Charles Schultz v. Clarence H. Carter, Comm., VDSS ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Lemons
Argued at Alexandria, Virginia
CHARLES SCHULTZ
MEMORANDUM OPINION * BY
v. Record No. 0031-99-4 JUDGE LARRY G. ELDER
DECEMBER 7, 1999
CLARENCE H. CARTER, COMMISSIONER,
VIRGINIA DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jonathan C. Thacher, Judge
Robert D. Weiss for appellant.
Gaye Lynn Taxey, Assistant Attorney General
(Mark L. Earley, Attorney General; Ashley L.
Taylor, Jr., Deputy Attorney General;
Siran S. Faulders, Senior Assistant Attorney
General, on brief), for appellee.
Charles Schultz (appellant) appeals the decision of the
circuit court affirming the administrative finding of the
Virginia Department of Social Services (DSS) that Schultz
physically abused his daughter. Schultz contends on appeal that
the trial court erroneously (A) required him to prove that he
did not abuse his daughter; (B) found that substantial evidence
supported DSS's finding that he physically abused his daughter;
(C) deferred to the experience and competence of DSS; and (D)
failed to consider the whole evidential record. We hold that
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
the trial court applied the proper standard of review and that
substantial evidence supported the founded complaint of Level 3
physical abuse. Therefore, we affirm the decision of the trial
court.
In reviewing this matter, we note that
"[t]he scope of court review of a litigated
issue under the APA is limited to
determination [of] whether there was
substantial evidence in the agency record to
support the decision." State Board of
Health v. Godfrey, 223 Va. 423, 433, 290
S.E.2d 875, 880 (1982); see Code
§ 9-6.14:17. The substantial evidence
standard is "designed to give great
stability and finality to the fact-findings
of an administrative agency." Virginia Real
Estate Comm'n v. Bias, 226 Va. 264, 269, 308
S.E.2d 123, 125 (1983). A trial court may
reject the findings of fact "only if,
considering the record as a whole, a
reasonable mind would necessarily come to a
different conclusion." Id. (citing B.
Mezines, Administrative Law § 51.01 (1981)).
The burden of proof rests upon the party
challenging the agency determination to show
that there was not substantial evidence in
the record to support it. See Code
§ 9-6.14:17.
Smith v. Department of Mines, Minerals and Energy, 28 Va. App.
677, 684-85, 508 S.E.2d 342, 346 (1998); see also Code
§ 63.1-248.6:1(B). "[T]he reviewing court '"may not exercise
anew the jurisdiction of the administrative agency and merely
substitute its own independent judgment for that of the body
entrusted by the Legislature with the administrative
function."'" Turner v. Jackson, 14 Va. App. 423, 430-31, 417
S.E.2d 881, 887 (1992) (citations omitted).
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A.
STANDARD OF REVIEW
We find no merit in appellant's contention that the trial
court applied an erroneous standard when it stated that "this
Court may reverse the agency's decision only if, considering the
evidence on the record, a reasonable mind would necessarily
conclude that [appellant] did not abuse [his daughter]." The
trial court set out the proper standard of review in its
detailed opinion letter. It reviewed DSS's factual findings and
listed five "undeniable" facts which it found dispositive. It
determined that the evidence was not such as to necessarily lead
a reasonable mind to a different conclusion, and found that
DSS's disposition of Level 3 physical abuse was "a plausible
explanation based on the record in the case." 1
We do not agree with Schultz's argument that the standard
to be applied by the trial court was whether, considering the
record as a whole, a reasonable mind would necessarily conclude
that there was not clear and convincing evidence to support the
agency's findings. "Review of agency factual decisions is
1
DSS's Child Protective Services Manual defines physical
abuse as a "physical injury . . . , regardless of intent,
[which] is inflicted . . . by non-accidental means" and includes
bruising, which it defines as "an injury which results in
bleeding within the skin, where the skin is discolored but not
broken." 7 Child Protective Services Manual § III, ch. A, at
3-5. A founded complaint of Level 3 abuse requires clear and
convincing evidence of an injury "that result[s] in minimal harm
to a child" and may include one which "[r]equire[s] no medical
attention to remediate." Id. at 22-23.
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governed by the 'substantial evidence' test. Under this
standard, the scope of review is limited to ascertaining whether
there was substantial evidence in the agency record to support
the decision." Turner, 14 Va. App. at 429-30, 417 S.E.2d at 886(citations omitted). 2 Therefore, nothing in the trial court's
analysis indicates that it required Schultz to bear an erroneous
burden of proof in his appeal from the agency's decision.
B.
EVIDENCE OF ABUSE
Schultz contends that the evidence in the record does not
support DSS's findings. He did not deny spanking his daughter
with a belt, but denied spanking her anywhere but on the
buttocks and denied that the spanking caused bruises. He argued
that the bruises on the child's hip and leg were caused by an
incident when the child was tangled in a dog leash.
The court noted five specific facts that supported DSS's
conclusions, including the nature of the child's bruises as well
as her statements to the investigator and clinical social
worker. While Schultz contends that his daughter's statements
were unreliable, the record as a whole supports the conclusion
that the child's report was truthful. Schultz admitted spanking
the child with a belt, and the child admitted to the DSS
2
Of course, the record must include substantial evidence to
support the agency's finding by clear and convincing evidence
that Level 3 abuse occurred. See Turner, 14 Va. App. at 428-29,
417 S.E.2d at 885-86.
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investigator that her initial report concerning other actions by
Schultz had not been truthful. In addition, while the doctor
who viewed the photographs of the child's injuries indicated it
was possible they were caused by the incident with the dog
leash, he noted that the nature of the bruises and their
orientation were not consistent with the description of the dog
leash incident he received. He also noted that the color of the
bruises indicated that they occurred at different times. Father
admitted that he was aware of only one occasion contemporaneous
with the bruising on which R.S. became entangled in the dog
leash. Mother noted that she saw the bruises the day after the
child was spanked, although she testified that she did not
believe the spanking caused the bruises.
We cannot say that the trial court erred in finding that
substantial evidence in the record supported DSS's conclusions.
C.
DEFERENCE TO DSS DETERMINATION
We find no merit in Schultz's argument that DSS's factual
finding was not entitled to any deference in this case. Schultz
admitted spanking his daughter with a belt as reported by his
daughter. The question before the agency was not one of law,
but of fact: whether the spanking Schultz admitted
administering caused his daughter's bruises. On appeal, an
agency's resolution of "factual issues [is] accorded greater
deference in order to give stability and finality to the fact
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finding of the agency." Johnston-Willis, Ltd. v. Kenley, 6 Va.
App. 231, 243, 369 S.E.2d 1, 7 (1988).
We also find no merit in Schultz's contention that the
agency waived any right to deference by using an outside medical
expert. The DSS fact finder who heard and saw the witnesses
testify determined their credibility and the weight to be
afforded their testimony. The trial court on review ascertained
whether substantial evidence supported DSS's decision. It was
not the role of the trial court to either reweigh the evidence
or re-evaluate the witness' credibility. Therefore, the circuit
court properly deferred to the findings of fact rendered by the
DSS decision maker.
D.
CONSIDERATION OF ENTIRE RECORD
We find no support for Schultz's contention that the trial
court failed to consider the record as a whole. Schultz bases
this contention on the fact that there was other evidence in the
record which the DSS fact finder rejected.
The trial court's decision indicated that it relied upon
the record of the proceedings before DSS. See generally Townes
v. Commonwealth, 234 Va. 307, 323 n.3, 362 S.E.2d 650, 659 n.3
(1987). Because it was not the fact finder, the trial court was
not free to disregard the factual findings, based upon
credibility determinations, made by DSS. See Turner, 14 Va.
App. at 430-31, 417 S.E.2d at 887. Therefore, as long as the
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trial court evaluated the DSS decision based upon whether there
was substantial supporting evidence, the fact that there was
other evidence in the record rejected by the DSS hearing officer
did not indicate that the trial court failed to review the
record as a whole.
For these reasons, we affirm the decision of the trial
court.
Affirmed.
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