Carter v. Gordon

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, * Judge Annunziata and
Senior Judge Baker**
Argued at Alexandria, Virginia

CLARENCE H. CARTER, COMMISSIONER,
VIRGINIA DEPARTMENT OF SOCIAL SERVICES
OPINION BY
v. Record No. 0088-97-4 JUDGE JOSEPH E. BAKER
AUGUST 4, 1998
CRAIG GORDON

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
M. Langhorne Keith, Judge

Gaye Lynn Taxey, Assistant Attorney General
(James S. Gilmore, III, Attorney General;
William H. Hurd, Deputy Attorney General;
Siran S. Faulders, Senior Assistant Attorney
General, on briefs), for appellant.

Steven David Stone (Steven David Stone, P.C.,
on brief), for appellee.

In this appeal, we review a judgment rendered by the Circuit

Court of Fairfax County (trial court) which reversed and

dismissed findings made by the Virginia Department of Social

Services (DSS) that Craig Gordon (Gordon) had engaged in several

acts of child sexual abuse involving five students while he was a

physical education teacher and safety patrol leader at Virginia

Run Elementary School (the school). The DSS is an agency subject

to the provisions of the Virginia Administrative Process Act
*
On November 19, 1997, Judge Fitzpatrick succeeded Judge
Moon as chief judge.
**
Judge Baker participated in the hearing and decision of
this case prior to the effective date of his retirement on July
31, 1998 and thereafter by his designation as senior judge
pursuant to Code § 17-116.01.
(APA), see Code §§ 9-6.14:1 to 9-6.14:25, and this appeal results

from investigations and findings of the DSS that were made

pursuant to the APA.

The DSS contends the trial court erred in (1) finding that

the record did not contain substantial evidence to support the

five "founded" determinations of "level one" sexual abuse against

Gordon, (2) ruling that the DSS deprived Gordon of due process,

(3) denying the DSS's motion to reconsider, sever, and remand in

part, and (4) awarding Gordon attorney fees under Code

§ 9-6.14:21. For the reasons that follow, we reverse the trial

court's ruling and remand for entry of an order consistent with

this opinion.
I.

Viewed in the light most favorable to the DSS, the agency

record discloses that in March 1993, two students at the school

accused Gordon of misconduct which led to an in-school

investigation. The Superintendent of Schools concluded that

Gordon had not acted with sexual intent but reprimanded Gordon

for "inappropriate behavior." Although Gordon previously had

received several merit recognitions and was a tenured teacher, he

had received three reprimands for matters involving female
1
students.
1
In 1974, Gordon received a written reprimand from the
principal for driving female students without their parents'
permission and for permitting female students to enter a darkened
teachers' lounge.
In 1978, Gordon received a written reprimand from the
principal following repeated cautioning for driving students to

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 Subsequently, in April 1993, a former student reported to

the Fairfax County Police that Gordon had raped her in 1983 when

she was a student at the school. As a result of that report, the

school board suspended Gordon from teaching, effective April 30,

1993. On May 13, 1993, Gordon was arrested upon the former

student's complaint. On May 14, 1993, the school's principal

sent letters to the current students' parents informing them of

Gordon's suspension and arrest and notifying them that extra

counseling support would be available for interested students.

In response, twenty-three students made varying allegations

against Gordon of "improper touching." The DSS was not involved

in Gordon's suspension or the related notification of parents.

However, on May 17, 1993, the police notified the Child

Protective Services (CPS) division of the Fairfax Department of

Human Development of allegations of "improper touching" made by

twenty-three students, and the CPS began an investigation.
On July 19, 1993, the CPS notified Gordon it was

investigating the allegations of the twenty-three students. At

all times, Gordon denied the charges. After a preliminary

hearing in the Fairfax County Juvenile and Domestic Relations

District Court on August 27, 1993, the rape charge made by the

various activities in the evenings and on weekends, frequenting
places where students congregated, and showing favoritism toward
certain students, especially females.
In 1984, Gordon received a written reprimand for
transporting female sixth-graders in his car without parental
permission.

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former student was dismissed. The Commonwealth Attorney's office

also decided not to pursue criminal charges for the allegations

made by the twenty-three current students, but in accord with

Code § 63.1-248.6, the CPS continued to investigate the

complaints. By letters sent in September and October of 1993,

the CPS notified Gordon of its determinations of "founded, level

1, sexual abuse" of five of the female students, varying in age

between ten and twelve years. As required by the DSS's Policy

Manual, these findings were reported to the Superintendent of

Schools. The principal continued Gordon's suspension. Pursuant

to Code § 63.1-248.6:1 and Virginia Regulation 615-45-2, Gordon

requested an informal conference before the CPS Director.

Following a conference on November 19, 1993, the Director's

designee, Supervisor Thomas Hamblen, affirmed the CPS's findings

in a two-page memorandum. He found the students were "reliable

and trustworthy" in their statements to the investigators because

the students had personal knowledge of the alleged incidents,

were without malice toward Gordon and had no motive to fabricate

their stories. None of the students were present at the informal

conference.
Upon receipt of Hamblen's memorandum, pursuant to Code

§ 63.1-248.6:1, Gordon appealed to the DSS. At the DSS hearing,

Gordon was permitted to introduce evidence, cross-examine the

investigators, and challenge the reliability and trustworthiness

of the statements that the five children had given to the CPS

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investigators. The five girls were not present and Gordon was

not able to cross-examine them. 2 The DSS hearing officer

affirmed the CPS findings and investigative reports. She

specifically found that "clear and convincing evidence [showed]

. . . [the students] were sexually abused by [Gordon], and [that]

this resulted in or was likely to have resulted in serious harm

to them." Gordon appealed to the circuit court.

In a letter opinion, the trial court concluded that,

although many errors were alleged, collectively they constituted

only two, to-wit: (1) insufficiency of the evidence and (2)

deprivation of due process. The court concluded that the record

did not contain substantial evidence to support the five

determinations of Level 1 abuse and, in fact, that it did not

contain substantial evidence to support a finding of any level of

sexual abuse against one of the students. It also concluded that

the DSS's bias, refusal to allow Gordon to cross-examine the

complainants and notification of the school board violated

Gordon's due process rights and that this violation could not be

cured by remand. Finally, it ordered the DSS to pay Gordon's

attorney fees under Code § 9-6.14:21 because it found that Gordon

had substantially prevailed on the merits and that the DSS had

acted unreasonably.
The evidence, viewed in the light most favorable to the DSS,
2
Two of the girls were present at a hearing before the
school board and were cross-examined by Gordon's counsel at that
time.

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included testimony regarding the following conduct: Student No.

1 was in Gordon's class in the fourth and fifth grades. When she

was in the fourth grade, Gordon hugged her, and in the fifth

grade, on more than five or ten occasions, he put his arm around

her and put his hand on her "butt [to] pat or squeeze it," which

made her uncomfortable. During her sixth grade year, he put his

arm around her and touched her very close to her breast. He

sometimes whistled at her and told her she was pretty or cute.

On one occasion, he pulled her onto his lap and rocked back and

forth while saying, "I love you." She was sitting in his crotch

area while he squeezed her with his legs and arms, and she could

feel his penis on her buttocks. Student No. 1 reported some of

Gordon's behavior to the principal prior to the former student's

April 1993 report to authorities, prompting the in-school

investigation previously described.
Student No. 2 was Gordon's student and a member of the

safety patrol. On one occasion during her fifth grade year,

while she was in Gordon's office on safety patrol business,

Gordon came up very close behind her and rubbed her "butt." She

turned quickly to find Gordon only a few inches away from her

with "a weird look on his face." She said he "knew what he had

done." On another occasion, when she fell during class, Gordon

picked her up with his hand on her crotch.

Student No. 3 was Gordon's student and a member of the

safety patrol. During her fifth grade year, Gordon often touched

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her buttocks and hugged her. She was frequently excused from

certain activities in gym class due to stomach problems, and

while she waited for the other students to finish class, Gordon

would approach her to talk about the safety patrol and would put

his hand on her back, move it down to her buttocks, and rub and

"cup" her "butt." This behavior occurred during almost every

class from which she was excused, and it increased during her

sixth grade year. It also occurred on several occasions when

Gordon called her into his office to discuss safety patrol

matters.
Student No. 4, Gordon's student and a member of the safety

patrol, said Gordon "play[ed] around a lot" and rubbed "[her]

butt a lot," at least five times. He patted her "butt" on other

occasions. She also told the CPS investigators that she knew

Gordon assaulted the former student who had complained to the

police "because he did it to me."

Student No. 5, a sixth grader in a different instructor's

physical education class, reported that Gordon hugged her on

several occasions, which made her feel uncomfortable. On one

occasion, he hugged her from behind with his hands "actually

cupping her breasts," and she pulled away from him. Along with

Student No. 1, Student No. 5 reported Gordon's behavior to the

principal before the former student's report to the police.

II.

Sufficiency of the Evidence

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 In an appeal to the circuit court from a decision by an

agency, the burden is upon the appealing party to demonstrate

error. See State Bd. of Health v. Godfrey, 223 Va. 423, 432-33,

290 S.E.2d 875, 879-80 (1982). In a court's review of the

sufficiency of the evidence to support the agency's decision, the

determination of issues of fact must be made upon the agency

record. See Code § 9-6.14:17. Thus, the circuit court's review

of issues of fact is limited to the agency record. See Godfrey,

223 Va. at 433, 290 S.E.2d at 880; see also Turner v. Jackson, 14
Va. App. 423, 430-31, 417 S.E.2d 881, 886 (1992). Although the

Court views the facts contained in that record most favorably to

the DSS, that evidence must be substantial. See J.P. v. Carter,

24 Va. App. 707, 720, 485 S.E.2d 162, 169 (1997) (quoting Code

§ 9-6.14:17).

At an administrative hearing held in accord with the APA,

hearsay evidence is admissible. See Code § 9-6.14:12. If the

agency relies on hearsay evidence, the court reviewing the

sufficiency of that evidence on appeal may give it the same

weight as any other record evidence. "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." See Johnston-Willis, Ltd. v. Kenley, 6

Va. App. 231, 242, 369 S.E.2d 1, 7 (1988). Under the facts of

this case, we hold the trial court improperly rejected the

agency's findings and substituted its own.

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 Code § 18.2-67.10 defines "sexual abuse" as
an act committed with the intent to sexually
molest, arouse, or gratify any person, where
. . . [t]he accused intentionally touches the
complaining witness's intimate parts or
material directly covering such intimate
parts; [or] . . . [t]he accused forces the
complaining witness to touch the accused's
. . . intimate parts or material directly
covering such intimate parts . . . .

"Intimate parts" include "the genitalia, . . . breast, or

buttocks of any person." Id.
The guidelines in the DSS Protective Services Manual,

promulgated to assist case workers in interpreting the relevant

statutes, define sexual abuse to be investigated by the DSS as

including "any act defined in [Code §§ 18.2-61 to -67.10 and

§§ 18.2-351 to -371] which is committed . . . upon a child by

. . . [a] person responsible for the child's care." Manual,

Virginia Department of Social Services: Child Protective

Services, vol. VII, § III, ch. A, at 8 (July 1992) (hereinafter

"the Manual"); see also Jackson v. W., 14 Va. App. 391, 399, 419

S.E.2d 385, 389 (1992). The Manual further defines sexual abuse

to include "sexual contact (clothed/unclothed) between a

caretaker and a child when such contact, touching or interaction

is used for arousal or gratification of sexual needs or desires,

including . . . [t]ouching . . . the child's genitalia, . . .

breast or buttocks." Id. at 9.

The DSS classifies such abuse by its seriousness. See id.

at 17d-18. Level 1 abuse comprises "those injuries/conditions,

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real or threatened[,] that result in or were likely to have

resulted in serious harm to a child." Id. Such abuse includes

"situation[s] . . . where there was genital contact, or force or

threat was used, or the abuse had taken place over a period of

time and there were multiple incidents." Id. at 17e. Level 2

abuse includes those injuries or conditions "that resulted in or

were likely to result in moderate harm to a child," including

"minimal or no physical touching but exposure to masturbation,

exhibitionism," sexually provocative comments, pornographic

materials or the like. Id. at 17e-17f. Level 3 abuse includes

those injuries or conditions "that resulted in or were likely to

result in minimal harm to a child." Id. at 17f. "On review,

'the interpretation an administrative agency gives its [law] must

be accorded great deference.'" Jackson, 14 Va. App. at 400-01,

419 S.E.2d at 390 (quoting Virginia Real Estate Bd. v. Clay, 9

Va. App. 152, 159, 384 S.E.2d 622, 626 (1989)).

The trial court did not dispute that the evidence disclosed

sexual abuse of four of the five children. Its decision appears

to hold only that no substantial evidence proved serious harm to

the children as required for a Level 1 finding. It also held the

evidence was insufficient to support a finding of any level of

abuse against Student No. 5 because it did not show that

appellant acted with the requisite intent. We disagree and hold

that the record contains substantial evidence to support the

findings of the DSS that Gordon committed Level 1 sexual abuse

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against three of the five students and Level 2 sexual abuse

against the other two.

In its extensive opinion, the trial court stated that the

"record in this case utterly lacks any evidence of the kind of

serious harm or the likelihood of serious harm that would justify

a level one finding." While being critical of the hearing

officer's finding that the abuse Gordon inflicted on the children

"is or was likely to have resulted in serious harm to [the

children]," in its nineteen-page opinion, the trial court did not

refer at any time to the testimony that Gordon "hugged" Student

No. 1, put his hand on her "butt," patted or squeezed her "butt,"

and touched her close to her breast. Nor did it mention evidence

that Gordon pulled her into his lap, held her, said "Oh, I love

you," and rocked back and forth as she sat on his crotch area,

while he squeezed her with his legs and became so aroused that

she could feel his penis on her buttocks.
That conduct alone is sufficient to prove Gordon violated

the DSS guidelines and Code § 18.2-67.10, which proscribe sexual

abuse, and to permit the fact finder to conclude, as it did, that

Gordon's acts were "likely to have resulted in serious harm to

the child." Nothing in the DSS Manual or any of the code

provisions the trial court cited requires proof that the injury

to the child be permanent, only that it was "likely" to have

resulted in serious harm. See Jackson, 14 Va. App. at 401-02,

419 S.E.2d at 391 (quoting Jenkins v. Winchester Dep't of Soc.

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Servs., 12 Va. App. 1178, 1183, 409 S.E.2d 16, 19 (1991))

(rejecting argument that finding of abuse requires proof of

actual harm). Therefore, as to Student No. 1, we hold that the

evidence was sufficient to support the DSS finding of Level 1

sexual abuse and that the trial court failed to give deference to

that finding.

But this case is not dependent only upon Gordon's abusive

acts against Student No. 1. Substantial evidence proved that

Gordon committed repeated acts of sexual abuse, as defined in

Code § 18.2-67.10 and the guidelines, against Students No. 3 and

4, which supports the DSS finding that Gordon committed Level 1

sexual abuse against each of those students, as well. As noted

earlier, a complaint of Level 1 abuse may be founded when the

"abuse ha[s] taken place over a period of time and there were

multiple incidents." The Manual, at 17e. Viewed in the light

most favorable to the DSS, the evidence shows appellant

repeatedly touched those students' buttocks or breasts with the

necessary intent. Again, the trial court failed to give

appropriate deference to the DSS's findings.
As to Students No. 2 and 5, the record contains substantial

evidence that Gordon acted with the necessary intent toward each

student on one occasion, thereby supporting a finding that

appellant sexually abused each student as defined in Code

§ 18.2-67.10 and the DSS guidelines. As to Student No. 2, the

evidence shows that Gordon came up very close behind her in his

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office and rubbed her "butt." When she turned quickly, she found

him only a few inches away from her with "a weird look on his

face," and she said he "knew what he had done." As to Student

No. 5, the evidence shows Gordon "actually cupp[ed] her breasts"

with his hands, which also provides substantial evidence that he

acted with the necessary intent. However, because Students No. 2

and 5 recounted only one incident each of sexual abuse, we

conclude that the abuse in each case was Level 2 abuse rather

than Level 1.

Due Process

Gordon argues that the procedures followed by the CPS and

DSS denied him due process under the Fourteenth Amendment to the

United States Constitution and Article I, Section II, of the

Virginia Constitution. The state and federal due process clauses

"have [an] almost exact similarity in language" and, therefore,

our analysis of the due process issue applies equally to both

state and federal law. See Morris v. City of Danville, 579 F.

Supp. 900, 901 n.1 (W.D. Va. 1984), cited with approval in
Jackson, 14 Va. App. at 405 n.11, 419 S.E.2d at 393 n.11.
The Fourteenth Amendment . . . provides that
no person shall be deprived of life, liberty
or property without due process of law.
"Procedural due process rules are meant to
protect persons not from the deprivation, but
from the mistaken or unjustified deprivation
of life, liberty, or property." Due process
analysis involves a two-part inquiry. First,
there must be a deprivation of a liberty or
property interest. Then, "'[o]nce it is
determined that due process applies, the
question remains what process is due.'"

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Jackson, 14 Va. App. at 405-06, 419 S.E.2d at 393-94 (citations

and footnote omitted); see also J.P., 24 Va. App. at 715-16, 485

S.E.2d at 167.

Due process does not entitle an individual to "the full

panoply of judicial procedures" when a governmental agency is

engaged only in a general fact-finding investigation, see Hannah

v. Larche, 363 U.S. 420, 442 (1960); however, if the process

takes on a judicial role, the procedure used to arrive at a

decision must satisfy due process. See Jackson, 14 Va. App. at

408, 419 S.E.2d at 395. Generally, in a child sexual abuse case

such as this one,
the department has the following duties: to
investigate complaints; determine whether the
complaint is "founded," "reason to suspect,"
or "unfounded"; place the name of a person
with a "founded" complaint in the Central
Registry; report its findings when required;
make recommendations and arrange for services
based on findings; and foster community-based
outreach and educational programs. Code
§ 63.1-248.6. The hearing officer lacks the
power to issue subpoenas or administer an
oath. The officer has no authority to impose
civil or criminal penalties or render a
decision adjudging the party "guilty" or "not
guilty." D'Alessio v. Lukhard, 5 Va. App.
404, 408, 363 S.E.2d 715, 717-18 (1988) (the
administrative proceeding does not "determine
. . . guilt or innocence"). In fact, if
civil or criminal rights are to be
adjudicated, a court must intervene upon
appropriate process. Code
§ 63.1-248.6(D)(4), (5). The only direct
consequence of the proceeding is that a
party's name is placed in the Central
Registry. See Lukhard, 5 Va. App. at 408,
363 S.E.2d at 717; see also Code
§ 63.1-248.6:1.

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Id. at 407-08, 419 S.E.2d at 394-95. There is no showing in this

case that the foregoing procedures were not followed. If Gordon

was entitled to due process, he received all that he was due.

Regardless of the many errors alleged by Gordon, his basic

complaint is that the agency "deprived" him of his teaching job

with the Fairfax County school system. The agency finding was

made by a totally separate entity from the School Board and was

limited to placing his name in the Central Registry. The DSS had

no power to and, in fact, did not "deprive" Gordon of his

teaching position with the Fairfax County school system. His

separation from that school system was solely the act of the

School Board. In Paul v. Davis, 424 U.S. 693 (1976), the Court
described the functions of the Commission on Civil Rights, a

federal agency, in this language:
"It does not adjudicate. It does not
hold trials or determine anyone's civil or
criminal liability. It does not issue
orders. Nor does it indict, punish, or
impose any legal sanctions. It does not make
determinations depriving anyone of his life,
liberty or property. In short, the
Commission does not and cannot take any
affirmative action which will affect an
individual's legal rights. The only purpose
of its existence is to find facts which may
subsequently be used as a basis for
legislative or executive action."

Paul, 424 U.S. at 706 n.4 (quoting Hannah, 363 U.S. at 441).

Even if the School Board's act was a "'collateral

consequence'" flowing from the investigation and finding of the

DSS, it would not affect the legitimacy of the DSS investigative

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function. See id. (quoting Hannah, 363 U.S. at 443). Gordon has

been deprived of no Fourteenth Amendment guarantee. While Gordon

had a liberty interest in pursuing his vocation as a teacher, he

was not deprived of that right by the DSS. Gordon was removed

from his teaching position by the School Board, not by the DSS,

which had no authority to force the Board to do anything. See

id.; see also Billing v. City of Norfolk, 848 F. Supp. 630, 635

(E.D. Va. 1994). Cf. Jackson, 14 Va. App. at 410, 419 S.E.2d at

396 (rejecting claim that DSS proceeding may serve as predicate

for criminal prosecution because Commonwealth, not DSS, must

bring criminal charges). Furthermore, even if the DSS's filing

of its findings with the Central Registry had the collateral

consequence of moving the Board to take the action it did, the

School Board's action would not be because of any affirmative act

taken by the DSS. See Paul, 424 U.S. at 706 n.4 (citing Hannah,

363 U.S. at 443).

Finally, Gordon's speculation about other possible adverse

consequences from the determinations is just that--speculation.

"Although a 'founded' disposition could possibly foreclose

[Gordon's] chances for engaging in [teaching or other]

activities," Gordon has pointed to "no rule . . . that a

'founded' disposition of child abuse automatically disqualifies

an applicant" from such activity. Jackson, 14 Va. App. at 410,

419 S.E.2d at 396; see Turner, 14 Va. App. at 437, 417 S.E.2d at

890-91 ("founded" disposition does not give DSS power to order

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change in child custody or terminate parental rights).

Therefore, Gordon has not identified a deprivation cognizable

under the Due Process Clause.

Because Gordon has been given all the process he is due, and

substantial evidence in the record supports the DSS decision, we

hold that, considering the record as a whole, a reasonable mind

would not necessarily come to a different conclusion. See

Kenley, 6 Va. App. at 242, 369 S.E.2d at 7. For these reasons,

we affirm the finding of the DSS and reverse the judgment of the

trial court with respect to its finding of no Level 1 sexual

abuse against Students No. 1, 3 and 4. As to Students No. 2 and

5, we hold that substantial evidence did not prove Level 1 abuse

but did prove Level 2 abuse. Further, we hold that Gordon was

not deprived of any due process right guaranteed by the United

States or Virginia Constitutions. Finally, because Gordon did

not "substantially prevail[] on the merits" and we find no

evidence that the DSS "acted unreasonably," we reverse the award
3
of attorney fees under Code § 9-6.14:21 and remand this case to
the trial court for entry of an order consistent with this

opinion.

Reversed and remanded.

3
We do not decide whether Code § 9-6.14:21 would have
permitted such an award if Gordon had substantially prevailed and
the DSS had acted unreasonably.

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