Prince George's County Department of Social Services v. Knight

Concurring Opinion by SONNER, J.

I concur. 1 agree with the position taken by the majority in sustaining the court below. I could also have affirmed on the ground relied upon by the circuit court — that the Office of Administrative Hearings (the “OAH”) acted arbitrarily and that appellee had substantially complied with the OAH’S appeal procedures by returning two of the three items that the OAH requested. However, I do not write separately to comment upon the basis for the remand. Instead, I wish to underscore the injustice that would result from sustaining the OAH’s position, denying the appellee a contested hearing.

*142The State, as appellant, asked for us to deny appellee the right to challenge a bureaucratic conclusion that she abused her son, a conclusion which foisted the label “child abuser” upon her — a labeling with substantial injurious collateral consequences — and cast her into the child abuser registry for life. See Sandra Barnes, Business Records or Badges of Infany?, Maryland’s Central Registry of Alleged Child Abusers and, Neglectors, 30 Md. B.J. 24, 24 (2003) (noting that “being labeled on a central registry of child abusers and neglectors is often devastating” and that Maryland’s current system “not only provokes [devastation or criticism] but also fails to serve those who are charged with protecting children”). The State would have us overturn the lower court and completely deny appellee a hearing simply because she failed to fully complete and return all of the hearing request forms.

The State does not suggest that affording appellee a hearing would infringe upon some substantial governmental interest. Rather, the best that it could muster in oral argument for reversal is that appellee, by returning only one of the two documents she had received in the mail, prevented the Office of Administrative Hearings from expediently determining from which county the alleged abuse investigation came. This argument is wholly unpersuasive. The administrative burden that would result from having to match the mail with a file seems Liliputian in comparison with the damage that could result to the life of appellee from being labeled a child abuser. Furthermore, the Prince George’s County Department of Social Services could have eliminated the burden by simply including the name of the county on all of the forms it mailed to appellee.

A practice more in keeping with the intention of the General Assembly in creating the registry would be to accord a fair process to those who are in jeopardy of having their names added to the central registry. See Montgomery County Dep’t of Soc. Serv. v. L.D., 349 Md. 239, 264, 707 A.2d 1331 (1998). The State, as the representative of the people as well as of the government, should be particularly attentive to the need for due process when doling out the label of child abuser. Equal*143ly imperative to the State should be a desire to have the list not compromised by having, among those labeled as child abusers, some innocent people whose only offense has been the inability to navigate the administrative process of achieving a hearing. Denying a hearing to the appellant under the facts of this case would have been unfair, unjust, and not in the public interest.

This case is not the only Maryland case that seems to exhibit insensitivity by the State to concerns about due process and the accuracy of the registry. Since the enactment of the legislation creating the central registry, the State has unsuccessfully pursued positions in the courts that have called for limiting the legitimate rights of those who face the personal consequences of an administrative determination that their conduct indicates child abuse. See, e.g., C.S. v. Prince George’s County Dept. of Soc. Serv., 343 Md. 14, 22, 34, 680 A.2d 470 (1996) (unsuccessfully “arguing that judicial review was not provided for in the statute and that the provisions of the Administrative Procedure Act (APA) providing judicial review in some cases do not apply to findings of indicated child abuse”); see also Dep’t of Human Res. v. Thompson, 103 Md.App. 175, 193, 652 A.2d 1183 (1995) (unsuccessfully arguing that DSS’s determination of child abuse precludes a potential day care licensee from challenging the merits of the finding in a subsequent licensing proceeding even though she was never afforded any forum to challenge DSS’s decision).

Without a doubt, the public interest demands that the State do all that it can to protect children from child abuse, and the central registry is a recognized means for carrying forth the public mandate. See Hodge v. Jones, 31 F.3d 157, 164 (4th Cir.1994). But the administration of the registry calls for striking a balance to assure that the government is fair to all involved. See C.S. v. Prince George’s County Dept. of Soc. Serv., 343 Md. at 30, 680 A.2d 470. Had the state’s position prevailed, the balance would have been skewed and justice would have suffered.