. Psychiatry 564 (1989). In the in-
stant case it is even possible that children made up
stories because they hate day care.® The value of
cross-examination of the adult conveying the out-of-
court statement will always be limited when the de-
fense has not had the opportunity to interview the
child.
The decision of the court below is in striking con-
trast to a recent decision of the Supreme Court of
Kentucky. In Turner v. Commonwealth, 767 S.W.2d
557 (Ky. 1988), cert. denied, 110 S.Ct. 260 (1989), the
Supreme Court of Kentucky ruled that failure to allow
a pre-trial medical examination of a four-year old rape
victim by defendant’s experts was a violation of due
process in a case where the State’s examination was
a significant incriminating factor. The Court found
for the appellant because ‘‘an independent expert
might have permitted the appellant to offer evidence
to contradict that offered by the Commonwealth as
to whether there were, in fact, any injuries to the
hymenal ring,” 767 S.W.2d at 559. In the instant
case, an interview with the victim by Petitioner’s ex-
perts was the only manner in which Petitioner might
and 33. Appendix 80a-8la, 84a, 90a, 9la. In other cases, the
Petitioner’s expert, Dr. Lawrence Donner, testified that state-
ments were provoked by the stress caused by the State’s in-
vestigation. Appendix 99a-100a.
* Petitioner’s expert testified that from the testimony offered
by the State several of the children appeared to be suffering
from separation anxiety. Appendix 98a, 99a-100a.
23
have been able to gather evidence showing that there
was in fact no sexual abuse at the day care center.
See also Anderson v. State, 749 P.2d 369, 371 (Alaska
App. 1988), requiring examination of young children
by a mental health practitioner.
Furthermore, in the instant case, the State’s ex-
perts were permitted to testify not only as to the
statements made to them by the children, but to state
that they thought that the children were telling the
truth and that the children’s statements and conduct
indicated that they had suffered sexual abuse at Bo
- Peep. As a practical matter the State’s refusal to
order an examination of the children by the
Petitioner’s experts effectively barred the Petitioner
from presenting expert testimony essential for the
conduct of her defense, cf. Ake v. Oklahoma, 470 U.S.
at 82 (1985), and made it impossible for petitioner to
prepare an adequate cross-examination of the State’s
experts, since they based their opinions on material
only they had access to, cf. Pennsylvania v. Ritchie,
480 U.S. 39, 61-62 (1987) (Blackmun, J. concurring)
(noting the need for pre-trial access to information
that would make possible effective cross-examination
of a key witness).
C. The Maryland Court of Appeals Confused the Govern-
ment’s Interest in Efficient Procedures With the Gov-
ernment’s Interest in Only Licensing Day Care Centers
Where Children Are Not Sexually Abused.
The Maryland Court of Appeals stated that under
the third prong of the Mathews v. Eldridge balance,
‘“twje must weigh heavily in favor of the State its
interest in licensing only day care centers where chil-
dren are properly cared for and, more particularly,
the State’s great interest in protecting children from
El
24
physical and sexual abuse.’’ Appendix 28a. However,
the government interest to be analyzed under the
Mathews v. Eldridge standard is not the government
interest in the legisiative end, but ‘“‘the government’s
interest in adhering to the existing system.’’ Walters
v. National Ass’n of Radiation Survivors, 473 U.S.
305, 321 (1985). ‘‘When a State seeks to limit the
procedures that will attend the deprivation of a con-
stitutionally protected interest, it is only the State’s
interest in streamlining procedures that is rele-
vant.... A state may not, in other words, justify
abbreviated procedures on the ground that it wishes
to pay welfare benefits to fewer people or wants to
reduce the number of tenured professors on its pay-
roll,”’ Michael H. v. Gerald D., 109 S.Ct. 2333, 2358
(1989) (Brennan, J., dissenting). A process under
which young children might be interviewed by the
licensee’s psychologists, when the circumstances of
the case indicate that such an interview is important
for the licensee’s defense, would improve the relia-
bility of the administrative procedure with no signif-
icant effect on the state’s ability to close day care
centers which do in fact pose a risk to children.
The instant case is only one of hundreds of cases
of allegations of sexual abuse which present them-
selves each year in the day care setting, See D.
FINKELHOR et al., SEXUAL ABUSE IN DAY CARE: A
NATIONAL STUDY, FINAL REPORT, vii (University of
New Hampshire, 1988). There were an estimated
155,900 cases of sexual abuse in the United States
in 1986. U.S. DEPT. OF HEALTH AND HUMAN
SERVICES, STUDY OF NATIONAL INCIDENCE AND
PREVALENCE OF CHILD ABUSE AND NEGLECT: 1988,
4-7 (1988). A certain number of cases of children
a
4
4
25
showing physical signs of sexual abuse is not unlikely
in any large day care setting given the possibilities of
alternative diagnoses, the generally high level of sexual
abuse in our society, see Morgan v. Foretich, 846 F.2d
941, 948 (4th Cir. 1988), and acts which children per-
form on themselves and each other, see Cantwell, Child
Sexual Abuse: Very Young Perpetrators, 12 Child
Abuse & Neglect 579 (1988), (noting that young chil-
dren who are sexually abused will sometimes perform
acts on their friends). The high statistics on child abuse
may serve to explain, but they cannot justify, the
strong impulses of specialists in the field to stress
protection of victims even at the expense of the due
process rights of the persons they accuse.
CONCLUSION
For the foregoing reasons and on the basis of the
authorities cited, a writ of certiorari should issue to
review the decision of the Court of Appeals of Mary-
land in this case.
Respectfully submitted,
MICHAEL D. BARNES*
JAMES P. MERCURIO
JAMES H. HULME
JONATHAN M. MILLER
ARENT, Fox, KINTNER, PLOTKIN
& KAHN
1050 Connecticut Ave., N.W.
Washington, D.C. 20036-5339
(202) 857-6170
*Counsel of Record
February 12, 1990
| APPENDIX
la
APPENDIX A
Court of Appeals of Maryland.
Nov. 13, 1989.
No. 24, Sept. Term, 1989.
MARYLAND DEPARTMENT OF HUMAN RESOURCES,
Maryland Department of Health and Menta] Hygiene, Har-
ford County Health Department
V.
BO PEEP DAY NURSERY.
Lawrence H. Norton, Asst. Atty. Gen. (J. Joseph Cur-
ran, Jr., Atty. Gen., Ralph S. Tyler, Andrew H. Baida,
Daniel J. O’Brien, Asst. Attys. Gen., all on brief), Balti-
more, for petitioners.
Paul A. Dorf, Stephen A. Markey, III, Adelberg, Rudow,
Dorf, Hendler and Sameth, Baltimore, amicus curiae, for
People Against Child Abuse (PACA), Md. Chapter of the
American Academy of Pediatrics (AAP), Lawrence Wis-
sow, M.D., Ass’n for Childcare Excellence (ACE), Md. Co-
alition Against Sexual Assault (MCASA).
Michael Genz, Emily Buss, Tobie Bernstein, Baltimore,
amicus curiae, for The Legal Aid Bureau.
Thomas J. Peddicord, Jr. (Thomas G. Young, III, Mar-
low, Peddicord & Young, P.A., all on brief), Towson, for
respondent.
Argued before MURPHY, C.J., and ELDRIDGE, COLE,
RODOWSKY, McAULIFFE, ADKINS and BLACKWELL,
JJ.
RODOWSKY, Judge.
2a
This is an administrative appeal in a business license
revocation case. Appellant, Department of Human Re-
sources, the successor licensing agency, revoked appellee’s
license as a child care center based on findings, after hear-
ings, that a number of preschool age children were victims
of physical and sexual abuse while in appellee’s care. Be-
fore the proceedings began the agency’s hearing officer
denied appellee’s request for discovery by way of psycho-
logical interviews of the alleged victims by an expert se-
lected by appellee. On appeal from the revocation order
the circuit court remanded, having concluded that the
agency's denial of the discovery request violated appellee’s
constitutional right to procedural due process. That ruling
is the primary issue before us. For reasons set forth below,
we shall reverse and direct affirmance of the agency’s
order.
Child care centers are licensed and regulated by the
State. Pricr to July 1, 1988, the licensing authority was
the county health officer, while the authority to review a
health officer’s decisions and to adopt regulations was in
the Department of Health and Mental Hygiene. Md.Code
(1982, 1987 Repl.Vol.), §§ 14-101 through 14-114 of the
Health-General Article. By Ch. 247 of the Acts of 1988,
authority to administer this regulatory licensing system
was lodged in the Department of Human Resources. See
Md.Code (1984, 1989 Cum. Supp.), §§ 5-570 through 5-585
of the Family Law Article. The license year runs from
April 1 through March 31.
Bo Peep Day Nursery (Bo Peep) is a child care center
conducted by Deborah Cassilly (Deborah) who is the licen-
see. The center is conducted on premises improved by a
free-standing three story building in Bel Air, Harford
County. Deborah, who holds a bachelor’s degree in early
childhood education, had worked while she was in school
at a child care center conducted on those premises. In
January 1984 Deborah, then approximately twenty-three
years of age, and her husband, Patrick Cassilly (Patrick),
or tan Buisaesd
3a
purchased the property from the prior owners/operators.
The first two floors of the building are used for the child
care facility. There are four classrooms, an office, a kitchen
and a restroom on the first floor, and there are four class-
rooms and a restroom on the second floor. Until late July
1987, Deborah, Patrick and at that time their two children
occupied the residential apartment on the third floor of
the building.
Not every child who is enrolled at Bo Peep comes to
the care center every day and not every child who comes
to the center remains there the entire time the center is
open. In the winter of 1986-87 the total enrollment at Bo
Peep was approximately eighty children of whom no more
than sixty were present at any one time. By May 1988
the enrollment was fifty-two children and the maximum
number of enrollees at any one time was thirty-three.
In the period September 1986 through June 1987, a
typical day at Bo Peep would proceed in the following
fashion. Bo Peep began receiving children at 6:30 a.m.
The children played on the first floor until approximately |
8:00 a.m. when those children who attended kindergarten
or grade school were taken by Bo Peep staff to their |
respective schools. Those enrollees who remained at Bo
Peep for part or all of the rest of the day were divided
into groups for the morning structured programs. The
three year old group stayed on the first floor. The four
year old and five year old groups were in classrooms on
the second floor. Lunch was served around midday. From
approximately 12:30 to 2:30 p.m. was nap time for the
three and four year olds. No more than ten children uti-
lized a classroom on the first floor for napping with any
overflow using a second classroom on that floor. After
their naps, the children watched TV, had a snack around
3:00 p.m., and played games of their choice until their
parents or others took them home.
tities
4a
State regulations for child care centers require that a
supervisory senior staff person be present at all] times that
enrolled children are on the premises. Md.Regs. Code tit.
10, § .05.01.58 (185) (COMAR).' The operator of a center
must periodically file staffing schedules with the regulating
agency. COMAR 10.05.01.60 (1985). At Bo Peep Deborah
usually scheduled herself for the early morning and late
afternoon hours when parents would be coming to the
facility. During much of 1986-87 the senior staff person
scheduled to supervise at Bo Peep from 8:30 a.m. to 11:30
a.m. was Rita Blevins (Blevins), who had been employed
there from February of 1985. Patrick was not one of the
regular staff at Bo Peep. He was employed at an auto-
mobile dealership.
In July 1987, the Harford County Health Officer wrote
Deborah advising that Bo Peep’s license would be sus-
pended. Three days later the Circuit Court for Harford
County (Carr, J.) enjoined adult males from the Bo Peep
premises from 6:30 a.m. to 6:30 p.m. Monday through
Friday. On July 27, 1987, after four days of hearings, that
court (Whitfill, J.) barred Patrick from the premises at all
times, ordered a log to be kept of all male visitors, and
directed the Bel Air Police to make random checks at Bo
Peep.
Bo Peep appealed the health officer’s suspension order.
William F. Clark, Esq. (Clark), the chief hearing examiner
in the Department of Health and Mental Hygiene, con-
ducted hearings over seven days in August and September
and recommended suspension of the Bo Peep license for
the remainder of its term. In his report, which was adopted
by the departmental secretary’s designee, Clark made the
following ultimate finding:
‘The cited regulations of the Department of Health and Mental Hy-
giene continue in effect under the Secretary of Human Resources pur-
suant to the transfer provisions in SECTION 4 of Ch. 247 of the Acts
of 1988.
ee
Pit
5a
“I conclude that the facts as found in Part XI re-
flect that many children of Bo Peep were subjected
to injurious treatment. Chief among those problems
. is that children at Bo Peep have been sexually
abused. The evidence in this case points in no other
direction. While sexual child abuse is difficult to prove,
and there may be conflicting reports from the chil-
dren, the physical examination of the children involved
here and their behavioral changes as observed by their
parents and trained professionals allow no other con-
clusion to be drawn.”
In March 1988, the departmental board of review af-
firmed. About one week before the expiration of its license
for 1987-88, Bo Peep obtained from the circuit court (Whit-
fill, J.) an order staying the suspension for the remainder
of that license year. That order to stay incorporated the
conditions of the July injunction.
Also in March 1988, the county health officer denied
Deborah’s application for a renewal of Bo Peep’s license
for the period April 1, 1988, to March 31, 1989. Bo Peep
sought administrative review of that revocation. The mat-
ter was again assigned to Clark. Hearings were set to
begin May 11, 1988, when, on May 2, Bo Peep’s counsel
wrote to Clark requesting a postponement. Bo Peep also
requested that Clark
“order the State to make available for interview those
children who were involved with allegations of child
abuse at Bo Peep. It is not intended that the interview
would be conducted through counsel, but by a health
professional of our choosing. The purpose of such in-
terviews would be to attempt to resolve confusing and
contradictory reports by others of the children’s state-
ments which have figured in past proceedings in this
matter.
“If we are not provided with the above information
and interviews, we intend to move to exclude from
6a
the proceeding, on the grounds of violation of due
process and fundamental fair play, the use by the
State of any evidence derived from information to
which we were denied access.”
At the commencement of the hearing, counsel for Bo
Peep pointed out that “[w]e have moved, through various
letter motions, for discovery and for postponement and
they're intertwined.”’ Counsel] stated, in part, that they
‘would like an opportunity to have people on whom we
have greater confidence and faith examine the children, if
there is to be new evidence here.” Clark denied the dis-
covery motion.
The hearings on the propriety of the revocation order
extended over nine days, ending June 8, 1988. Introduced
by the State as part of the record of the revocation pro-
ceeding were the records of the agency’s suspension order
hearing and of the circuit court’s injunction hearing, in-
cluding seven days of transcripts of the former and four
days of transcripts of the latter.
While Clark had the revocation matter under advise-
ment, the State obtained an ex parte injunction from the
Circuit Court for Harford County (Baldwin, J.) barring
Blevins from the Bo Peep premises. Then, in those court
proceedings, Bo Peep moved on the recited authority of
Maryland Rule 2-423 for an order that the allegedly abused
children “undergo diagnostic examination of the genital
region to evaluate visible evidence of sexual assault[.]’’ Bo
Peep designated the director of the Rape Care Center at
Greater Baltimore Medical Center as their examining phy-
sician.
Before the circuit court ruled on Bo Peep’s motion, Clark
filed the proposed agency decision in the revocation case.
We set forth his explanation of the ultimate conclusion.
“Regarding the issue of physical and sexual abuse
of children having occurred at the Bo Peep facility,
seen
/
7a
it is concluded that the preponderance of the testi-
mony and evidence presented at this administrative
hearing confirms the likelihood of those events, and
supports the position of the Harford County Health
Officer. The testimony of the the therapists and the
parents is compelling, and substantiates the bases used
by the Health Officer in denying relicensure. In weigh-
ing the testimony of the State’s witnesses and the
Appellant’s witnesses, it is concluded that the evi-
dence clearly shows that the license should not be
renewed, based upon the mistreatment of children at
the Bo Peep facility. A careful reading of the entire
record in this case quite clearly shows that it is im-
probable for the events not to have occurred sub-
stantially as related by the children to their parents
and to their therapists. The verbalizations, drawings,
and the emotions of the children, as observed by their
parents and by trained and licensed professionals, and
the physical evidence as found by [two examining phy-
sicians selected by the State], have not been refuted
or shown to be erroneous or misinterpreted.
The decision was adopted by the Secretary, Department
of Human Resources (the Department) in August 1988,
and Bo Peep appealed.
That appeal was consolidated with the earlier appeal in
the suspension case. The circuit court (Baldwin, J.) stayed
enforcement of the revocation order pending disposition of
the administrative appeals. Judge Baldwin also refused to
order medica] examinations. Because neither the children
nor their parents were parties to the litigation, the circuit
court correctly concluded that it had no authority under
Rule 2-423 to grant that requested relief.
Concerning the administrative appeals, Judge Baldwin
held that the appeal from the suspension order was moot,
and that holding is not challenged here. In the appeal from
the revocation order the circuit court ordered a remand
8a
to the Department for further proceedings. The court also
continued the judicial] stay of the Department’s revocation
order during the pendency of the remand.
The Department appealed the circuit court’s order of
remand. We granted the State’s petition for a writ of
certiorari prior to consideration of the appeal by the Court
of Special Appeals. Bo Peep has moved to dismiss the
Department’s appeal. We deny that motion for reasons
stated in Part I of this opinion.
The apparent purpose of the remand to the Department
was to give the State an opportunity to cure what the
circuit court believed to be a defect of constitutional di-
mension in the administrative procedure. None of the al-
leged victims of child abuse testified in any proceedings.
Hearsay, of which the alleged victims were the declarants,
was admitted through parents and others who had spoken
with-the children. Finding the content of the children’s
statements to be ‘‘foundational,’’ the circuit court reasoned
that Bo Peep’s request for an interview of the children
by a psychologist of Bo Peep’s choice would have given
the licensee ‘“‘a meaningful opportunity to test the credi-
bility of the out-of-hearing statements,’”’ but Bo Peep’s re-
quest for such an interview was denied. Recognizing that
the hearing officer had no authority to order the type of
discovery requested by Bo Peep, the circuit court never-
theless concluded that under those circumstances the hear-
ing officer ‘‘should not have considered any of the evidence
which was dependent on the foundational out-of-hearing
statements where circumstances prevented an opportunity
to challenge.”” We discuss this issue in Part II, infra.
The circuit court also found that the hearing officer had
erred in restricting the scope of cross-examination by Bo
Peep of a police officer who had participated in the in-
vestigation of suspected child abuse. We address that ques-
tion in Part III hereof.
Ee
Ya
Bo Peep argued, and the circuit court found, that the
licensing agency had violated its own regulations by failing
to reinspect the premises of the child care center prior to
revocation. Bo Peep also sought, but failed, to persuade
the circuit court that Clark should have recused himself
from conducting the revocation hearing. Parts IV and V,
below, respectively deal with those arguments advanced
here by Bo Peep as additional support for the circuit court’s
result.
Bo Peep does not argue that there was a lack of sub-
stantial evidence before the agency to support its findings
of physical and sexual child abuse at Bo Peep. Conse-
quently, we need not review the evidence in detail. In
Part II we shall review the evidence only to the extent
needed to illustrate Bo Peep’s due process contention.
I
Bo Peep, relying the McKinney-Peco doctrine, has moved
to dismiss the Department’s appeal. See Zoning Appeals
Bd. v. McKinney, 174 Md. 551, 199 A. 540 (1938) and
Maryland Pharmacy Bd. v. Peco, Inc., 234 Md. 200, 198
A.2d 273 (1964). In a line of cases beginning with Mc-
Kinney, ‘‘this Court has taken the position that certain
administrative agencies acting in a ‘quasi-judicial’ capacity
cannot appeal the reversal of their decisions by a circuit
court, unless the authority to appeal is specifically provided
by statute.’’ Consumer Protection Div., Office of the
Attorney Gen. v. Consumer Publishing Co., 304 Md. 731,
742, 501 A.2d 48, 54 (1985). In Consumer Protection, Judge
Eldridge, writing for the Court, analyzed the McKinney-
Peco line of cases and pointed out that the doctrine does
not apply to all agencies. It does not apply to agencies
whose functions “ ‘are so identified with the execution of
some definite public policy that their participation in liti-
gation affecting their decisions is regarded by the Legis-
lature as essential to the adequate protection of the State’s
interests.’’’ Consumer Protection, 304 Md. at 743, 501
10a
A.2d at 54 (quoting McKinney, 174 Md. at 561, 199 A. at
545).
In Consumer Protection we concluded that that Division
in the Attorney General’s Office was not the kind of non-
adversarial, quasi-judicial agency contemplated by the doc-
trine. The Division’s statutory powers included the power
to receive and investigate complaints, to initiate investi-
gations, to issue cease and desist orders, to adopt rules
and regulations and to seek injunctions. We held that
‘[w]ith its many different functions, its mandate to protect
consumers and its role as a representative of the interests
of the State, the Division is not the type of agency to
which the rationale of McKinney applies.’’ 304 Md. at 746,
501 A.2d at 56.
The reasoning of Consumer Protection applies with equal
force here to permit the Department to pursue its strong
interest in the outcome of this case which it initiated and
vigorously prosecuted by appealing the reversal of its or-
der. The statutory regulation of child care centers in Fam-
ily Law Article, Title V, ‘Children,’ Subtitle 5, ‘Child
Care; Foster Care,” contains legislative findings and state-
ments of purpose in § 5-571. These include a finding that
“if care of a child is given over to another, mental and
physical risks arise that need to be offset by reasonable
protective measures.” § 5-571(aX1\ii). The purpose of the
child care subtitle
“Is to aid each parent and protect each child from
the risk present if:
(1) the child is cared for by an individual other
than a relative or friend; and
‘(2) children of more than one family are cared for
together... .”’
§ 5-571(b). Pursuant to those findings and purposes the
Secretary of the Department is given authority to adopt
rules and regulations which shall ensure, inter alia,
ee
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“proper care, protection, and supervision of children in
child care centers[.]’’ § 5-573(bX2). The Department is au-
thorized to issue, deny, suspend and revoke licenses for
child care centers. §§ 5-574 through 5-580. The Secretary
of the Department, or the Secretary’s designee, is au-
thorized to petition a circuit court to enjoin unlicensed
child care center operations. § 5-508(e). Child care centers
must be open to inspection by, inter alia, representatives
of the Department. COMAR 10.05.01.80 (1988).
All cases of suspected child abuse are reported to a local
department of the Social Services Administration. See
Family Law Article, §§ 5-704 through 5-706. The Social
Services Administration is a division of the Department.
§ 5-501(b). Each loca] department is required to notify the
designee of the Secretary of the Department within forty-
eight hours after the local department’s receipt of a report
of suspected child abuse. The Secretary’s designee then
convenes a multi-disciplinary team, which the Secretary’s
designee chairs, to coordinate procedures to be followed
in investigating and otherwise responding to the report.
§ 5-584.
Thus, the role of the Department in cases of suspected
child abuse, particularly at a child care center, is not a
passive one of quasi-judicial adjudication, but is an active
role of policy formulation and protection of children.
The Department may appeal the circuit court’s order.
II
The next issue is whether the procedure which resulted
in the revocation of Bo Peep’s child care center license
violated due process because the procedure did not include
a method for, and Bo Peep was not allowed to conduct,
a psychological examination by an expert of its choice of
the allegedly victimized children. In this Part II we shall
(A) explain the general evidentiary framework of the case;
(B) illustrate the due process problem by reviewing the
12a
evidence relating to a specific child; and (C) analyze and
decide the constitutional issue.
A
The due process issue arises out of the largely circum-
stantial way in which the Department proved child abuse
at Bo Peep. In general that proof fell into four categories:
(1) testimony by physicians stating their observations when
physically examining children and expressing their medical
opinions based upon those observations; (2) testimony of
parents, social workers and psychologists narrating their
observations of relevant nonassertive verbal and nonverbal
conduct of the children; (3) statements of history to treat-
ing clinicians; and (4) testimony from parents, social work-
ers or other adults relating other assertive statements of
the children, that is, statements relevant only for the truth
of the content of the statements.
Medical members of the interdisciplinary team or teams
assembled to evaluate possible sexual child abuse at Bo
Peep were Drs. Charles Schubin and Michael Reichel. Dr.
Schubin is an assistant professor of pediatrics at the Uni-
versity of Maryland Hospital who has examined between
2,000 and 3,000 children for evidence of sexual] abuse. Dr.
Reichel is assistant chairman of the Department of Pedi-
atrics at Greater Baltimore Medical Center and has con-
sulted in over 200 hundred cases of various forms of abuse
of children. They collectively examined nineteen children
who had attended Bo Peep during the summer of 1987
and concluded that eight, of whom seven were females,
exhibited physical conditions consistent with sexual abuse.
These conditions principally were gross enlargement of the
hymen, vaginal scars and tears, and anal gaping and scar-
ring. Each of the doctors testified in person and was sub-
jected to cross-examination.
The relevance of the nonassertive verbal and nonverbal
conduct of the children lies in certain behavior which is
13a
indicative of sexual abuse. Hearing Officer Clark explained
the relevance and reliability of this class of evidence, say-
ing:
‘Certain behavioral changes exhibited by young chil-
dren are indicative that trauma has occurred to them,
and certain behaviors are unlikely to be exhibited as
a result of any trauma other than sexual abuse. Vis-
ible trauma to the sexual organs of children is indic-
ative of sexual abuse; so is inappropriate sexual
behavior with peers, toys, or animals; so is verbalizing
sexual language or knowledge that is atypical for that
child’s age. As the number of those physical confir-
mations rise in a particular day care center popula-
tion, the concern is heightened that such abuse has
in fact occurred there. An example of behavioral in-
dications that sexual abuse has occurred to her, is
when a young child, three or four years old, becomes
very sexually provocative, or has a marked change in
her sexual activities. Other behavioral changes brought
about in children who have been sexually abused in-
clude regression, i.e. toilet trained children begin to
wet or soil themselves; loss of appetite; breaking out
in rashes; crying; constipation; sleep disturbances;
phobias or avoidance behavior; withdrawal or depres-
sion; aggressive behavior; excessive masturbation;
hysterical reactions; perpetration of sexually unac-
ceptable conduct upon others; genital or urethral
trauma; genital infections; recurrent urinary tract in-
fections; abdominal pain; and other manifestations.”’
The hearing officer’s view of the probative value of that
evidence is supported in the literature. See Finkelhor, Wil-
liams, Burns & Kalinowski, Serwal Abuse in Day Care: A
National Study, Family Research Laboratory, U. of New
Hampshire at 7-8 (1988); Berkowitz, Sexwal Abuse of Chil-
dren and Adolescents, 34 Adv. Pediatr. 275, 278-79 (1987);
Herbert, Expert Medical Assessment in Determining Prob-
l4a
ability of Alleged Child Sexual Abuse, 11 Child Abuse &
Neglect 213, 216-17 (1987); Wherspann, Steinhauer &
Klajner-Diamond, Criteria and Methodology for Assessing
Credibility of Sexual Abuse Allegation, 32 Can. J. Psy-
chiatry 615, 622 (1987); Paul, ‘““‘What Really Did Happen
to Baby Jane’’—The Medical Aspects of the Investigation of
Alleged Sexual Abuse of Children, 26 Med. Sci. Law 85,
96-102 (1986); Krugman, Recognition of Serual Abuse in
Children, 8 Pediatr. in Review 199, 202-04 (1986); de
Young, A Conceptual Model for Judging the Truthfulness
of a Young Child’s Allegation of Sexual Abuse, 56 Amer.
J. Orthopsychiat. 550, 555-56 (1986); Hunter, Kilstrom &
Loda, Serually Abused Children: Identifying Masked Pres-
entations in a Medical Setting, 9 Child Abuse & Neglect
17, 19 (1985).
The adults who testified to the relevant, nonassertive
verbal and nonverbal conduct of the children did so in
person and were subject to cross-examination. Testimony
of the type described in this second category of proof
would have been admissible in a judicial proceeding. See
In re Dependency of Penelope B, 104 Wash.2d 643, 709
P.2d 1185 (1985) (en banc).
The third class of proof concerns a clinical psychologist,
as to two children from Bo Peep whom she was treating,
and a clinical social worker, as to three children from Bo
Peep whom she was treating.? They opined that the chil-
dren had been sexually abused at Bo Peep. These opinions
were based on personal observations of, and parental re-
ports of, conduct of the type described above, as well as
on statements made to the experts by the children in ther-
apy sessions. Both of these experts were subject to cross-
examination.
The testimony of these witnesses was sufficiently relli-
able to be admissible in this administrative proceeding,
? As to treatment by clinical social workers see COMAR 10.42.02 and
73 Op. Att’y Gen. (Md.) 319 (1988) [Opinion No. 88-049 (Nov. 9, 1988)}.
——————
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15a
whether or not some or all of the hearsay declarations of
the children embodied within that testimony would have
been admissible in a judicial proceeding. Under the law of
evidence, as a general proposition, statements of medical
history, made by a patient to a treating medical practi-
tioner for the purpose of treatment, may be admitted as
substantive evidence through the medical witness. If the
medical practitioner is engaged only to render an expert
opinion, and not for purposes of treatment, statements of
history related by the patient are admissible through that
witness for the limited purpose of explaining the basis for
the expert’s opinion. See State v. Allewalt, 308 Md. 89,
517 A.2d 741 (1986); Beahm v. Shortall, 279 Md. 321, 368
A.2d 1005 (1977). From the standpoint of reliability, hear-
say of the subject type has been recognized as evidence
by the United States Court of Appeals for the Fourth
Circuit. Applying Fed.R.Evid. 803(4), that court held that
statements describing abuse, made by a four year old child
to her psychologist for purposes of treatment, are admis-
sible as substantive evidence. Morgan v. Foretich, 846 F.2d
941 (4th Cir. 1988). And see United States v. Renville, 779
F.2d 480 (8th Cir.1985).%
‘The instant matter is substantially distinguishable from Bohnert v.
State, 312 Md. 266, 5389 A.2d 657 (1988) where we excluded a pur-
portedly expert opinion that a child, age seven (Joint Record Extract,
Vol. 1, at 91-96), had in fact been sexually abused. That criminal pros-
ecution involved application of the rules of evidence. The expert was
a protective service investigator with the Social Services Administration
who had investigated the complaint, id. at 219, 539 A.2d 657, whereas
the witnesses in the matter before us were treating clinicians. With
respect to underlying reliability, we held that there was an insufficient
basis for any opinion by the witness in Bohnert who had not subjected
the child to any type of objective tests, who had found no need to
review medical reports, who did net eompare the child’s behavior to
general behavioral characteristics of cid abuse victims and who relied,
at least in part, on ‘‘ ‘a certain sense about children{.]’’’ Bohnert, 312
Md. at 272, 589 A.2d at 660. Under the circumstances in Bohnert we
also concluded that the opinion was no more than the witness’s con-
clusion that the child, as opposed to Bohnert, was telling the truth.
l6a
In the fourth class of evidence in the Department’s case,
adults related assertive statements made by children, not
for purposes of medica] treatment, in which the children
described, in their terms, acts of physical and sexual abuse
said to have been committed on them at Bo Peep. From
the standpoint of comparison to a judicial proceeding par-
ticular statements may or may not have qualified as ad-
missible hearsay under the excited utterance exception.
Compare United States v. Iron Shell, 633 F.2d 77 (8th
Cir.1980), cert denied, 450 U.S. 1001, 101 S.Ct. 1709, 68
L.Ed.2d 203 (1981); United States v. Nick, 604 F.2d 1199
(9th Cir.1979); Moore v. State, 26 Md.App. 556, 338 A.2d
344, cert. denied, 276 Md. 747 (1975) (exception applied)
with Cassidy v. State, 74 Md.App.1, 536 A.2d 666, cert.
denied, 312 Md. 602, 541 A.2d 965 (1988) (exception in-
applicable).
~~ ss
Deborah testified in Bo Peep’s case. The thrust of her
evidence was that Bo Peep was so closely supervised and
SO open to parents at all times that any abuse suffered
by any children who happened to be enrolled there could
not have occurred on the Bo Peep premises. A psychologist
testified on behalf of Bo Peep from a review of medical
records and transcripts of prior testimony, but without
having examined the children. That expert opined, in es-
sence, that the apparent abuse of particular children was
explainable by masturbation, constipation, and/or separa-
tion anxiety, coupled with a strong suggestion of an ov-
erlay on the entire case of some hysteria on the part of
some adults.
The hearing officer was persuaded that there was child
abuse and that it had occurred at Bo Peep. Essentially
Clark concluded that coincidence could not explain the
number of children who bore physical findings consistent
with sexual abuse, who manifested behavior indicative of
having been sexually abused, and who were said to have
described acts of physical and sexual abuse at Bo Peep.
To illustrate the due process issue in a factually specific
context, we shall review the evidence concerning child 7.‘
Bo Peep argues that ‘t]he statements of child 7 are a
prime example of the effect of the due process denia! upon
Bo Peep.”’ Appellee’s Brief at 27.
Child 7 is a female who was three and one-half years
old in July 1987. Because the child had exhibited several
symptoms of abuse, as listed in a brochure which the child’s
parents had obtained at a meeting sponsored by the Social
Services Administration, the parents caused child 7 to be
examined by Dr. Schubin on July 2, 1987. On that ex-
amination the diameter of the child’s hymen was two mil-
limeters, a finding Which was normal for her age. Child
7 did not thereafter attend Bo Peep until Monday, July
13. In the interim child 7 was constantly with her parents
during the family vacation.
On Wednesday, July 15, the mother picked up child 7
at Bo Peep after 4:00 p.m. The child complained that her
bottom hurt. The complaints continued into the evening.
When bathing child 7 that evening the mother notice a
small cut near the child’s vaginal area. On questioning the
child told the mother that that was where Miss Debbie
had put toilet paper in her. As a result the parents caused
child 7 to be reexamined by Dr. Schubin on Friday, July
17 at noon. Dr. Schbin testified that on that examination
the hymenal opening was then “grossly distorted’’ to ten
by fifteen millimeters, with swelling and redness, in terms
of a clock face, from two to six. In his opinion the injuries
occurred within four to six days prior to his examination.
In his opinion the child could not physically have produced
the injury with her own hands by masturbating.
‘Numbers were used at trial and in the appellate briefs to identify
particular children, in lieu of names.
18a
Child 7’s mother testified that child 7 said on Friday
that Mr. Pat was also there when Miss Debbie put toilet
paper in her. On Saturday the child told the mother that
“Miss Rita” (.e., Blevins) and “Miss Martha” were also
there and that “a ball” had been put in her. At first she
described the bal] as orange and then as pink. She said
this happened when she was in the kitchen on the table.
In September 1987 child 7 began to be treated by Mary
Derbyshire (Derbyshire), a clinical social worker. Derby-
shire was also treating two other children from Bo Peep
whom she believed had been abused. Derbyshire testified
for two full days in the revocation case. Her direct and
cross-examinations, and related colloquy, are reported in
approximately 575 pages of transcript. The notes which
she made of sessions with the children were introduced in
evidence and made available to Bo Peep’s counsel over-
night for preparation for cross-examination. Drawings
made by the children in the therapy sessions were intro-
duced as exhibits. Child 7 was still in weekly therapy with
Derbyshire when the latter testified in May 1988.
Derbyshire acknowledged that, particularly in the early
phases of the treatment, the child ‘“‘had confused thoughts
that interfered with her being able to verbally articulate
things in a way that she was experiencing them... .”’ In
September the child talked of Bo Peep as a bad place
where Miss Rita had hurt the child’s “operation.” Child
7 had had a hernia operation resulting in a scar in her
pelvic area. During a November session child 7 said that
Miss Rita had beaten her “down there” (pointing to the
vaginal area) when the child was going potty. When asked
to demonstrate the child used both of her fists and started
beating on her pelvic area. Derbyshire then asked the par-
ents to join them and the child repeated the demonstration
again. After each demonstration the child stated that she
was just kidding. Derbyshire’s interpretation of the state-
ment, “just kidding,”’ was that child 7 had difficulty ac-
19a
cepting the reality of what had happened and that was
her way of making the occurrence not real.
Child 7 refused to take naps. When Derbyshire was
attempting to treat that fear, the child told Derbyshire
that ‘Mr. Pat [had] sat next to her when she was asleep
and he had newspapers ... and he put the newspapers
on her and then he: tried to choke her....” The child
demonstrated by putting her hands around her neck. When
child 7 talked about Miss Rita hurting the child’s “‘oper-
ation,” the child would tremble, shake, cry, and beg to go
home. The child said that Miss Rita would beat her in the
belly and demonstrated by placing the palm of one hand
flat against her stomach and striking the back of that hand
with her other hand in a fist. Derbyshire understood that
to be a technique for beating a child without leaving a
bruise.
The child also referred to Blevins as “big foot” and
spoke of a “water machine’ used to spray the children
with colored water in a kitchen at Bo Peep. The specific
testimony on these points is set forth in the margin.’ Der-
Describing a January 1988 session Derbyshire said that the child
“didn't like to come to the sessions because it made her think
about things that were scary and I asked her what kind of things
and she said Bo Peer, she was sobbing, she was shaking, she
was wringing her hands, at times she was masturbating, she said
she was afraid of big foot, that she thinks about Miss Rita pinch-
ing her in the bathroom and that Miss Rita was pinching her in
the bathroom Mr. Pat and Miss Rita were there and that it was
dark, she said that when they did that it hurt her on her belly
and her operation and then she said there was a water machine
in the attic and that the water machine was taken to the kitchen
table and the kids were put on the kitchen table by Miss Rita
and Mr. Pat, the kids had clothes off but Miss Rita and Mr. Pat
had clothes on, the kids bodies were squirted with colored water,
sometimes hot water, sometimes cold, al] over their bodies in-
cluding down there, sometimes the water was yellow, gold, pink
or clear. And then she said sometimes Mr. Pat would hide in the
20a
byshire testified that the child said that Miss Rita had told
child 7 that if she ever told secrets she would be taken
away on a bus. The child had a fear that if she took a
field trip by bus with the children at her new nursery
school she would never be brought home again.
Bo Peep’s expert, Dr. Lawrence Donner (Donner), is a
clinical psychologist. Donner testified for two full days in
the revocation case. His direct and cross-examinations, and
related colloquy, occupy approximately 455 pages of the
transcript. His view was that child 7’s “just kidding’ re-
marks refer to the fact that it was a game which Der-
byshire was asking child 7 to play. Donner also concluded
from the different actors and situations included in the
pattern of detail involved in child 7’s descriptions that
‘‘there’s no consistency in what she says. There’s clearly
no basis in terms of my opinion in reality in what she’s
saving.”
Cc
When the circuit court expressed its concern over the
introduction into the agency hearing record of out-of-hear-
dark bathroom when Miss Debbie was coming and then she said
sometimes Mr. Pat went to the basement to get rope or was
going to get the water machine... .”’
Speaking generally of the two months preceding her testimony in
May of 1988, Derbyshire said that
“periodically this fear of big foot would be verbalized. At this
particular point in time the child was able to, in a coherent fashion
provide some more information in terms of the fear of big foot,
what she said was that big foot used to get us in the kitchen
with the tables. What that means is apparently there’s more than
one kitchen at Bo Peep and child number seven refers to one of
these kitchens as a kitchen with a table and she said that big
foot is Miss Rita and that Mr. Pat gave Miss Rita a big foot
outfit when he dressed up as Santa at a bad Christmas party at
Bo Peep. Miss Rita used to be big foot and scare us. Once again
she describes Miss Rita hitting, quote, ‘us like this’, and describes
the flat palm on her belly and then the fist beating the palm on
her belly.”
a
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2la
ing statements by the children concerning ‘‘foundational’’
matters, the court was simply referring to hearsay con-
cerning materia] facts. Hearsay which is inadmissible in a
judicial proceeding is not per se inadmissible in an ad-
ministrative proceeding. See Fairchild Hiller Corp. v. Su-
pervisor of Assessments for Washington County, 267 Md.
519, 298 A.2d 148 (1973); Tauber v. County Bd. of Appeals
for Montgomery County, 257 Md. 202, 262 A.2d 513 (1970);
Eger v. Stone, 253 Md. 533, 253 A.2d 372 (1969); Newman
v. Baltimore, 251 Md. 92, 246 A.2d 583 (1968). Under the
Maryland Administrative Procedure Act, applicable here,
“(tlhe agency may admit probative evidence that reason-
able and prudent individuals commonly accept in the con-
duct of their affairs and give probative effect to that
evidence.”’ Md.Code (1984), § 10-208(b) of the State Gov-
ernment Article.
To accept Bo Peep’s argument the circuit court’s anal-
ysis had to escalate to the constitutional level. But pro-
cedural due process does not prevent an agency from
supporting its decision wholly by hearsay, if there is un-
derlying reliability and probative value. See Richardson v.
Perales, 402 U.S. 389, 402, 91 S.Ct. 1420, 1428, 28 L.Ed.2d
842, 853 (1971) (in a federal] social security disability hear-
ing, ‘a written report by a licensed physician who has
examined the claimant and who sets forth in his report
his medical findings in his area of competence may be
received as evidence ... and, despite its hearsay character
and an absence of cross-examination, and despite the pres-
ence of opposing direct medica] testimony and testimony
by the claimant himself, may constitute substantial evi-
dence supportive of a finding by the hearing examiner
adverse to the claimant, when the claimant has not ex-
ercised his right to subpoena the reporting physi-
Ge. ..6.
‘The State has argued that Bo Peep could have subpoenaed and
examined the children whom the State alleged were abused. Bo Peep,
22a
‘Due process, unlike some legal rules, is not a technical
conception with a fixed content unrelated to time, place
and circumstances.” Joint Anti-Fascist Comm. v. McGrath,
341 U.S. 123, 162, 71 S.Ct. 624, 643, 95 L.Ed. 817, 849
(1951) (Frankfurter, J., concurring). Currently the United
States Supreme Court utilizes a balancing analysis in de-
ciding questions of procedural due process. It was de-
scribed for the Court by Justice Powell in a case involving
termination of socia] security benefits, Mathews v. Eld-
ridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
‘‘More precisely, our prior decisions indicate that iden-
tification of the specific dictates of due process gen-
erally requires consideration of three distinct factors:
First, the private interest that will be affected by the
official] action; second, the risk of an erroneous dep-
rivation of such interest through the procedures used,
and the probable value, if any, of additional or sub-
stitute procedural safeguards; and finally, the Gov-
ernment’s interest, including the function involved and
the fiscal and administrative burdens that the addi-
tional or substitute procedural requirement would en-
tail.”
Id. at 335, 96 S.Ct. at 903, 47 L.Ed.2d at 33.
We have neither been cited to, nor found, any decision
involving administrative proceedings in which the conten-
tion was made that procedural due process required a pre-
hearing examination of a nonparty by a health care
professional. A straightforward application of the princi-
on the other hand, asserts that it sought a psychological examination
in lieu of subpoenas and of interrogation by counse] at the hearing.
We wil] not rest our decision on this argument advanced by the State.
To do so would imply that, had subpoenas for the children been sought
and opposed by motion to quash, the hearing officer should have refused
to quash in order to protect a due process right. That is not the issue
before us and we intimate no opinion thereon.
a
ROR ew sm
23a
ples quoted above from Mathews v. Eldridge demonstrates
that due process has not been violated here.
2 R. Rotunda, J. Nowak & N. Young, Treatise on Con-
stitutional Law, Substance and Procedure § 17.8, at 250
(1986) places in constitutional context the problem now
before us.
“Before examining the balancing test in operation,
one should note the different elements of the adver-
sary process which may be required as part of the
‘due process’ which must be afforded to an individual
when the government deprives him of life, liberty or
property. The essential elements are: (1) adequate no-
tice of the charges or basis for government action;
(2) a neutral] decision-maker; (3) an opportunity to
make an oral presentation to the decision-maker; (4)
an opportunity to present evidence or witnesses to
the decision-maker; (5) a chance to confront and cross-
examine witnesses or evidence to be used against the
individual; (6) the right to have an attorney present
the individual’s case to the decision-maker; (7) a de-
cision based on the record with a statement of reasons
for the decision.”’
(Footnote omitted). The authors list six additional proce-
dural safeguards, including ‘‘a right to pre-trial discovery
of evidence,”’ which the authors state “‘tend to appear only
in connection with criminal trials or formal judicial process
of some type.”’ Id.
The private interest to be affected by the license re-
vocation is Deborah’s continued operation of a day care
center business on the premises. No liberty interest is at
stake. Cf. Coy v. Iowa, __ U.S. __., 108 S.Ct. 2798, 101
L.Ed.2d 857 (1988); Craig v. State, 316 Md. 551, 560 A.2d
1120 (1989); Wildermuth v. State, 310 Md. 496, 530 A.2d
275 (1987) (accused’s right of confrontation in criminal
prosecution). The Cassillys’ property interests in the realty
and equipment are not at stake. Where, as here, the li-
24a
cense to engage in a regulated business may not be with-
drawn at the discretion of the licensing authority but only
upon proof of certain contingencies, the procedure by which
a state undertakes to suspend or revoke the license is
restrained by due process. See Barry v. Barchi, 443 U.S.
55, 64 n.11, 99 S.Ct. 2642, 2649 n. 11, 61 L.Ed.2d 365,
375 n. 11 (1979). That case involved the suspension, prior
to any hearing, of the license of a horse trainer pursuant
to a state regulation which presumed negligence on the
part of a trainer whose horse tested positive for drugs
after a race. The Court held that the interest of tie state
in the integrity of racing justified the procedure, so long
aS a post-suspension hearing was promptly held. The reg-
ulation in Barry v. Barchi was invalid because it set no
time limit within which the post-suspension hearing had
to be held, and it allowed the agency thirty days after the
hearing within which to decide the issue.
The procedures actually used by the Department greatly
minimized the risk of an erroneous deprivation of Debo-
rah’s license. There were two protracted hearings before
the agency at each of which Bo Peep was afforded all of
the protections which will ordinarily satisfy due process
requirements in contested administrative law cases. See
Rotunda, supra; Friendly, “Some Kind of Hearing,” 123
U.Pa.L.Rev. 1267 (1975). The record of a judicial pro-
ceeding in a circuit court was also made part of the agency
record. The Department’s decision was based on uncon-
tradicted physical findings, on personal knowledge of adults
concerning relevant, nonassertive conduct, on expert opin-
ions based in part on psychologically pertinent history and,
only to a degree, on hearsay declarations which would have
been inadmissible as substantive evidence in a judicial pro-
ceeding. We cannot quantify the degree of the latter. In
the case as a whole, however, Bo Peep does not contend
that that hearsay was both so unreliable and so pervasive
as to undermine the substantiality of the evidence against
it.
een
a side uae Rubee’
25a
Rogers v. Radio Shack, 271 Md. 126, 314 A.2d 113 (1974)
on which Bo Peep relies was based on a procedural deficit
of a kind not present in the instant case. In that unem-
ployment compensation case the agency record included,
and presumably the agency considered, an investigator’s
report which had never been introduced into evidence at
any hearing and of which the claimant was unaware. Un-
der those circumstances, where the claimant had “‘no op-
portunity for cross-examination or rebuttal,’’ we held that
“fundamental fairness would preclude reliance upon the
report by an administrative agency or a reviewing court.”’
Id. at 129, 314 A.2d at 115.
The next factor to be weighed, per Mathews v. Eldridge,
is “the probable value, if any, of additional or substitute
procedural safeguards.”’ 424 U.S. at 335, 96 S.Ct. at 903.
Here that value is minimal. Bo Peep asserts that the cir-
cuit court was correct in holding that ‘‘due process of law
requires that the opponent have a meaningful opportunity
to test the credibility of out-of-hearing statements if the
agency decision is foundationally based on such statements,
whether or not the statements constitute hearsay.’’ Ap-
pellee’s Brief at 9-10. We observe that, strictly speaking,
statements do not have credibility—witnesses do (or do
not). Seemingly contradictorily, Bo Peep then submits that
“the truth of the children’s statements is not at the heart
of the issue; the children never testified. It is the meaning
of these statements which went untested.” Jd. at 10. Bo
Peep complains that certain “‘persons drew conclusions
from the statements made to them by the children’’ but
that Bo Peep ‘was denied the right to reach behind the
State’s conclusions by testing the credibility of the process,
thereby testing the meaning of the children’s statements.’
Id.
This argument can embrace at least four possible defects
affecting the ‘‘credibility of the statements.” First, the
content of the declarant’s statement may be false. Sec-
ondly, an adult witness, either intentionally or uninten-
26a
tionally, may have inaccurately conveyed the declarant’s
statement to the decision maker. Third, the adult witness
may have drawn an erroneous conclusion from the de-
clarant’s accurately reported statement. Fourth, the adult
witness may have accurately communicated the declarant’s
statement, as far as it goes, but may have omitted other
matter never explored, or deemed by the witness to be
insignificant, but which would be significant to some other
evaluator.
The first possibility is that some or all of the children
are lying. The authors of the article, ‘Assessing the Cred-
ibility of Young Children’s Allegations of Serual Abuse:
Clinical Issues,’’ supra, discuss the situations commonly
associated with false allegations.
“Young children almost never initiate false alle-
gations without influence from an adult. Commonly
an adult, either unconsciously or consciously, is intent
on proving to themselves or others that the allega-
tions of abuse are true. The child is thus influenced
by the adult to present with a false allegation. Four
factors of adult influence, either individually or in
combination, are most often present in fictitious sto-
ries. The mere presence of any of these factors does
not mean that an allegation is false. However, in un-
true stories, positive evidence linking one or more of
these factors to the accusation exists. The factors of
influence are:
‘1. The presence of the post traumatic stress disorder
in the adult.
“2. The presence of serious psychiatric disorder in a
parent and evidence of a symbiotically disturbed
mother-child relationship.
‘3. The existence of an ongoing custody/access dis-
pute.
—
|
)
:
a
}
27a
‘‘4. A professional committed prematurely to the truth
of the allegation.”
32 Can. J. Psychology at 611. In the instant matter Bo
Peep either cross-examined or had the opportunity to cross-
examine or subpoena any adult who may have influenced
any child falsely to describe an occurrence at Bo Peep.
Similarly, as to the second and third possibilities, those
who testified concerning statements made by the children
were subject to cross-examination concerning the accuracy
of their communication. The validity of the conclusions
drawn by the Department’s witnesses from statements
made by the children were questioned by Bo Peep’s expert
in psychology, Donner, who offered other explanations ex-
culpatory of Bo Beep. Necessarily, Bo Peep was suffi-
ciently informed of the surrounding circumstances to enable
Donner to present that rebuttal.
Finally, although there was undoubtedly some risk that
an adult witness might not have explored or communicated
some facet of a child’s life which Bo Peep’s expert would
consider relevant, Bo Peep had the opportunity, by cross-
examination of the adult witnesses, to explore omissions
by them, and Bo Peep had the opportunity to argue that
omissions had invalidated the witnesses’ conclusions. In
sum, it appears that Bo Peep’s desire to test the “‘cred-
ibility of statements”’ is a desire to discover additional data
which could be used by its expert to support conclusions
favorable to Bo Peep and thereby perhaps enhance the
possibility that the decision maker would accept those fa-
vorable opinions. In this case that possibility is slight be-
cause of the number of children at Bo Peep who bear
physical signs consistent with their having been sexually
abused.
Finally, under Mathews v. Eldridge, we consider ‘“‘the
Government’s interest, including the function involved and
the fiscal and administrative burdens that the additional
or substitute procedural requirement would entail.’ 424
28a
U.S. at 335. Here we must weigh heavily in favor of the
State its interest in licensing only day care centers where
children are properly cared for and, more particularly, the
State’s great interest in protecting children from physical
and sexual abuse. Further, the State has an interest in
protecting the children from further anxiety, even if there
would be less emotional] trauma in a psychological inter-
view than in a cross-examination. That interest is so clear
that it in part underlies Bo Peep’s decision not to attempt
to require the children to testify in person at the hearing.
Also weighing heavily against Bo Peep’s request for im-
plementation of an additional procedure is that the re-
quested procedure was not within the power of the hearing
officer. A court adjudicating a property interest in a civil
matter has no authority to compel a pretrial psychological
examination of a non-party witness, and we would be ill
advised to create that right in administrative proceedings
by a fiat on constitutional grounds.
For all of the foregoing reasons Hearing Officer Clark
did not deprive Bo Peep of due process of law in denying
Bo Peep’s motion for a prehearing psychological interview
of the allegedly abused Bo Peep enrollees.’
Ill
The circuit court also held that the hearing officer had
erred, in the suspension hearings of August 1987, by re-
stricting the scope of cross-examination of Sergeant Joseph
Swam (Swam), a witness called by the licensing agency.
As a member of the Bel Air Police Department, Swam
had been involved in the investigation of allegations of
"Bo Peep predicates its due process argument on Maryland Decla-
ration of Rights, art. 24, in addition to the Fourteenth Amendment to
the Constitution of the United States. The two provisions are in pari
materia. See Lodowski v. State, 307 Md. 233, 248, 513 A.2d 299, 307,
cert. denied, 475 U.S. 1086, 106 S.Ct. 1469, 89 L.Ed.2d 725 (1986);
Sites v. State, 300 Md. 702, 717, 481 A.2d 192, 199 (1984).
nels Pepin tial
‘eet calbeya eann eltetls FLL btn, on
Cee Se
29a
child abuse at Bo Peep since June 1987.* After eliciting
Swam’s background, his experience in conducting inves-
tigations and his view that, in multiple victim crimes, the
investigator frequently looks for a common denominator,
Swam testified that he had not identified up to that time
any common denominator of the alleged victims other than
Bo Peep.
Counsel for the agency then had Swam relate a con-
versation with Deborah in which she referred to adult
members of the families of two of the alleged victims.
Deborah said that the alleged victims were apprehensive,
respectively, toward those adults. The information was in-
tended to suggest that the adult family members were
suspects. Objections by counsel for Bo Peep cut off Swam’s
describing how he followed up on this information. The
agency proffered that it wished to show that the inves-
tigation was thorough, that the two adults consented to
take polygraph examinations, which they passed, and that
the police consequently excluded them as suspects. The
hearing officer sustained Bo Peep’s objection concerning
the result of polygraph examinations. The agency was able
to prove only that the police generally use polygraph ex-
aminations as an investigative tool and that they used that
tool in the investigation in the instant matter.
On cross-examination counsel for Bo Peep asked, ‘‘What
people have you contacted in the course of your investi-
gation of Bo Peep?’’ Swam balked at answering. He
claimed that he appeared as a witness with the under-
standing that there would be significant limitations on the
scope of the questions which he would be asked. Counsel
for the agency explained that Swam did not believe he
could reveal details of an on-going criminal investigation.
*Swam testified, without contradiction, that he did not interview any
of the children. Thus the issue before us concerning Swam’s cross-
examination is not involved in the due process issue discussed in Part
II, supra.
30a
Hearing Examiner Clark referred to the confidentiality
provisions of the “‘Public Information Act.” He ruled that
Bo Peep should ‘‘question this witness on the basis of the
questions and answers that were given on direct exami-
nation.”’ Counsel for Bo Peep asked if Swam had inter-
viewed all of the employees at Bo Peep, to which Swam
explained that every interview of a potential witness or
suspect generates a report which becomes part of a crim-
inal investigation file. The hearing officer again instructed
Bo Peep’s counsel to confine the questions to testimony
brought out on direct examination. Counsel asked if Swam
had interviewed all of the parents. An objection was sus-
tained.
Swam’s testimony that Bo Peep was the common de-
nominator among the children is recited in Clark’s opinion
in the suspension case.
To the extent, if any, that Clark unduly precluded Bo
Peep from testing Swam’s common denominator conclu-
sion, the assumed error is not prejudicial When Swam
had been asked whether there was any place that the
children had in common, counsel for Bo Peep objected on
the ground that the question was “‘really ridiculous.”’ That
counsel observed that ‘‘[o]bviously he’s going to say Bo-
Peep,” inasmuch as the universe of allegedly abused chil-
dren was limited to those enrolled at Bo Peep. The hearing
officer did not need Swam’s opinion on investigations in
order to make the common denominator fact-finding.
To the extent that Bo Peep sought to use Swam to
“fish” for additional suspects, the issue is whether Clark
abused his discretion in closely limiting the scope of cross-
examination. See Commission on Medical Discipline v.
Stillman, 291 Md. 390, 435 A.2d 747 (1981) (administrative
agency may limit the scope of cross-examination and that
decision will not be disturbed unless there has been an
abuse of discretion). Bo Peep by its objections had pre-
vented evidence of the police follow up on the ‘‘suspects”’
" “ i a ft
RR iA ited Adis Dineen tie att
3la
identified by Deborah. Clark was not obliged to let Bo
Peep explore through Swam whether one or more other
persons had, at one time or another, been the object of
police attention when the matter would be left hanging,
open ended, with only half of the story told. Clark had
already ruled, at Bo Peep’s request, that the results of
polygraph tests could not be referred to as the basis for
eliminating persons from suspicion. We see no abuse of
discretion.
In any event, Bo Peep never proffered what its objective
was in pursuing the line of interrogation of Swam. Even
if Bo Peep’s cross-examination had a proper objective,
other than to weaken the common denominator conclusion, j
we have no basis from the record to conclude that the
error was prejudicial in the revocation case now before
US.
IV
In this part we address Bo Peep’s argument that, be-
cause the State did not reinspect the Bo Peep premises
as required by the regulation dealing with license renewal,
the State could not revoke the license based on violations
of regulations requiring adequate supervision and prohib-
iting injurious treatment. We shall assume, arguendo, that
there was no reinspection.°
Three days after the Board of Review of the Department
of Health and Mental Hygiene had affirmed the license
suspension, the Harford County Health Officer, by letter
of March 26, 1988, denied Deborah’s then pending appli-
“Bo Peep relies on the testimony of a Child Development Specialist
for the Harford County Health Department who was told by her su-
pervisor not to make a reinspection at Bo Peep in connection with the
application for license renewal. The State does not concede a failure
to reinspect. It argues that tours of the facility and reviews of docu-
mentation by state and local licensing representatives satisfy the rein-
spection requirement, if applicable.
——————«
32a
cation for renewal of the Bo Peep license. The reasons
given for the decision were, in substance:
1. Continued operation of Bo Peep was not con-
sistent with the objectives of certain statutes requir-
ing proper care, protection and supervision of children:
2. Certain regulations, not involving child abuse,
had been found in the suspension case to have been
violated;
3. There was a lack of adequate protection and
supervision: and
4. There had been repeated instances, as found by
the hearing officer, in which children were subjected
to injurious treatment in violation of COMAR
10.05.01.46."
COMAR 10.05.01.46 (1988) provides:
“A child may not be subjected to treatment inju-
rious to his physical or emotional health by a staff
member or any individual connected with the center
such as a substitute, volunteer. or person living in a
household in which a center is licensed.”
The health officer acted under the recited authority of
COMAR 10.05.01.10 (1988). Subparagraph B of that reg-
ulation provides:
“B. For serious or repeated violations of any of
the requirements of these regulations ... a license
may be permanently revoked after an opportunity for
a hearing has been provided by the Secretary. Before
this action, the Secretary or the local health officer
shall notify the licensee in writing, setting out the
reasons for the action and advising the licensee that
his license shal] be permanently revoked at the end
of 5 days following service of the notice, unless the
licensee files with the Secretary a written request for
a hearing within the 5-day period.”
33a
Bo Peep relies on COMAR 10.05.01.07 (1984), “Condi-
tions and Limitations of License,” which in part states
that ‘(t]he renewal procedure for a license shal] include a
reinspection and re-evaluation of the center by the local
health officer and appropriate authorities. .. ."” Because the
revocation of Bo Peep’s license procedurally was initiated
by a refusal to renew, Bo Peep argues that 10.05.01.07
is applicable and further reads the reinspection require-
ment as a condition precedent to revocation.
The State argued to the circuit court that 10.05.01.07
did not cireumscribe the Department's authority to revoke
where the grounds were inadequate supervision and in-
jurious treatment. The circuit court, however, in view of
its finding of a due process violation, ordered that the
further proceedings on remand include reinspection.
We have held that the agency hearing did not violate
due process so that the issue before us is purely one of
interpretation of the regulations. The primary purpose of
the regulation requiring reinspection is to protect children,
by insuring that requirements determinable on inspection
had been met. By way of illustration, these requirements
would seem to include the nature and condition of the
physical plant and of the equipment, including food service
capacity, and required record keeping. The reinspection
requirement may well additionally operate as a protection
to a licensee against a refusal to renew on a ground which
reinspection would reveal does not exist. But none of those
purposes has any relationship to the grounds relied upon
by the Department for the revocation or nonrenewal of
Bo Peep’s license. It was not the intent of the reinspection
regulation that an inspector must observe child abuse on
a reinspection before a license can be revoked by nonre-
newal based on child abuse demonstrated circumstantially.
Vv
Bo Peep’s final assertion is that the hearing officer,
Clark, should have recused himself in the revocation case.
34a
The circuit court held that Clark had not abused his dis-
cretion by deciding to proceed. Bo Peep’s point is that
Clark, on the first day of the revocation hearings, had
admitted into the record the transcript of the suspension
case ang a copy of his findings and conclusions as hearing
officer in the suspension case. Bo Peep argues that, be-
cause al! of the violations alleged in the revocation case
involved events antedating mid-July 1987, and because all
of the violations found in the suspension case involved that
same period, Clark could not impartially decide the re-
vocation case issues.
Clark's admission of the suspension case transcript into
the revocation case record does not demonstrate actual
bias. In the circuit court Bo Peep argued that Clark erred
in admitting that transcript but that court rejected the
argument. In this Court Bo Peep does not directly assert
that Clark erred in admitting the transcript. Instead, Bo
Peep argues lack of impartiality and cites the same ruling.
Under -COMAR 10.05.01.10B (1988) the standard for im-
posing the sanction of permanent revocation of a license
is “serious or repeated violations of any of the require-
ments of [the] regulations....’’ Clark appropriately in-
cluded in the revocation case the record underlying those
violations found in the suspension case for the consider-
ation of the Secretary’s designee in determining whether
permanent revocation was appropriate.
Applicable here is the rule stated in United States v.
Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710,
16 L.Ed.2d 778, 793 (1966):
“The alleged bias and prejudice to be disqualifying
must stem from an extrajudicial source and result in
an opinion on the merits on some basis other than
what the judge learned from his participation in the
case.
-
This Court most recently gave recognition to the above
rule in Doering v. Fader, 316 Md. 351, 558 A.2d 733 (1989)
——————— tt
——— eee
|
|
35a
which cites many cases to the same effect as Grinnell.
We have also said that the rule applies to administrative
agencies. See Board of Medical Examiners v. Steward, 203
Md. 574, 102 A.2d 248 (1954) (members of a hearing board
who initially participated in the decision of a case which
was appealed and remanded to the agency were not
thereby disqualified from hearing the matter on remand).
Accordingly, we reverse. We shall, however, assess costs
against the State. This is because the State devoted sub-
stantial portions of its briefs in chief and in reply to ar-
guing the substantiality of the evidence, despite the fact
that neither the circuit court nor Bo Peep has questioned
the revocation order on that ground.
JUDGMENT OF THE CIRCUIT COURT FOR HARFORD
COUNTY REVERSED. CASE REMANDED TO THAT COURT
FOR THE ENTRY OF A JUDGMENT AFFIRMING THE FI-
NAL DECISION DATED AUGUST 31, 1988, OF THE SEC-
RETARY, DEPARTMENT OF HUMAN RESOURCES, WHICH
AFFIRMED THE DECISION OF THE HARFORD COUNTY
HEALTH OFFICER TO REVOKE THE LICENSE OF BO
PEEP DAY NURSERY. COSTS TO BE PAID BY APPEL-
LANT.
36a
APPENDIX B
IN THE CIRCUIT COURT
FOR
HARFORD COUNTY
Case No. 1998 - 5 - 99
IN THE MATTER OF BO PEEP DAY NURSERY SUSPEN-
SION OF DAY CARE LICENSE
Case No. 2089 - 5 - 145
IN THE MATTER OF BO PEEP DAY NURSERY REVO-
CATION AND DENIAL OF RENEWAL OF DAY CARE LI-
CENSE
FILED
March 9, 1989
MEMORANDUM OPINION AND ORDER
PRELIMINARY STATEMENT
The Court is keenly aware that many believe our forum
will determine whether abuse took place at Bo Peep Nurs-
ery. Such is not the case, as the Court’s mandated function
is to review the proceedings before the Health Department
to discern whether legal error was committed and whether
the Hearing Officer had sufficient, substantial evidence be-
fore him to conclude that physical abuse took place. Thus,
the Court will make no fresh factual determinations con-
cerning the issue of abuse.
37a
FACTS
Deborah Cassilly, Appellant, is the director and licensee
of the Bo Peep Day Nursery in Bel Air. On July 6, 1987,
tal Hygiene which resulted in (1) suspension of her day
care license and (2) revocation/non-renewal of her license.
The two appeals were consolidated and argument was pre-
sented to the Court on November 16, 1988.
I. SUSPENSION OF DAY CARE LICENSE - Case No.:
1998-6-99.
Deborah Cassilly, Appellant, is the director and licensee
of the Bo Peep Day Nursery in Bel Air. On July 5, 1987,
she received a letter from Mr. Thomas, who is a health
officer for the Harford County Health Department. The
letter suspended her day care license pending the outcome
of a child abuse investigation being conducted by the Har-
ford County Department of Social Services and the Bel
Air Police Department. The suspension was premised upon
parental complaints alleging numerous violations of Mary-
land’s group day care center regulations and the possible
abuse of children at Bo Peep.’
Pending Appellant’s right to an administrative hearing
on the issue of suspension of her day care license, Judge
‘The origina] complaints about Bo Peep were registered by the par-
ents of a set of identical twins (children #1 and #2) who were attending
the nursery. Their initial complaint was to the Department of Social!
Services. On June 18, 1987, the mother sent a letter of formal complaint
to the Health Department regarding alleged sexual abuse of #1 at Bo
Peep.
Additionally, the parents of child #9 complained to the Health De-
partment about the nursery. No allegations of abuse were made con-
cerning their little boy at this time. (#9 was later examined by Dr.
Shubin on July 16, 1987 at which time the issue of sexual abuse as to
this child arose). The predominant theme underlying their dissatisfaction
with the center was a general lack of supervision over the enrollees.
Parents of children #1 and #2 were also concerned about adequacy of
supervision.
38a
William O. Carr issued an Order banning al] males from
the day care center from 6:30 A.M. to 6:30 P.M. The Or-
der, which was dated July 9, 1987, also gave the Health
Department the right to monitor the Order to insure that
no males were at the facility during the designated hours.
A short time later, however, Appellee came into Harford
County Circuit Court seeking an ex parte injunction and
an interlocutory injunction to close the day care center.
The record reflects that the hearing for injunctive relief
was promoted by an alleged incident of sexual abuse re-
ported by the parents of child #7 which allegedly occurred
despite the existing aegis of Judge Carr’s earlier Order.
The hearing was held before Judge Whitfill, and he is-
sued an Order on July 28, 1987. This Order essentially
(1) barred Patrick Cassilly from the premises at all times?
and required Appellant and her employees to report his
presence to the Court if he should violate the Order;
(2) mandated that a log be kept registering al] males over
the age of 12 who came to the facility; and (3) required
that all injuries at Bo Peep be documented with notice of
injuries to be provided to parents and the Health De-
partment.
In late August and early September of 1987, the issue
of suspension of Appellant’s license was heard before Wil-
liam Clark, Hearing Examiner for the Department of
Health and Mental Hygiene. In a decision dated November
11, 1987, Mr. Clark upheld the suspension of the day care
license for the existing licensing period. Among the ap-
proximately one dozen COMAR regulations the State
claimed Bo Peep failed to follow, the Hearing Examiner
found that al] but two had been violated by Appellant. The
most significant infraction by Appellant was violation of
‘ Patrick Cassilly is Appellant's husband. Up until this time, Appellant
and Patrick Cassilly had been living in a third floor apartment at the
center
39a
COMAR 10.05.01.46 which deals with injurious treatment
of children attending day care centers.* The Hearing Ex-
aminer concluded that many children at Bo Peep were
subjected to injurious treatment, including sexual abuse.
In addition to upholding the license suspension, the Ex-
aminer went on to advise that if Appellant should seek to
reapply for a license at the end of the current licensing
period, “‘careful and meticulous review of that application,
of the proposed staff of the Licensee, and/or the facility
itself should be made by the Department.” Hearing Ex-
aminer’s Decision, p. 50.
On December 4, 1987, Appeilant filed Exceptions to the
Hearing Examiner’s proposed decision. The decision, how-
ever, was affirmed by the Board of Review of the De-
partment of Health and Mental Hygiene on March 23, 1988.
The final agency decision, which upheld suspension of Ap-
pellant’s current license, was issued shortly before the end
of the current licensing term. The annual day care license
in question was due to expire on March 31, 1988. Appellant
appealed the agency decision suspending the license to this
Court on March 24, 1988. Judge Whitfill, by Court Order,
enjoined the Department of Health and Mental Hygiene
from enforcing its final suspension decision. Said Order
was to expire on March 30, 1988, at 8:00 o’clock P.M.
Argument on suspension of Bo Peep’s license to operate
a group day care facility came before this Court on
November 16, 1988.
II. NON-RENEWAL/REVOCATION OF DAY CARE LI-
CENSE - Case No.: 2089-5-145.
As indicated above, the suspended day care license was
due to expire, as a matter of course, on March 31, 1988.
* This provision from COMAR states as follows: A child may not be
subjected to treatment injurious to his physical or emotional health by
a staff member or any individual connected with the center such as a
substitute, volunteer, or person living in a household in which a center
is licensed.”
40a
Appellant applied in a timely fashion for renewal of her
day care license. In a letter dated March 26, 1988, how-
ever, Mr. Thomas of the Harford County Health Depart-
ment, denied renewal of her license to operate Bo Peep
and permanently revoked said license. The reasons for re-
vocation of her license are set forth in Mr. Thomas’ letter
as follows:
(1) I have evaluated your application and the licen-
sing materials to determine if the continued operation
of your Center is consistent with the legislative re-
quirements set forth in Health General Section 14-102
and 14-104. In particular, I have reviewed the specific
provisions of Section 14-104 requiring that group day
care centers operate in a manner which provides chil-
dren with safe conditions in addition to “proper care,
protection and supervision.’’ I have concluded that the
continued operation of this center is not consistent
with these statutory objectives.
(2) Further, I am permanently revoking and de-
nying renewal of your license on the basis of of the
regulatory violations found in the decision of William
F. Clark, Esq. dated November 16, 1987, a copy of
which is attached hereto and incorporated herein. Spe-
cifically, I hereby adopt and incorporate the discus-
sion, findings of fact and conclusions of law set forth
in that decision. The regulatory violations upheld by
Mr. Clark which continue to present a threat to the
health and safety of children at this facility are as
follows:
COMAR 10.05.01.12- Minimum Age
.18- Use of Unauthorized Space
.49- Copy of Regulations to Par-
ents
.59- Group Size and Staffing,
Children in Attendance
4la
.60 and .76 - Staffing Pattern
.65- Records
.50A- Adequate Service and Su-
pervision at all Times
The Hearing Officer in his findings stated that ‘‘the
facts show that many of the day care regulations have
not been followed. The sum of the evidence requires
that the facility not only continue in operation with
a license from the Department.”’
3. We continue to be deeply concerned over the
management of the Center and the capability of the
staff to provide for the adequate protection and su-
pervision of the children. Based on our staff review
; of the Center’s operations, we do not feel that there
is adequate assurance that the continued operation of
the Center under the existing staff will provide for
appropriate supervision of children as required by
COMAR 10.05.01.50A.
4. The hearing officer held there were repeated
instances in which children enrolled in the center were
Subjected to injurious treatment in violation of
COMAR 10.05.01.46. These findings reflected numer-
ous deficiencies in the management, staffing and op-
eration of this center. The continued operation of this
center as detailed in your license renewal application
is inconsistent with COMAR 10.05.01.46.
Appellant, once again, had an administrative hearing
before Mr. Clark to appeal the non-renewal/revocation of
her license. The thrust of that hearing, which was held
during May and June of 1988, was to determine whether
physical and sexual abuse of children occurred at Bo Peep.
The Hearing Examiner found that abuse occurred at the
; facility and affirmed the decision to permanently revoke
Appellant’s day care license. Mr. Clark’s decision was is-
sued on August 23, 1988, and it was adopted as a final
COT weet le a we
42a
decision on August 31, 1988. The revocation decision was
appealed to this Court as well.
The decisions of the Department of Health and Mental
Hygiene were stayed by Court Order pending final reso-
lution of the appeals in this case.
STANDARD OF REVIEW
On the issue of judicial review of agency decisions, the
Administrative Procedure Act provides as follows:
(g) Decision. - In a proceeding under this section,
the court may:
(1) remand the case for further proceedings;
(2) affirm the decision of the agency; or
(3) reverse or modify the decision if any sub-
stantial right of the petitioner may have been
prejudiced because a finding, conclusion, or de-
cision of the agency:
(i) is unconstitutional;
(ii) exceeds the statutory authority or juris-
diction of the agency;
(ili) results from an unlawful procedure;
(iv) is affected by any other error of law;
(v) is unsupported by competent, material,
and substantial evidence in light of the entire
record as submitted; or
(vi) is arbitrary or capricious.
Annotated Code of Maryland, State Government,
Section 10-215.
In a recent decision, the Court of Special Appeals re-
stated, at some length, the standard of review which must
guide this court in considering the final decision of the
——————
43a
Department of Health and Mental Hygiene in the appeals
sub yudice:
“The Court’s statutory role upon review goes very
little beyond its inherent power of review to prevent
illegal, unreasonable, arbitrary or capricious admin-
istrative action.”” Harford Memorial Hospital v. Health
Services Cost Review Commission, 44 Md. App. 489,
506, 410 A.2d 22 (1980); Chertkof v. Dept. of Natural
Resources, 42 Md. App. 10, 17, 402 A.2d 1315, cert.
denied, 286 Md. 745 (1979).
Where the agency has made no error of law, then,
the standard of review is ‘“‘whether the finding is
supported by substantial evidence’. Nationwide Mu-
tual Insurance Co. v. Insurance Commissioner, 67 Md.
App. 727, 737, 509 A.2d 719 (1986). In Bulluck v.
Pelham Woods Apts., 283 Md. 505 390 A.2d 1119
(1978), the Court of Appeals discussed this standard
as well as other principles concerning judicial review
of agency decisions:
‘Substantial evidence,’ as the test for reviewing
factual findings of administrative agencies, has been
defined as ‘‘such relevant evidence as a reasonable
mind might accept as adequate to support a conclu-
sion.”
The scope of review “‘is limited to whether a rea-
soning mind reasonably could have reached the factual
conclusion the agency reached,’”’...
In applying the substantial evidence test, we have
emphasized that ‘‘a court should [not] substitute its
judgment for the expertise of those persons who con-
stitute the administrative agency from which the
appeal is taken.’’ We also must review the agency’s
decision in the light most favorable to the agency,
since “‘decisions of administrative agencies are prima
facie correct,’’ and “‘carry with them the presumption
44a
of validity.” Furthermore, not only is it the province
of the agency to resolve conflicting evidence, but
where inconsistent inferences from the same evidence
can be drawn, it is for the agency to draw the in-
ferences. (Citations omitted).
Bulluck, 283 Md. at 512-13, 398 A.2d 1119 (1978).
.... ‘In reviewing decisions of administrative
agencies, the court’s appraisal or evaluation must
be of the agency’s fact-finding results and not an
independent original estimate of or decision on
the evidence, and that the required process re-
quires restrained and disciplined judicial judg-
ment so as not to interfere with the agency’s
factual conclusions where supported by evi-
dence.”’ Zeitschel v. Board of Education of Carroll
County, 274 Md. 69, 82, 332 A.2d 906 (1975).
Thus, even though a reviewing court may disa-
gree with the conclusions drawn by an agency,
it is not at liberty to disregard the agency’s con-
clusions and substitute its own. Nelson v. Real
Estate Commission, 35 Md. App. 334, 344-45, 370
A.2d 608, cert. denied, 280 Md. 733 (1977). More-
over, a reviewing court is restricted to the record
made before the administrative agency, and is
confined to whether, based upon the record, a
reasoning mind reasonably could have reached the
factual conclusion reached by the agency. (Cita-
tions omitted).
Maryland Retirement System v. Martin, 75 Md. App. 240,
244-245, 540 A.2d 1188 (1988).
In light of the foregoing, we now turn to a consideration
of the arguments presented on appeal to this Court.
SNe ud emit Sete Mi. ee ee ee eee 4
45a
DISCUSSION
I. HAS THE DECISION TO SUSPEND BO PEEP’S LI-
CENSE BECOME MOOT?
On November 16, 1987, the Hearing Examiner issued
his proposed decision suspending the license of Bo Peep
Day Nursery for the duration of its current licensing
period. The suspended license was due to expire on
March 31, 1988. Pursuant to Court Order, however, the
day care center remained open throughout the licensing
period in question. While the decision regarding nonre-
newal/revocation of the day care license remains justi-
ciable, we find that the decision suspending the license
(which would have naturally expired about a year ago),
is now moot.
While there is no Maryland case law directly on point,
analogous law from other jurisdictions suggests the sus-
pension decision is moot. See, Jones v. Schwendiman, 721
P.2d 893 (Utah, 1986). (Motorist’s appeal from revocation
of driver’s license and request that his driving privileges
be ordered reinstated was rendered moot by expiration of
one year period of revocation); Dow Chemical Co. v. Curtis,
404 N.2d 737, (Mich. App. 1987), (Running of three year
limitations period for Employment Security Commission to
recover improperly paid benefits rendered case moot in
regard to possible recovery of benefits); North Dakota Ru-
ral Development Corp. v. U.S. Department of Labor, 819
F.2d 199 (C.P. 8, 1987), (Rural development corporation’s
petition for review of denial of federal grant under Job
Training Partnership Act, by Department of Labor, was
rendered moot by imminent expiration of grant year, not-
withstanding corporation’s claim that vindication of its rep-
utation within Department was still open and prevented
mootness).
Appellant argues that the suspension decision is not moot
in light of the fact that Mr. Thomas relied on Mr. Clark’s
Suspension decision as the reason for revoking Appellant’s
46a
license as set forth in Thomas’ letter of March 26, 1988.
See Facts, supra. Given that the regulatory violations found
at the first hearing were the basis for suspending Bo
Peep’s license, the suspension decision itself still remains
moot. Alleged violations of COMAR regulations persisted
as viable evidentiary issues throughout both hearings.
Nevertheless, the actual decision to suspend a license long
since expired (as opposed to evidence upon which the de-
cision was founded), is of no legal interest to the parties
at this juncture.
In denying reapplication for licensure, the proposed de-
cision from the second hearing states as follows:
In his letter dated March 26, 1988, the Health
Officer cited COMAR 10.05.01.12, as well as Reg-
ulations .18, .49, .59, .60, .76, and .65, as con-
tinuing to be violated at present. Inasmuch as
there was insufficient evidence proffered at this
administrative hearing to support these conten-
tions, this rationale for denying the reapplication
for licensure is found to be unwarranted. How-
ever, his contention that COMAR 16.05.01.50A
was violated, i.e. that adequate service and su-
pervision at all times has been lacking, is upheld,
as is the contention that children were subjected
to injurious treatment in violation of COMAR
10.05.01.46.
Proposed Decision at 41. Except for COMAR 10.05.01.50A
and 10.05.01.46, all other regulations found to have been
violated at the suspension hearing did not impinge on the
decision to permanently revoke the facility's license. In-
jurious treatment of children and adequate supervision at
Bo Peep are the issues of legal significance, in that it is
violation of these regulations upon which revocation is
premised.
As a final note, there is some indication in the record.
that Appellant recognizes that revocation, rather than sus-
47a
pension, of the license is the major concern of those in-
volved in these proceedings. In a hearing on exceptions
taken from the first decision, Appellant’s counsel stated
as follows:
In fact, I think you ought to think for a mo-
ment before I even get into the abuse allegations,
why are we here. The license expires next week.
Isn't this a moot issue?
The issue before Mr. Clark was suspension of
the license, but that’s not what Mr. Clark de-
cided. Read the last page of his decision. He far
overstepped his charge and he recommended that
the license be suspended and he went on in my
judgment quite clearly, to say the license should
be revoked. I see he made it clear that’s the
objective of the Health Department... .
(3/23/88, T. 11) (Emphasis added).
For the foregoing reasons, the decision to suspend Bo
Peep’s license for the licensing period ending March 31,
1988 is hereby moot.
Il. DID THE EXAMINER ABUSE HIS DISCRETION BY
DECLINING TO RECUSE HIMSELF FROM THE RE-
VOCATION HEARING?
Prior to the commencement of the license revocation
hearing, Appellant requested that Mr. Clark recuse himself
as Examiner in the second proceeding. Mr. Clark was the
Hearing Examiner at the first hearing, and he issued the
agency decision suspending Appellant’s license to operate
@ group day care facility. Appellant contends that the de-
cision reflected pre-judgment and prejudice on the part of
Mr. Clark. In the second hearing, it was argued that he
would be presented with the same parties and the same
issues necessitating his disqualification.
The bulk of Maryland case law deals with recusal of
trial judges rather than hearing examiners. Whether a trial
48a
judge recuses himself is a matter within the discretion of
the Court, and the “‘decisions will not be disturbed on
appeal except for an abuse of that discretion.”” Harper v.
Harper, 49 Md. App. 339, 342, 431 A.2d 761, rev'd. on
other grounds, 294 Md. 54 (1982). To obtain a reversal on
appeal, ‘there must be an affirmative showing of bias or
prejudice on the part of the trial judge.” Nash v. State,
69 Md. App. 681, 686, 519 A.2d 769 (1987). Additionally,
there is no per se rule requiring recusal based on partic-
ipation in an earlier trial even if the judge is to act as
fact finder in a subsequent proceeding. Id.
Appellant directs the Court’s attention to In re George
G., 64 Md. App. 70, 494 A.2d 247 (1985) in support of its
argument that Mr. Clark should have disqualified himself
from presiding over the second hearing. That case involved
multiple juvenile defendants accused of raping a young
woman. The judge who presided over the bench trials of
two of the defendants was asked by defense counsel to
recuse himself from hearing the case of a third defendant.
The trial judge refused to recuse himself even though he
found the rape to be nonconsensual in the prior bench
trials. The judge, while asserting his ability to act impar-
tially, assured counse] that: “....As far as I’m con-
cerned, [a judge] tries the case as he sees it. You might
be able to prove that he is innocent." Id. at 77. This state-
ment impermissibly assigned the burden of proof to the
defendant. In_ finding that the trial judge erred in not
recusing himself, the Court of Special Appeals noted that
“that which had been subconscious came to the surface
and caused an irreparable taint on the proceedings. It is
that manifestation of the subconscious that projects the
appearance of bias.’’ Jd. at 81. (Emphasis in the origina)).
Unlike In re George G., the record before us does not
reflect bias on the part of Mr. Clark. In denying the motion
to have himself disqualified, the Hearing Exarniner re-
sponded as follows:
49a
....l am going to deny your motion. Cer-
tainly, | understand your perspective for filing
that motion. All I can do is assure you that my
mind in this matter, starting today, is not in fact
made up, and I believe that you may be reading
more into that comment‘ I made about the review
of the subsequent application than was intended
when it was written.
I honestly do not have a bias in this particular
case, and all I can do is assure you today that
you and your client will be afforded a fair and
ful] hearing.”
In the administrative setting, it is true that due process
requires an unbiased decision maker. Withrow v. Larkin,
421 U.S. 35, 95 S.C. 1456, 43 L. Ed. 2d 712 (1975). (Mem-
bers of State Medical Board were not constitutionally pre-
cluded from holding adversary hearing on matter of
possible suspension of physician’s license on basis of
charges evolving from Board’s own investigation.) The
Supreme Court in Withrow stated:
Not only is a biased decisionmaker constitu-
tionally unacceptable but “‘our system of law has
always endeavored to prevent even the probabil-
ity of unfairness.”’ (Citations omitted). In pursuit
of this end, various situations have been identi-
fied in which experience teaches that the
‘The comment being referred to is found at the end of the Hearing
Examiner's first decision suspending Appellant’s license. The final par-
agraph of his decision reads as follows: “The agency is seeking to have
the license of this facility suspended. In light of the Findings of Fact
and Conclusions of Law set out above, it is my recommendation that.
the license of Bo Peep Day Nursery be suspended for the duration of
the current licensing period. Should, at that time, the Licensee seek
to reapply, careful and meticulous review of that application, of the
proposed staff of the Licensee, and of the facility itself should be made
by the Department
50a
probability of actual bias on the part of the judge
or decisionmaker is too high to be constitutionally
tolerable. Among these cases are those in which
the adjudicator has a pecuniary interest in the
outcome and in which he has been the target of
personal abuse or criticism from the party before
him.
The contention that the combination of inves-
tigative and adjudicative functions necessarily
creates an unconstitutional] risk of bias in admin-
istrative adjudication has much more difficult bur-
den of persuasion to carry. It must overcome a
presumption of honesty and integrity in those
serving as adjudicators; and it must convince that,
under a realistic appraisal of psychological tend-
encies and human weakness, conferring investi-
gative and adjudicative powers on the same
individuals poses such a risk of actual bias or
prejudgment that the practice must be forbidden
if the guarantee of due process is to be ade-
quately implemented.
95 SCt. at 1464.
While there is very little Maryland law regarding dis-
qualification of hearing officers because of prejudgment or
bias, it has been recognized elsewhere that a hearing of-
ficer is not biased, either in fact or in law, simply because
he previously ruled against one of the parties. Converse v.
Udall, (Dist. Ct., Oregon) 262 F. Supp. 583 (1966), affd
399 F. 2d 616 (1968), cert. den. 89 S. Ct. 635, 393 U.S.
1025, 21 L. Ed. 2d 569 (1969). The fact that Mr. Clark’s
suspension decision went against Appellant does not pre-
clude him from presiding over the revocation hearing.
One case in which it was ruled that a hearing officer
should not have presided on a rehearing over a case he
initially decided was Spratt v. Dept. of Social Services, 426
NW 2d, 780, Mich. App. (1988). The hearings involved
5la
denial] of Mr. Spratt’s claim for Aid to Dependent Children
premised on his unemployment. The hearing examiner’s
‘comments on the record on rehearing indicates that he
may have prejudged the case. When asked by claimant to
disqualify himself on the basis of bias, the hearing officer
stated, ‘And, as far as making erroneous conclusions, |
still believe I made the proper conclusions at the time.’
Moreover, the hearing officer failed to correctly carry out
the [State] Supreme Court’s Order remanding the case... .
Accordingly, we hold that claimant is entitled to a re-
hearing before a different hearing officer.’’ Jd. at 783 -
784.
Regarding the appeals before this Court, review of the
transcript from the second hearing does not demonstrate
prejudgment or bias on the part of the Hearing Examiner.
Adverse rulings on motions and evidentiary objections dur-
ing the hearing do not, in and of themselves, amount to
an affirmative showing of bias or prejudice on the ex-
aminer’s part. Therefore, this Court concludes that it was
not an abuse of discretion for Mr. Clark to refuse to dis-
qualify himself from the revocation hearing.
The Appellant strongly advances that Mr. Clark was
“pre-programmed” to rule in favor of the state, thus was
biased. The short answer to this contention is that the
record does not demonstrate that conclusion. We will not
presume prejudice from the Appellant’s unsupported as-
sertion. We can understand her concern, however, in that
the Hearing Officer is employed by the Maryland Depart-
ment of Health and Mental Hygiene which was the very
agency seeking suspension and revocation. We can appre-
ciate that the Appellant feels like she is marching into the
jaws of the lion where the adjudicatory and adversary roles
rest in the same government agency. Unfortunately, this
arrangement is sanctioned by Maryland statutes and sim-
ilar situations have survived judicial scrutiny. See Withrow
Larkin, supra.
52a
Ill. WAS THERE A DENIAL OF DUE PROCESS OF LAW?
In this instance, two sets of hearings were conducted
lasting many days. The hearing were before Hearing Of-
ficer, William F. Clark, who made recommended decisions.
The evidence was largely from parents, doctors, social
workers and a psychologist. These witnesses testified as
to what the affected children told them concerning abuse
at Bo Peep. The children did not testify at the hearings,
nor were they made available to the defense for question-
ing by counsel or any other designated individual. We hold
that the children’s out-of-hearing statements were foun-
dational to the case as the State would not have a case
without these statements. Any evidence from which it could
be concluded that the abuse took place at Bo Peep rested
upon the credibility on the out-of-hearing statements of
the children. The psychologist, social workers and parents
all based their opinions and testimony on the childrens’
statements. Without these statements, the psychologist and
social workers could not have implicated Bo Peep. Thus
without the childrens’ statements, the evidence would have
reduced to the bare situation of eight Bo Peep attendees
showing medical signs of physical abuse (per Dr. Shubin
and Dr. Reichel). With just that, the Hearing Officer could
not have concluded that the abuse took place at Bo Peep
by the mere coincidence that each physically abused child
attended the same day care facility. To hold otherwise
would be conjectural and well shy of a preponderance of
evidence. Accordingly, the out-of-hearing assertions were
of critical importance and the foundation on which the
balance of critical evidence depended.
Since the credibility of the childrens’ out-of-hearing as-
sertions was key to the case, the defense asked for the
opportunity to have their psychologist speak to the chil-
dren. Presumably, this would have permitted the defense
to test the credibility or believability of the evidence that
was never directly before the Hearing Officer (out-of-hear-
53a
ing statements). The request was denied (T. 5/11/88,
page 20).
Even though not afforded the opportunity to examine
the children, the Appellant’s psychologist was permitted
to review the evidence presented by the State and opined
upon the credibility of the out-of-hearing declarations. The
Hearing Officer took this testimony as meaningless, since
Dr. Donner merely read “‘a cold record” (proposed deci-
sion, page 35).
Citizens in many countries of our world have no check
or guarantee against arbitrary governmental action con-
cerning their lives or property. Unfortunately, this aspect
of liberty is lacking for those persons. Blessedly, our ances-
tors had the wisdom to amend the Federal Constitutior:
in 1868 and provide that State governments shal] not de-
prive any person of life, liberty or property without due
process of law. Section 1 of the Fourteenth Amendment
of the United States Constitution provides as follows:
‘‘All persons born or naturalized in the United
States and subject to the jurisdiction thereof, are
citizens of the United States and the State of
where they reside. No State shall make or en-
force any law which shall abridge the privileges
or immunities of citizens of the United States;
nor shall any State deprive any person of life,
liberty or property without due process of law;
nor deny any person within its jurisdiction the
equal protection of the laws.’’
In this case, we must determine the process that is due
concerning out-of-hearing statements where the State seeks
to suspend and/or revoke the license of a day care facility.
Under the Maryland Administrative Procedure Act
(Maryland Code, State Government Article, Section 10-201,
et seq.) when the Health Department sought to suspend
and later revoke Bo Peep’s Day Care License a hearing
54a
was convened. Under the law, the hearing is a ‘‘contested’’
one since the proposed action was resisted by the Appel-
lant. See Maryland Code, State Government Article,
Section 10-201. The Administrative Procedure Act does not
detail the exact procedures or rules that are to be abided.
The Act does provide, however, for very broad discretion
in admitting probative evidence. Maryland Code, State
Government Article, Section 10-208. It has long been held
that administrative agencies are not bound by the common
law rules of evidence. Fairchild Hiller Corporation v. Su-
pervisor of Assessments, 267 Md. 519, 298 A.2d 148 (1973).
The law also mandates a notice requirement. Maryland
Code, State Government Article, Section 10-205. Beyond
that, there is very little in the way of specific procedure.
Such permits State agencies great latitude in the conduct
of proceedings.
Since one may not operate a day care center without
State licensure, no one would question that the Appellant’s
property interests are at stake. It is also given to little
question that the due process requirement of the Four-
teenth Amendment applies to State Administrative Agency
hearings. Board of Medical Examiners v. Stewart, 203 Md.
574, 102 A.2d 248 (1954). Due process is a flexible concept
depending on the character of the administrative setting.
As an example, due process under the Maryland Admin-
istrative Procedure Act requires a hearing before suspen-
sion or revocation of a day care license. On the other hand,
some administrative actions do not require advance hear-
ings before action is taken. See Matthews v. Delbridge, 424
U.S. 319 (1976) (Disability benefits). While due process
requirements are flexible in the administrative setting, the
methods used to arrive at decisions affecting property in-
terests must be protected by the “rudimentary require-
ments of fair play’’ (emphasis added). West Ohio Cas.
Company v. Public Utilittes Commission, 55 S. Ct. 316,
294 U.S. 63 (1935); State Ex Rel Madison Airport Co. v.
55a
Wrabetz, 285 N.W. 504, 231 Wis. 147 (1939); Dickenson-
Tide-water v. Supervisor, 273 Md. 245, 329 A.2d 18 (1974).
Maryland decisional] law has long held that hearsay evi-
dence is admissible in the administrative setting. Bethlehem
Steel v. Taylor, 158 Md. 116, 148 At. 246 (1929). Waddell
Cole v. Chisholm, 163 Md. 49, 161 At. 276 (1932). Fairchild
Hiller v. Supervisor, supra. In fact, an administrative de-
cision may be based solely on hearsay if credible and of
sufficient probative value. Fairchild Hiller v. Supervisor,
supra. Our decision in this case does not conflict with this
rule, as we are concerned only with the opponent’s nght
to test the credibility of the hearsay or other out-of-hearing
statements.
The Court holds that in contested proceedings under the
Maryland Administrative Procedure Act, due process of
law requires that the opponent have a meaningful oppor-
tunity to test the credibility of out-of-hearing statements
where the agency decision is foundationally based on such
statements or is totally based on such statements.’ Put
another way, basic fair play requires a meaningful oppor-
tunity to test credibility where the decision rests on evi-
dence from persons who do not appear. The Court has not
been referred to nor found any case authority with hold-
ings and facts identical to this case. We do, however,
follow with references to authorities with issues that are
similar.
In Arkansas Public Service Commission v. Continental
Telephone Company, 561 S.W. 2d 645, 262 Ark. 821 (1978),
the Supreme Court of Arkansas held that due process
requires a party to have a reasonable opportunity to pres-
ent rebuttal evidence on an important aspect of the case.
‘We are not concerned with the issue of whether the statements
qualify as hearsay, since the due process right to test credibility would
apply whether or not the statements have indicia of trustworthiness.
In other words, the Court's holding will apply to hearsay and non-
hearsay statements
56a
In that instance, some eleventh hour evidence was pre-
sented by the opposing party. Understandably, the public
utility party asked for a continuance to prepare a rebuttal
presentation. The request was denied by the administrative
agency. The Court held at pages 654 and 655 as follows:
‘A full and fair hearing is a fundamental re-
quirement of due process in the determination of
the reasonableness of rates...... The oppor-
tunity to submit evidence to rebut charges or
adverse claims and testimony is an essential re-
quirement of a full and fair hearing...... To
meet due process requirements a hearing must
afford a utility the right to reasonably know the
charges and the right to meet such charges by
competent evidence...... Where reliance is
placed by an administrative agency upon testi-
mony of certain witnesses in making a critical
factual determination, it will be an abuse of dis-
cretion to fail to hear material evidence which
might impeach, not only the testimony, but the
findings made by the agency as well...... The
commission must necessarily have a wide latitude
of discretion in conducting and expediting the
many hearings it must hold. Fundamental fair-
ness requires, however, that, where expert or
technical testimony is essential to a proper re-
sponse to testimony adverse to it, adequate op-
portunity must be given to present testimony in
rebuttal.”’
We also reference Wilner v. Committee on Character,
373 U.S. 96, 83 S.Ct. 1175 (1963). In that case, the
Supreme Court, through Mr. Justice Douglas, held that a
New York Bar applicant was denied due process where
the Character Committee did not advise him of the basis
of their action, nor provide him with an opportunity to
rebut the evidence.
57a
The Maryland decision of Rogers v. Radio Shack, 271
Md. 126, 314 A.2d 113 (1974), is helpful and instructive.
That matter was an administrative appeal from the Em-
ployment Security Administration where the appellant had
been found guilty of ordinary misconduct concerning his
employment, thus disqualifying him from receiving benefits
for a period of ten weeks. Once the matter was appealed
to the Circuit Court, the appellant first learned that the
record contained an investigator’s written report. It was
not an item that was introduced at the administrative hear-
ing level. The appellant complained that the report (an
out-of-hearing written statement) should not have been
considered since there was no opportunity for cross ex-
amination or rebuttal. There was no such opportunity, as
Rogers was first made aware of the existence of the report
after an appeal had been filed with the Circuit Court.
Judge Eldridge, speaking for the Court of Appeals, held
at page 129:
Administrative agencies, while not bound by
common law rules of evidence, ‘‘must observe the
basic rules of fairness as to the parties appearing
before them. Dal Maso v. Board of County Com-
missioners, 238 Md. 333, 337, 209 A.2d 62, 64
(1965). We agree with Rogers that under the cir-
cumstances here, with no opportunity for cross
examination or rebuttal, fundamental] fairness
would preclude reliance upon the report by an
administrative agency or a reviewing court.”’
(Emphasis supplied).
The Dal Maso decision referenced in the preceding par-
agraph stands for the proposition that where evidence (a
staff report) will be relied upon by the administrative
agency, fundamental fairness requires some opportunity to
examine and challenge the evidence. Procedural] fairness
was afforded in that instance to the appellant where he
had an opportunity before the board reached its decision,
to examine the staff report and challenge it.
a ———
58a
From the above authorities, it is clear that due process
in a contested administrative setting requires an oppor-
tunity to meet or rebut adverse evidence and when there
is no such opportunity, it is error for the administrative
agency to rely upon the unchallenged adverse evidence. It
follows therefore, that the appellant has a due process
right to challenge or test adverse evidence. Our holding
in this case simply elaborates on that basic proposition
where the case largely rests on out-of-hearing statements.
In deciding the due process issue, the Court is aware
a balancing of competing interests must be considered.
California v. Byers, 91 S. Ct. 1535 (1974). In order to
weaken or eliminate Appellant’s mght to due process, the
public need or interest must outweigh the due process
right to test credibility. In this case, the State’s interest
is not so compelling so as to evaporate Appellant’s right
to basic procedural fairness. The government’s basic in-
terest is to protect against child abuse. Allowing the Ap-
pellant an opportunity to test credibility has no adverse
impact on the government’s goal. The State also has an
interest in minimizing impact upon children through fur-
ther examination or in hearing testimony. Such involve-
ment will no doubt have some impact on the children and
at a minimum, produce some stress. While this is true,
the Court finds that the State’s protective interest is not
so strong or compelling so as to have priority over Ap-
pellant’s mght to a fair hearing.
The Court holds that Appellant was denied due process
of law since there was no meaningful opportunity to test
the credibility of the childrens’ out-of-hearing statements.
As previously discussed, their statements were founda-
tional to the case. What is a meaningful opportunity will
vary from case to case. We first observe that cross ex-
amination did little to test credibility since the respective
declarants were not at the hearing. In this situation, a
meaningful opportunity would have resulted if Dr. Donner
could have interviewed the children. This request was de-
59a
nied. His testimony was totally discounted due to his lack
of personal contact. The State will argue that the Hearing
Officer had no authority to order the interviews. This is
correct, but the Hearing Officer should not have consid-
ered any of the evidence which was dependent on the
foundational out-of-hearing statements where circumstan-
ces prevented an opportunity to challenge. Rogers v. Radio
Shack, supra. As previously noted, there would be insuf-
ficient evidence to conclude that abuse took place at Bo
Peep absent the out-of-hearing assertions.
In summary, Appellant was denied due process in not
having an opportunity to test credibility of the out-of-hear-
ing statements. Additionally, the Appellant was denied due
process of law since the Hearing Officer considered the
out-of-hearing statements in making his decision where
there was no opportunity to test credibility. Since he con-
sidered the statements, his decision was arbitrary under
Section 10-215 of the Administrative Procedure Act.
As previously mentioned, this due process requirement
only applies where the decision is totally based on out-of-
hearing statements or is foundationally related to the bal-
ance of critical evidence. We hold that due process does
not require the opportunity to test the credibility of out-
of-hearing statements where the decision is not based to-
tally on such statements or based on such statements which
are foundational. For instance, if the decision is based on
out-of-hearing statements and probative evidence that is
not foundationally dependent on the statements, then the
Court’s holding would not apply.
We are not unmindful that our decision may require
children’s in-hearing testimony, examination by profession-
als or examination by counsel. No doubt this added in-
volvement will cause the children some stress. We regret
that such is the case, but it is necessary to accommodate
the constitutional guarantee of basic fair play. We would
hope and expect that these procedures would be engaged
—
60a
in such a manner so as to minimize the impact upon the
children.
We are also mindful that our decision verifies an ex-
isting adversarial process. Under the Administrative Pro-
cedure Act, each side presents its own evidence and selects
its own experts. By law, each side is pitted against the
other in a contested hearing before an administrative hear-
ing officer. There are those who espouse a position that
the adversarial process is the wrong procedure to deter-
mine issues related to child abuse. There is an attractive-
ness to this argument, since the adversarial process
encourages each side to hire their own experts who will
most probably have differing views. On a daily basis, we
see the expert “hired gun’ approach, especially in the
areas of personal injury and condemnation litigation. Th
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