COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Bumgardner and Lemons
Argued at Salem, Virginia
BEVERLY P. EGGLESTON, IV
MEMORANDUM OPINION* BY
v. Record No. 0670-98-3 JUDGE SAM W. COLEMAN III
MARCH 16, 1999
VIRGINIA DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF WASHINGTON COUNTY
Charles B. Flannagan, II, Judge
(Barry L. Proctor, on brief), for appellant.
Donald G. Powers, 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.
The Virginia Department of Social Services (DSS) received a
complaint alleging the sexual abuse of M, a four-year-old girl,
by her father, Beverly P. Eggleston. Eggleston appeals the
decision of the circuit court affirming a DSS determination of
"Founded, Sexual Molestation -- Level 1." The issues on appeal
are whether the evidence is sufficient to support the agency's
finding that (1) the alleged touching occurred, (2) Eggleston's
contact with the victim was "for arousal or gratification of
sexual needs or desires" as required by the DSS definition of
sexual molestation, and (3) the injury/condition resulted in, or
was likely to result in, serious harm to the child giving rise to
"level 1" molestation. On review of the record, we determine
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
that substantial evidence supports the decisions of DSS and
accordingly, we affirm the circuit court's ruling.
I. BACKGROUND
Karen Hardie and Beverly Eggleston, M's parents, were
separated on the date of the alleged offending contact and were
pursuing an amicable divorce. Hardie, M's mother, testified that
one day after M spent the night with Eggleston, she noticed that
M's vagina was red and irritated. When asked, M attributed the
condition to poison oak. The following evening, as Hardie bathed
M, M referred again to the poison oak. M stated that Eggleston
tried to "suck out the poison oak" and that he "tried to suck out
the owie from the chicken pox" lesions. M had several healing
chicken pox lesions, two of which were on her vaginal area and
two were on her feet. At that point Hardie retrieved a personal
journal that she maintained and began recording M's exact words:
He tries to love it and bite it and kiss it.
My bahooney. He scratches it with his
whiskers. No. He tries to bite it and eat
it. And tries to put his whiskers on it and
eat it up and get it off. That's not right
is it Mommy? . . . I told him not to scratch
my bahooney cause it would make me cry.
Hardie testified that at that point M became anxious and stated
that she was experiencing pain on her feet where Eggleston had
tried to "suck out the chicken pox." After Hardie dried M, M
began licking Hardie's face; she placed her tongue in Hardie's
ear, and licked Hardie's tongue. When Hardie asked M if she
kissed Eggleston that way, M replied, "All the time, when we kiss
with tongues we do it like grown ups."
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Hardie related M's statements to her counselor seven days
after the alleged sexual abuse, and the counselor notified Child
Protective Services (CPS). Hardie had M examined by a physician
ten days after the alleged abuse, and the examination revealed no
evidence of sexual abuse. CPS worker Wendy Davidson investigated
the complaint. She testified that M told her "about things that
her father had done to her including tickling her privates." 1
Davidson referred M to Julie Tinsley, a Licensed Clinical Social
Worker. According to Davidson, "Tinsley reported . . . things
that [M] had told her which were consistent with touching by her
father."
1
The following is a transcript of part of Davidson's
interview with M:
Q- Do you remember going to the doctor?
A- Yep.
Q- Do you know why you went to the doctor?
A- Do you know what? (to worker)
A- (worker) No.
A- (M.) My daddy tried to tickle my privates.
I told him not to; he did it anyway. He
scratched me.
Q- How did he scratch you?
A- With his whiskers.
Q- Where did he scratch you?
A- You know, don't you.
Q- No, tell me.
A- On my privates.
Q- did it hurt?
A- No, not at all. I was almost going to cry
but I didn't.
* * * * * * *
Q- With what [did he tickle you]?
A- His hands.
Q- Where?
A- Right here (pointed to vagina).
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Tinsley testified that M's allegations were "consistent with
what [M] had told her mother and also what [M] had told Ms.
Davidson." She testified that based on her interviews with M and
"due to the consistency of the allegations . . . [in her opinion]
there had been some sexual abuse by the father." Asked by
Eggleston's counsel if M's allegations changed or were added to
as time progressed, Tinsley testified that M alleged her father
tickled her vagina with a feather and with his hands. Sometimes
M stated that she had her underwear on, and sometimes she said
that she did not. Although this allegation was not consistent
with what M had related to Hardie in the bathroom, according to
Tinsley, Hardie later recalled that M "had said something about
[the feather] but it just didn't register with her . . . at the
time." Tinsley also reported that M repeated her own earlier
statements that her father's whiskers had hurt her pointing at
her groin. On the last of her thirteen sessions with Tinsley, M
stated that Eggleston had told her not to talk to the counselor
about him anymore.
On July 21, 1994, Davidson issued her report of "founded"
level 1 sexual molestation. On July 28, 1994 Virginia State
Police administered a polygraph test to Eggleston in which he
denied sexual abuse of his daughter. The results indicated that
Eggleston told the truth.
On September 6, 1994, Mary Lou Jett, Director of Bristol
Department of Social Services, sustained Davidson's disposition
of "founded" on sexual molestation, level 1. After an
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administrative appeal hearing on November 21, 1994, a state
hearing officer again sustained the agency's disposition. On
February 25, 1998, the Circuit Court of Washington County, having
reviewed the agency record and Eggleston's brief, found that
substantial evidence supported the agency's decision and
accordingly denied the petition for an appeal, and affirmed the
agency's decision.
II. ANALYSIS
On review of an agency action, "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 facts 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).
For the purposes of DSS dispositions "'Founded' means that a
review of all the facts shows clear and convincing evidence that
the child abuse or neglect has occurred." 22 VAC 40-7000-10.
Clear and convincing is that degree of proof
that produces in the mind of the trier of
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facts a firm belief or conviction upon the
allegations sought to be established. It is
intermediate proof, more than a mere
preponderance but less than proof beyond a
reasonable doubt. It does not mean clear and
unequivocal.
Oberbroekling v. Lyle, 234 Va. 373, 379, 362 S.E.2d 682, 685
(1987) (citation omitted).
Eggleston, on appeal, faults the hearing officer for failing
to resolve inconsistencies in the testimony, and failing to
appreciate the weaknesses in the evidence that tended to prove
that Eggleston may have touched his daughter's vagina in other
than a sexual manner. Eggleston points out in support of his
argument that the evidence is too weak to meet the clear and
convincing standard, that the agency based its disposition
entirely on M's statements; that M's testimony conflicted as to
whether the event occurred at night or nap time; that some of M's
statements were whispered to her mother and then relayed to
Tinsley; that M's recollection should have been more consistent
given the short period of time between the alleged event and her
recitation of the facts; that it was unlikely that Eggleston
would risk abusing M with two other adults in close proximity;
that it was unlikely that Eggleston would risk the possibility
that M would divulge an episode of abuse at pre-school; that a
polygraph test indicated his innocence; and that Eggleston
adamantly denied the allegations.
Although Eggleston makes these observations concerning the
nature and quality of the evidence against him, the question
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remains whether credible evidence proves clearly and convincingly
that Eggleston abused M. The DSS could reasonably have reached
its conclusion after having fully considered Eggleston’s claims
of weaknesses, inconsistency, and improbability of the evidence.
Additionally, the agency was not required to accept the polygraph
examination results as controlling. DSS policy does not permit
consideration of polygraph evidence in light of Virginia Supreme
Court precedent declaring polygraph exams "so thoroughly
unreliable as to be of no proper evidentiary use." Robinson v.
Commonwealth, 231 Va. 142, 156, 341 S.E.2d 159, 167 (1986); see
Virginia Department of Social Services, Child Protective
Services, Vol. VII, § III, Ch. A, 1.5 (internal guidelines).
Eggleston further argues that even if the alleged event
occurred, the agency had no basis to make a finding of sexual
molestation because there was no evidence establishing that the
contact or touching was for the arousal or gratification of
Eggleston's sexual needs. DSS regulations define sexual
molestation such that the offensive touching must be for arousal
or gratification of sexual needs or desires. Because "intent is
a state of mind that may be proved by an accused's acts or by his
statements and that may be shown by circumstantial evidence,"
Wilson v. Commonwealth, 249 Va. 95, 101, 452 S.E.2d 669, 673-74
(1995) (citations omitted), the DSS was entitled to find sexual
purpose through evidence of Eggleston's actions. M described
Eggleston's touching with language from which the examiner and
the trial court could reasonably conclude that it was for a
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sexual purpose: "He tries to love it, and bite it and kiss it.
My bahooney." M consistently stated that Eggleston tickled her
vagina and that his whiskers scratched her genital area.
Additionally, in describing Eggleston's kisses, M stated that "we
kiss with tongues, we do it like grown ups." Moreover, from the
very nature of the touching under the circumstances described by
M, the fact finder could conclude that the touching was for
sexual arousal or gratification.
Finally, Eggleston contends that even if the factual
allegations are true, the absence of evidence of harm precluded a
finding of "level 1" abuse. Level 1 abuse requires
"injury/conditions, real or threatened, that resulted in or were
likely to have resulted in serious harm to the child." 22 VAC
40-700-20. Here, where the evidence proved genital contact and
multiple incidents, the agency reasonably could find that the
abuse presented serious harm to the child and thus, the evidence
entitled the agency to find level 1 sexual molestation.
We are mindful of the grave consequences that a DSS finding
of level 1, sexual molestation has for Eggleston. However,
unless DSS could not reasonably have found as it did, we are
required to let its finding stand. Because M's evidence, if
believed, is clear and convincing, DSS reasonably found level 1,
sexual molestation. Accordingly, we affirm the circuit court's
decision.
Affirmed.
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