Couple, state argue over records that incorrectly indicated child abuse

August 21, 1994|By Anne Haddad | Anne Haddad,Sun Staff Writer

Lawyers for the state asked a Carroll Circuit judge Friday to dismiss a lawsuit filed by a couple who once were erroneously linked to child sexual abuse.

But a lawyer for David and Marsha Hodge of Taylorsville said the real abuse was by the Carroll County Department of Social Services and state Department of Human Resources, which either allowed the mistake to stand or never checked enough to discover it, despite repeated inquiries by the Hodges about their status in the social services database.

Carroll Circuit Judge Raymond E. Beck said he would decide in the next three weeks whether to dismiss the suit, which was filed in April 1993 and sought $12 million in compensatory and punitive damages. The suit named M. Alexander Jones, executive director of the Carroll County Department of Social Services; Alan Katz, assistant director; and Carolyn W. Colvin, state Department of Human Resources secretary.

Between 1989 and 1992, the Hodges sought to view, amend or expunge their records because they objected to their ambiguous listing as "unsubstantiated" for physical abuse. The initial suspicion of abuse of their son was based on a doctor's misdiagnosis.

But after suing the state and finally seeing their records, they learned they were mistakenly listed as "indicated" for sexual abuse. The data base does not identify abusers, but the Hodges claim it provides enough information for anyone with access to draw the conclusion that one of them abused their son.

The Hodges say the mistake, the failure to correct it for two years and the repeated assurances over that time by state officials that they had nothing to worry about constitute defamation, gross negligence and misrepresentation, and that the officials intentionally caused emotional stress on the family.

But Shelly Mintz and Donna Heller, lawyers for the state's attorney's office who are representing the county Department of Social Services and state Department of Human Resources, rebutted each of the claims. Social services officials "were sued because they followed the law," Ms. Heller argued.

They said the Hodges weren't defamed because the error was not published until Mr. Hodge went public. They said the database is highly confidential, used only by social services and law enforcement officials in child abuse investigations.

Thomas A. Pavlinic of Annapolis, attorney for the Hodges, argued that the coding of the information into the state database constitutes publication. He said officials should have found the error sooner.

"The Hodges were for three years saying, 'Show us our records.' Didn't anyone in [the] organization take the time to look and see how they were reported into the database?"

He said officials wrote letters to the Hodges saying they were not identified as abusers on the database.

He is representing several Maryland families who say social services workers have violated their rights. He told Judge Beck he sees a pattern of abuse by the agencies.

"People's rights are being [violated] every day under the guise of what's in the best interest of the child," he said.

Ms. Mintz said the error was a mistake in coding, and that it was changed shortly after it was discovered, when attorneys were preparing for the suit the Hodges filed.

In January 1989, the Hodges took their infant son to Carroll

County General Hospital's emergency room. The baby had a swollen arm, and a doctor who misdiagnosed it as a fracture called social services to investigate possible physical abuse.

An investigator ruled out abuse, and doctors at Union Memorial Hospital a few days later discovered the baby had a bone infection, and treated it surgically.

Although the social services investigator ruled out abuse, the state had only two official categories: indicated abuse, or unsubstantiated abuse. The Hodges were told, and said they believed, they were in the state database linked to unsubstantiated physical abuse. But they wanted their records expunged.

State law didn't allow expungement at the time, but has been changed as a result of Mr. Hodge's pleas to the General Assembly.

The Hodges filed a $1.5 million federal suit in January 1992, claiming invasion of privacy and infringement of their constitutional rights. The suit named the same defendants as the state suit. While a federal judge in Baltimore ruled in their favor, the 4th U.S. Circuit Court of Appeals dismissed the case last month. Mr. Hodge said he will appeal to the U.S. Supreme Court.

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