COURT OF APPEALS OF VIRGINIA
Present: Judges Agee, Annunziata and Senior Judge Coleman
JEFFREY BOTHEN
MEMORANDUM OPINION *
v. Record No. 0118-02-4 PER CURIAM
JULY 9, 2002
VIRGINIA DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Dennis J. Smith, Judge
(Wade P. Luther; The Lewis Law Firm, P.C., on
brief), for appellant.
(Jerry W. Kilgore, Attorney General;
Francis S. Ferguson, Deputy Attorney General;
Siran S. Faulders, Senior Assistant Attorney
General; Donald G. Powers, Assistant Attorney
General, on brief), for appellee.
Jeffrey Bothen (appellant) appeals from a decision of the
Fairfax County Circuit Court finding substantial evidence to
support the determination of the Virginia Department of Social
Services (VDSS) that a complaint of "Physical Neglect -
Inadequate Supervision — Level Three" against appellant was
"Founded." On appeal, he contends there was insufficient
evidence to support VDSS's finding of neglect. Upon reviewing
the record and briefs of the parties, we conclude that this appeal
is without merit. Accordingly, we summarily affirm the decision
of the trial court. Rule 5A:27.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
The standard of review of an agency's factual findings on
appeal to a circuit court is limited to determining whether
substantial evidence in the agency record supports its decision.
See Code § 9-6.14:17; Turner v. Jackson, 14 Va. App. 423,
429-30, 417 S.E.2d 881, 886 (1992). On appeal, we do not
disturb factual findings if credible evidence supports them.
See James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382
S.E.2d 487, 488 (1989). "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, Ltd. v. Kenley, 6 Va. App. 231,
242, 369 S.E.2d 1, 7 (1988).
On April 19, 2000, the Fairfax Department of Family Services
(FDFS) received a complaint that appellant's fifteen-year-old
daughter, Alina, was being inadequately supervised. FDFS
investigated the complaint, and on June 20, 2000, it notified
appellant of its finding, "Founded – Physical Neglect – Inadequate
Supervision – level 3." On September 29, 2000, the local agency
director upheld that disposition.
Appellant appealed that decision to the Commissioner of VDSS.
On April 23, 2001, a VDSS hearing officer conducted an
administrative hearing. Appellant had sole physical custody of
his daughter. Evidence showed that he received six-weeks' notice
before being deployed to Kuwait for two weeks with his National
Guard unit. Appellant initially planned for Alina to visit her
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mother the first week and stay with another family the second
week. Three weeks before the trip, those plans proved unworkable,
so appellant asked Alina to suggest some school friends with whom
she could stay. On a previous occasion when appellant left Alina
alone overnight, she had a party at which drugs and alcohol were
consumed and during which someone stole one of appellant's guns.
Moreover, appellant suspected Alina may have been using drugs, and
he knew she took medication for depression and migraines. Despite
that knowledge, appellant left for Kuwait solely on Alina's oral
representation that Holly Sitnick's parents agreed to let her stay
with them. Appellant never talked with the Sitnicks before
leaving for Kuwait. During the first four days of appellant's
absence, Alina had several friends visit, alcohol and drugs were
consumed, and Alina was involved in a hit and run accident while
driving without a license. Appellant filed a plan with the
military when he left for Kuwait indicating that his mother or
Alina's mother would provide childcare. Alina remained
unsupervised until FDFS contacted appellant on April 19, 2000.
After taking and reviewing extensive evidence, the VDSS
hearing officer found that appellant failed to adequately provide
for his daughter's supervision, thereby placing her in a situation
that required judgment or actions beyond her level of maturity.
Accordingly, the officer sustained the local agency's disposition.
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The trial court reviewed the record and found that the
agency's findings were supported by substantial evidence, and it
affirmed the hearing officer.
Code § 63.1-248.2 defines an "[a]bused or neglected child,"
inter alia, as any child less than eighteen years of age:
1. Whose parents or other person
responsible for his care . . . creates a
substantial risk of death, disfigurement, or
impairment of bodily or mental functions;
[or]
2. Whose parents or other person
responsible for his care neglects or refuses
to provide care necessary for his health.
However, no child who in good faith is under
treatment solely by spiritual means through
prayer in accordance with the tenets and
practices of a recognized church or
religious denomination shall for that reason
alone be considered to be an abused or
neglected child; . . . .
Guidelines promulgated to help the local departments "in
interpreting the definitions of abuse and neglect provided by
statute" are contained in VDSS's Protective Services Manual, see
Jackson v. W., 14 Va. App. 391, 399, 419 S.E.2d 385, 389 (1992),
as well as in the Virginia Administrative Code, see 22 VAC
40-705-30(B). The Administrative Code defines "[p]hysical
neglect" as "[t]he failure to provide food, clothing, shelter or
supervision for a child to the extent that the child's health or
safety is endangered." Id. Moreover, "[p]hysical neglect may
include multiple occurrences or a one-time critical or severe
event that results in a threat to health or safety." The
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hearing officer quoted the following from Volume VII, Section 3
of VDSS's Child Protective Services Policy Manual:
Physical neglect includes the following when
the conditions threaten the child's health
or safety:
b) Inadequate supervision: the child
has been left in the care of an inadequate
caretaker or in a situation which requires
judgment or actions greater than the child's
level of maturity, physical condition,
and/or mental abilities would reasonably
dictate; or [under] minimal care/supervision
which results in placing the child in
jeopardy of or at risk of . . . physical
injury . . . .
Based upon our review of the record, including appellant's
failure to obtain supervision for his daughter before leaving
the country for two weeks despite his awareness of her prior
difficulties, substantial evidence supports the finding by VDSS.
Accordingly, we summarily affirm the circuit court's ruling.
Affirmed.
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