I.B. v. Frederick County Department of Social Services, No. 1497, September Term,
2016. Opinion by Sharer, J.

FAMILY LAW – INDICATED CHILD NEGLECT – IMPLIED ELEMENT OF
SCIENTER

The Family Law Article § 5-701 definition of “Neglect” is distinguishable from the
statute’s definition of “Abuse” and does not imply the same element of scienter. The
Court of Appeals’s decisions in Taylor v. Harford Cty. Dep’t of Soc. Servs., 384 Md. 213
(2004) and McClanahan v. Washington Cty. Dep’t of Soc. Servs., 445 Md. 691 (2015),
holding the element of scienter is implicit in findings for both indicated child abuse –
physical injury and for indicated child abuse – mental injury, respectively, do not extend
to findings of indicated child neglect. The language of the COMAR provision that
supported an implicit element of scienter for child abuse, where the contact was
“accidental and unintended,” is not found under the same COMAR provision for child
neglect regulations.


ADMINISTRATIVE LAW – SUMMARY                               DECISION        –    HEARING
REQUIREMENT – STATUTORY ESTOPPEL

The ALJ did not err in granting summary decision, dismissing father’s administrative
appeal of an indicated child neglect finding, following his guilty plea to a related criminal
charge that arose out of the indicated child neglect pursuant to Md. Code, Family Law §
5-706.1(b)(3)(ii). Under the statute, when DSS moved for summary decision to dismiss
the administrative appeal based on the finding of guilt of the related criminal charge and
presented uncontroverted evidence that the finding of guilt of the related criminal charge
arose out of the same finding of indicated neglect, the ALJ was deprived of the discretion
to rule other than to dismiss the appeal.


ADMINISTRATIVE LAW – SUMMARY DECISION – FACTUAL SUPPORT –
PRESERVATION

An issue alleging a dispute of material fact not presented to the ALJ for its initial
consideration of a motion for summary decision of an administrative appeal may not later
be asserted for the first time on judicial review of the ALJ’s decision.
Circuit Court for Frederick County
Case No. 10-C-16-000236
                                                                                                   REPORTED

                                                                                    IN THE COURT OF SPECIAL APPEALS

                                                                                                 OF MARYLAND

                                                                                                     No. 1497

                                                                                            September Term, 2016
                                                                                  ______________________________________

                                                                                                        I.B.

                                                                                                         v.

                                                                                   FREDERICK COUNTY DEPARTMENT OF
                                                                                             SOCIAL SERVICES
                                                                                  ___________________________________

                                                                                         *Woodward, C.J.,
                                                                                          Reed,
                                                                                          Sharer, J. Frederick
                                                                                            (Senior Judge, Specially Assigned),

                                                                                                    JJ.
                                                                                  ______________________________________

                                                                                            Opinion by Sharer, J.
                                                                                  ______________________________________

                                                                                         Filed: November 29, 2018

                                                                                  *Woodward, J., now retired, participated in the
                                                                                  hearing and preparation of this opinion, and
                                                                                  participated in the Court’s decision to designate
 Pursuant to Maryland Uniform Electronic Legal
Materials Act
                                                                                  this opinion for publication pursuant to Md.
(§§ 10-1601 et seq. of the State Government Article) this document " authentic.
                                                                                  Rule 8-605.1, while an active member of this
                             2018-11-30 16:27-05:00
                                                                                  Court and as its Chief Judge.


Suzanne C. Johnson, Acting Clerk
       Appellant, I.B.1, seeks reversal of an order of the Circuit Court for Frederick

County affirming the grant of summary decision, entered by an Administrative Law

Judge, finding an “indication of child neglect” sought by the Frederick County

Department of Social Services (DSS), appellee. In his timely appeal, I.B., questions: (1)

the sufficiency of the evidence to support a summary decision by the ALJ; (2) the failure

of the ALJ to hold a hearing on his motion; and (3) whether intent is a requisite element

of neglect under Maryland Code (1984, 2012 Repl. Vol., 2015 Supp.), Family Law

Article (FL) § 5-701.2

                                   I. BACKGROUND

       The underlying facts are not in dispute. In July 2015, I.B. took his children to

church, unintentionally leaving his infant daughter in her car seat in the back of the car,

on a hot day with the front windows slightly open. Authorities were called, who removed

the child from the car. I.B. acknowledged that, while attending to the other children, he

had forgotten that his daughter was in the car. The incident was reported to DSS, which




1
   In keeping with this Court’s policy of protecting privacy in cases involving children,
and in response to appellant’s Motion to Reconsider/Revise, we identify appellant by
initials only.
2
  All subsequent statutory references, unless otherwise indicated, shall be to the Family
Law Article of the Maryland Code (1984, 2012 Repl. Vol., 2015 Supp.), which reflects
the version of the relevant statutes in effect at the time of the incident. Similarly, all
references to the Code of Maryland Regulations (COMAR), unless indicated otherwise,
shall be to the 2015 version of COMAR, which reflects the version of the regulations in
effect at the time of the incident.
initiated an investigation, ultimately making a finding of indicated3 child neglect.4 I.B.

requested a contested case hearing pursuant to FL § 5-706.1(b)(1), but, as provided by the

statute, that proceeding was stayed pending the outcome of the pending criminal case, in

which I.B. was charged with neglect of a minor5 and confinement of a minor in an

unattended vehicle.6 The State nol prossed the child neglect charge and I.B. pleaded

guilty to confinement of a minor, a misdemeanor, subjecting the offender to both a

monetary fine and imprisonment. He was afforded probation before judgment.7

         Following disposition of the criminal charges, the stay was lifted in the family law

proceeding. DSS moved for summary decision to dismiss the request for hearing based

on the finding of guilt in the criminal proceeding, pursuant to FL § 5-706.1(b)(3)(ii). I.B.

opposed the summary decision on the ground that the criminal charge was not similar to

3
 FL § 5-701 defines “Indicated” as “a finding that there is credible evidence, which has
not been satisfactorily refuted, that … neglect … did occur.” FL § 5-701(m).
4
  FL § 5-701 defines “Neglect” as the “leaving of a child unattended or other failure to
give proper care and attention to a child by any parent … of the child under
circumstances that indicate … that the child’s health or welfare is harmed or placed at
substantial risk of harm[.]” FL § 5-701(s)(1).
5
  Maryland Code (2002, 2012 Repl. Vol.), Criminal Law Article § 3-602.1(b), Neglect of
a Minor.
6
    Pursuant to FL § 5-801(a), for the confinement of a minor:

         A person who is charged with the care of a child under the age of 8 years
         may not allow the child to be locked or confined in a … motor vehicle
         while the person charged is absent and the … motor vehicle is out of the
         sight of the person charged ….
7
 In granting I.B. probation before judgment, the District Judge observed: “You have no
prior criminal record. I’m sure it was unintentional.”

                                              2
the family law neglect offense and that the criminal court did not find him guilty of

neglect. The ALJ issued a summary decision granting DSS’s motion, relying on the fact

that I.B. (1) failed to dispute any evidence that the finding of indicated neglect was based

on the same incident as the guilty plea charge,8 and (2) the provisions of FL § 5-

706.1(b)(3)(ii).9

                                   ALJ’s Findings and Decision

         The ALJ’s decision on the motion for summary decision was fully developed and

supported in its written decision, but did not detail the sufficiency of the DSS’s finding of

“indicated neglect.” Rather, the ALJ focused on what was undisputed and relevant to the

question of whether dismissal of the administrative appeal was appropriate. The ALJ

found:

            1. On July 27 [sic], 2015, the Local Department [DSS] received a
               report of an unattended child found alone within a car at 9:30 a.m.
               The car with the unattended child inside was parked at [I.B.’s]
               family church parking lot.

            2. The unattended child found inside the car is the biological child of
               [I.B.].

            3. The unattended child resided with [I.B.], [its] biological mother and
               siblings.

8
  Several times in its written decision, the ALJ mentioned I.B.’s failure to “submit any
affidavit or exhibits with [his] answer to the motion.”
9
    FL § 5-706.1(b)(3)(ii) provides:

         If after a final disposition of the criminal charge, the individual requesting
         the hearing is found guilty of any criminal charge arising out of the alleged
         abuse or neglect, the Office of Administrative Hearings shall dismiss the
         administrative appeal.

                                               3
           4. On August 12, 2015, the Local Department notified [I.B.] that it
              made a finding of indicated child neglect of the unattended child.

           5. On September 22, 2015, the District Court for Frederick County,
              Maryland found [I.B.] guilty and convicted him for confining an
              unattended child, pursuant to Md. Code Ann., Family Law § 5-801
              (2012). [I.B.] was sentenced to probation before judgment, with
              supervised probation ending on September 22, 2016.

       Based on those factual findings and the lack of evidence to the contrary, the ALJ

determined that

       the undisputed evidence shows that [I.B.] was found guilty of a criminal
       charge that arose out of the incident of July 26, 2015. The undisputed
       evidence also shows that the Local Department’s finding of indicated
       neglect was based upon the same incident. Family Law section 5-801;
       Family Law 5-706.1(b)(3)(ii) (2012 Rpl. Vol.). I find, therefore, as a
       matter of law, that the Local Department’s motion for summary decision
       must be granted. COMAR 28.02.01.12D.

       I.B. sought judicial review of the ALJ’s decision, which was affirmed by the

circuit court.

                               Appellant’s Questions

       I.B. presents three questions for our review of the ALJ’s dismissal of the

administrative appeal of the finding of “indicated” child neglect. First, I.B. challenges

the sufficiency of the factual record to support the ALJ’s grant of the summary decision.

Second, he questions whether Maryland law requires a hearing to be held when one of the

requisite elements for a finding of abuse or neglect is contested, and when the element in

question was not adjudicated in the related criminal proceeding. Finally, I.B. asks this

Court to determine whether an implied element of intent or scienter, found by case law in




                                            4
the related child abuse statute of the Family Law Article, exists in the neglect statute of

that same article.

                                  Standard of Review

       We have recently explained the appropriate standard for reviewing agency

decisions:

       It is “[b]ecause an appellate court reviews the agency decision under the
       same statutory standards as the circuit court,” Consumer Prot. Div. v.
       George, [383 Md. 505, 512] (2004) (quotations and citation omitted), that
       “we analyze the agency’s decision, not the [circuit] court’s ruling.” Martin
       v. Allegany County Bd. of Educ., [212 Md. App. 596, 605] (2013) (citation
       omitted). We are “‘limited to determining if there is substantial evidence in
       the record as a whole to support the agency’s findings and conclusions, and
       to determine if the administrative decision is premised upon an erroneous
       conclusion of law.’” W.R. Grace & Co. v. Swedo, [439 Md. 441, 453]
       (2014) (quoting Bd. of Physician Quality Assur. v. Banks, [354 Md. 59, 67–
       68] (1999)).

Mihailovich v. Dep’t of Health & Mental Hygiene, 234 Md. App. 217, 222 (2017), cert.

denied, 457 Md. 396 (2018).

       The entry of a summary decision is, in our view, akin to summary judgment on

review of which “we are concerned with whether there was a dispute as to any material

fact and, if not, whether the movant was entitled to judgment as a matter of law.” Casey

v. Grossman, 123 Md. App. 751, 765 (1998). It is to this end, that we must “construe the

facts properly before the court, and any reasonable inferences that may be drawn from

them, in the light most favorable to the non-moving party[.]” Powell v. Breslin, 195 Md.

App. 340, 346 (2010) (citations omitted), aff’d, 421 Md. 266 (2011). In our review of a

grant of summary judgment “we examine ‘the same information from the record and

determine the same issues of law as the trial court.’” Cent. Truck Ctr., Inc. v. Cent.

                                            5
GMC, Inc., 194 Md. App. 375, 387 (2010) (quoting La Belle Epoque, LLC v. Old Europe

Antique Manor, 406 Md. 194, 209 (2008)). “If no material facts are in dispute, the

appellate court must determine whether the trial court correctly entered summary

judgment as a matter of law.” Id. (citation omitted).

                                          DISCUSSION

                                     1. Factual Support

       I.B. first argues that the factual record does not support the ALJ’s decision to enter

a summary decision to dismiss the appeal. He contends that the exhibits relied upon by

DSS to support its motion to dismiss were “wholly deficient regarding the conviction,

and contain inconsistencies and inaccuracies that require a contested hearing[.]”

       DSS responds, first, that I.B.’s dispute of material fact argument was not

addressed in his response to the DSS’s motion for summary decision, hence, it was not

preserved. It avers that the requirements of COMAR 28.02.01.12D, governing motions

for summary decision, require a responding party to identify all disputed material facts at

issue. Since I.B. failed to identify a dispute of material fact in his response, DSS argues,

he has waived the ability to assert it later on judicial review. Alternatively, DSS argues

that even had I.B. not waived this argument, the disputed facts he proffers were not

material to the ALJ’s decision.

       The COMAR motion for summary decision provisions are clear that a response to

such a motion “shall identify the material facts that are disputed.”                COMAR

28.02.01.12D(2) (emphasis added). I.B. did not present any dispute of material facts

before the ALJ; rather, he focused on how the criminal charge was not based on neglect

                                             6
and did not share the same elements. Judicial review of an agency decision is limited to

evidence and issues presented from the record before it. See also Md. Code, State Gov’t

§ 10-214(a) (providing that, on judicial review “[f]indings of fact must be based

exclusively on the evidence of record in the contested case proceeding and on matters

officially noticed in that proceeding”). Therefore, I.B.’s belated attempt to challenge the

previously uncontested facts and evidence presented to the ALJ, for the first time in his

petition and memorandum in support of judicial review, is without merit. See Allmond v.

Dep’t of Health & Mental Hygiene, 448 Md. 592, 606 (2016) (reiterating “that questions,

including Constitutional issues, that could have been but were not presented to the

administrative agency may not ordinarily be raised for the first time in an action for

judicial review” (quoting Bd. of Physician Quality Assur. v. Levitsky, 353 Md. 188, 207-

08 (1999))).

       Notwithstanding that failure, neither FL § 5-706.1(b)(3)(ii), nor the related

COMAR provision, 07.02.26.06C(1), limit what criminal charges relating to the indicated

neglect are dispositive of an administrative appeal based on a finding of guilt. See FL §

5-706.1(b)(3)(ii) (“If after final disposition of the criminal charge, the individual

requesting the hearing is found guilty of any criminal charge arising out of the alleged

abuse or neglect, the Office of Administrative Hearings shall dismiss the administrative

appeal.” (emphasis added)). See also COMAR 07.02.26.06C(1)10 (tracking the language


10
  COMAR 07.02.26.06C has since been amended to provide further clarification that, if
appellant is “[f]ound guilty of any criminal charges arising out of the alleged child abuse
or neglect, including being found guilty and receiving probation before judgment or

                                            7
of the statute: “If, after final disposition of the criminal proceeding, the appellant is[ ] …

[f]ound guilty of any criminal charges arising out of the alleged child abuse or neglect,

OAH shall dismiss the appeal[.]” (emphasis added)).

       Therefore, when DSS moved for summary decision to dismiss the administrative

appeal based on the finding of guilt of the related criminal charge and presented

uncontroverted evidence that the finding of guilt of the related criminal charge arose out

of the same finding of “indicated neglect,” the ALJ was deprived of the discretion to rule

other than to dismiss the appeal. In his generic response, without particularity, to the

DSS motion to dismiss, I.B. failed to assert the existence of any evidence to controvert

that which was presented by DSS and cannot now challenge the sufficiency of the

evidence relied on by the ALJ.

                                  2. Hearing Requirement

       Next, I.B. argues that, if an element necessary for a finding of neglect is in dispute

and was not adjudicated in the criminal proceeding, a hearing is required. In support, he

relies on Tabassi v. Carroll Cty. Dep’t of Soc. Servs., 182 Md. App. 80 (2008). Tabassi

sought judicial review of an ALJ’s grant of DSS’s motion to dismiss based on the finding

of guilt in a related criminal proceeding.

       While a search warrant was being executed at Tabassi’s home, loaded guns were

located next to a bed where a 12-year-old girl, unrelated to Tabassi, was sleeping. 182

Md. App. at 83-84. DSS noted a finding of indicated neglect, and related criminal

taking an Alford plea, OAH shall dismiss the appeal.” COMAR 07.02.26.06C(1) (2018)
(emphasis added).

                                              8
charges were filed arising out of those facts. Id. at 83. Tabassi was convicted of reckless

endangerment and firearms access by minors. Id. at 85. Thereafter, DSS moved to

dismiss his request for a contested hearing. Id. Based on the criminal conviction, the

ALJ dismissed his request. Tabassi then sought judicial review, resulting in affirmance

of the ALJ’s decision. Id.

       On appeal, we vacated the circuit court’s order and remanded with directions for

the ALJ to hold further proceedings on the question of Tabassi’s status as a custodian of

the child. Id. at 93. We held that

       dismissal of an alleged abuser or neglector’s administrative appeal is
       warranted where an accused is found guilty of criminal charges stemming
       from the same conduct that serves as the basis for a finding of abuse or
       neglect and the requisite status of the individual to the child has been
       adjudicated or is not disputed.

Id. At the administrative level, Tabassi’s status as to the child was contested and had not

been determined.

       I.B. reads into our holding in Tabassi that, when the elements of the criminal

charges are different from the Family Law offenses and if an element of the Family Law

offense was not adjudicated in the criminal proceeding, a hearing should be afforded to

adjudicate it in the ALJ’s proceeding. He fails, however, to recognize that his failure to

timely contest any of the facts asserted or evidence offered concerning the elements of

indicated child neglect against him. His reliance on Tabassi is misplaced.

       The essence of our Tabassi holding is that all elements of indicated neglect, said to

be disputed, are to be resolved at the administrative stage of the proceedings. Because



                                             9
I.B. raised no disputed facts, and because there is no dispute that he is the child’s parent,

Tabassi is factually inapposite to the arguments that he raises.

                                           3. Intent

       I.B.’s final argument is that, even if all the elements of the confinement of a minor

criminal charge were identical to the elements of neglect, there is an implicit requirement

of some level of intent to neglect, which he lacked. To support this argument, he refers to

Taylor v. Harford Cty. Dep’t of Soc. Servs., 384 Md. 213 (2004) and McClanahan v.

Washington Cty. Dep’t of Soc. Servs., 445 Md. 691 (2015). It is important to note

however, that both Taylor and McClanahan were cases dealing with findings of criminal

child abuse and did not involve dismissal of administrative appeals pursuant to FL § 5-

706.1(b)(3).

       Taylor, in anger, kicked a stool which unintentionally struck his daughter resulting

in injuries that required medical treatment. 384 Md. at 217. A DSS investigation ensued,

which resulted in a finding of indicated child abuse. Id. at 216-218. Following a

contested case hearing, the ALJ affirmed the finding of abuse. Id. at 218-20. Judicial

review also resulted in affirming the finding of abuse. Id. at 221. On appeal, the Court of

Appeals noted that the ALJ failed to consider “an absence of intent to harm,” a

consideration allowed under COMAR 07.02.07.12C(2)(a)(i) (2004)11 for “Ruled Out


11
  The provisions for disposition of child abuse have since been amended and renumbered
and are now found in COMAR 07.02.07.11. The provisions for “Ruled Out Child
Abuse” have been amended to afford, in relevant part, that a finding of ruled out child
abuse can be based on “[a] finding that the alleged maltreator was not responsible for the
injury for reasons [that] … [t]he injury resulted from accidental and unintended contact

                                             10
Child Abuse.” Id. at 226-27. Because of that provision, and Taylor’s lack of intent to

harm his child when kicking a stool in anger, the Court held that “the intentional act must

be shown to have been either reckless in its nature or deliberately intended to harm the

child in order for a finding of ‘indicated child abuse’ to be made.” Id. at 232.

       In McClanahan, supra, DSS was alerted to several repeated allegations of sexual

abuse of a minor child by the father. 445 Md. at 695. DSS determined that in the course

of a custody dispute, the child’s mother appeared to have been continuously manipulating

the child into believing that she had been assaulted by the father. Id. at 696-97. As a

result, the child developed behavioral and emotional problems, forming the basis of a

finding of indicated child abuse – mental injury – and indicated child neglect. Id. at 697.

Following a hearing, the ALJ affirmed the DSS finding of indicated child abuse – mental

injury – but modified the finding of indicated child neglect to “ruled out child neglect.”

Id. at 696-97. On judicial review, the circuit court affirmed the ALJ’s decision. Id. at

697-98.

       On appeal, the Court of Appeals engaged in an analysis of whether a parent can be

liable for child abuse of the mental injury variety when there was no intent to harm the

minor child.    445 Md. at 700.        In its discussion, the Court addressed statutory

interpretation, as well as its holding in Taylor, concluding that “[b]ecause FL § 5-701(b)

does not differentiate between mental injury and physical injury, we do not interpret

Subtitle 7 to sanction a regulation in which a parent can be deemed a child abuser for

with the child and was not caused by a reckless disregard for the child’s health or
welfare[.]” COMAR 07.02.07.11C(2)(c)(i) (2018).

                                             11
unintentionally causing mental injury but not liable for unintentionally causing physical

injury.” Id. at 706 (footnote omitted). Because of the lack of distinction, the Court held

that “to be included as a ‘child abuser’ in [the] central registry, a person must either

intend to injure the child or at least act in reckless disregard of the child’s welfare.” Id. at

711.

       Relying on Taylor and McClanahan, I.B. posits that, because the child abuse and

child neglect definitions are found under the same provision of the Family Law statute,

intent is also an implicit requirement for a finding of child neglect. For support, he relies

on this Court’s legislative intent analysis in Tabassi and asserts, “[t]he fact that the

definitions for ‘Abuse’ and ‘Neglect’ are housed in the same statute,12 suggest that they

are to be interpreted together in the context, as one element of a whole … in order to

harmonize and reconcile the statutory provisions.” (Internal quotations omitted)].

       DSS responds in a footnote that this argument was not preserved and that the ALJ

did not “base [its] decision on an interpretation of what constitutes neglect.”

       Even if we were to find that the argument was preserved for review, we would

find a significant distinction between the COMAR provisions for neglect and abuse in

terms of intent. DSS need not prove intent in order to establish neglect. See In re

Priscilla B., 214 Md. App. 600, 621, 625 (2013) (discussing the identical definition of


12
  The “same statute” I.B. refers to in this regard is FL § 5-701 – Definitions, which
houses over 20 definitions for various words used throughout Subtitle 7 of the Family
Law Article. As such, we place no significance on the fact that the definitions for
“Abuse” and “Neglect” are both found in the same statute that contains relevant
definitions for the entire Subtitle.

                                              12
“neglect” in CINA cases, explaining that, while “neglect might not involve affirmative

conduct … [like abuse], the court assesses neglect by assessing the inaction of a

parent[,]” because “a child can be harmed as severely by a failure to tend to her needs as

by affirmative abuse”). To the contrary, a successful prosecution of child abuse must

establish proof of intent. See McClanahan, 445 Md. at 711 (holding that “a person must

either intend to injure the child or at least act in reckless disregard of the child’s

welfare”). Accord Taylor, 384 Md. at 232 (holding that an “intentional act must be

shown to have been either reckless in its nature or deliberately intended to harm the child

in order for a finding of ‘indicated child abuse’ to be made”).

       The COMAR provisions discussing neglect do not contain the same language as

those discussing abuse, which the Court of Appeals had relied on in Taylor and

McClanahan to support its determination that intent was an implicit element of both

physical and mental child abuse.         See Taylor, 384 Md. at 226 (“accidental or

unintentional and not reckless or deliberate” (quoting COMAR 07.02.07.12C(2)(a)(i)

(2004)); McClanahan, 445 Md. at 704 (“accidental and unintended and … the injury was

not foreseeable” (quoting COMAR 07.02.07.12C(2)(a)(i) (2015)). 13



13
  At the time of the incident and DSS findings, the COMAR provisions for disposition of
child abuse were located under 07.02.07.12 and the language, “the act causing the injury
was accidental or unintentional and not reckless or deliberate,” from the earlier version of
COMAR 07.02.07.12C(2)(a)(i) (2004), had been amended to provide, “[t]he contact with
the child was accidental and unintended and under the circumstances, the injury was not
foreseeable[.]” COMAR 07.02.07.12C(2)(a)(i)(2015) (emphasis added). The current
version of this provision has been renumbered and amended, now located in COMAR
07.02.07.11, providing in relevant part, “accidental and unintended contact with the child

                                             13
      During an investigation of indicated child neglect, other than for mental injury, the

considerations taken into account for the particular context and circumstances of the

incident are “[t]he nature, extent, or cause of the failure to provide proper care and

attention indicate that the child’s health or welfare was harmed or was at substantial risk

of harm.” COMAR 07.02.07.13A(d). However, once the four elements of indicated

child neglect, including the contextual considerations, have been found to exist, the Court

of Appeals has explained, such a finding is only the beginning of the inquiry. See Taylor,

384 Md. at 231 (finding that, “[i]n assessing the dispositions of investigation delineated

in COMAR 07.02.07.12, it is incumbent upon the ALJ to examine all the evaluative

standards contained within this regulation[,]” to ensure that neither an “Unsubstantiated”

nor a “Ruled–Out” finding apply).14

      Within the COMAR provisions referring to “Ruled Out Child Neglect,” a decision

that has ruled out a child neglect finding could be based on reliable evidence that: “(1)

There was no failure to provide proper care and attention; (2) The child’s health or

welfare was not harmed or at substantial risk of being harmed; (3) The individual alleged

to be responsible … was not a parent or a caretaker; or (4) The alleged victim was not a




and was not caused by a reckless disregard for the child’s health or welfare[.]” COMAR
07.02.07.11C(2)(c)(i) (2018).
14
  As I.B. does not discuss the factors for an “Unsubstantiated” finding, we need not
address those provisions.


                                            14
child at the time ….” COMAR 07.02.07.13C(1)-(3) (2015).15 It is clear from the four

limited scenarios under which child neglect may be “ruled out,” the words “accidental

and unintended,” as they were found in the equivalent child abuse provisions, are absent.

Consequently, I.B.’s attempt to expand the definition of neglect to mirror the intent

requirements established by the Court of Appeals for the definition of abuse, is to no

avail.

         Because the standards of proof of neglect vis-à-vis abuse were, and continue to be,

demonstrably disparate regarding intent or scienter, neither Taylor nor McClanahan form

a basis for the relief I.B. seeks. See also Tamara A. v. Montgomery Cty. Dep’t of Health

& Human Servs., 407 Md. 180, 194 (2009) (clarifying the meaning of FL § 5-

706.1(b)(3)(ii), that a “[c]onviction, in other words, does act as an absolute statutory bar

to further prosecution of the administrative appeal” (emphasis in original)).

         Because the statute is clear that, following a criminal conviction based on the same

facts that support indicated child neglect, dismissal of the administrative process “shall”

be ordered, we are constrained to affirm.



                                            JUDGMENT OF THE CIRCUIT COURT
                                            FOR FREDERICK COUNTY AFFIRMED;
                                            COSTS ASSESSED TO APPELLANT.


15
   The COMAR provisions for disposition of child neglect are now located under
07.02.07.12 and provide, in relevant part, that a decision that rules out a child neglect
finding can be based on either “[a] lack of credible evidence supporting one or more
elements of indicated child neglect; or … [t]he credible refutation of one or more
elements of indicated child neglect.” COMAR 07.02.07.12C(2)(a)-(b) (2018).

                                              15
