COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Annunziata and Overton
Argued at Norfolk, Virginia
JAMES R. BOYLES
MEMORANDUM OPINION * BY
v. Record No. 2160-96-1 JUDGE NELSON T. OVERTON
MAY 6, 1997
COMMONWEALTH OF VIRGINIA/
DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Jerome B. Friedman, Judge
Glenn R. Tankersley (Regency Legal Clinic, on
briefs), for appellant.
Cheryl A. Wilkerson, Assistant Attorney
General (James S. Gilmore, III, Attorney
General; William H. Hurd, Deputy Attorney
General; Siran S. Faulders, Senior Assistant
Attorney General, on brief), for appellee.
The Circuit Court of the City of Virginia Beach upheld the
Virginia Department of Social Services’ finding of Emotional
Abuse, Level Three, by the appellant, James R. Boyles, against
two of his children. Boyles appeals, claiming (1) that
substantial evidence did not exist in the record to support the
agency’s findings; (2) that the agency committed procedural
errors; (3) that the trial court erred in not applying res
judicata; and (4) that the applicable statute is
unconstitutionally vague. For the reasons stated, we affirm.
The parties are fully conversant with the record in the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
cause, and because this memorandum opinion carries no
precedential value, no recitation of the facts is necessary.
When a circuit court hears an appeal from an agency, "the
scope of review is limited to ascertaining whether there was
substantial evidence in the agency record to support the
decision." Turner v. Jackson, 14 Va. App. 423, 429-30, 417
S.E.2d 881, 886 (1992); see Code § 9-6.14:17. "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).
Substantial evidence was present in the record before the
circuit court to support the agency’s finding of Emotional Abuse,
Level Three, for two of Boyles’ children. The evidence consisted
of statements by the children during two separate interviews, the
school counselor, and the professional opinion of the family
therapist. These statements chronicled various acts by Boyles,
all of which contributed to the emotional abuse inflicted upon
his children. The specific behavior and their effect on the
children have been well-documented in the local agency’s
investigation, at the local agency’s conference, and at the state
agency’s hearing. The parties are familiar with the facts, and
we need address this issue no further except to restate that our
review of the record reveals substantial evidence to support the
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findings of the agency. 1
We decline to express an opinion on whether the agency
failed to follow its procedures. Having found that the agency’s
findings were supported by facts in the record, the trial court
should have reversed the agency only if the procedural errors
"infected the entire agency proceedings with unfair prejudice."
State Bd. of Health v. Godfrey, 223 Va. 423, 436, 290 S.E.2d 875,
882 (1982). An error in the initial collection of facts could
have been remedied at later hearings, curing any prejudice to
Boyles before a final determination was made by the agency.
Because we cannot conclude that a different procedure at any
level created an unfair prejudice to Boyles, errors made by the
agency, if any, were harmless.
Boyles next argues that the trial court erred in declining
to apply the principle of res judicata. His argument lacks any
merit. The order cited was by a lower court than the circuit
court, the juvenile and domestic relations district court did not
rule that no abuse occurred, and that proceeding was on a
1
Boyles also assigns error to the refusal of the trial court
to consider evidence from a related suit in chancery. Boyles
could have presented this evidence to the agency, but did not.
The trial court was limited to reviewing the evidence in the
agency record, and therefore correctly excluded any other
evidence.
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different issue between parties different than the ones in the
instant case. The principle of res judicata has no place in this
matter.
Finally, Boyles contends that the statute is
unconstitutionally vague. Because he raises this issue for the
first time on appeal, we will not consider it. See Rule 5A:18.
Accordingly, the decision of the circuit court is affirmed.
Affirmed.
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