Scienter not required for abuse by mental injury

An administrative finding of indicated child abuse by mental injury does include a scienter requirement, the Court of Special Appeals has held.

Lauren McClanahan, the mother of R.H., argued that a finding of intentional or, at least, reckless conduct was required under the Court of Appeals’ 2004 decision in Taylor v. Harford County.

In Taylor, however, the alleged abuse was physical: specifically, the father kicked a wooden stool that broke apart, and pieces of the stool hit the child. Based on the relevant COMAR section and statute, the Taylor court found that unintentional conduct does not amount to indicated physical child abuse unless it is at least reckless.

In McClanahan’s case, though, the alleged abuse involved a mental injury. The relevant COMAR section says only that a parent must have “caused” the mental injury, while the statute, Family Law Article §5-701(r), does not describe the mental state associated with inflicting the injury.

The Court of Special Appeals acknowledged that the language in Taylor was relatively broad, but expressly declined to extend it in this case.

“Although … the Court of Appeals does not expressly limit the application of a scienter requirement to physical abuse, we refuse to read a scienter requirement into mental abuse where the statute and regulations are silent,” Judge Patrick Woodward wrote for the three-judge panel.

The court affirmed the finding that McClanahan was responsible for indicated child abuse by mental injury, a claim that stemmed from the mother’s repeated statements or actions suggesting to the 5-year-old girl that her father might have sexually abused her. When the girl adopted that suggestion, McClanahan would take her in for medical exams, which in turn would trigger a “positive feedback loop,” the state’s expert witnesses testified. The witnesses testified that this was exploitive, caused the child emotional distress and led to a “positive attachment disorder” in which the girl was uncertain about whether her parents could protect her or if she should protect them.

However, the testimony also indicated that McClanahan was motivated by a “subconscious” or “unconscious” desire to alienate the child from her father, who had remarried, and with whom R.H. had an affectionate relationship.

McClanahan used the testimony about her subconscious motivation to attack the sufficiency of the evidence that she ever committed an “act” that harmed her daughter, arguing that an “act” must be voluntary and conscious.

But McClanahan “mischaracterizes the experts’ conclusions,” Woodward wrote. The references to “unconscious” and “inadvertent” behavior were not meant to define appellant’s abusive actions but rather, her motivations and awareness of the effect her behavior would have.

“In other words, the evaluators indicated that appellant committed these acts without consciously appreciating that (1) they were motivated by her desire to alienate [R.H.] from her father, and (2) that they would cause [R.H.] to repeatedly make false and detrimental sexual abuse allegations,” Woodward wrote. The expert witnesses, Dr. Carlton Munson and LCSW-C Ronald Zuskin, “did not suggest that the ‘act’ that injured [R.H.] was involuntary, like a hiccup or a Tourette’s outburst.”

McClanahan also raised several other grounds on appeal, including a Frye-based challenge as to the reliability and validity of the experts’ assessment tools, but the appellate court found she had waived them by not raising them earlier in the litigation.

The case is McClanahan v. Washington County Department of Social Services, CSA No. 0737, Sept. Term 2013. A full-text version of the reported opinion is included in this issue.

Paul V. Jorgensen of Middletown represented McClanahan on appeal; Sandra Barnes, of the Office of the Attorney General, represented the Washington County DSS.