Rene Chavez v. Arlington County Department of Human Services ( 2014 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Beales and Senior Judge Clements
UNPUBLISHED
RENE CHAVEZ
MEMORANDUM OPINION*
v. Record No. 2127-13-4 PER CURIAM
MAY 20, 2014
ARLINGTON COUNTY DEPARTMENT
OF HUMAN SERVICES
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
William T. Newman, Judge
(Mark S. Thrash, on brief), for appellant. Appellant submitting on
brief.
(Jason L. McCandless, Assistant County Attorney; Julia Ovando,
Guardian ad litem for the minor child, on brief), for appellee.
Appellee and Guardian ad litem submitting on brief.
Rene Chavez appeals an order finding that he sexually abused a minor child. Chavez argues
that the circuit court abused its discretion in finding that he abused, sexually or otherwise, his
girlfriend’s child. Upon reviewing the record and briefs of the parties, we conclude that the circuit
court did not err. Accordingly, we affirm the decision of the circuit court.
BACKGROUND
We view the evidence in the light most favorable to the prevailing party below and grant
to it all reasonable inferences fairly deducible therefrom. See Logan v. Fairfax Cnty. Dep’t of
Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 462 (1991).
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
In November 2012, Dora del Carmen Hernandez lived in a three-floor duplex. Chavez
and Jenny Miranda-Lopez rented the basement from Hernandez, but Hernandez still used the
clothes washer and dryer located in the basement.
One day during the first week of November 2012, Hernandez went to the basement to
take clothes out of the dryer. She saw Chavez with Miranda-Lopez’s one-year-old son, who was
not wearing a diaper. Hernandez saw Chavez put his mouth on the child’s “private parts.”
Chavez’s pants zipper was down, but he was fully clothed. She then saw Chavez turn the child
around and “slowly” rub the child against his “private parts” and down his body as he placed the
child on the floor. Upon seeing Chavez’s interaction with the child, Hernandez initially thought,
“what a strange way to play with him.” Then, she went upstairs to see if Miranda-Lopez was
home and later told the child’s mother to “protect her child more.”
Hernandez testified that she had sufficient light to see Chavez and the child because the
lights on the stairs and in the kitchen were lit. She does not wear glasses.
On November 26, 2012, the Arlington County Department of Human Services (the
Department) filed a petition requesting a preliminary protective order and alleged that Chavez
abused or neglected the child. On December 20, 2012, the Arlington County Juvenile and
Domestic Relations District Court (the JDR court) found that Chavez abused the child and
ordered him to have no contact with the child. Chavez appealed to the circuit court.
After hearing all of the evidence and argument, the circuit court held that the Department
met its burden of proof, by a preponderance of the evidence, that Chavez sexually abused the
child. It ordered that the protective order remain in place and remanded the matter to the JDR
court. The circuit court entered an order reflecting its rulings on September 30, 2013. This
appeal followed.
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ANALYSIS
Chavez argues that the evidence was insufficient to support the circuit court’s finding of
abuse. He contends Hernandez’s testimony was not credible. He questions how well she could
have seen him because the lighting was poor.
“It is well established that the trier of fact ascertains a witness’ credibility, determines the
weight to be given to their testimony, and has the discretion to accept or reject any of the
witness’ testimony.” Street v. Street, 25 Va. App. 380, 387, 488 S.E.2d 665, 668 (1997) (en
banc).
The circuit court had an opportunity to see and hear the witnesses and found Hernandez
to be a credible witness. She testified that she could clearly see Chavez and described in detail
what he was doing.
Chavez further argues that the Department did not meet its burden of proving that he
sexually abused the child. He notes that Hernandez initially thought he was playing with the
child. He was fully clothed during the incident. He also asserts that when a person is holding a
child and placing a child on the floor, he or she “always moves the child down his or her body in
order to get it to the floor.” (Emphasis in original). Chavez contends the evidence was
insufficient to prove that he abused the child.
An “abused or neglected child” is one “[w]hose parents or other person responsible for
his care commits or allows to be committed any sexual act upon a child in violation of the law.”
Code § 16.1-228(4).
“If a petition alleging abuse or neglect of a child has been filed, . . . the court shall
determine whether the allegations of abuse or neglect have been proven by a preponderance of
the evidence.” Code § 16.1-253(F). “[T]he preponderance of the evidence standard is an
appropriate standard for an abuse and neglect proceeding.” Wright v. Arlington Cnty. Dep’t of Soc.
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Servs., 9 Va. App. 411, 414, 388 S.E.2d 477, 479 (1990); see also Cumbo v. Dickenson Cnty. Dep’t
of Soc. Servs., 62 Va. App. 124, 130, 742 S.E.2d 885, 888 (2013).
In order to prove sexual abuse by a preponderance of the evidence, the Department had to
prove both an intentional touching and that Chavez acted with “the intent to sexually molest, arouse,
or gratify.” See Code § 18.2-67.10. “‘Intent is the purpose formed in a person’s mind that may, and
often must, be inferred from the facts and circumstances in a particular case.’” Blaylock v.
Commonwealth, 26 Va. App. 579, 589, 496 S.E.2d 97, 104 (1998) (quoting Ridley v.
Commonwealth, 219 Va. 834, 836, 252 S.E.2d 313, 314 (1979)).
When it issued its ruling, the circuit court admitted that if the standard of proof was beyond
a reasonable doubt, then the Department might not have met its burden. However, since the
standard of proof was “mere preponderance,” the Department only had to prove “it’s more likely
than not” that Chavez abused the child. Under that standard, the circuit court held that the
Department met its burden of proof. There was sufficient evidence that Chavez put his mouth on
the child’s “private parts” when the child was not wearing a diaper. Although Chavez was fully
clothed, his zipper was down. There also was evidence that Chavez “slowly” rubbed the child down
his body. Considering the totality of the evidence, the circuit court could infer that Chavez had the
intent to sexually abuse the child.
Accordingly, the circuit court did not err in finding that the evidence was sufficient to find
that Chavez abused the child.
CONCLUSION
For the foregoing reasons, the circuit court’s ruling is affirmed.
Affirmed.
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