Couple can sue on child abuse case

September 06, 1992|By Anne Haddad | Anne Haddad,Staff Writer

BALTIMORE -- A federal judge has cleared the way for a Taylorsville couple to prepare for trial in their $1.5 million suit against two agencies they claim wrongly indicated that they sexually abused their infant son.

For three years, David and Marsha Hodge thought their worst problem was being listed in a statewide data bank as linked to "unsubstantiated" physical abuse of their son.

They learned a month ago about an apparent coding error that listed them as "indicated" for sexual abuse.

The judge's order, issued after a hearing in U.S. District Court in Baltimore on Thursday, allows the Hodges to use the contents of their file in their case against the Carroll County Department of Social Services and Maryland Department of Human Resources.

Senior Judge Herbert F. Murray denied the state's summary judgment motions "because of the profound constitutional issues" raised by the case.

He also denied motions by the state's lawyers to suppress several documents filed so far, including the Hodges' confidential file.

"The Hodges insist disclosure would serve them better," Judge Murray said, ruling that their file could be made public.

Mr. and Mrs. Hodge filed the suit in January because the state would not remove the family's name from the statewide master file, even though the two were exonerated of physical abuse by a state investigator.

The suit also claimed a denial of due process because the Hodges were never allowed to see what was in their file.

When the state submitted the Hodges' confidential file to the court about a month ago, the Hodges' lawyer noticed the error linking them to "indicated sexual abuse" -- for which they were never charged or investigated.

The Hodges claim that state and county social service officials knew since at least March of 1989 -- but never bothered to correct it.

The Department of Human Resources finally corrected the file -- four days after the Hodges filed their $1.5 million lawsuit.

Other defendants include Human Resources Secretary Carolyn Colvin, Carroll Social Services Director M. Alexander Jones and Assistant Director Alan Katz.

"They knowingly and willfully, with reckless disregard, kept on file false information," said Edwin Vieira Jr., the Hodges' lawyer.

Shelly Mintz, an assistant Maryland attorney general who represents the social services agencies, called the file information "regrettable."

"If there was an error made, that does not rise to the level of a federal constitutional [case]," Ms. Mintz told Judge Murray.

"The government does not have a right to collect and maintain false files," countered Mr. Vieira, "certainly not on a statewide data bank."

The Hodges were plunged into the social services arena in January 1989, when they took their 4-month-old son to the Carroll County General Hospital emergency room with a swollen arm.

Doctors there mistakenly ruled it a fracture, and alerted the couple that they had to report it to the DSS as suspected child abuse. The swelling turned out to be a bone infection later treated surgically at Union Memorial Hospital.

Even before the correct diagnosis, a Social Services investigator ruled out abuse. But the case had to stay on file as "unsubstantiated."

The state had no "ruled out" category, and the records by law must be kept on file for five years, Ms. Mintz said.

Partly because of lobbying by Mr. Hodge, the Maryland General Assembly passed a new law that allows Social Services to expunge cases in which the investigator can rule out abuse. But the law does not retroactively apply to him and his wife.

While the Hodges have decried the inclusion of their names on the state's computerized "Automated Master File," Mr. Vieira pointed out that the benefit of the file is that it shows that DHR didn't correct the sexual abuse charge until after the agency was served with the lawsuit.

"This system is very good, because every time someone makes a change, it records when that happens," Mr. Vieira said.

Ms. Mintz said the state workers and agencies only applied existing law to the Hodges, and that the investigation had exonerated them.

"You just look at what happened to the Hodges -- nothing happened to them," Ms. Mintz said.

After the hearing, Mrs. Hodge decried Ms. Mintz's remarks.

"For 2 1/2 years I've had all kinds of medical problems worrying about legal fees," Mrs. Hodge said. "How in the world could they come up with something like this?"

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