Lisa Beaton v. VA Department of Social Services ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Bray
Argued at Chesapeake, Virginia
LISA BEATON
MEMORANDUM OPINION * BY
v. Record No. 0917-99-1 JUDGE LARRY G. ELDER
MARCH 7, 2000
VIRGINIA DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
A. Bonwill Shockley, Judge
Andrew G. Wiggin (Donald E. Lee, Jr. and
Associates, on briefs), for appellant.
Cheryl A. Wilkerson, Assistant Attorney
General (Mark L. Earley, Attorney General;
Ashley L. Taylor, Jr., Deputy Attorney
General; Siran S. Faulders, Senior Assistant
Attorney General; Daniel J. Poynor, Assistant
Attorney General, on brief), for appellee.
Lisa Beaton (appellant) appeals from a decision of the
Virginia Beach Circuit Court finding substantial evidence to
support the determination of the Department of Social Services
(DSS) that a complaint of "Inadequate Supervision--Level Three"
against appellant was "Founded." On appeal, appellant contends
the circuit court committed reversible error by (1) refusing to
hold that the doctrine of res judicata required a reversal of
DSS's decision, and (2) finding sufficient evidence to prove
neglect under the statute and under the guidelines. We hold
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
that the doctrine of res judicata is inapplicable in this case
but that the evidence was insufficient to establish a violation
of either DSS's guidelines or the applicable statute.
Therefore, we reverse and vacate DSS's determination that the
complaint of "Inadequate Supervision--Level Three" against
appellant was "Founded."
I.
BACKGROUND
The basic facts surrounding the inadequate supervision
charge are not in dispute. At about noon on January 15, 1997,
appellant left her home by car to pick up her three-year-old son
from pre-school. At the time, her nine-month-old twins were
asleep in their cribs. Appellant tried to reach several people
to stay with the twins, but her regular sitters were not
available. She eventually reached the next-door neighbor, told
the neighbor the twins were asleep, and asked her to "watch the
house" while appellant left briefly to pick up her son. She did
not ask the neighbor to come to the house and did not provide
the neighbor with a key. Appellant knew the front door to the
house was locked but was unaware of the status of the back door.
Appellant left to pick up her son and returned to the house
within fifteen minutes of departing. The twins were asleep when
she arrived home, and she telephoned the neighbor to report her
return.
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II.
ANALYSIS
A.
RES JUDICATA
Appellant contends that the juvenile and domestic relations
district court's September 29, 1997 finding that she did not
neglect her children was binding on the DSS hearing officer
under the doctrine of res judicata.
Assuming without deciding that the decision of a district
court regarding neglect may be res judicata in a related
administrative proceeding, we are unable to conclude that the
doctrine of res judicata applies in this case. "'One who
asserts the defense of res judicata has the burden of proving
that the very point or question was in issue and determined in
the former suit.'" Bernau v. Nealon, 219 Va. 1039, 1043, 254
S.E.2d 82, 85 (1979) (quoting Feldman v. Rucker, 201 Va. 11, 18,
109 S.E.2d 379, 384 (1959)). The party asserting applicability
of the doctrine must offer the record of the prior action into
evidence. See id. at 1041-42, 254 S.E.2d at 84. "'If the
courts should recognize judicially facts adjudicated in another
case, it makes those facts, though unsupported by evidence in
the case at hand, conclusive against the opposing party; while
if they had been properly introduced they might have been met
and overcome by him.'" Id. at 1043, 254 S.E.2d at 85 (citations
omitted).
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In an administrative proceeding, a party ordinarily may
offer evidence only in proceedings before the local department
or a DSS hearing officer. See Code § 63.1-248.6:1. "[T]he
circuit court's role in an appeal from an agency decision
[pursuant to the Administrative Process Act] is equivalent to an
appellate court's role in an appeal from a trial court." York
County Sch. Bd. v. Nicely, 12 Va. App. 1051, 1062, 408 S.E.2d
545, 551 (1991). "[T]he factual issues on appeal are controlled
solely by the agency record," and "[t]he reviewing court is not
free to take additional evidence, even at the request of one of
the parties." Id.; see also id. at 1051 n.2, 408 S.E.2d at 551
n.2 (noting that APA permits circuit court to accept evidence in
rare circumstance not applicable here, "where no agency record
exists"). In sum, the applicability of res judicata requires
proof of the fact and details of the prior judgment, and a
circuit court may not accept documents or other evidence
purporting to prove these facts which were not offered and
admitted into evidence at the agency level.
Here, appellant's counsel informed the DSS hearing officer
by voice mail and letter of the district court's decision and
expressed the "hope" that she would make the same finding as the
district court. The record contains no indication that
appellant's counsel provided the hearing officer with a copy of
the order or transcript of the proceedings or asked her to
reopen the record to receive same into evidence. Therefore, we
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uphold the circuit court's ruling that it could not consider the
district court's order or transcript of the related proceedings.
For the same reason, we also may not consider these documents on
appeal. 1 Without these documents we are unable to conclude
whether the doctrine of res judicata may have been a viable
defense. 2
B.
SUFFICIENCY OF EVIDENCE TO PROVE NEGLECT
UNDER STATUTE AND GUIDELINES
Appellant contends the agency guidelines she was found to
have violated impermissibly broadened the scope of Code
§ 63.1-248.2, which defines abuse and neglect, such that the
evidence is insufficient to prove neglect under the statute.
She also contends the evidence is insufficient to establish
neglect even under the guidelines. Assuming without deciding
that the relevant portion of the guidelines do not impermissibly
broaden the scope of the statute, we nevertheless hold that
appellant's actions did not constitute a violation of the
1
Therefore, we grant appellee's motion to strike from the
appendix the transcript and order memorializing the district
court's ruling of September 29, 1997.
2
Appellant also contends that the doctrine of autrefois
acquit applies to bar the DSS proceedings. Autrefois acquit is
a form of double jeopardy applicable in criminal proceedings.
See Highsmith v. Commonwealth, 25 Va. App. 434, 444, 489 S.E.2d
239, 243 (1997). Assuming without deciding that the district
court had jurisdiction to impose a criminal penalty on appellant
and that its failure to do so somehow constituted a criminal
acquittal, that fact would bar only a subsequent criminal
action, not a civil one. See id. at 444, 489 S.E.2d at 243-44.
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guidelines or the statute, and we reverse and vacate the
agency's founded determination.
Code § 63.1-248.2 defines an "[a]bused or neglected child,"
inter alia, as
any child less than eighteen years of age:
1. Whose parents or other person
responsible for his care . . . creates a
substantial risk of death, disfigurement, or
impairment of bodily or mental functions;
[or]
2. Whose parents or other person
responsible for his care neglects or refuses
to provide care necessary for his health.
However, no child who in good faith is under
treatment solely by spiritual means through
prayer in accordance with the tenets and
practices of a recognized church or
religious denomination shall for that reason
alone be considered to be an abused or
neglected child; . . . .
Guidelines promulgated to help the local departments "in
interpreting the definitions of abuse and neglect provided by
statute" are contained in DSS's Protective Services Manual. See
Jackson v. W., 14 Va. App. 391, 399, 419 S.E.2d 385, 389 (1992).
The relevant version of that Manual provides that physical
neglect includes:
[t]he failure to provide food, clothing,
shelter or supervision for a child to the
extent that the child's health or safety is
endangered. . . .
Physical neglect may include multiple
occurrences or a one-time critical or severe
event that results in a threat to health or
safety, such as a toddler left alone.
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Physical neglect includes the following when
the conditions threaten the child's health
or safety:
b) Inadequate supervision: the child has
been left in the care of an inadequate
caretaker or in a situation which
requires judgment or actions greater
than the child's level of maturity,
physical condition, and/or mental
abilities would reasonably dictate; or
[under] minimal care/supervision which
results in placing the child in jeopardy
of or at risk of . . . physical injury
. . . .
7 DSS Service Programs Manual § III (Child Protective Services
Manual), ch. A.1.c.2) (Aug. 1995 ed.) [hereinafter CPS Manual]. 3
A level three finding involves "those injuries/conditions, real
or threatened, that result in minimal harm to a child" such as
"supervision marginal" which "poses threat of danger to child."
Id. ch. A.3.f.2)(a)(3), at 23-24; see 22 Va. Admin. Code
40-700-20.
The applicable regulation and guidelines provide that, in
proceedings before the local agency, clear and convincing proof
of abuse or neglect is required before a complaint may be
labeled "founded." Jackson, 14 Va. App. at 410, 419 S.E.2d at396 (citing CPS Manual); 22 Va. Admin. Code 40-700-10; CPS
3
DSS has enacted more detailed regulations, which took
effect on January 1, 1998. See 22 Va. Admin. Code 40-705-10 to
40-705-190, hist. nn. It also revised its CPS Manual to conform
to these new regulations. All proceedings before DSS in this
case took place in 1997, before enactment of the new regulations
and revision of the guidelines, and we rely on the regulations
and guidelines in effect at that time.
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Manual, ch. A.3.f.2)(a), at 23-24. 4 This requirement serves "to
protect not only the interests of the child but also the rights
of the person accused." Jackson v. Marshall, 19 Va. App. 628,
635, 445 S.E.2d 23, 27 (1995).
On appeal, the Administrative Process Act limits the review
of factual issues to a determination of whether there is
"substantial evidence in the agency record upon which the agency
as the trier of the facts could reasonably find them to be as it
did." Code § 9-6.14:17. Substantial evidence is "'such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.'" Virginia Real Estate Comm'n v. Bias,
226 Va. 264, 269, 308 S.E.2d 123, 125 (1983) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct.
206, 216, 83 L. Ed. 126 (1938)) (emphasis in Bias). Under this
standard, the court "may reject the agency's findings of fact
. . . if, considering the record as a whole, a reasonable mind
would necessarily come to a different conclusion."
Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231, 242, 369 S.E.2d
1, 7 (1988).
Combining the clear and convincing and substantial evidence
standards, an appellate court may affirm the agency's founded
determination only if the record contains substantial evidence
4
The new regulations and corresponding guidelines appear to
require a different burden of proof for a founded disposition.
See 22 Va. Admin. Code 40-705-10; DSS Manual ch. A, pt. 4, G.1
(July 1998 ed.).
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to support the agency's finding by clear and convincing evidence
that the abuse or neglect occurred. See Turner v. Jackson, 14
Va. App. 423, 428-29, 417 S.E.2d 881, 885-86 (1992). We hold no
reasonable mind could have concluded, by clear and convincing
evidence, that the challenged acts constituted neglect under the
guidelines.
The guidelines, as quoted above, provide that inadequate
supervision may constitute neglect. However, in order for a
one-time event to be sufficient to constitute neglect, it must
be "a critical or severe event that results in a threat to
health or safety, such as a toddler left alone." 5 Appellant's
children were infants and, under the facts of this case, were
not subject to the same dangers to which a toddler left alone
might be subjected. It was undisputed that when appellant left
the house, the infants were asleep in separate cribs which
contained no items likely to cause any risk to their safety;
that the side rails of the cribs were positioned such that the
infants, if they had awakened, would have been unable to get out
of the cribs and unable to become trapped between the slats;
5
The revised manual provides as an example that "the
caretaker left a toddler alone for several hours endangering the
safety of the child." DSS Manual, ch. A, pt. 2, B.3.0 (July
1998). The prior version of the DSS Manual implied that any
instance of leaving a toddler alone was "a critical or severe
event that results in a threat to health or safety"; whereas the
revised version makes clear that leaving even a toddler alone
for a brief period may not necessarily endanger its safety
sufficiently to constitute neglect.
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that the cribs were not located near any other objects, such as
cording attached to blinds, on which the infants might injure
themselves; and that appellant was gone for less than fifteen
minutes. Finally, appellant told her next-door neighbor that
she was leaving and asked her to watch the house. Although the
front door to appellant's home was locked, the record did not
establish by clear and convincing evidence that the neighbor
would have been unable to gain access to the home if an
emergency had arisen. Under the guidelines, therefore, we hold
that no reasonable mind could have concluded, by clear and
convincing evidence, that this brief, one-time occurrence
constituted neglect.
Nor does the record contain substantial evidence from which
the agency could find, by clear and convincing evidence, that
appellant's behavior constituted neglect under the statute. The
Commonwealth concedes on brief that appellant's behavior did not
violate subsection (1) of the statute because it did not create
a "substantial risk of death, disfigurement, or impairment of
bodily or mental functions." It argues that the behavior
violated subsection (2), which includes the "neglect[] or
refus[al] to provide care necessary for [the child's] health."
For the same reasons the evidence is insufficient to establish a
violation of the guidelines, it also is insufficient to
establish that appellant failed to provide care "necessary" for
the infants' health under the facts of this case.
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For these reasons, we hold that the doctrine of res
judicata is inapplicable in this case but that the evidence was
insufficient to establish a violation of either DSS's guidelines
or the statute. Therefore, we reverse the ruling of the circuit
court and vacate DSS's determination that the complaint of
"Inadequate Supervision--Level Three" against appellant was
"Founded."
Reversed and vacated.
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Fitzpatrick, C.J., concurring, in part, and dissenting, in part.
I respectfully concur in the majority's holding that the
doctrine of res judicata is inapplicable to this case, but
disagree with their holding that the trial court erred in
upholding the determination of the DSS that a complaint of
"Inadequate Supervision--Level Three" against appellant was
"Founded." I would hold that leaving nine-month-old twins alone
in a locked house, with no supervision therein, and no evidence
establishing an ability of the "neighbor" to enter the house in
case of fire or other emergency, meets the requirements of Code
§ 63.1-248.2 and the attendant DSS guidelines.
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