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Montgomery County Department of Health and Human Services v. P.F.3/6/2001
or her finger in a child's vagina while carrying her and walking.
Third . . . the Child's clothing would likely have blocked [Mr. F.'s] finger. If the Child had been wearing long pants or even shorts, these articles of clothing would have prevented [Mr. F.] from reaching his finger into the Child's vagina in the short period of time described.
The ALJ pointed out that Penn and Gumula also "had questions about the plausibility of the Child's account," as evidenced by their follow up questions regarding whether the incident occurred in the bathroom. She criticized them for failing to ask follow-up questions designed to assist in evaluating the plausibility of Susan's statement.
[They] failed to ask the Child to explain how [Mr. F.] had carried her, or to demonstrate the location of [Mr. F.'s] hands. The interviewers also failed to ask the Child what she was wearing, whether it was a dress, or shorts, or long pants. Since these questions were not asked and answered, the Child's account must be evaluated on its own. The Child's account is essentially implausible.
• "Inconsistency in Credibility Determination" - The ALJ noted that MCHHS had ignored Susan's statement that her mother had hurt her, then explained it away at the hearing as an injury that occurred when her mother was washing her.
Since [MCHHS] did not address the possibility of sexual abuse of the Child by her mother, I must conclude that [MCHHS] did not consider the statement about the Child's mother to be credible. Yet there was no explanation of why this statement by the Child was not believed when the Child's statements about her father's actions were believed and accepted as fact.
Without any alternative explanation of the discrepancy in credibility findings, I can only conclude that [MCHHS] itself found the Child to be an unreliable informant.
For these three reasons, the ALJ found that
The Child's statements do not constitute credible evidence that sexual abuse did occur. Nor is there any other credible evidence in the record that sexual abuse occurred.
Since there is no credible evidence that an incident of sexual abuse occurred, [MCHHS's] finding of indicated sexual abuse cannot be upheld. Nor would a finding of unsubstantiated sexual abuse be appropriate. COMAR 07.02.07.12A(2). The proper finding is ruled-out sexual abuse. COMAR 07.02.07.12C(1).
Circuit Court Proceedings
MCHHS attempted to reverse the ALJ's finding in circuit court. It argued that the ALJ erred by focusing on the child's credibility rather than by relying on Gumula's expert testimony. The circuit court rejected MCHHS's "expert opinion" argument as simply amounting to a demand that the social worker's opinion be treated as conclusive on both the credibility and the ultimate fact finding issues that are properly reserved for the fact finder. The court also questioned why MCHHS had not investigated any further.
Well, what disturbs the Court about the account is . . . I don't even know what the child was wearing. . . . Was the child wearing slacks, or was the child wearing shorts, or was this child wearing a dress, and why didn't your experts give us evidence of that? . . . . ow could this insertion have been made while he is carrying the child assumedly fully clothed? . . . . Wouldn't that be the sort of circumstantial evidence that an expert should delve into, rather than simply take a child's statement, and go no further, and say because I am an expert, and that child wouldn't lie, that this man has abused his daughter?
The circuit court affirmed the ALJ's "ruled out" determination on the grounds that MCHH
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