COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Kelsey and Alston
Argued by teleconference
PUBLISHED
ANTHONY MOORE
OPINION BY
v. Record No. 1396-13-1 JUDGE D. ARTHUR KELSEY
MAY 20, 2014
MARTIN D. BROWN, COMMISSIONER,
VIRGINIA DEPARTMENT OF SOCIAL SERVICES*
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Marjorie T. Arrington, Judge
E. Leslie Cox (Carrollyn C. Cox; Cox and Cox Attorneys,
on brief), for appellant.
Eric J. Reynolds, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General; Rita W. Beale, Deputy
Attorney General; Kim F. Piner, Senior Assistant
Attorney General, on brief), for appellee.
The Commissioner of the Virginia Department of Social Services (DSS) made an
administrative finding that Anthony Moore committed an act of sexual abuse of a child while he
acted as a “person responsible for [the child’s] care,” pursuant to Code § 63.2-100(4) (defining
“Abused or neglected child”). Moore appealed to the circuit court, which affirmed the DSS
finding. We reverse the circuit court’s holding and vacate the finding made by DSS.
I.
The parties vigorously disputed most of the underlying facts at every stage of this case.
None of these disputes, however, are relevant to our holding, and thus, we recite only those
undisputed facts pertinent to our review.
In 2011, DSS investigators accused Moore of committing an act of sexual abuse of a
child. The child claimed the abuse occurred when she was three or four years old during the
*
The notice of appeal names Martin D. Brown as the Commissioner of the Virginia
Department of Social Services. Margaret R. Schultze currently serves as Commissioner.
time that she resided temporarily in her grandmother’s home. Moore resided in that home for a
brief period between March 1998 and February 1999, while the child was only one-and-a-half
years old to two-and-a-half years old.1 No evidence suggested that Moore ever babysat the child,
ever asked to care for the child, or ever volunteered to do so.
Acting through its designated hearing officer, the DSS Commissioner found that Moore
committed the alleged sexual abuse of the child. The Commissioner recognized that this
conclusion required a factual finding that, at the time of the abuse, Moore was either a parent of
the child or some “other person responsible for his care.” Code § 63.2-100(4). Given that
Moore was not a parent, the Commissioner addressed the “preliminary issue” of whether he
“qualifie[d] as a ‘caretaker.’” App. at 125. Because no evidence suggested Moore was in fact
responsible for the child’s care — a point DSS concedes on appeal, see Oral Argument Audio at
26:28 to 26:56 — DSS legally “deemed [him] to be a caretaker” because he was “a relative over
the age of 18” and “living in the home with the child” at the time of the abuse, App. at 125.
Alleging thirteen grounds of error, Moore appealed to the circuit court under the Virginia
Administrative Process Act, Code §§ 2.2-4025 to 2.2-4030. The circuit court affirmed, focusing
primarily on the sufficiency of the evidence supporting the allegation of abuse.
II.
Moore appeals to us, contending that the circuit court and DSS erred on various grounds.
Concluding that one of these grounds is dispositive — whether DSS improperly deemed Moore a
caretaker — we limit our discussion to this one point.
Virginia’s criminal laws punish child abuse no matter who commits it. See Code
§§ 18.2-67.3, 18.2-67.4:2, 18.2-67.10. In contrast, the authority of DSS to make administrative
1
No evidence appeared to reconcile these disparate time lines. Given our holding,
however, we need not address this point.
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findings of child abuse is far more narrow. Code § 63.2-1505 only grants DSS the authority to
investigate and make administrative findings with respect to any “abused or neglected” child.
The statutory definition of “[a]bused or neglected child” is, among other things, a child “[w]hose
parents or other person responsible for his care commits or allows to be committed any act of
sexual exploitation or any sexual act upon a child in violation of the law.” Code § 63.2-100(4);
see also 22 Va. Admin. Code § 40-705-30(E).
Acting pursuant to its authority to issue regulations, Code § 63.2-217, DSS promulgated
an administrative regulation to define the scope of a caretaker:
“Caretaker” means any individual having the responsibility of
providing care for a child and includes the following: (i) parent or
other person legally responsible for the child’s care; (ii) any other
person who has assumed caretaking responsibility by virtue of an
agreement with the legally responsible person; (iii) persons
responsible by virtue of their positions of conferred authority; and
(iv) adult persons residing in the home with the child.
22 Va. Admin. Code § 40-705-10. At an administrative hearing, DSS bears the burden of
proving that the suspect committed the abuse and that he was either a parent or some other
person responsible for the child’s care. See Code § 2.2-4020(C) (assigning burden of proof); see
generally Navistar, Inc. v. New Balt. Garage, Inc., 60 Va. App. 599, 611 n.2, 731 S.E.2d 13, 19
n.2 (2012).
In this case, DSS presented no evidence to show that Moore was a parent or a person
responsible for the child’s care. Instead, DSS asserted that Code § 63.2-100(4) and 22 Va.
Admin. Code § 40-705-10 permitted it to legally deem Moore a caretaker based solely on the fact
that he was an adult residing in the home of the child. The DSS Commissioner accepted this
assertion, recognizing that it was a threshold issue upon which the entire case depended. The
first paragraph of the hearing officer’s analysis began:
The preliminary issue is whether [Moore] qualifies as a “caretaker.”
According to the CPS Guidance Manual, a relative over the age of 18
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living in the home with the child is deemed to be a caretaker. As the
Appellant was a relative by marriage and over the age of 18 at the
time the alleged abuse occurred, he may be considered a caretaker
despite the testimony that he was never [the child’s] babysitter.
App. at 125.2 This reasoning, Moore contends, cannot be squared with the governing statutes
and regulations.
We begin our analysis by first calibrating the scope of our judicial review. “Pure
statutory construction, a matter within the ‘core competency of the judiciary,’ requires de novo
review.” Citland, Ltd. v. Commonwealth ex rel. Kilgore, 45 Va. App. 268, 275, 610 S.E.2d 321,
324 (2005) (citation omitted). “This axiom stems from basic principles of separation of powers.
It is emphatically the province and duty of the judicial department to say what the law is.” Va.
Emp’t Comm’n v. Comty. Alts., Inc., 57 Va. App. 700, 708, 705 S.E.2d 530, 534 (2011)
(internal quotation marks omitted). “‘Virginia courts do not delegate that task to executive
agencies.’” Id. (quoting Finnerty v. Thornton Hall, Inc., 42 Va. App. 628, 635, 593 S.E.2d 568,
571 (2004)).
On the other hand, “we take a very different approach to interpreting administrative
regulations.” Family Redirection Inst., Inc. v. Dep’t of Med. Assistance Servs., 61 Va. App.
765, 772, 739 S.E.2d 916, 920 (2013). We afford great deference to administrative agencies in
their interpretation of their own regulations. That deference, however, dissipates when the
2
Though the DSS hearing officer noted that Moore was a relative of the victim, the
decision did not turn, even in part, on the nature of his familial relationship or the potential
inferences that could be drawn from it. Instead, DSS argues on appeal only that “[b]ecause Mr.
Moore was an adult residing in the home where the victim child resided, he met the definition of
caretaker under 22 VAC 40-705-10.” Appellee’s Br. at 11 (emphasis added). See also id. at 14
(“The local department . . . presented evidence that the Appellant was considered a ‘caretaker’ as
defined by 20 VAC 40-705-10 in that he was an adult . . . residing in the home of the child at the
time of the incident. (emphasis added)); id. (Thus, Moore “may be considered a caretaker despite
the testimony that he was never [the child’s] babysitter.); id. (Moore was “an adult residing in
the same home as the child at the time of the incident, and therefore was deemed a caretaker
under the CPS regulations.” (emphasis added)).
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agency acts outside “its delegable authority” by failing to construe its regulations “reasonably
and in a manner consistent with the legislative directive.” Id. After all, “deference is not
abdication, and it requires us to accept only those agency interpretations that are reasonable in
light of the principles of construction courts normally employ.” Bd. of Supervisors v. State
Bldg. Code Tech. Review Bd., 52 Va. App. 460, 466, 663 S.E.2d 571, 574 (2008) (internal
quotation marks omitted).
Adhering to these principles, we believe DSS misinterpreted both the enabling statute and
its own regulation. Code § 63.2-100(4) requires that the suspect be either a parent of the abused
child or some “other person responsible for his care.” A person responsible for a child’s care
necessarily means an adult who — by law, social custom, express or implied acquiescence,
collective consensus, agreement, or any other legally recognizable basis — has an obligation to
look after the well-being of a child left in his care.3 Simply being an adult residing in the same
home as a child does not make one responsible for every child in the home. One renting a spare
3
Our cases illustrate the numerous circumstances in which this definition can be met.
For example, cases interpreting Code § 16.1-228, within the chapter governing juvenile and
domestic relations district courts, classify persons that qualify as a “person responsible” for an
abused or neglected child. Cumbo v. Dickenson Cnty. Dep’t of Soc. Servs., 62 Va. App. 124,
742 S.E.2d 885 (2013) (uncle custodian); DeAmicis v. Commonwealth, 31 Va. App. 437, 524
S.E.2d 151 (2000) (en banc) (professional counselor). Cases interpreting the criminal statute for
child abuse and neglect, Code § 18.2-371.1, also classify a “person responsible” for a child’s
care. Carrington v. Commonwealth, 59 Va. App. 614, 721 S.E.2d 815 (2012) (live-in
boyfriend); Flowers v.Commonwealth, 49 Va. App. 241, 639 S.E.2d 313 (2007) (friend’s mother
supervising sleepover); Bean-Brewer v. Commonwealth, 49 Va. App. 3, 635 S.E.2d 680 (2006)
(child care provider); Snow v. Commonwealth, 33 Va. App. 766, 537 S.E.2d 6 (2000) (uncle
driving vehicle). Further, cases interpreting Code § 18.2-370.1, which criminalizes taking
indecent liberties with a child, illustrate persons who have a “custodial or supervisory
relationship over a child.” Sadler v. Commonwealth, 51 Va. App. 17, 654 S.E.2d 313 (2007)
(athletic coach); Guda v. Commonwealth, 42 Va. App. 453, 592 S.E.2d 748 (2004) (school
security officer). A “caretaker” or person “responsible for the care of a child,” pursuant to 22
Va. Admin. Code 40-705-30, is also demonstrated in Mulvey v. Jones, 41 Va. App. 600, 587
S.E.2d 728 (2003) (teacher).
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bedroom, for example, would hardly think that he was somehow taking on the responsibility to
care for the landlord’s children merely because of his presence in the home.
We find equally puzzling the assertion by DSS that its own regulation legally deems all
adult persons residing in the home with the child to be within the scope of Code § 63.2-100(4).
The DSS regulation defines a “[c]aretaker” as any person “having the responsibility of providing
care for a child” and then gives examples of those who might be “include[d]” in that category.
22 Va. Admin. Code § 40-705-10. The illustrative (not exhaustive) list includes four sub-
categories: those “legally responsible for the child’s care,” persons who have agreed to be
responsible, those with “positions of conferred authority,” and “adult persons residing in the
home with the child.” Id.
The first three sub-categories, by their very nature, necessarily describe individuals who
would be persons “responsible” for the child’s care under Code § 63.2-100(4). However, the
fourth sub-category — any adult person “residing in the home with the child” — may or may not
be someone responsible for the child’s care. It would depend on the circumstances. If the adult
resident had expressly or implicitly assumed “the responsibility of providing care” for the child,
22 Va. Admin. Code § 40-705-10, as the first half of the definition of “[c]aretaker” in the
regulation states, then he would fall within the statutory and regulatory definition. If not, he
would simply be a non-caretaker, co-resident in the home.
We concede that the syntax of the regulation, read literally without any regard for the
enabling statute, could suggest just what DSS claims: Any adult residing in the home is ipso
facto a caregiver as a matter of law. We cannot, however, read the regulation in a vacuum.
Administrative agencies do not legislate; they merely enforce the statutory authority delegated to
them by the legislature. Agency regulations, therefore, cannot contradict governing enabling
statutes. See Kavanaugh v. Va. Birth-Related Neurological Injury Comp. Program, 60 Va. App.
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440, 447, 728 S.E.2d 527, 531 (2012); see generally 1 Richard J. Pierce, Jr., Administrative Law
Treatise § 6.4, at 325 (4th ed. 2002).
It follows, then, that regulations should be read — if possible — to be consistent with
governing enabling statutes. Here, the enabling statute limits DSS’s authority to findings of abuse
committed by a parent or “other person responsible” for the abused child’s care. Code
§ 63.2-100(4). It seems inescapable to us that a person who is not in any way truly responsible for
the child’s care cannot be said (either by us or DSS) to be a “person responsible” for the child’s
care. Id. And we fail to see how residing in the same home as the child, without more, changes
that fact. Our interpretation of 22 Va. Admin. Code § 40-705-10, as well as its administrative
application by DSS, must necessarily take into account this overarching statutory requirement.
III.
In sum, absent a factual basis for the assertion that Moore was a person responsible for
the child’s care, DSS could not legally deem him so simply because of his residing presence in
the home.4 We read neither the statute nor the administrative regulation to authorize that
conclusion. We thus reverse the circuit court’s holding and vacate the administrative finding
made by DSS.
Reversed.
4
On brief, Moore contends DSS acted without “subject matter jurisdiction” thus making
its decision in this case “null and void.” Appellant’s Br. at 8. We reject this characterization.
DSS made a legally invalid interpretation of its own regulation and incorrectly applied it to this
case. It does not follow that the erroneous administrative finding was void because of a lack of
subject matter jurisdiction. See generally Winslow v. Commonwealth, 62 Va. App. 539, 545,
749 S.E.2d 563, 566 (2013) (warning “‘against the faux elevation of a [tribunal’s] failure to
comply with the requirements for exercising its authority to the same level of gravity as a lack of
subject matter jurisdiction’” (quoting De Avies v. De Avies, 42 Va. App. 342, 345-46, 592
S.E.2d 351, 352 (2004) (en banc))). Instead, the erroneous finding by DSS was merely voidable
on direct appeal — which is the only remedy available under these circumstances. See generally
J.P. v. Carter, 24 Va. App. 707, 723-24, 485 S.E.2d 162, 170-71 (1997) (holding DSS had
subject-matter jurisdiction to make final agency determination even if doing so may have
violated statutory requirements designating hearing officers).
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