Court of Appeals considers intent standard for mental abuse by parent

ANNAPOLIS – Maryland’s top court last week considered whether a parent can be found liable for mentally abusing a child in the absence of any reckless behavior toward the youngster.

Attorneys for Lauren McClanahan, who was found liable for abusing her then-preschool-aged daughter, told the Court of Appeals that a finding of mental abuse can be made only when the injury occurred from a parent’s recklessness. But an attorney for the Washington County Department of Social Services said child abuse can be found when parents, regardless of their intentions, act in an “unreasonable and unjustifiable” manner that results in significant mental distress for their children.

The case before the high court involved the validity of the department’s removal of the girl McClanahan after concluding in December 2010 that the child’s delayed social and intellectual skills were caused by her frequent visits to hospital emergency rooms amid the McClanahan’s concern the girl was being sexually abused by her father, McClanahan’s ex-husband. Social services conducted 14 sexual abuse investigations between February 2008 and May 2010, all of which ruled out sexual abuse, according to court records.

An administrative law judge found McClanahan’s actions, though out of concern for her daughter, were unreasonable and unjustified and amounted to child abuse.

The Washington County Circuit Court and the intermediate Court of Special Appeals upheld the ALJ’s conclusion, prompting McClanahan to seek review by the Court of Appeals. The child, now 10, lives with her father.

Gregory F. Jacob, an attorney for McClanahan, said a showing of parental recklessness is necessary for a finding of mental abuse to avoid the “draconian result” of children being taken from parents who acted in what they in good faith believed was in their youngster’s best interest.

For example, a standard short of recklessness could result in a finding of abuse by parents who send their children to school before they are ready, resulting in substantial mental distress for the youngsters, said Jacob, a partner with O’Melveny & Myers LLP in Washington.

“A completely well-intentioned parenting decision” should not result in a finding of child abuse, he added.

‘Shopping’ for answers

In 2004, the Court of Appeals held in Taylor v. Harford County Department of Social Services that parents can be found liable for physical abuse only if they acted recklessly toward the child, Jacob said. That same standard should apply to mental abuse, he said.

Jacob’s co-counsel, David R. Dorey, said McClanahan should not be liable for child abuse because she acted on the “good faith” belief that the youngster was being abused by her father and thus often brought her to the hospital.

Maryland law excuses people from criminal and civil liability for alerting authorities to what they believe in good faith to be child abuse, Dorey said, adding McClanahan’s liability in this case was the finding of child abuse and loss of her child.

But the department’s attorney, Sandra Barnes, said McClanahan’s 10 trips to the hospital between June 2007 and November 2010 – though not deemed reckless – were unreasonable, unjustified and harmful to the child’s mental well-being. McClanahan also lost any good-faith defense amid the doctors’ repeated findings of no abuse and after rather intrusive, physical examinations of the child, said Barnes, an assistant Maryland attorney general.

“The mother was not shopping for the right answer,” Barnes said. “She was shopping for the only answer she wanted.”

Judge Sally D. Adkins asked if a limit should be placed on the number of times parents can take a child to the hospital on suspicion of physical abuse. Barnes replied that the unreasonable and unjustified visits in this case “substantially” impaired the child, justifying the finding of abuse.

Adkins, however, seemed unconvinced.

She asked whether a domineering but loving father could be found liable for mental abuse if he pushes his unathletic son to excel in sports. Adkins also questioned whether divorcing parents can be held liable for child abuse, as divorce can be mentally trying on a youngster.

“How bad does the conduct of the parent have to be?” Adkins said.

Barnes said McClanahan’s needless trips to the hospital had to be stopped for the child’s welfare.

“We want to stop this parent from doing this,” Barnes said. “Who else is going to step in [but DSS]?”

The Court of Appeals is expected to render its decision by Aug. 31 in the case, McClanahan v. Washington County of Department of Social Services, No. 79, Sept. Term 2014.

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