COURT OF APPEALS OF VIRGINIA
Present: Judges Clements, Kelsey and Senior Judge Annunziata
Argued at Alexandria, Virginia
C. G.
MEMORANDUM OPINION* BY
v. Record No. 2605-07-4 JUDGE JEAN HARRISON CLEMENTS
AUGUST 5, 2008
VIRGINIA DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Dennis J. Smith, Judge
Allen H. Sachsel (Stephen A. Armstrong, on briefs), for appellant.
Noëlle L. Shaw-Bell, Assistant Attorney General (Robert F.
McDonnell, Attorney General; David E. Johnson, Deputy Attorney
General; Kim F. Piner, Senior Assistant Attorney General, on brief),
for appellee.
C.G. (appellant) appeals from a decision of the trial court sustaining the administrative
finding by the Virginia Department of Social Services (VDSS) that he sexually abused his minor
granddaughter. On appeal, he contends that VDSS had no subject matter jurisdiction to decide
the matter and that the trial court erred in finding substantial evidence supported VDSS’s
determination. Finding no error, we affirm the trial court’s decision.
As the parties are fully conversant with the record in this case, and because this
memorandum opinion carries no precedential value, this opinion recites only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of
this appeal.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I. BACKGROUND
Fairfax County Department of Family Services (FCDFS) received a complaint alleging
that appellant sexually abused A.G., his nine-year-old granddaughter, during a family beach trip
in North Carolina in July 2002. Following an investigation, FCDFS made a “Founded”
determination of “Level Two” sexual abuse against appellant. The consequence of a level two
finding requires that the abuser’s name be retained by the central registry for seven years. See 22
VAC 40-700-30.
Subsequently, appellant petitioned VDSS for a hearing on the matter. A VDSS hearing
officer conducted an evidentiary hearing and sustained FCDFS’s disposition. Appellant sought
judicial review in the trial court. Finding the agency record contained substantial evidence in
support of the VDSS decision, the trial court dismissed the appeal.
This appeal followed.
II. SUBJECT MATTER JURISDICTION
As a preliminary matter, we have recognized that “to administer child protective services
in the Commonwealth, the General Assembly delegates authority to VDSS, a state agency
governed by a state board, Code § 63.2-215, and also requires that there ‘shall be a local
department of social services for each county or city under the supervision and management of a
local director.’” Christian v. Virginia Dep’t of Soc. Servs., 45 Va. App. 310, 312, 610 S.E.2d
870, 871 (2005) (quoting Code § 63.2-324). Pursuant to Code § 63.2-1503, the local department
is “the public agency responsible for receiving and responding to complaints and reports” of
child abuse. In addition, the “local department of jurisdiction” is “the local department in the
city or county in Virginia where the alleged victim child resides . . . .” See 22 VAC 40-705-10.
In this case, FCDFS is the “local department of jurisdiction,” and thus, it had the responsibility to
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investigate and make a disposition in response to the complaint that appellant sexually abused
A.G., a child victim who resided in Fairfax County.
Appellant asserts, however, that VDSS “lacked subject matter jurisdiction to decide a
matter and impose penalties” for acts that occurred in North Carolina. In support of that
contention, appellant argues that VDSS conducted a quasi-criminal proceeding and that inclusion
of his name on a list of sex offenders is punitive. We disagree.
Appellant concedes, on brief and in oral argument, that if the proceeding is civil, his
contention has no merit. In J.P. v. Carter, 24 Va. App. 707, 727, 485 S.E.2d 162, 172 (1997), we
stated that the “administrative proceedings under the [Child Abuse and Neglect Act (Act) 1 ] are
not criminal in nature and are not intended to punish or rehabilitate the abuser.” In making that
determination, we noted that VDSS’s primary purpose is
“to investigate complaints of child abuse and, when necessary,
provide appropriate services for the child or family.” Notably, the
purpose of the Act is not one of punishment and correction of the
alleged abuser. Rather, under this statute, the policy of protecting
abused children and preventing further abuse of those children is
key.
Id. at 726, 485 S.E.2d at 172 (quoting Jackson v. W., 14 Va. App. 391, 408, 419 S.E.2d 385, 395
(1992)). We further concluded that inclusion of appellant’s name in the central registry is “an
administrative remedy to combat the danger identified by the General Assembly in the Act.” Id.
at 727, 485 S.E.2d at 172. We also noted that VDSS has “no authority to bring additional
criminal charges.” Id.
In accord with the principles set forth in Carter, we conclude that the proceeding before
VDSS in this case was not quasi-criminal and the inclusion of appellant’s name in the central
1
The Child Abuse and Neglect Act was repealed in 2002 and recodified as Code
§§ 63.2-1500 through 63.2-1529.
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registry is not punitive. Thus, because the proceeding was civil in nature, we find appellant’s
challenge to VDSS’s subject matter jurisdiction without merit.
III. SUBSTANTIAL EVIDENCE
Appellant also claims the trial court erred in finding substantial evidence supported the
VDSS disposition. We disagree with appellant.
“We view the evidence in the light most favorable to the agency and limit our review of
issues of fact to the agency record.” Mulvey v. Jones, 41 Va. App. 600, 602, 587 S.E.2d 728,
729 (2003).
On appeal of an agency decision, “the sole determination as
to factual issues is whether substantial evidence exists in the
agency record to support the agency’s decision. The reviewing
court may reject the agency’s findings of fact only if, considering
the record as a whole, a reasonable mind necessarily would come
to a different conclusion.” In making this determination, “the
reviewing court shall 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.”
Chippenham & Johnston-Willis Hosps., Inc. v. Peterson, 36 Va. App. 469, 475, 553 S.E.2d 133,
136 (2001) (quoting Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231, 242, 369 S.E.2d 1, 7
(1988)).
Here, the agency record showed that on four separate occasions, A.G. disclosed a
consistent account of appellant’s abuse on a family beach trip in North Carolina in July 2002.
Specifically, she relayed that the day before her grandparents’ anniversary, she and appellant lay
on the couch on the basement level of the beach home. A.G., who pretended she was asleep, felt
appellant place his hand inside her clothing and touch her vagina. Appellant also took A.G.’s
hand and placed it in his pants. A.G. felt sweaty, hairy skin and believed she touched the skin on
appellant’s penis. Appellant stopped the behavior when A.G. pretended to wake up.
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Nevertheless, appellant claims that A.G.’s allegations are incredible and
“self-contradictory.” To support that contention, he asserts that during a videotaped interview of
A.G. conducted by a FCDFS investigator, A.G. held her hand to her stomach when the
investigator asked her to point to the area where appellant touched her. Appellant also claims
that VDSS failed to consider that A.G.’s disclosure of the abuse to her out-of-state cousin was in
response to her cousin having first told her about another person who had been sexually abused
and that there was “no evidence as to what details [A.G.] was told about that other person’s
situation.” Appellant claims that “in its incomplete investigation,” VDSS never interviewed the
out-of-state cousin. Furthermore, appellant contends that VDSS discounted the significance of
the “triggering television program” that caused A.G. to tell her mother about the abuse.
Appellant also discredits A.G. because he contends she vacillated in her definiteness by telling
her aunt that she “might have dreamed” the abuse and also prefaced some of her statements to
the FCDFS investigator during the videotaped interview with “I think.” We find appellant’s
assertions to be without merit.
We are mindful that within the context of administrative hearings, “‘the determination of
a witness’ credibility is within the fact finder’s exclusive purview because [the fact finder] has
the best opportunity to observe the appearance and demeanor of the witness.’” Virginia Real
Estate Bd. v. Kline, 17 Va. App. 173, 175, 435 S.E.2d 596, 598 (1993) (quoting Goodyear Tire
& Rubber Co. v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437 (1987)). “It is within the
province of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from the facts presented.” Sanchez v. Commonwealth, 41 Va. App.
319, 335, 585 S.E.2d 327, 335 (2003), rev’d on other grounds, 268 Va. 161, 167, 597 S.E.2d
197, 200 (2004). Witness credibility determinations shall not be disturbed on appeal unless the
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testimony is “inherently incredible, or so contrary to human experience as to render it unworthy
of belief.” Fisher v. Commonwealth, 228 Va. 296, 299-300, 321 S.E.2d 202, 204 (1984).
We have also noted in a case involving a young victim of sexual abuse whose rendition
of the abuse was not entirely consistent, that
“[t]he fact that a witness makes inconsistent statements in regard to
the subject matter under investigation does not render his
testimony nugatory or unworthy of belief. It is the province of the
trier of the facts . . . to pass upon such inconsistent statements and
give or withhold their assent to the truthfulness of the particular
statement.”
Lockhart v. Commonwealth, 34 Va. App. 329, 342, 542 S.E.2d 1, 7 (2001) (quoting Swanson v.
Commonwealth, 8 Va. App. 376, 378-79, 382 S.E.2d 258, 259 (1989)).
Applying these principles to the circumstances of this case, we conclude that the
discrepancies presented by appellant’s contentions do not render A.G.’s account of the incident
inherently incredible as a matter of law. The fact that A.G. pointed to her abdomen in describing
where appellant touched her does not discount her multiple consistent statements that appellant
touched her vagina. A.G.’s statements are not unbelievable because she told an out-of-state
cousin of the abuse after being told of another story of abuse. VDSS’s failure to further
investigate the circumstances of A.G.’s disclosure to the cousin does not discredit A.G. A.G.’s
disclosure to her mother immediately after having viewed a “triggering television program” does
not render her account of the incident implausible. Furthermore, A.G.’s statement that she may
have dreamt the incident and her prefacing some statements with “I think” does not discount
A.G.’s consistent disclosures of the abuse to four people at different times. Indeed, the trial court
found, as do we, that despite minor inconsistencies, the VDSS hearing officer rejected any
discrepancies and found the basic allegation believable.
We also reject appellant’s additional challenges to the hearing officer’s evidentiary
determinations. In accord with the fact finding function, the VDSS hearing officer resolved the
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conflicts, weighed the evidence, and drew inferences from the facts presented. In so doing, the
hearing officer found that A.G.’s basic account of the abuse, relayed to the FCDFS investigator
during the videotaped interview, was not in response to leading or suggestive questions. The
hearing officer also made a determination within his purview that appellant’s expert was not
persuasive and found appellant and his wife incredible. In addition, the hearing officer implicitly
did not attach significance to the effect of A.G.’s parents’ divorce on A.G., to A.G.’s father’s
criminal history, or to A.G.’s showering with her father and father’s girlfriend.
Based on our review of the agency record, we cannot say a reasonable mind necessarily
would come to a different conclusion on these evidentiary determinations. The evidence was
neither inherently incredible nor so contrary to human experience as to render it unworthy of
belief as a matter of law. See Simpson v. Commonwealth, 199 Va. 549, 558, 100 S.E.2d 701,
707 (1957). We find, therefore, that the trial court did not err in finding substantial evidence
supported the VDSS determination.
IV. CONCLUSION
Accordingly, we affirm the trial court’s decision.
Affirmed.
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
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