Couple mistakenly listed as abusers lose in court


David and Marsha Hodge were mistakenly listed as child molesters in a state database for two years without a chance to know it or to correct the error.

But that did not violate the Taylorsville family's civil rights or invade its privacy, three judges of the 4th U.S. Circuit Court of Appeals in Richmond, Va., ruled this week.

The decision overturns one by Judge Herbert F. Murray in U.S. District Court in Baltimore in September 1992.

"While it is true that such records may be expunged," the appeals court ruled, "there is no automatic right to expunction once an individual's name has been cleared."

Mr. Hodge said he plans to appeal the ruling.

His case already has led to changes in Maryland law that would protect other families from what happened to him in 1989, he said.

Social service officials "were tried and convicted in a court of public opinion," Mr. Hodge said. "The legislature is now wise to their ways, and they went in and changed the laws."

Suits have been filed by other Maryland families, many of whom testified before the legislature saying that social service workers trampled on their rights.

Another case pending before Judge Murray and upheld by the appeals court concerns adoptive parents Ronald and Carolyn Dorsey, now of Woodlawn, who say a Carroll County social service worker illegally searched their home, threatened to continue spot checks and harmed their relationship with their child.

The appeals court's decision in the Hodge case confirmed the state's contention that it was following the law, said Evelyn Cannon of the Maryland attorney general's office.

"The decision really says exactly what we argued in every respect," Ms. Cannon said.

"There's no constitutional right to have the state destroy records of an investigation," Ms. Cannon said. "The fact that the records exist does not hurt them. That's the key. [The judges] also said wisely that the state has lots of good reasons for keeping those records."

Ms. Cannon said the records are highly confidential, protect children and can even protect the accused.

Unless the Hodges appeal, the ruling effectively shuts down the $1.5 million federal suit they filed in January 1992.

The judges, including retired U.S. Supreme Court Justice Lewis F. Powell Jr., said the state agencies followed the laws and procedures in effect at the time, although those laws changed a year ago because of Mr. Hodge's persistence.

Now, parents who are targets of abuse investigations have access to their records and may request a hearing to rebut allegations. Two years ago, Mr. Hodge spurred legislation to create a category for cases in which abuse has been ruled out and the records can be expunged. Before 1992, even those cases were kept on file for five years.

In January 1989, a misdiagnosis of 3-month-old Joseph Hodge's swollen arm led a pediatrician to report possible child abuse. The doctor thought it was a fracture, but the swelling was a bone infection later diagnosed and treated surgically at Union Memorial Hospital in Baltimore.

Even before the correct diagnosis, an investigator from the Carroll County Department of Social Services ruled out child abuse. At the time the only official categories were "indicated" and "unsubstantiated," and even unsubstantiated cases were kept on file for five years. The Hodges wanted their records expunged anyway.

The Hodges repeatedly tried to gain access to their records and expunge them, or at least to insert a record of the correct diagnosis. After they failed, they filed suit.

When they finally gained access to their records in August 1992 by court order, their lawyer, Edwin Vieira, noticed that the Hodge family had been erroneously listed as "indicated" for sexual abuse from 1989 to 1991.

The database also showed that the mistake was corrected a few days after the suit was filed in January 1992.

Although he has not had a chance to speak about the appeals court ruling with his lawyer, who is on vacation, Mr. Hodge said his reading of the decision is that it would have required him to prove his family was harmed by the errant listing and the lack of access to his records.

"It seems illogical to me to wait until the damage is done," Mr. Hodge said. "The Department of Social Services has once again managed to slither through an open loophole in the law and get away with something."

The judges wrote that the Hodges did not demonstrate any significant harm to their relationship with their son, one of the criteria courts have used in determining whether family privacy was invaded.

"Our reading of the Hodges' complaint reveals no more than a conclusory allegation of reputational injury," the judges said.

David and Marsha Hodge, both scientists who hold national security clearances for their jobs, said their listing in the state database could harm them, but the court said that claim was not tangible.

The judges also said that because of the confidentiality of records in abuse investigations, "we see no avenue by which a stigma or defamation labeling the Hodges as child abusers could attach."

The question of whether the listing defamed the Hodges is another matter, to be decided in a separate lawsuit they have filed in Carroll Circuit Court.

In both suits, the Hodges and their 5-year-old son name M. Alexander Jones, director of the Carroll Department of Social Services; Alan L. Katz, the assistant director; and Carolyn W. Colvin, secretary of the state Department of Human Resources, which oversees the Social Services Department.

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