# COMAR Title 07 — Department of Human Services

## Subtitle 02 — Social Services Administration

### Chapter 26 — Child Abuse and Neglect Hearings

**Authority:** Family Law Article, §§5-701, 5-706, 5-706.1, 5-707, and 5-714; Human Services Article, Title 1; Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.16 adopted as an emergency provision effective October 1, 1993 (20:20 Md. R. 1551) (Emergency provisions are temporary and not printed in COMAR)

**Administrative History:** Regulations .01—.16 adopted effective October 1, 1994 (21:19 Md. R. 1633)

**Administrative History:** Regulations .01—.16 amended and .17—.22 adopted as an emergency provision effective June 16, 1998 (25:14 Md. R. 1119); emergency status extended at 26:9 Md. R. 725; emergency status rescinded at 26:16 Md. R. 1233

**Administrative History:** Regulation .03A amended effective November 6, 1995 (22:22 Md. R. 1656)

**Administrative History:** Regulation .07 amended effective November 6, 1995 (22:22 Md. R. 1656)

**Administrative History:** Regulations .01—.16 repealed and new Regulations .01—.15 adopted as an emergency provision effective July 19, 1999 (26:17 Md. R. 1233); emergency status extended at 26:27 Md. R. 2013 (Emergency provisions are temporary and not printed in COMAR)

**Administrative History:** Regulations .01—.16 repealed and new Regulations .01—.15 adopted effective March 20, 2000 (27:5 Md. R. 582)

**Administrative History:** Regulation .05 amended effective November 19, 2007 (34:23 Md. R. 2026)

**Administrative History:** Regulations .01—.15 repealed and new Regulations .01—.15 adopted effective June 19, 2017 (44:12 Md. R. 586)

#### Regulation .01 Scope.

*COMAR 07.02.26.01*

A. Except as set forth in §B of this regulation, an individual found responsible by a local department for indicated or unsubstantiated child abuse or neglect or who was alleged to have abused or neglected a child in a case that resulted in a finding of indicated or unsubstantiated child abuse or neglect with no maltreator identified is entitled to an opportunity to appeal in accordance with this chapter.

B. In those cases in which, before June 1, 1999, a local department made a finding of indicated or unsubstantiated child abuse or neglect and an individual has not been offered an opportunity for a contested case hearing, and the individual has now requested a hearing, that appeal will be conducted in accordance with the procedures in these regulations under the substantive law applicable at the time of the local department’s finding.

#### Regulation .02 Definitions.

*COMAR 07.02.26.02*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Administrative law judge (ALJ)” means an administrative law judge of the Office of Administrative Hearings.

  (2) “Alleged maltreatment” means child abuse or neglect reported to a local department.

  (3) “Alleged maltreator” means an individual reported to a local department as responsible for child abuse or neglect.

  (4) “Alleged victim” means a child named in a report as having been abused or neglected.

  (5) “Appellant” means an individual who has requested an appeal under this chapter.

  (6) “Centralized confidential database” means the Department’s confidential computerized data system that contains information regarding child abuse and neglect investigations and assessments and protects that information from disclosure.

  (7) “Child abuse” has the meaning stated in COMAR 07.02.07.02B.

  (8) “Child in need of assistance (CINA)” has the meaning stated in Courts and Judicial Proceedings Article, §3-801(f), Annotated Code of Maryland.

  (9) “Child neglect” has the meaning stated in COMAR 07.02.07.02B.

  (10) “Conference” means a meeting requested by an appellant to discuss a finding of unsubstantiated child abuse or neglect with a local department supervisor.

  (11) “Contested case hearing” has the meaning stated in State Government Article, §10-202(d), Annotated Code of Maryland.

  (12) “Department” means the Department of Human Services.

  (13) “Final determination” means a finding of the local department after all timely appeals.

  (14) Hearing.

    (a) “Hearing” means a contested case hearing pursuant to State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

    (b) “Hearing” does not include a record review hearing under appeal procedures in place between 1993 and 1999.

  (15) “Identify an individual as responsible for child abuse or neglect in a centralized confidential database” means entering a notation that a local department has determined that the individual is responsible for indicated child abuse or neglect under circumstances specified in Family Law Article, §5-714, Annotated Code of Maryland.

  (16) “Identifying information” means the name of:

    (a) The alleged victim;

    (b) A household or family member of the alleged victim;

    (c) A parent or legal guardian of the alleged victim; and

    (d) The alleged maltreator.

  (17) “Indicated” means a finding that there is credible evidence, which has not been satisfactorily refuted, that child abuse or neglect occurred.

  (18) “Local department” means the department of social services, or the Montgomery County Department of Health and Human Services, that made the finding being appealed in accordance with this chapter.

  (19) “Maltreator” means an individual whom a local department has found responsible for indicated or unsubstantiated child abuse or neglect.

  (20) “Office of Administrative Hearings (OAH)” means the unit within the Executive Branch established by State Government Article, §9-1602, Annotated Code of Maryland.

  (21) “Party” means the appellant or the local department.

  (22) “Record” means the original or a copy of any documentary material, in any form, concerning a Child Protective Services response to an allegation of child abuse or neglect.

  (23) “Redacted record” means a copy of the record from which the local department has removed certain information in compliance with State and federal laws governing confidentiality, including but not limited to:

    (a) Annotated Code of Maryland:

      (i) Health-General Article, Title 4, Subtitle 3;

      (ii) General Provisions Article, Title 4, Subtitle 3;

      (iii) Human Services Article, §§1-201—1-203; and

      (iv) Courts and Judicial Proceedings Article, §§3-827, 9-108, and 9-121;

    (b) Code of Maryland Regulations (COMAR):

      (i) 07.01.07; and

      (ii) 07.02.07;and

    (c) Code of Federal Regulations (CFR):

      (i) 34 CFR 99;

      (ii) 42 CFR §2.1 et seq.; and

      (iii) 45 CFR 1340.20.

  (24) “Report” means an allegation of child abuse or neglect made or received by any state, county, or municipal corporation, with sufficient information to screen the report for an appropriate CPS or other response.

  (25) “Responsible for child abuse or neglect” means having an unexpunged finding of unsubstantiated or indicated child abuse or neglect.

  (26) “Ruled out” means a finding that child abuse or neglect did not occur.

  (27) “Unsubstantiated” means a finding that there is insufficient evidence to support a finding of indicated or ruled out.

#### Regulation .03 Procedures.

*COMAR 07.02.26.03*

A. An appeal of a finding of indicated child abuse or neglect under this chapter shall consist of a hearing.

B. An appeal of a finding of unsubstantiated child abuse or neglect under this chapter shall consist of:

  (1) A conference with a supervisor at the local department; and

  (2) A hearing, if requested.

C. This chapter and COMAR 07.01.04 govern the procedures and practice in all hearings conducted under this chapter.

D. In the event of a conflict between this chapter and COMAR 07.01.04, this chapter applies.

E. The time limits set forth in this chapter may be waived for good cause.

F. A local department's finding is affirmed if:

  (1) An individual does not request, when offered, a conference or a hearing; or

  (2) An individual fails to attend, when scheduled, a conference or a hearing.

#### Regulation .04 Notice of Opportunity for a Hearing.

*COMAR 07.02.26.04*

A. Within 30 days after a local department has completed an investigation of child abuse or neglect, the local department shall send a notice of action to:

  (1) An individual whom a local department has found responsible for indicated or unsubstantiated child abuse or neglect; and

  (2) An individual alleged to have abused or neglected a child in a case that resulted in a finding of indicated or unsubstantiated child abuse or neglect with no maltreator identified.

B. The notice shall include:

  (1) The finding;

  (2) An explanation of how to appeal to OAH in accordance with this chapter, including the obligation to pay a filing fee or request a waiver of the fee;

  (3) A statement that the local department may identify an individual as responsible for child abuse or neglect in a centralized confidential database if the individual:

    (a) Is found guilty of any criminal charge arising out of the alleged child abuse or neglect;

    (b) Is found responsible for indicated child abuse or neglect in a final determination; or

    (c) Has failed to successfully appeal a finding of indicated child abuse or neglect in accordance with this chapter.

  (4) A statement of the circumstances under which the finding may be disclosed;

  (5) Notice of an appellant’s obligation to notify OAH of any criminal or CINA proceedings arising out of the alleged child abuse or neglect; and

  (6) Notice of an appellant’s obligation to immediately advise the local department and OAH of a change of address.

C. A local department may send a single notice if an individual is found responsible for:

  (1) Abuse or neglect of more than one child; or

  (2) More than one incident of abuse or neglect of one child.

D. The local department shall send the notice to the individual at the address noted in the record.

E. Minors. If the individual to whom the local department would send notice under §A of this regulation is younger than 18 years old and not legally emancipated, the local department shall send notice to the individual's:

  (1) Parent or legal guardian; and

  (2) If the individual is a foster child:

    (a) To the attorney, if the child is represented; and

    (b) To the local department worker assigned to the child’s foster care case.

#### Regulation .05 Request for Appeal.

*COMAR 07.02.26.05*

A. Indicated Child Abuse or Neglect. An individual found responsible for indicated child abuse or neglect or any individual who was alleged to have abused or neglected a child in a case that resulted in a finding of indicated child abuse or neglect with no maltreator identified may appeal the finding by, not later than 60 days after receipt of the local department's notice of action, filing with OAH:

  (1) The required filing fee or appropriately documented request for a fee waiver; and

  (2) The contested case hearing request form.

B. Unsubstantiated Child Abuse or Neglect. An individual found responsible in a case of unsubstantiated child abuse or neglect or any individual who was alleged to have abused or neglected a child in a case that resulted in a finding of unsubstantiated child abuse or neglect with no maltreator identified may appeal the finding by forwarding to the local department, not later than 60 days after receipt of the local department's notice of action, a written request for a conference.

C. Failure of an appellant to comply with the requirements in this regulation shall result in dismissal of the appeal.

D. OAH shall notify the local department of a request for a hearing not later than 15 days after receipt.

E. If a local department receives a request for a hearing with a proper fee enclosed or an appropriately documented request for a fee waiver, it shall forward the request to OAH not later than 10 days after receipt.

F. If a local department receives a request for a hearing without the proper fee or appropriately documented request for a fee waiver, it shall return the request to the appellant as soon as possible but not later than 10 days after receipt.

G. If OAH receives a request for a conference, it shall forward the request to the local department not later than 10 days after receipt.

H. An individual is presumed to have received the notice of action 3 business days after the date on the top of the form.

I. OAH will schedule the hearing in the jurisdiction where the appellant resides unless all of the parties consent to another venue.

#### Regulation .06 Stay Pending Disposition of Criminal Charges.

*COMAR 07.02.26.06*

A. An appellant shall notify OAH of:

  (1) A pending criminal proceeding arising out of the alleged child abuse or neglect; and

  (2) The final resolution of a criminal proceeding arising out of the alleged child abuse or neglect.

B. If a criminal proceeding is pending on charges arising out of the alleged child abuse or neglect, OAH shall stay the hearing until final disposition of the criminal proceeding.

C. If, after final disposition of the criminal proceeding, the appellant is:

  (1) Found guilty of any criminal charges arising out of the alleged child abuse or neglect, including being found guilty and receiving probation before judgment or taking an Alford plea, OAH shall dismiss the appeal; or

  (2) Found not guilty of any criminal charges arising out of the alleged child abuse or neglect or if the charges were  dismissed or put on the stet docket, OAH shall vacate the stay and schedule further proceedings in accordance with this chapter.

#### Regulation .07 Stay Pending Disposition of CINA Proceeding.

*COMAR 07.02.26.07*

A. An appellant and the local department shall notify OAH of any CINA proceeding of which they are aware concerning a child:

  (1) Who has been allegedly abused or neglected by the appellant; or

  (2) Who is in the care, custody, or household of the appellant.

B. If a CINA proceeding is pending, OAH shall stay the hearing until the child is found by a court to be a CINA or the CINA proceeding is otherwise concluded.

C. After a CINA proceeding has concluded, OAH shall vacate the stay and schedule further proceedings in accordance with this chapter.

#### Regulation .08 Unsubstantiated Child Abuse or Neglect — Conference.

*COMAR 07.02.26.08*

A. Within 10 days of receiving a request for a conference, the local department shall:

  (1) Schedule a conference to occur at the local department within 30 days of the local department receiving the conference request; and

  (2) Send notice to the appellant that includes the:

    (a) Date and time of the conference; and

    (b) Procedures for the conference.

B. The conference shall be attended by:

  (1) The appellant;

  (2) A local department supervisor; and

  (3) Other local department staff as designated by the local department.

C. Redacted Record. At the conference, the local department:

  (1) Shall permit the appellant to review the redacted record in the presence of a local department supervisor; and

  (2) May give the appellant a copy of the redacted record.

D. The supervisor attending the conference shall explain to the appellant:

  (1) The local department's finding;

  (2) The basis for the finding;

  (3) The purpose of the conference, including allowing the appellant to have an opportunity to request:

    (a) That the record, including the finding, be modified; and

    (b) That the record be supplemented by information the appellant provides.

  (4) The appellant's right to appeal the outcome of the conference in accordance with Regulation .09B and C of this chapter; and

  (5) The possible modification of the finding to indicated or ruled out child abuse or neglect as a result of a requested hearing.

E. Summary. Within 10 days of the conference, the local department shall send to the appellant a written summary of the conference including:

  (1) Any modifications the local department will make to the record or finding;

  (2) A description of any information the local department will add to the record; and

  (3) If the finding has not been changed, a contested case hearing request form and procedures for appealing the finding of the unsubstantiated child abuse or neglect conference in accordance with this chapter.

F. If an appellant fails to appear for a scheduled conference and within 5 business days does not show good cause for failing to appear, the local department shall advise the appellant in writing that:

  (1) The appeal is terminated; and

  (2) The appellant may not request a hearing to appeal the local department's finding of unsubstantiated child abuse or neglect but may request a hearing to appeal the local department's decision that the appellant did not show good cause for failing to appear at the scheduled conference.

#### Regulation .09 Appeal of Outcome of Conference.

*COMAR 07.02.26.09*

A. If as a result of the conference the local department does not agree to modify its unsubstantiated finding, the appellant may appeal the finding of unsubstantiated child abuse or neglect in a hearing in accordance with this chapter.

B. An appellant may appeal the finding of unsubstantiated child abuse or neglect by, not later than 60 days after receipt of the local department’s summary of conference, filing with OAH:

  (1) The contested case hearing request form;

  (2) The summary of the conference; and

  (3) The required filing fee or appropriately documented request for a fee waiver.

C. If an appellant does not receive a written summary of the conference within 20 days of the conference, the appellant may appeal the finding by:

  (1) Requesting a contested case hearing request form from the local department; and

  (2) Sending to OAH not later than 80 days after the date of the conference:

    (a) The contested case hearing request form; and

    (b) The required filing fee or appropriately documented request for a fee waiver.

D. OAH shall dismiss the appeal of an unsubstantiated finding by any individual who does not submit a summary of the conference unless the individual can establish that:

  (1) The individual had a conference but did not receive a conference summary within 20 days of the conference; or

  (2) The individual requested a conference in accordance with this chapter, and that:

    (a) The local department failed to schedule a conference in accordance with this chapter; or

    (b) The individual had good cause for failing to attend a scheduled conference.

#### Regulation .10 Exceptions to Appeal Timeframes.

*COMAR 07.02.26.10*

A. Upon written request, a local department shall offer an individual found responsible for an unexpunged finding of indicated or unsubstantiated child abuse or neglect made before June 1, 1999, an opportunity to appeal in accordance with this chapter, if the individual has not:

  (1) Been found guilty of a criminal charge arising out of the alleged child abuse or neglect;

  (2) Previously had a hearing at OAH to appeal the finding; or

  (3) Previously been given notice of the opportunity to request a hearing.

B. Upon written request, a local department may offer an individual found responsible for an unexpunged finding of indicated or unsubstantiated child abuse a hearing if the individual provides documentation of a change of address prior to the local department sending notice of the finding and of appeal rights.

C. Any hearing held in accordance with §A or B of this regulation will be:

  (1) Conducted under current appeal procedures; and

  (2) Decided based on the law defining child abuse or neglect at the time the finding was made.

#### Regulation .11 Discovery.

*COMAR 07.02.26.11*

A. The local department shall serve the appellant with the redacted record not later than 14 days before the scheduled hearing.

  (1) Service is presumed to occur 3 days after mailing.

  (2) If service of the record does not occur in accordance with this regulation, the appellant may request a reasonable postponement to review the record.

B. The local department is not required to provide a summary of the basis for its action.

C. By written request made at least 10 days before the hearing, the parties have the right to receive, not later than 5 days before the hearing, copies of documents and a list of witnesses to be presented by the other party at the hearing.

D. OAH may prohibit the introduction of information requested pursuant to §C of this regulation if the information was not provided 5 or more days before the hearing.

E. OAH's rules of discovery as set forth in COMAR 28.02.01 do not apply in contested cases conducted under this chapter.

#### Regulation .12 Conduct of Hearing.

*COMAR 07.02.26.12*

A. A party may not call a child younger than 14 years old to testify or otherwise participate in a hearing under this chapter unless the party seeking to introduce the child’s testimony or involve the child demonstrates that:

  (1) The child's testimony or involvement is essential to a determination of the appeal; and

  (2) There is no likelihood that the requested testimony or involvement will emotionally harm the child.

B. The local department bears the burden of proof at the hearing.

C. The local department's record shall be presumed authentic.

D. Representation.

  (1) The local department's case may be presented by a local department representative or an attorney representing the local department.

  (2) An appellant’s case may be presented by the appellant or an attorney representing the appellant.

#### Regulation .13 Dismissal or Voluntary Withdrawal.

*COMAR 07.02.26.13*

A. An appellant may withdraw a request for a hearing at any time by notifying OAH in writing of the intent to withdraw.

B. If the appellant withdraws the request, OAH shall dismiss the appeal and notify the local department.

C. If the local department notifies OAH in writing that it has modified the finding to ruled out, OAH shall cancel the hearing and notify the appellant.

D. Dismissal or voluntary withdrawal of an appeal or request for a hearing automatically affirms the local department's finding and, in the case of a finding of indicated child abuse or neglect, the local department's right to identify the appellant as an individual found responsible for child abuse or neglect in a centralized confidential database.

#### Regulation .14 Decision and Order.

*COMAR 07.02.26.14*

A. Not later than 45 days after the hearing, OAH shall issue a decision and order to the:

  (1) Appellant or, if represented at the hearing by an attorney, the appellant’s attorney;

  (2) The local department’s appeal representative or attorney; and

  (3) The Department.

B. The decision and order shall:

  (1) Summarize the evidence presented; and

  (2) Contain a determination as to whether the local department established by a preponderance of the evidence that its finding was consistent with the law and supported by credible evidence.

C. If the ALJ upholds a local department's finding of the appellant as responsible for indicated child abuse or neglect, the ALJ shall permit the local department to identify the appellant as responsible for child abuse or neglect in a centralized confidential database.

D. If the ALJ determines that the local department's finding or the identification of the appellant as responsible for unsubstantiated or indicated child abuse or neglect was not consistent with the law or not supported by credible evidence, the ALJ shall order the local department to do one or more of the following:

  (1) Modify the finding to indicated, unsubstantiated, or ruled out;

  (2) Expunge all references to the appellant as responsible for child abuse or neglect; or

  (3) Change the type of maltreatment from:

    (a) Abuse to neglect; or

    (b) Neglect to abuse.

E. After OAH issues the decision and order, OAH shall return the contested case record to the Department.

F. The ALJ's decision is subject to appeal by any party pursuant to State Government Article, §10-222, Annotated Code of Maryland.

G. If the ALJ orders the local department to modify or expunge the finding, or expunge reference to the appellant as an individual responsible for child abuse or neglect and neither party appeals, the local department shall take the action within 30 days.

#### Regulation .15 Recordings — Expungement.

*COMAR 07.02.26.15*

OAH may destroy the recording of a contested case one year after the date of the decision unless either party has specifically requested that the recording not be destroyed.