Douglas James, Jr. v. Clarence H. Carter, Commis.

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Bumgardner
Argued at Salem, Virginia
DOUGLAS JAMES, JR.
MEMORANDUM OPINION * BY
v. Record No. 0082-00-2 JUDGE RICHARD S. BRAY
AUGUST 22, 2000
CLARENCE H. CARTER, COMMISSIONER,
VIRGINIA DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Herbert C. Gill, Jr., Judge
William T. Fitzhugh (Beddow, Marley,
Trexler & Fitzhugh, on brief), for appellant.
Eleanor Anne Chesney, 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.
In disposition of a complaint alleging "sexual abuse" by
Douglas James, Jr. (appellant), the Department of Social Services
(DSS) determined "Founded - Sexual Abuse - Level I," a decision
affirmed by the trial court. On appeal, appellant urges us to
reverse, contending that the evidence was insufficient to support
the finding and, further, that DSS failed to audio tape the
interview with the alleged victim in violation of the Virginia
Administrative Code and related DSS policy. Finding no error, we
affirm the disputed order.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal. We view the facts in the light most
favorable to the DSS.
I.
On March 17, 1998, the Chesterfield/Colonial Heights
Department of Social Services (local agency) received a complaint
that N.F., a minor female, had been "sexually abused" by
appellant, while she was a "ward" of the Bon Air Juvenile
Correctional Center (Bon Air) and he was employed as a Juvenile
Correction Officer at the facility. In response to the complaint,
a Child Protective Services worker (CPS worker) conducted an
investigation and determined "Founded - Sexual Abuse - Level I," a
disposition subsequently affirmed in successive appeals, first by
the local agency, followed by the Commissioner, Virginia
Department of Social Services (DSS) after an administrative
hearing and, finally, by the trial court.
The record of the administrative and related proceedings
below includes the investigative report prepared by the CPS
worker, together with the hearing testimony of both the CPS worker
and defendant and certain documentary proofs. Such evidence
disclosed that appellant oftentimes visited Keller Cottage, the
unit that housed N.F. while a resident at Bon Air, during his
"breaks" from assigned duties elsewhere. On these occasions, N.F.
"always came to him," once dressed only in "a robe and panties,"
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and the two would engage in conversation, without "touching." The
frequency of appellant's visits prompted another staff member to
question him "about the youth." Appellant responded that he "knew
[N.F.] from the street during the time that she dated his
brother." Appellant's regular appearances at Keller Cottage
ceased after N.F. was discharged from Bon Air.
Shortly thereafter, J.H., also a female ward at Bon Air
during N.F.'s stay, reported to staff person Andrea Arrayo that
N.F. had stated she and appellant "had sex" in the shower area of
Keller Cottage prior to N.F.'s release. J.H. further recalled
appellant and N.F. "talking about a relationship" and described
"notes" appellant had written to N.F., both before and after the
incident. After speaking with J.H., Arrayo remembered that, on
the single evening appellant assisted her at Keller Cottage, she
returned from an errand, after an absence of "five to seven
minutes," to find "the [cottage] lights . . . dimmed" and
appellant "locking [N.F.'s] door." Upon her inquiry, appellant
had explained that N.F. had "to go to the bathroom."
Within a month, N.F. was returned to Bon Air, interviewed by
the CPS worker and confirmed the allegations. In recounting
events, N.F. stated that appellant opened the door to her room at
Keller Cottage and "told her to come to the bathroom," demanding,
"you're gonna give me some." Despite her protest, "it was not
right," appellant "rushed her to pull her pants down," and "had
sex" with her for "two to five minutes." N.F. reported that she
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and appellant had intercourse only on the single occasion, and
insisted she "did not want to." The interview "wasn't taped" by
the CPS worker, "[d]ue to the noisy environment, lack of privacy
and constant interruptions."
Testifying at the administrative hearing, appellant admitted
an "inappropriate relationship" with N.F. and inexplicably lying
"about knowing [her] from the street," but denied the alleged
sexual activity. He acknowledged writing and telephoning N.F.
following her release, but claimed such contacts were only to
ascertain "why she was lying on [him]." Attacking N.F.'s
credibility, appellant emphasized that she had previously denied
"having sex" with a staff member in an interview with State
Trooper James Inge and otherwise made inconsistent statements with
respect to the allegations.
II.
"In an appeal to the circuit court from a decision by an
agency, the burden is upon the appealing party to demonstrate
error." Carter v. Gordon, 28 Va. App. 133, 141, 502 S.E.2d 697,
700-01 (1998); Code § 9-6.14:17. The evidence is viewed in the
light most favorable to the DSS, and the "court's review of issues
of fact is limited to the agency record." Id. at 141, 502 S.E.2d
at 701; Code § 9-6.14:17. The Administrative Process Act provides
that "the duty of the court with respect to issues of fact is
limited to ascertaining whether there was substantial evidence in
the agency record upon which the agency as the trier of the facts
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could reasonably find them to be as it did." Code § 9-6.14:17
(emphasis added).
The "substantial evidence" standard, adopted
by the General Assembly, is designed to give
great stability and finality to the
fact-findings of an administrative agency.
The phrase "substantial evidence" refers to
"such relevant evidence as a reasonable mind
might accept as adequate to support a
conclusion." Under this standard,
applicable here, the court may reject the
agency's findings of fact "only if,
considering the record as a whole, a
reasonable mind would necessarily come to a
different conclusion."
Virginia Real Estate Comm'n v. Bias, 226 Va. 264, 269, 308
S.E.2d 123, 125 (1983) (citations omitted) (emphasis in
original).
It is well established that hearsay evidence is admissible
at an administrative hearing conducted in accordance with the
Administrative Process Act. See Carter, 28 Va. App. at 141, 502
S.E.2d at 701. "If the agency relies on hearsay evidence, the
court reviewing the sufficiency of that evidence on appeal may
give it the same weight as any other record evidence." Id.The Virginia Administrative Code defines "Founded - Sexual
Abuse - Level I":
"Founded" means that a review of the facts
shows by a preponderance of the evidence
that child abuse and/or neglect has
occurred. A determination that a case is
founded shall be based primarily on first
source evidence; in no instance shall a
determination that a case is founded be
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based solely on indirect evidence or an
anonymous complaint.
22 Va. Admin. Code 40-705-10.
Sexual abuse occurs when there is any act of
sexual exploitation or any sexual act upon a
child in violation of the law which is
committed or allowed to be committed by the
child's parents or other persons responsible
for the care of the child pursuant to
§ 63.1-248.2 of the Code of Virginia.
22 Va. Admin. Code 40-705-30(E).
Level 1. This level includes those
injuries/conditions, real or threatened,
that result in or were likely to have
resulted in serious harm to a child.
22 Va. Admin. Code 40-700-20(1).
Here, N.F. reported details of her relationship with
appellant, including the subject sexual activity, to both the
CPS worker and J.H. Her recollections were corroborated by
appellant's unusual attention to the child, both immediately
preceding and following the incident, including frequent visits
with her at Keller Cottage and personal notes, and the
observations of Arrayo on the evening of the incident. When
called upon to explain his interests in N.F., appellant
untruthfully claimed a prior acquaintance "from the street,"
later acknowledging "inappropriate" contact with her. In
rendering the administrative decision, the DSS Commissioner
expressly found both N.F. and J.H. "credible."
Thus, substantial evidence in the record supports the
administrative disposition, and a reasonable mind would not
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necessarily come to a different conclusion. Accordingly, we
affirm the decision of the trial court. 1
Affirmed.
1
Appellant also argues that the DSS disposition must be
reversed because the local agency neglected to "audio tape" the
interview with N.F., in violation of the Virginia Administrative
Code and attendant DSS policy. 22 Va. Admin. Code 40-705-30(B).
However, appellant failed to specifically "assign[]" such
"error[]" in his "petition for appeal" to the trial court, as
mandated by Rule 2A:4(b). Thus, the court correctly recited in
the disputed order that the issue was "not properly before the
court" for judicial review. See Mayo v. Commonwealth, 4 Va.
App. 522-23, 358 S.E.2d 759, 760 (1987).
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Benton, J., dissenting.
The Commissioner argues that consideration of the issue
whether the DSS followed its mandated procedure is procedurally
defaulted. Specifically, he asserts that "[r]eview of the
issues raised by . . . [Douglas] James is barred . . . because
he failed to preserve any objections he may have raised before
the circuit court." The majority holds that James' claim that
the DSS neglected to "audio tape" the interview with the child
in violation of its rules is procedurally barred. I disagree.
The record contains the trial judge's opinion letter, which
states as follows:
In his petition [James] designates two . . .
errors of law for review. First, [James]
contends that there was insufficient
evidence to support the agency finding of
fact, and second, [James] contends that the
disposition is not based on "primarily first
source evidence" and therefore violates the
Department of Social Services policy manual.
On this appeal, James raises the following two issues:
"Whether the evidence was insufficient as a matter of law for a
founded level 1 disposition against James" and "Whether the
agency's determination is insufficient as a matter of law as the
agency did not follow its mandated procedures." We have
consistently held that the primary purpose of requiring timely
and specific objection is to "'provide the trial [judge] with
the opportunity to remedy any error so that an appeal is not
necessary.'" McLean v. Commonwealth, 30 Va. App. 322, 331, 516
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S.E.2d 717, 721 (1999) (citation omitted). When the trial judge
has the opportunity to rule on the merits of the issue, the
matter has been properly preserved for appeal. See Campbell v.
Commonwealth, 12 Va. App. 476, 480, 405 S.E.2d 1, 2 (1991) (en
banc) (holding that an issue is preserved for appeal when "the
trial [judge] was adequately advised of the defendant's
position, . . . consider[ed] the issue raised, and . . . had the
opportunity to take corrective action").
Although the majority decides that James did not preserve
for appeal the issue of the agency's failure to "audio tape" the
interview, the record establishes that James' petition for
appeal to the circuit court does allege that the DSS's
disposition violates its policy because it is not based
"primarily on first source evidence." I believe that allegation
was sufficient to present the issue in the trial court.
Notably, the Commissioner does not contend that the petition for
appeal was deficient in that regard. I would hold that the
issue whether the DSS failed to follow its mandated procedure
has been preserved for appeal.
Neither the Administrative Process Act nor the DSS's basic
law permits the introduction of hearsay evidence in the agency
hearing. See Code § 9-6.14:1, et seq.; Code § 63.1-248.6:1.
Although the Commissioner in his brief states that Code
§ 9-6.14:12 permits hearsay, one only need read the statute to
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see that it does not sanction the use of hearsay. Code
§ 9-6.14:12 provides, in pertinent part, as follows:
A. The agency shall afford opportunity for
the formal taking of evidence upon relevant
fact issues in any case in which the basic
laws provide expressly for decisions upon or
after hearing and may do so in any case to
the extent that informal procedures under
§ 9-6.14:11 have not been had or have failed
to dispose of a case by consent.
* * * * * * *
C. In all such formal proceedings the
parties shall be entitled to be accompanied
by and represented by counsel, to submit
oral and documentary evidence and rebuttal
proofs, to conduct such cross-examination as
may elicit a full and fair disclosure of the
facts, and to have the proceedings completed
and a decision made with dispatch. The
burden of proof shall be upon the proponent
or applicant. The presiding officers at
such proceedings are empowered to (i)
administer oaths and affirmations, (ii)
receive probative evidence, exclude
irrelevant, immaterial, insubstantial,
privileged, or repetitive proofs, rebuttal,
or cross-examination, rule upon offers of
proof, and oversee an accurate verbatim
recording of the evidence, (iii) hold
conferences for the settlement or
simplification of issues by consent, (iv)
dispose of procedural requests, and (v)
regulate and expedite the course of the
hearing.
Our decision of Carter v. Gordon, 28 Va. App. 133, 141, 502
S.E.2d 697, 701 (1998), also incorrectly states that the Act
permits hearsay evidence and, as its sole authority for that
proposition, wrongly cites to Code § 9-6.14:12. The
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Commissioner points to no other statutory authorization for its
consideration of hearsay evidence.
The DSS's regulations define a founded complaint as
follows:
"Founded" means that a review of the facts
shows by a preponderance of the evidence
that child abuse and/or neglect has
occurred. A determination that a case is
founded shall be based primarily on first
source evidence; in no instance shall a
determination that a case is founded be
based solely on indirect evidence or an
anonymous complaint.
22 Va. Admin. Code § 40-705-10. The DSS's policy manual
addresses various levels of dispositions in the following
manner:
Founded dispositions must be categorized
into one of three levels. Categorization is
dependent on the nature of the act and the
seriousness of the harm or threatened harm
to the child as a result of maltreatment.
In all founded cases, there may be
circumstances influencing the severity of
the abusive or neglectful incident. The
circumstances may increase or decrease the
severity of harm or threatened harm. The
level for a founded disposition must be
supported by a preponderance of the
evidence. The evidence supporting the level
must be documented in the record.
7 DSS Service Programs Manual, § III (Child Protective Services
Manual), Ch. A, Part IV (July 1998 ed.). The regulations also
provide the following explanation:
Level 1. This level includes those
injuries/conditions, real or threatened,
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that result in or were likely to have
resulted in serious harm to a child.
22 Va. Admin Code § 40-700-20.
According to the DSS's own regulations, in making these
determinations, "the hearing officer shall only consider that
evidence, presented by either party, which is substantially
credible or reliable." 22 Va. Admin. Code 40-705-190(H)(12).
Implementing that requirement, the DSS's regulations require
that the child protective service worker's interview with the
child "must be audio tape recorded" unless the following
specified extenuating circumstances exist:
1. The child protective services worker
shall conduct a face-to-face interview with
and observation of the alleged victim child.
All interviews with alleged victim children
must be audio tape recorded except when the
child protective services worker determines
that:
a. The child's safety may be
endangered by audio taping;
b. The age and/or developmental
capacity of the child makes audio
taping impractical;
c. A child refuses to participate in
the interview if audio taping
occurs; or
d. In the context of a team
investigation with law-enforcement
personnel, the team or team leader
determines that audio taping is not
appropriate.
22 Va. Admin. Code 40-705-80. The service worker testified,
however, that when she interviewed the complainant she did not
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make an audio tape recording because "we don't tape those
events."
At the hearing, the service worker testified and gave her
version of statements the child made concerning the events in
question. Although none of the extenuating circumstances
existed, the child's interview was not audio taped. In view of
the proscription in the regulations, the service worker's
testimony should not have been admitted in evidence. "[H]earsay
. . . traditionally has been considered unreliable evidence."
Myrick v. Commonwealth, 13 Va. App. 333, 337, 412 S.E.2d 176,
178 (1991). Under the DSS's own rules, the "first source
evidence" would have been either the child's testimony or an
"audio tape record[ing]" of the child's statement. Under the
circumstances of this case, any other evidence of her complaint
was not reliable evidence pursuant to the regulatory scheme.
This record supports James' contention that the evidence
supporting the DSS's finding was based on unreliable hearsay
evidence. The DSS's determination is based on "indirect
evidence" contrary to the DSS's own rules, which require that
the "determination that a case is founded shall be based
primarily on first source evidence." Accordingly, I would hold
that there is not "substantial evidence in the agency record" to
support a determination of "Founded Sexual Abuse Level I." See
Code § 9-6.14:17; Atkinson v. Virginia Alcoholic Beverage
Control Comm'n, 1 Va. App. 172, 176, 336 S.E.2d 527, 529 (1985).
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For these reasons, I would reverse the trial judge's
decision. 2
2
In accordance with the DSS's determination that the
child's allegations against James were founded, the DSS sent
James a letter, stating, in pertinent part:
After our investigation, we feel that
there is a preponderance of evidence that
the alleged Sexual Abuse occurred.
Therefore, we have submitted a disposition
of Founded, Sexual Abuse, Level I of [N.F.]
by you to our Child Abuse Central Registry,
where it will be retained for 18 years.
(Emphasis added). Although the DSS's disposition was "Founded,
Sexual Abuse, Level I," the administrative code indicates that
in the context of the central registry: "'Founded' means that a
review of all the facts shows clear and convincing evidence that
child abuse and neglect has occurred." 22 Va. Admin. Code
40-700-10 (emphasis added). Therefore, James' name should not
have been placed on the central registry because the agency
found only by a preponderance of the evidence, not by clear and
convincing evidence, that the allegations were established.
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