COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Frank and Powell
Argued at Chesapeake, Virginia
COMMISSIONER, VIRGINIA DEPARTMENT
OF SOCIAL SERVICES
OPINION BY
v. Record No. 0152-09-1 JUDGE CLEO E. POWELL
OCTOBER 13, 2009
TIMOTHY J. FULTON
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Stephen C. Mahan, Judge
Cheryl A. Wilkerson, Senior Assistant Attorney General (William
C. Mims, Attorney General; David E. Johnson, Deputy Attorney
General; Kim F. Piner, Senior Assistant Attorney General, on
briefs), for appellant.
Melinda R. Glaubke (Slipow, Robusto & Kellam, on brief), for
appellee.
The Commissioner of the Virginia Department of Social Services (DSS) appeals from a
decision of the Circuit Court of the City of Virginia Beach (circuit court) finding that there is not
substantial evidence in the agency’s record to support its March 4, 2004 “founded disposition”
and ordering that this decision be amended to “unfounded” and that all records concerning the
investigation and disposition of the complaint be purged from the central registry and the records
of the Virginia Beach Department of Social Services. The Commissioner alleges that the circuit
court erred in determining that the agency’s record lacked substantial evidence to support a
finding of sexual abuse. On cross-appeal, Timothy J. Fulton contends that the investigator’s
failure to tape record the interviews with the alleged victim is reversible error. For the reasons
that follow, we reverse the circuit court’s judgment and remand for entry of an order consistent
with this opinion.
I. BACKGROUND
On the morning of November 26, 2002, the child protective services unit of the local
department received a complaint that A.J., a twelve-year-old girl, may have been sexually abused
by Fulton, the father of one of A.J.’s friends (“H.M.”), while she was in his care. In response,
Shana Prohofsky, a social worker with the local department, and Detectives Ron D. Montrose
and Lisa Krisik of the Virginia Beach Police Department conducted a joint investigation of the
complaint against Fulton.
After A.J. and her father filed the complaint against Fulton, A.J.’s father took her to the
Virginia Center for Women for a SANE examination. There, Detective Montrose and Prohofsky
conducted an initial interview of A.J., which was not recorded. In that interview, A.J. told her
interviewers that she had gone over to her friend H.M.’s house after school and spent the night.
Around 1:00 or 1:15 a.m., Fulton came into H.M.’s room, where the girls were sleeping, to check
on them. A.J. told Fulton that her wrist hurt, and he brought her “a slippery blue clear oval-like
capsule and a white circular pill, resembling a really big Tylenol.” A.J., who was “really sleepy”
both before and after taking the pills, said that H.M. was awake when she took the pills but soon
fell back asleep. A.J. told her interviewers that she was soon back asleep as well. She said that
she awoke awhile later when she felt something hard in her mouth. As A.J. squinted, she saw
Fulton’s stomach and “some parts of his penis” in front of her. She opened her eyes and saw
Fulton standing before her with his red boxer shorts around his ankles. A.J. closed her eyes and
yawned to “get away.” When she opened her eyes, Fulton had raised his boxer shorts and was
petting one of the family’s rottweilers that was lying down on H.M.’s bed. H.M. was now awake
and also petting the dog. Before Fulton left H.M.’s room, A.J. said that she wanted to call her
father, so Fulton brought her a phone. A.J. said that she told her father that she really wanted to
come home, and her father said that was fine as long as Fulton agreed. Because A.J.’s father was
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sleeping, Fulton drove A.J. home. After Fulton left, A.J. told her father what Fulton had done to
her and her father called the police.
Later that day, A.J. spoke with Prohofsky again. This time Detective Krisik joined them.
A.J. told the interviewers substantially the same version of events that she previously described
to her father and repeated to Prohofsky and Detective Montrose.
A.J.’s father also spoke with Prohofsky and Detective Montrose on November 26, 2002.
In that interview, he told them that after she came home from Fulton’s home, A.J. came into his
room and sat on the edge of his bed. He was still asleep at the time. He said that A.J., who was
“fidgety” and “nervous,” began crying. She did not want to talk but then made a hand gesture to
indicate what she was trying to say. A.J.’s father replied, “please don’t tell me he put his penis
in your mouth.” He said that A.J. then finally told him what happened and he decided to call the
police.
Prohofsky and Detective Krisik interviewed H.M. at her school at approximately
9:45 a.m. on November 26, 2002. H.M. told her interviewers that A.J. is her best friend and that
A.J. visits her home every other day. H.M. said that A.J. was at her house the night before while
their fathers went out, but that A.J. had intended to return home when her father came to pick her
up. During this time, H.M.’s stepbrother taught the girls to box, and during that lesson, A.J.
injured her wrist. H.M. said that she and A.J. fell asleep in Fulton’s bedroom, 1 and when he
returned home, he woke the girls to tell them to go to H.M.’s room. A.J. asked to go home, but
she was unable to reach her father on the phone. H.M. said that her father took A.J. home.
When interviewed, H.M. said that she knew A.J. was absent from school that morning but did
not know why. H.M. also told the interviewers that “no one has . . . showed her their [sic]
private parts” and that “she does not know anyone who this has happened to.”
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H.M. also said that she “never really fell asleep while [A.J.] was at her house.”
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Carolyn Dressen, a roommate who lived with A.J. and her father, also spoke with
Prohofsky and Detective Krisik. She said that she called Fulton at 7:30 a.m. to “figure out what
was going on.” Fulton told her he did not know what was going on and that A.J.’s father would
be over shortly to pick him up for work. Dressen told Fulton what A.J. had alleged. Dressen
stated that she heard Fulton tell H.M. what A.J. claimed happened and then Fulton told her that
H.M. said she was awake and nothing happened. Dressen stated that neither H.M. nor A.J. had
ever lied to her. She added that she believes that A.J. is generally very truthful, especially with
her father.
During the investigation, Prohofsky and Detective Krisik also interviewed Fulton. In his
interview, Fulton told police that he had been out drinking with A.J.’s father and others the night
before. When he arrived home around 1:15 a.m., the girls were asleep in his room. He woke
them up and told A.J. that her father was on his way to pick her up. The girls went into H.M.’s
room. He denied knowing that A.J. had hurt her wrist or giving her medicine. When A.J.’s
father never arrived, she asked Fulton to call her father. Fulton asked A.J what she wanted him
to do when A.J.’s father did not answer the phone. She informed him that she wanted to go
home, and he took her home. Fulton said that A.J. always becomes angry when her father fails
to pick her up as promised.
At the conclusion of her investigation, Prohofsky determined that the complaint of sexual
abuse was founded. Specifically, she found that A.J.’s
behaviors and emotions are consistent with that of a victim.
Additionally, according to both [A.J.] and [H.M.], [A.J.] has had
no other sexual contact. [A.J.] was able to describe the sexual act
in detail, including sensory descriptions. [A.J.] had no motive for
fabricating an allegation of sexual abuse. . . . As a result of [A.J.]
coming forward with these allegations, [A.J.] lost her best friend.
Prohofsky further concluded that Fulton’s memory of the night was impaired by the alcohol he
consumed because he was unable to recall events that A.J. described and H.M. confirmed.
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Prohofsky notified Fulton by letter dated January 24, 2003 of the result of her investigation. On
February 11, 2003, Fulton noted his appeal, which was stayed during the pendency of a related
criminal matter.
A preliminary hearing for Fulton’s criminal charge was held in Virginia Beach Juvenile
and Domestic Relations District Court on April 9, 2003. During that hearing, A.J. again repeated
the account that she told her father and investigators. On cross-examination, A.J. said that she
knew how serious it was to allege that someone committed a sexual offense when challenged as
to her past veracity. She admitted that she erroneously told neighborhood boys and a friend of
hers that a neighbor had raped her mother. She stated that she did so because that is what her
mother told her. A.J. also admitted that she thought her dad drank too much and spent too much
time with Fulton, his drinking companion. A.J. said that she and H.M. never left H.M.’s room
after 7:00 that night. Though other inconsistencies between A.J.’s testimony and her interviews
with the investigators were revealed on cross-examination, at the conclusion of the hearing, the
judge certified the case to the grand jury.
Pursuant to Fulton’s administrative appeal, a hearing was held before a hearing officer on
July 9, 2003. On July 14, 2003, the hearing officer for DSS upheld the investigator’s “founded
level one” disposition of sexual abuse. Specifically, the hearing officer noted that there were
discrepancies in both Fulton’s and A.J.’s versions of events. That said, the officer concluded that
the evidence meets the preponderance of the evidence standard because:
1. The DNA report submitted presupposes that Fulton had not
previously showered. The report does not indicate that the
underwear tested was the one he wore the night of the alleged
abuse.
2. [A.J.] submitted to a full sexual assault examination and did
not recant any of her statements.
3. [A.J.] was consistent with the details surrounding the actual
assault. She described [Fulton’s] position over her, the
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underwear down around [Fulton’s] legs, seeing mostly
[Fulton’s] stomach and a little of [Fulton’s] penis, the smell of
alcohol, and the texture of the object in her mouth. She
describes [Fulton’s] action afterward in petting the dog before
leaving the room.
4. [A.J.] told her father immediately about the experience and was
observed to be emotionally distraught by [her father] and
Carolyn Dressen.
The hearing officer discounted the fact that H.M.’s testimony did not support A.J.’s recollection
because “[H.M.] was only interviewed after she would have had time to learn [Fulton’s] version
of events.”
On July 21, 2003, Fulton appealed the hearing officer’s determination to the
Commissioner. During that hearing, both Fulton and DSS presented additional evidence and
argument. In her March 4, 2004 opinion, the DSS hearing officer appointed by the
Commissioner held that “based on the evidence contained in the record and presented at the
hearing, the disposition of ‘founded – sexual abuse (intercourse and sodomy) – level one’ of
[A.J.] by Timothy Fulton is sustained.” To support this determination, the hearing officer found
that
[o]n the night of November 25, 2002, [H.M.] invited [A.J.] to
come to her house after school. Timothy Fulton left the house at
about 5:30 p.m. to meet [A.J.’s father] and other friends to go
drinking. [Joshua] . . . , [H.M.’s] half-brother, age 22, and his
girlfriend . . . were at the Fulton home and supervised [A.J.] and
[H.M.]. [H.M.] and [A.J.] made furniture for [H.M.’s] dollhouse,
did homework and watched television.
[A.J.’s father] was supposed to pick [A.J.] up from the
Fulton house on his way home. [A.J.] routinely became upset if
her father failed to pick her up after promising that he would.
At approximately 11:00, [H.M.] and [A.J.] fell asleep in
Timothy Fulton’s room while watching television. While out with
[A.J.’s father], Timothy Fulton drank at least six bottles of beer.
When Timothy Fulton came home at approximately 1:00, he found
the girls asleep in his room. He woke them up, and they went to
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[H.M.’s] room, where [H.M.] lay down on her bed and [A.J.] lay
down on a couch near the bed.
After [H.M.] and [A.J.] went to sleep, Timothy Fulton went
into [H.M.’s] room, and put his penis into [A.J.’s] mouth. This
action awakened [A.J.], who yawned as if she were awakening.
Timothy Fulton removed his penis and dressed himself. He petted
one of the family’s dogs which was lying on [H.M.’s] bed. As he
was leaving the room, [A.J.] said she wanted to go home, as it had
become apparent to her that her father would not come to pick her
up.
Timothy Fulton gave [A.J.] his cell phone and she called
her father, however, she could not get him to answer the phone.
[A.J.’s father] was home but asleep and did not answer the phone.
[A.J.] told Timothy Fulton that she wished to go home and he
offered to drive her home.
Timothy Fulton drove [A.J.] to her house, and went inside
the house to tell [A.J.’s father] that his daughter was home. As
soon as Timothy Fulton left, [A.J.] told her father that Timothy
Fulton had put his penis in her mouth.
Carolyn Dressen, a lodger in [A.J.’s] house, was awakened
after 2:00 a.m. by [A.J.’s father], who was angry and upset. [A.J.’s
father] told Carolyn Dressen that Timothy Fulton put his penis in
[A.J.’s] mouth. Carolyn Dressen went to check on [A.J.] and
found that she was visibly upset and had been crying.
[A.J.’s father] drove to the Fulton home, where he
awakened Joshua . . . by banging on the door. Joshua told [A.J.’s
father] that his father, Timothy Fulton, was “passed out” and could
not speak to him.
Early the next morning, Carolyn Dressen called Timothy
Fulton on his cell phone and advised him that [A.J.] had made an
allegation of “something sexual” against him. Her phone call was
prior to Timothy Fulton being interviewed by the police. Timothy
Fulton relayed the information to his daughter, [H.M.]. Carolyn
Dressen could hear [H.M.’s] voice saying, “Nothing happened.”
Forensic tests did not reveal the presence of any sperm in
[A.J.’s] mouth.
The opinion concluded that “[t]he record contains a preponderance of evidence that Timothy
Fulton sexually abused [A.J.], causing serious harm to her.” In so finding, the DSS opined:
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As [the judge] noted at the preliminary hearing, the case is
not without problems – chiefly the lack of forensic evidence and
the question of the complaining witness’s credibility. The standard
of proof being a preponderance of the evidence, those problems
weigh less heavily on the likelihood that [Fulton] acted as [A.J.]
alleged. [A.J.] was regarded by Carolyn Dressen as a truthful
child. As it turns out, she did not fabricate a prior allegation of
rape, she repeated something she had been told and which she
believed to be true. Many adult sexual assault victims cannot
recall accurately the layout of a room where the assault occurred.
In the absence of a clear motive on the part of the alleged victim to
invent an allegation, and taking into account her age and her
relationship to . . . [Fulton’s] daughter, I conclude that it is more
likely than not that the incident occurred as [A.J.] described, and
the disposition will be sustained.
Fulton appealed the agency’s decision to the circuit court. At a hearing on the matter on
August 24, 2004, the trial court repeatedly asked the parties for argument on what “substantial
evidence” meant. DSS asserted that under the standard of review that the circuit court must
apply, the court is bound to uphold the agency’s determination, no matter how uncorroborated or
unsubstantiated, unless a reasonable mind would necessarily come to a different conclusion. The
circuit court questioned whether the record indicated that A.J. specifically said Fulton put his
penis in her mouth, but DSS asserted that the “hearing officer necessarily [found] that – one of
her factual findings is that it was Fulton’s penis.” The circuit court indicated that it could not
find evidence to support this factual finding by the hearing officer.
In an order entered December 15, 2008, the circuit court held that “there were erroneous
findings of fact and that reasonable minds, considering the actual facts, would necessarily have
come to a different conclusion[.]” The circuit court thus concluded that there was “not
substantial evidence in the agency record to support the March 4, 2004 decision of the
Commissioner,” and ordered that the agency’s determination be changed to “unfounded” and the
records purged.
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II. ANALYSIS
A. Sufficiency of the Evidence in the Administrative Record to Support
the Disposition of “Founded-Sexual Abuse-Level 1”
As outlined in Code§ 63.2-1526(B), the Administrative Process Act (APA), Code
§§ 2.2-4000 to 2.2-4033, governs judicial review when DSS makes a disposition of founded
child abuse. Jones v. West, 46 Va. App. 309, 322-23, 616 S.E.2d 790, 797 (2005).
Accordingly, “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 § 2.2-4027. The
reviewing court will view “the facts in the light most
favorable to sustaining the [agency’s] action,” Atkinson v.
Virginia Alcohol Beverage Control Comm’n, 1 Va. App.
172, 176, 336 S.E.2d 527, 530 (1985), and “take due
account of the presumption of official regularity, the
experience and specialized competence of the agency, and
the purposes of the basic law under which the agency has
acted,” Code § 2.2-4027. Moreover, the review of an
agency’s factual findings “is limited to determining
whether substantial evidence in the agency record supports
its decision,” Avante at Lynchburg, Inc. v. Teefey, 28
Va. App. 156, 160, 502 S.E.2d 708, 710 (1998), and “great
deference is to be accorded the agency decision,” Holtzman
Oil v. Commonwealth, 32 Va. App. 532, 539, 529 S.E.2d
333, 337 (2000).
Id. “[T]he circuit court’s role in an appeal from an agency decision is equivalent to an appellate
court’s role in an appeal from a trial court. In this sense, the General Assembly has provided that
a circuit court acts as an appellate tribunal.” School Bd. of County of York v. Nicely, 12
Va. App. 1051, 1062, 408 S.E.2d 545, 551 (1991). “The reviewing 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.” Johnston-Willis v. Kenley, 6 Va. App. 231, 242, 369 S.E.2d 1,
7 (1988) (citations omitted). It is not the trial court’s role to determine the credibility of the
witnesses.
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Here, A.J. alleged that Fulton inserted his penis into her mouth as she slept and that he
removed it only when she awoke and faked a yawn. She immediately reported the incident to
her father. A.J. did not have a reputation for lying. Though Fulton denied the allegations and
A.J.’s claim was not supported by forensic evidence, the agency acting as the fact finder
determined that the claim was “founded,” meaning that the agency determined that “a review of
the facts [showed] by a preponderance of the evidence that child abuse . . . has occurred.” 22
VAC 40-705-10. Based on the evidence in the record, it cannot be said that after reviewing the
record as a whole a reasonable mind would inevitably or unavoidably determine that A.J.’s
allegations are false. Thus, the trial court erred in finding that there is not substantial evidence
and we reverse the trial court’s decision.
B. Whether the Failure to Tape Record the Interviews with the Alleged Victim
is Reversible Error
On cross-appeal, Fulton contends that the DSS committed reversible error by not tape
recording the interviews with the alleged victim. He concedes that this issue was not preserved
at trial but “asserts there is good cause shown and the ends of justice exception to Rule 5A:18
. . . applies.” The Court of Appeals will not consider a claim of trial court error as a ground for
reversal “where no timely objection was made, except to attain the ends of justice.” Marshall v.
Commonwealth, 26 Va. App. 627, 636, 496 S.E.2d 120, 125 (1998) (citing Rule 5A:18). “To be
timely, an objection must be made when the occasion arises -- at the time the evidence is offered
or the statement made.” Marlowe v. Commonwealth, 2 Va. App. 619, 621, 347 S.E.2d 167, 168
(1986). Because the objection was not timely, Rule 5A:18 bars our consideration of this issue on
appeal.
Rule 5A:18 allows exceptions for “good cause shown,” Luck v. Commonwealth, 32
Va. App. 827, 834, 531 S.E.2d 41, 44 (2000) (holding that where “the defendant had the
opportunity to object but elected not to do so, his claim is not preserved”), or to meet the “ends
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of justice,” Redman v. Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997)
(holding that “[i]n order to avail oneself of the exception, a defendant must affirmatively show
that a miscarriage of justice has occurred, not that a miscarriage might have occurred”). Fulton
“asserts there is good cause shown and the ends of justice exception to Rule 5A:18 . . . applies”
because he could not have made this argument at trial as the case upon which his argument is
based, Jones, 46 Va. App. 309, 616 S.E.2d 790, was decided after Fulton’s case was heard.
Fulton does not contend that the applicable DSS regulation was not in effect at the time his case
was before the agency or on appeal to the circuit court and, indeed, Jones did not change existing
law; it simply interpreted an existing DSS regulation. Id. at 322-33, 616 S.E.2d at 797-802.
Thus, the law applicable to Fulton’s claim that the DSS interviews with A.J. should have been
recorded did not change. Given this circumstance, we cannot find that the ends of justice or
good cause exceptions to Rule 5A:18 allow our consideration of the issue on appeal. See Talbert
v. Commonwealth, 17 Va. App. 239, 246, 436 S.E.2d 286, 290 (1993).
III. CONCLUSION
As Fulton’s question presented on cross-appeal was not properly preserved and does not
warrant the application of either the “ends of justice” or “good cause shown” exception, we
decline to consider it. Because the agency’s record contains substantial evidence to support its
finding of founded sexual abuse, we reverse the decision of the circuit court and remand for
entry of an order consistent with this opinion.
Reversed and remanded.
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