Fields v. Human Resources

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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1636 September Term 2006 CLYDE FIELDS V. DEPARTMENT OF HUMA N RESOURCES HOWARD COUNTY DEPARTMENT OF SOCIAL SERVICES Salmon, Eyler, Jam es R., Meredith, JJ. Opinion by Salmon, J. Filed: September 13, 2007 C050064182 In the summ er of 200 5, the How ard C ounty Department of Social Services ( HCDSS ) found Clyde F ields re sponsi ble for i ndicate d child a buse. 1 Fields filed an appeal of HCDSS s decision with the Office of Administrative Hearings ( OAH ). The OAH ruled that Fields was twenty days late in filing his appeal and, due to his late filing, dismissed the appeal. Fields filed a petition for judicial review in the Circuit Court for Howa rd Coun ty. The circuit cou rt affirmed the OA H s orde r of dismissa l. Fields advances the argument in this appeal that the procedures adopted by HCDSS that are set forth in CO MAR 07.02.27.0 5A, impo se upon p arties seeking to pursue a ppeals a burden th at is not allow ed by statute. W e agree w ith Fields and hold that the procedural steps for pursuing an appeal set forth in the aforementioned COMAR regulation as implemented by HCDSS are more burdensome than the appeal process described in Section 5-706.1(b)(1) of the F amily Law Article ( FL ) of the Maryland C ode (1999 R epl. Vol.). I. FACTS Fields received a Notice o f Action O pportunity to Appeal ( notice ) from appellee, HCDSS. The notice was dated September 6, 2005, and informed Fields that HCDSS had found him responsible for indicated child sexual abuse. Insofar as is here relevant, the notice also said: IF YOU HAVE BEEN FOUND RESPONSIBLE FOR INDICATED CHILD ABUSE OR NEGLECT: According to the n otice, the term indicated means tha t HCD SS has c redible eviden ce that h as not b een satis factorily re futed th at child a buse o r neglec t occurr ed. 1 ¢ ¢ You may appeal the indicated finding by requesting , within 60 days of the date of this notice, a hearing at the Office of Administrative Hearings. If you do not file an appeal within 60 days, are unsuccessful in your appeal, or are convicted of a crime arising out of the alleged child abuse or neglect, you may be identified as responsible for indicated child abuse or neglect in a central registry, which is a part of the agen cy s confidential computerized database. On the reverse side of the notice, the appeals process was described: To request a contested case hearing: You must re turn the enclosed Appeal Request to the Department. The Department will promptly mail you a Contested Case Hearing Request form. You must submit the Contested Case Hearing Request form, with a filing fee of $50.00, to the O ffice of Administr ative Hearings within 60 days on the front of this notice[, which was Septem ber 6, 2005]. Fields returned the Appeal Request form, checking the box that read: I am appealing a finding o f INDIC ATED child abuse or neglect. Please send me a Contested Case Hearing Requ est form . I understand that I must return the Contested Case Hearing Request form to the Office of Administrative Hearings not later than 60 days after th e date of th e Notice o f Action (see date above). (Emp hasis ad ded.) It is unclear from the record when Fields mailed the Appeal Request form or when HCDSS received it. T he record d oes show that it was received on or before October 12, 2005, because HCDSS mailed a Contested Case Hearing Request form ( contested case form ) to Fields on October 12. Fields received the contested case form on October 15, 2005. At the top of the form were the following words: 2 To file an appeal, complete this entire form. Pro vide all requested informatio n, sign the fo rm, and m ail it to the above address. You must include w ith this appeal form a $50.00 filing fee made payable to the Maryland State Treasurer and a copy of the Notice of Action/Opportunity for an Appeal form that you received from the Department of Social Services. Fields retained an attorney who mailed the contested case form, the notice, the $50.00 filing fee, and a letter signed by his client on November 23, 2005. The OAH received the contested case form on November 28, 2005. In the letter attached to the contested case form, Fields said: Unf ortunate ly, because these forms were mailed to me on [October 12, 2005], I was not able to retain a lawyer to represent me until November 22, 2005, and as a result of which the contested case hearing request forms where [sic] not filed within sixty (60) days of each of the dates of notice of actions which are enclosed herewith. Unfortu nately, I believed that I had sixty (60) days from the date of the contested case hearing request forms (October 12, 2005) were mailed to me to respond. I would hope that th is inadvertence on my part does not jeopardize my appeal in the above cases as I have a meritorious defense to each of the DSS findings of Child Abuse in each of the above matters.[2] Consequently, I have requested that my attorney submit the Contested Case Hearing Request forms now in the hopes that this appeal can be perfected. By written order of an Administrative Law Judge ( ALJ ), OAH dismissed the appeal because Fields failed to submit the contested case form to OAH prior to the expiration of the sixty-day period, which the ALJ calculated to be November 8, 2005.3 Fields received a second notice as well, dated September 8, 2005, concerning another child. N o appe al was t aken f rom the dispos ition of t hat seco nd find ing. 2 The sixty-day period, in accordance with our decision in Prince G eorge s C ounty Department of Social Services v. Knight, 158 Md. App. 130, 139-40 (2004), was calculated 3 (continued...) 3 ANAL YSIS Title 5 of FL is entitled Children. Subtitle 7 of Title 5 concerns Child Abuse and Negle ct. Section 5-706.1 of FL provides that an individual who has been notified of a finding by a local department of social services of indicated or unsubstantiated abuse or neglect of a child can c ontest such findings. F L Section 5-706.1(b )(1) states: In the case of a finding of indicated abuse or neglect, an individual may request a contested case hearing to appeal the finding in accorda nce with T itle 10, Subtitle 2 , of the State Government Article of the Ma ryland Code (2004 Repl. V ol.) ( SGA ) by responding to the notice o f the local de partment in writing w ithin 60 days. (Emp hasis ad ded.) The provision in Title 10, Subtitle 2, of the State Government Article ( SGA ), that is here releva nt is Section 1 0-207, w hich prov ides, in pertine nt part: § 10-207. Notice of agency action. (a) In genera l. An age ncy shall give reasonable notice of the agency s action. (b) Contents of notice. Th e notice sha ll: (1) state c oncisely a nd si mply: (i) the facts that are asserted; or (ii) if the facts cannot be stated in detail when the notice is given, the issues that are involved; (2) state the pertine nt statutory and regulatory sections under which the agency is taking its action; (3) state the sanction proposed or the potential penalty, if any, as a result of the agency s action; (4) unless a hearing is automatica lly scheduled, sta te that the recipient of notice of an agency s action may have an opportunity to request a hearing, including: 3 (...continued) as being sixty-three days from mailing, i.e., sixty days from issuance of the notice plus three days for receip t of the notice by mail. 4 (i) what, if anything, a person must do to receive a hearing; and (ii) all relevant time requirements; and (5) state the direct consequences, sanction, potential penalty, if any, or remedy of the recipient s failure to exercise in a timely manner the opportun ity for a hearing or to appear for a scheduled hearing. As can be seen, Sec tion 10-20 7 simply instruc ts the agenc y as to the inform ation it must prov ide to the person against whom the agency has taken an adverse action. Nothing in Title 10, Subtitle 2, of SGA gives the loc al departm ent of socia l services the a uthority to require that a person who wishes to contest an agency decision do anything more than what FL Section 5-706.1(b)(1) require s, i.e., respon d to DS S s not ice (of a finding of abu se, etc.) in writing within sixty days. Section 5-714(h) of FL states that the Secretary of Human Resources shall adopt regulations necessary to protect the rights of individuals suspected of abuse o r neglec t. Purporting to act under the mandate set forth in Section 5-714(h), COMAR 07.02.26.05 was adopted b y the Secretary. It states, in relevant pa rt: A. Indicated Child Abuse or Neglect. An individual found responsible for indicated child abuse or neglect may appeal the find ing b y: (1) Requesting in writing an appeal form from the local department; and (2) Not later than 60 d ays after the date the local department issued the notice of action, returning the appeal form to the OAH with: (a) The required filing fee, and (b) A copy of the notice of action. *** 5 C. Failure of a party to co mply with the requireme nts in this regulation sh all result in dism issal of the ap peal. Fields contends that COMAR 07.02.26.05A, at least insofar as it has been implemented by the HC DSS, is inv alid because it adds steps inconsistent w ith the statutory requireme nts set forth in FL Section 5-7 06.1, whic h only requires an individu al to request a contes ted case hearing . . . by responding to the notice [ provided by DSS] in writing w ithin 60 days. (Emphasis ad ded.) Acco rding to Fields, th e CO MA R regu lation, in stead, not only requires that a petitioner notify DSS of their intention to file an appeal, but (a) a petitioner must request an ap peal form from the agency the petitioner is filing the appeal against, (b) the agency that is having the appeal filed against it must then respond to the petitioner with the appeal form even though there is no time limit on how long the ag ency has to res pond to the petitioner s request, and (c) the petitioner must then (hope) to file this form and the required fee within 60 days. Fields takes the position that his appeal should not have been dismissed because he did request a contested case hearing to appeal th e fin ding by responding to the notice of the local de partme nt with in sixty days . In Prince George s County Department of Social Services v. Knight, 158 Md. App. 130, 140 (2004), we had occasion to analyze COMAR 07.02.26.05A. Knight had received a letter dated March 4, 2002, stating that she had been found responsible for indicated child abuse. Unlike Fields, however, Knight received, sim ultaneously w ith the first letter from the Cou nty, all of the forms Prince George s County required for initiating an appeal. Knight 6 then filled out all pertinent forms and enclosed with the forms the proper fee but did not do so until M ay 6, wh ich wa s more than six ty calenda r days afte r Marc h 4. In Knight, we noted that Maryland Rule 1-203 requires that the cou nting of six ty days begin on the day after the day notice is received, and that, when notice is sent by mail, three days are added to the pe riod fo r respon se. Id. at 140-41. We held that the sixty-day period could not start until Knight had received the notice in q uestion three days after it had been mailed, and that the first of the sixty days would be the day after such receipt. Counting sixty-three days from March 4, we determined that Knight had until May 6 to mail her response, and, because that was the date she in fact mail ed it, her n otice of ap peal was time ly. Id. at 141. In reaching the conclusion that Knight s appeal was timely, we observed that a portion of COMAR 07.02.26.05A was in conflict with the statute providing for such appeals, i.e., FL Section 5-706.1(h), which, as previously mentioned, mandates: The Secretary of Human Resources . . . shall adopt regulations necessary to protect the right of individuals suspected of abuse or neglect, and may adopt regulations to implement provisions of this sectio n. We held that because the COMAR regulation limits the time for appeal to sixty days from the date of the issuance of the notice, whereas FL Section 5-706.1(b)(1) provides for an appeal to be filed w ithin sixty days from the time the citizen receives that notice, the regulation effectively shortened the time available for response. This shortening was inconsistent with the req uirements th at the regulatio n must protect the rights of the individuals suspected, and was, therefore, invalid. 158 Md. App. at 140. 7 In our view, at least as implemented by appellee, the COMA R regulations requirement that the perso n notify both th e local depa rtment and the OAH of an intent to appeal is similarly inconsistent with the Knight standard, i.e., that the regulations must [p]rotect the rights of individuals suspec ted of child abuse, . . . [not] diminish them. Id. at 140. As Fields stresses, FL Section 5-7 06.1(b)(1) provides that a person may request an appeal by responding to the notice of the local department in w riting within sixty days. It does not require that a second form be reques ted from th e local depa rtment and then sent to the OAH. This is important because there can be no doubt that within sixty days of September 6 Fields responded to HCDSS in regard to its notification by returning to it (at least by October 12, 2005) an appeal request form. On the form, he checked the box that read, in relevant part, I am appealing a finding of indicated child abuse or neglect . . . . To require a pa rty who obje cts to the actions of an agency and who has notified it of his/her intent to appeal, to take a second step (send the contested Case Hearing Req uest Form to OAH ) within sixty days, exceeds the scope of what FL Section 5-706.1(b)(1) permits and unfairly decre ases the time the objecting party has to act. We note that in some counties the procedures set forth in the COM AR regulations are administered in a fashion so as not to infringe on the rights of an objecting party. For instance, in Prince George s County, the local department evidently sends all forms necessary to perfec t an app eal with the off icial notic e. See Knight, 158 M d. at 134-35 . The man ner in which HCDSS sends out notificatio ns (i.e., withou t including a ll required fo rms), mak es it 8 virtually impossible for the person requesting an appeal to send notification to OAH until he or she first corre sponds w ith, and receiv es a secon d mailing from, HCDSS. As a consequence, Fields unlike Ms. Knight who received all necessary fo rms on the date of her notification did not have the full sixty days from the time he received the second form in which to notify OAH. HCDSS cites Candelero v. Cole, 152 Md. App. 190, 195 (2003), and Department of Health & Menta l Health v. Camp bell, 364 Md. 108, 120 n.12 (2001), for the proposition that regulations that are consistent with the letter and spirit of the law under which the y are promulgated and under which the agency acts are not subject to successful challenge. This, of course , is true. But this proposition only benefits HCDSS if the COMAR regulation in question is, in fact, consistent with the letter and spirit of the law under which the COMAR regulation is promulgated. HCDSS argu es: There is simply no merit to Mr. Fields s assertion that the agency s two-step appeal proc ess is contrary to the legislature s intent in permitting the agency to promulgate regulations to protect the rights of individuals suspected of abuse or negl ect. FL § 5-714(h). This Court addressed and rejected a similar argument in Cande lero v. Cole , 152 Md. A pp. 190, 198 (200 3), when it upheld the dismissal of a tort claim on the bas is that it was untimely. (Refe rence to appella nt s brie f omitte d.) The Candelero case involved the issue of whether the procedures set forth in the Maryland Tort Claims Act (MTCA) had b een followed. A s part of the MT CA s implementing regulations, one of the COMAR provisions requires that notice of any such 9 claim be filed within one year of the underlying events, measured by the date the claim was received by the State, not t he date it was mailed. Th e appellant h ad mailed notice of h is MTCA claim on the date her one-year window expired, and it was not received until two days later. Rather than invalid ate that regulation for conflicting with the statutory purpose of facilitating such claims, we found that the strict requirement that a claim be received by the State (not merely m ailed) within a year of the u nderlying incid ent implemented the statutory purpose, which was to give the State notice of the claim against it, not to protect the rights of claimants. As the Court in Candelero noted, Only the receipt of a claim insures that the State is provided notice. The mere mailing of a claim does not. Candelero, 152 Md. App. at 196. In contrast to the statute under scrutiny in Candelero, here the legislature directed that the regulation adopted b y the Secretary of Hum an Reso urces prote ct the suspe ct, not the State or the administrative agencies. Just as Candelero rightly considered the regulation in the light mo st favorab le to the party whose interests were being protected, so did the Knight Court, and so do we in the case at hand. Lastly, HCD SS asserts that the two-step process set forth in the COMAR regulation fulfills an important government requirement that the local government, as well as OAH, receive notice of who has and who has not appealed from a notice of indicated abuse or neglect. This may be so, but as Jud ge And rew Son ner said in h is concurring opinion in Knight: The administrative burden that would result from [accepting Knight s re sponse] se ems Lillipu tian in comparison 10 with the dama ge that cou ld result . . . from being labeled a child abuser . Knight, 158 M d. App . at 142 ( Sonn er, J., con curring ). In our view, the burden of putting two forms in the envelope sent by HCDSS in its initial mailing instead of one, or of having either HCDSS or OAH send each other copies of the request for an appeal, seems minuscule when compared with the consequences to Fields, and others like him, who may have h is name pu t on a registry of c hild abuser s without a hearing. Because the multi-step nature of HCDSS s process infringes upon the rights of a suspect to have a full sixty days to resp ond to the n otice, the requ irements fo r multiple responses goes beyond the statutory authority to adopt regulations to protect the rights of individuals suspected of abuse or neglect. We, therefore, conclude that, under the circumstances of this case, the requirement of a second mailing to initiate an appeal is not consiste nt with the letter o r spirit of the law under w hich the agenc y acts. For all the above-stated reasons, we hold that Fields did comply with the substance of the statutory requirements necessary to initiate an appeal in this matter. Therefore, his appea l should not hav e been dismiss ed as un timely. JUDGMENT VACATED; CASE REMANDED TO THE CIRCUIT COURT FOR HOWARD COUNTY WITH DIRECTIONS TO REVERSE THE ADMINISTRATIVE DECISION AND REMA ND TH E CASE TO TH E OFFIC E OF A D M I N I S T R A T IV E H E A R I N G S F O R A CONTESTED CASE HEARING; COSTS TO BE PAID BY APPELLEE. 11

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