COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Senior Judge Coleman Argued at Chesapeake, Virginia
GARY WAYNE ABLES MEMORANDUM OPINION * BY v. Record No. 0973-02-1 JUDGE SAM W. COLEMAN III FEBRUARY 19, 2003 SONIA RIVERO, COMMISSIONER, VIRGINIA DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE Bruce H. Kushner, Judge
Catherine L. MacLean (John J. Flora, III; Bennett and Zydron, P.C., on brief), for appellant.
Cheryl A. Wilkerson, Assistant Attorney General (Jerry W. Kilgore, Attorney General; Francis S. Ferguson, Deputy Attorney General; Siran S. Faulders, Senior Assistant Attorney General; A. Cameron O'Brion, Assistant Attorney General, on brief), for appellee.
Gary Wayne Ables appeals a decision of the trial court
affirming a disposition of founded child abuse by the Virginia
Department of Social Services (DSS). Ables contends the finding
that he committed child abuse is fundamentally unfair and that he
was denied due process during the proceedings. He also asserts
that the trial court erred by failing to find that the disposition
was not in accordance with constitutional right, power, privilege,
or immunity. In addition, Ables argues that the statutes,
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. regulations, and polices applied in determining physical abuse in
this case are void for vagueness. Finding no error, we affirm.
BACKGROUND
Ables is the stepfather of the teenage child, who was
fourteen years old at the time of the incident. On May 27, 1999,
the teenage child showed signs of discomfort when sitting in her
school classes. She reported that Ables had spanked her on the
buttocks with a board or paddle more than once a day for the past
several days as punishment for various incidents of misbehavior
and poor progress reports from school. A Child Protective
Services worker (CPS worker) interviewed the teenage child that
day at her junior high school. In her intake assessment, the CPS
worker reported that the teenage child's buttocks "were almost a
solid bruise." Some of the marks appeared red and fresh, while
others appeared "darker blue" and "yellowish," indicating a
"different stage of marks." The intake assessment indicates that
the school nurse observed the teenage child's injury and declared
that it was "one of the worst bruising situations she had seen in
all her years of nursing." The teenage child did not receive
medical treatment for the injury.
The teenage child told the CPS worker that Ables had spanked
her seven times in the past three and one-half days and that Ables
indicated he would continue the beatings every day until she
received a good progress report. The teenage child estimated that
- 2 - Ables struck her twelve times on the preceding day. The teenage
child also stated that Ables used a "paddle-type board" when he
struck her. She described it as being about two feet long and
several inches thick. The teenage child told the CPS worker that
she once wore several layers of undergarments in anticipation of
the beating. The CPS worker indicated the extra clothing did not
appear to lessen the intensity of the blows. The teenage child
also advised the CPS worker of a similar beating that had occurred
in the previous year in which Ables struck her and caused
bruising.
The CPS worker interviewed Ables at the family home on the
same day she interviewed the teenage child. He admitted that he
had spanked the teenage child approximately six times in the past
week. He also agreed that he used a "paddle," but he was unable
to locate the paddle to show the CPS worker. Ables and his wife,
the teenage child's mother, explained that the teenage child was
disciplined for various incidents of misbehavior and for her poor
performance in school. They indicated that they believed similar
discipline had been effective in the past. The CPS worker
expressed concern in her report that the parents did not "see the
severity of their actions and [they felt] that [the teenage
child], by her own actions, brought them to this point of
excessive discipline."
- 3 - The CPS worker also noted that Ables is "a very well built
strong individual," with a handshake of "tremendous strength."
The record indicates that Ables is six feet, two inches tall and
weighs 280 pounds.
The CPS worker met with her supervisor and co-workers on June
30, 1999, to review and consider the case. The staff made a
disposition of founded for physical abuse based on the severity of
the injuries and the numerous times Ables struck the teenage child
over a time period of several days. By letter dated July 7, 1999,
Child Protective Services informed Ables that, based upon its
investigation of the matter, it "ha[d] made a disposition of
Founded case of physical abuse of [the teenage child] by . . .
Ables." The letter further advised Ables this was a Level I
disposition "in that the abuse resulted, or was likely to have
resulted, in severe harm to the child." The letter also stated
that, as a result of the action taken by DSS, Ables' name had been
reported to the Central Registry.
Ables appealed the decision of Child Protective Services to a
local agency "conference" on August 11, 2000, where he was
represented by counsel. Ables presented evidence at the
conference, including a paint stirrer that he described as being
"similar" to the paddle he used to strike the teenage child.
Ables described the teenage child's misbehavior which he felt
justified the punishment. He indicated that he had not intended
- 4 - to cause the bruising and had intended only to discipline the
teenage child. Ables also stated that he had spanked the teenage
child once a day for four days in a row, whereas he had earlier
stated to the CPS worker that he paddled her six times in that
time frame. 1
By letter dated August 21, 2000, the Chief of Services for
Chesapeake DSS advised Ables that the disposition of founded abuse
was upheld. However, she amended the Level I finding to a Level
II finding, which includes "'those injuries/conditions, real or
threatened, that result in or were likely to have resulted in
moderate harm to a child.'" The letter further set forth the
definition of "physical abuse" that is found in the DSS
regulations and stated that "bruising" is considered a physical
injury within the meaning of physical abuse. The letter advised
Ables that his name was being forwarded to the Central Registry
where it would be retained for a period of seven years.
Ables appealed the local agency decision to the Commissioner
of DSS. On December 1, 2000, an administrative hearing before a
hearing officer was conducted by telephone conference call. Both
1 The record contains a court order from the Chesapeake Juvenile and Domestic Relations District Court which addresses the custody of the teenage child and was entered on July 21, 2000. Ables signed this order, which states that Ables "had spanked" the teenage child with a paddle "twice a day over the course of several days."
- 5 - Ables and the CPS worker testified and cross-examined each other.
At the request of both parties, the administrative record was held
open until January 19, 2001 to allow for the submission of
additional evidence. At the hearing, appellant again acknowledged
that he struck the teenage child with a paddle for several days,
resulting in the bruising. Ables argued that his actions were not
malicious and were intended as discipline.
In her decision, the hearing officer wrote:
Regardless of the intent of [Ables'] actions in spanking [the teenage child] with the paddle, he undertook a volitional act by repeatedly spanking her, which resulted in severe injuries to her buttocks. [Ables] is, as described by the worker, a large man. The bruises covering [the teenage child]'s buttocks were inflicted through her jeans and, for at least some of the paddlings, through several pairs of underwear. Afterwards, [the teenage child] was uncomfortable and had difficulty trying to sit down at school. After viewing the bruises in the photographs, there can be no question that these injuries were painful and that a great deal of force was used by [Ables] when he paddled the child. Clearly, [Ables'] behavior crossed the line from discipline to physical abuse when he hit [the teenage child] with the paddle repeatedly over several days and with sufficient force to cause such severe bruising through her clothing.
The hearing officer sustained the disposition of
"Founded-Physical Abuse-Level 2," and Ables appealed the
decision to the circuit court.
- 6 - The circuit court's written statement of facts states that
the parties appeared before the court on two occasions. Neither
hearing was transcribed. Ables argued to the trial court that
because his name has been placed in the Central Registry, he is
prohibited from coaching his son in volunteer sporting
activities. He also filed a petition for review and appeal in
which he presented constitutional arguments. The trial court
affirmed the hearing officer's decision. By order dated March
21, 2002, the trial court held that the procedures used by DSS
"did not constitute a constitutional deprivation;" the agency
record contained substantial evidence to support the factual
findings; "the evidence in the agency record reached a clear and
convincing level of proof;" and Ables' corporal punishment "went
beyond the 'bounds of moderation and reason.'"
ANALYSIS
1. Standard of Review
"In an appeal to the circuit court from a decision by an
agency, the burden is upon the appealing party to demonstrate
error." Carter v. Gordon, 28 Va. App. 133, 141, 502 S.E.2d 697,
700-01 (1998). The evidence is viewed in the light most
favorable to DSS, and the "court's review of issues of fact is
limited to the agency record." Id. at 141, 502 S.E.2d at 701.
The Administrative Process Act provides that "the duty of the
court with respect to issues of fact is limited to ascertaining
- 7 - whether there was substantial evidence in the agency record upon
which the agency as the trier of the facts could reasonably find
them to be as it did." Former Code § 9-6.14:17 (re-codified as
Code § 2.2-4027).
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) (emphasis in
original).
2. Whether the Finding was Fundamentally Fair
Ables contends that the administrative procedures followed
by DSS in making its disposition and in its appellate process
denied him the opportunity to have an impartial trier of fact.
However, this Court has held that the administrative procedures
adopted by DSS are constitutional even where a protected liberty
or property interest exists. Jackson v. W., 14 Va. App. 391,
405-12, 419 S.E.2d 385, 393-98 (1992).
[T]he government has an important interest in preventing child abuse and neglect. Considering the value of additional
- 8 - procedures in reducing the risk of an erroneous deprivation, we are mindful that the department's initial determination was subject to two appeal proceedings. [The accused] was given notice and an opportunity to be heard. Moreover, the burden on the Commonwealth, in terms of administrative efficiency and financial cost, of requiring additional procedural requirements is significant. As a practical matter, permitting witnesses appearing before the department to enjoy the rights that typically pertain in adjudicatory proceedings would have adverse identifiable consequences. The primary function of the department is to investigate complaints of child abuse and neglect. The Supreme Court has warned that "the investigative process could be completely disrupted if investigative hearings were transformed into trial-like proceedings." Indeed, requiring the department to provide "the full panoply" of procedures normally associated with an adjudication would severely undermine the fact-finding duties of the agency. Consequently, the challenged procedures are constitutionally adequate even were it to be assumed that [the accused] has a protected liberty or property interest under the Due Process Clause.
Id. at 412, 419 S.E.2d at 397 (quoting Hannah v. Larche, 363
U.S. 420, 443 (1960)). 2
The CPS worker interviewed Ables on the day the teenage
child reported the incident. Ables cooperated in the initial
investigation by speaking with the worker. Ables then appealed
2 In his brief, Ables asserts that Hannah has been overruled. Although the case has been distinguished and criticized in some respects over the years, the United States Supreme Court has not overruled the case.
- 9 - the finding of abuse by Child Protective Services, and he
participated in a conference at the local agency. He was
represented by counsel at the proceeding where he presented
evidence and argument. Ables appealed the decision of the local
agency to the Commissioner of DSS and had a hearing before a
hearing officer wherein he was again represented by counsel,
presented evidence and argument, and had the opportunity to
cross-examine adult witnesses. DSS kept the record open in
order to allow Ables to present additional evidence. Ables then
appealed the hearing officer's decision to the circuit court
where he filed written arguments and made two appearances in
court.
"If [Ables] was entitled to due process, he received all
that he was due." Carter, 28 Va. App. at 146, 502 S.E.2d at
703. Furthermore, Ables has presented no evidence tending to
show "that the fact-finding procedure was tainted by unfair
prejudice or animosity." State Bd. of Health v. Godfrey, 223
Va. 423, 434, 290 S.E.2d 875, 881 (1982). Accordingly, Ables
was not denied due process on this ground.
3. Procedural Due Process
Ables contends he was denied procedural due process. He
asserts that the disposition of founded physical abuse has
deprived him of two liberty interests, the estrangement of the
teenage child from the family and his alleged prohibition from
- 10 - coaching his son's athletic teams. He also asserts that he
suffers a stigma associated with being placed in the Central
Registry.
The Fourteenth Amendment to the United States Constitution 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.'"
Jackson, 14 Va. App. at 405-06, 419 S.E.2d 393-94 (citations and
footnote omitted).
We find that DSS did not deprive Ables of any liberty
interests without due process of law. In Jackson, the accused
alleged, among other things, that the founded disposition would
damage his dental practice and his reputation. Id. at 409, 419
S.E.2d at 396. We held that the record lacked any evidence of
damage to the accused's dental practice and that no likelihood
existed that information from the Central Registry would become
available to the accused's patients because the information in
the registry is confidential. Id. "[T]he statute provides for
the confidentiality of all records or files compiled during the
investigation, Code § 63.1-248.7(J), and the data stored in the
- 11 - computerized Central Registry, Code § 63.1-248.8. Therefore,
information concerning [Ables'] abusive conduct is not generally
available to the public." Id. at 409-10 n.14, 419 S.E.2d at 396
n.14.
Furthermore, the Court held that "a person's reputation
alone is not a liberty or property interest and thus is not
entitled to due process protection." Id. at 411, 419 S.E.2d at
396. Thus, Ables' argument that he will suffer a "stigma" is
not an interest entitled to due process protection. Moreover,
the purpose of the Child Abuse and Neglect Act is "not one of
punishment and correction of the alleged abuser. Rather, under
this statute, the policy of protecting abused children and
preventing further abuse of those children is key." J.P. v.
Carter, 24 Va. App. 707, 726, 485 S.E.2d 162, 172 (1997).
In Carter v. Gordon, Gordon complained that the "founded"
disposition deprived him of his teaching job where he had been
suspended by the school from that job. Carter, 28 Va. App. at
146, 502 S.E.2d at 703. The Court held that the DSS finding
"was limited to placing his name in the Central Registry," and
DSS had no power to "deprive" Gordon of a teaching job. Id. at
146, 502 S.E.2d at 703. Rather, "his separation from that
school system was solely the act of the School Board." Id.
Here, Ables offered no evidence that he has been deprived
of the opportunity to coach his son. Indeed, the regulation he
- 12 - cites as authority for the proposition that the disposition will
deprive him of the coaching opportunity addressed "Minimum
Standards for Local Agency Operated Volunteer Respite Child Care
Programs." 22 VAC 40-790-20 (now repealed). However, even if,
as a "collateral consequence" of being in the Central Registry,
he is deprived of a coaching opportunity, it would not be as a
result of the action of DSS, whose power is limited to placing
his name in the Central Registry. Carter, 28 Va. App. at 147,
502 S.E.2d at 704. Rather, Ables' lack of opportunity to coach
would be solely the result of an act or decision of the
applicable league or athletic body. "'Although a "founded"
disposition could possibly foreclose [Ables'] chances for
engaging in [coaching] activities,' [Ables] has pointed to 'no
rule . . . that a "founded" disposition of child abuse
automatically disqualifies an applicant' from such activity."
Id. (citation omitted).
Ables asserts that the teenage child is estranged from the
family as a result of the procedures of DSS and that
interference with his familial relationship is a deprivation of
his liberty interest entitling him to due process. However, the
"only immediate consequence of the disposition is the placement
of [Ables'] name and the [teenage child's name] in the
computerized Central registry. The placement of [Ables'] name
in the Central Registry does not interfere with his relationship
- 13 - with [the teenage child]." Turner v. Jackson, 14 Va. App. 423,
437, 417 S.E.2d 881, 891 (1992) (citation omitted).
Therefore, Ables "has not identified a deprivation
cognizable under the Due Process Clause." Carter, 28 Va. App.
at 147, 502 S.E.2d at 704.
4. Right to Administer Corporal Punishment
Ables asserts that DSS failed to consider that he had a
legal responsibility and duty to control the teenage child, and
he had a parental right to administer corporal punishment to
maintain that control. He also contends "there was no attention
paid to the behavior" of the teenage child which led to the
punishment.
First, we note that the record shows Ables repeatedly
expressed his opinion to the CPS worker, and at every stage
during the proceedings, that the teenage child's behavioral
issues justified his "disciplinary" actions. However, even
taking into consideration that the teenage child may have had
behavioral issues, parental punishment may not exceed the bounds
of reason.
Courts are agreed that a parent has the right to administer such reasonable and timely punishment as may be necessary to correct faults in his growing children. The right cannot be used as a cloak for the exercise of malevolence or the exhibition of uncontrolled passion on the part of the parent.
- 14 - Carpenter v. Commonwealth, 186 Va. 851, 860, 44 S.E.2d 419, 423
(1947) (involving a criminal charge for assault and battery of a
seven-year-old child). "[T]he great preponderance of authority
is to the effect that a parent has a right to punish a child
within the bounds of moderation and reason, so long as he does
it for the welfare of the child; but that if he exceeds due
moderation, he becomes criminally liable." Id. at 861, 44
S.E.2d at 423.
"[W]here the question involves an interpretation which is
within the specialized competence of the agency and the agency
has been entrusted with wide discretion by the General Assembly,
the agency's decision is entitled to special weight in the
courts." Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231, 244,
369 S.E.2d 1, 8 (1988). "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." Id. at 242, 369 S.E.2d at 7.
Substantial evidence, including the photographs showing the
teenage child's bruising, supported the hearing officer's
finding that Ables' actions "crossed the line from discipline to
physical abuse." Ables intentionally struck the teenage child
repeatedly with a board or paddle, on the outside of her
clothing, twice a day, over a period of several days, causing
severe bruising that covered the teenage child's entire buttocks
- 15 - and caused the teenage child discomfort. Clearly, this
punishment "'went beyond the bounds of moderation and reason'"
as stated by the trial court. See State v. Arnold, 543 N.W.2d
600, 603 (Iowa 1996) (criminal case finding abuse where beating
caused bruised buttocks on child); Miller v. Walker, 665 A.2d
1252, 1256-57 (Pa. Super. Ct. 1995) (one incident of spanking
with board causing bruising and pain considered "bodily injury"
within meaning of Protection from Abuse Act); In re F.P., 665
A.2d 597, 602 (Vt. 1995) (pain and bruising caused by striking
with hand and belt sufficient to justify conclusion that parent
did not reasonably discipline, but unreasonably abused child).
In addition, "physical abuse" is defined in 22 VAC
40-705-30 as: "When a caretaker creates or inflicts, threatens
to create or inflict, or allows to be created or inflicted upon
a child a physical injury by other than accidental means or
creates a substantial risk of death, disfigurement, or
impairment of bodily functions." The Virginia Department of
Social Services, Child Protective Services Manual (CPS Manual)
lists bruises as one of the categories of physical abuse.
Virginia Department of Social Services, Child Protective
Services, Vol. VII, Sec. III, Chap. A at 10 (1998).
Thus, regardless of the teenage child's alleged misconduct,
or whether Ables did not intend to cause bruising with the
beatings, the evidence showed that Ables intentionally and
- 16 - repeatedly struck the teenage child's buttocks several times a
day with a paddle or board. Therefore, Ables intended to strike
the teenage child, and his striking caused bruising and
discomfort. The result of his actions was not "unforeseen or
unexpected." Accordingly, substantial evidence supported the
finding of DSS that the injury was not accidental and
constituted physical abuse.
5. Void for Vagueness
Ables contends the definition of abuse found in former Code
§ 63.1-248.1 3 is vague because it does not incorporate the
constitutional right of a parent to "manage" or discipline a
child.
"The degree of vagueness that the Constitution tolerates
. . . depends in part on the nature of the enactment." Village
of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455
U.S. 489, 498 (1982). "The [United States Supreme] Court has
also expressed greater tolerance of enactments with civil rather
than criminal penalties because the consequences of imprecision
are qualitatively less severe." Id. at 498-99 (footnote
omitted).
3 The Child Abuse and Neglect statutes were revised and re-codified in 2002 in Code § 63.2-1501 et seq.
- 17 - This Court previously addressed a similar challenge to Code
§ 63.1-248.1 and the guidelines, and we held that they are not
unconstitutionally vague insofar as they define "physical
abuse." Turner, 14 Va. App. at 432-36, 417 S.E.2d at 888-90.
"Essentially, the vagueness doctrine demands that laws be drawn with a degree of precision and clarity." A law must "clearly delineate" what conduct is prohibited in order to "'give the person of ordinary intelligence a reasonable opportunity'" to conform his conduct accordingly, and to prevent arbitrary and discriminatory enforcement. Although absolute precision is not required, a law must afford a reasonable degree of certainty so that a person is not left to guess at what conduct is prohibited.
Id. at 433, 417 S.E.2d at 888 (citations omitted).
Code § 63.1-248.2(A)(1) defines an "abused or neglected
child" as any child under eighteen years of age:
Whose parents or other person responsible for his care creates or inflicts, threatens to create or inflict, or allows to be created or inflicted upon such child a physical or mental injury by other than accidental means, or creates a substantial risk of death, disfigurement, or impairment of bodily or mental functions.
The Turner Court held that the "physical injury" language
"puts the average person on notice that conduct that creates or
inflicts physical harm upon the child falls within the statute's
proscription." Turner, 14 Va. App. at 433-34, 417 S.E.2d at
888. As in Turner, we find that a person of average
intelligence would understand that beating the buttocks of a
- 18 - teenager with a paddle or board of the size being utilized twice
a day over a period of several days would result in physical
injury to the teenager.
Furthermore, the hearing officer amended the original
disposition to a Level 2 founded abuse, which is defined as
including "those injuries/conditions, real or threatened, that
result in or were likely to have resulted in moderate harm to a
child." CPS Manual, Vol. VII, Sec. III, Chap. A at 113. The
CPS Manual further provides that injuries that resulted in
moderate harm include, in the case of physical abuse, "use of a
tool which is associated with discipline such as a switch or
paddle." Id. Clearly, this language would put the average
person on notice that Ables' conduct fell within its
proscription.
Our holding is in accord with those of other jurisdictions
that have considered void-for-vagueness challenges involving
similar statutory language. In Keser v. State, 706 P.2d 263
(Wyo. 1985), a stepparent was convicted of criminal child abuse.
The accused struck the child with a metal spatula, with his
hand, and with a belt on the child's bare buttocks about
fourteen times. The child suffered bruising on his "posterior."
The statute in effect at the time stated: "[A]ny adult who
intentionally or in reckless disregard of the consequences
causes physical injury . . . to a child . . . is guilty of child
- 19 - abuse." Wyo. Stat. Ann. § 6-2-503 (1977, now revised). The
accused argued that the term "physical injury" was vague because
the statute did not define the term.
The Wyoming court concluded that "[p]hysical injury is harm
to the body. It is a term of common usage generally understood
by the average person. It includes bruises and welts and trauma
of the kind suffered by the victim in this case." Id. at 268.
The court stated:
[The accused] should have known that his conduct was violative of the statute; and, if the definition of child abuse is not as precise as he would like it, that, in itself, does not render the statute unconstitutional. The right to have children does not include a corresponding right to abuse them by omission or commission. Children need protection. This statute accomplishes that purpose and is sufficiently definite to satisfy constitutional requirements.
Id.
The Court also noted that, in upholding the
constitutionality of a child neglect statute, a California court
wrote, "'The type of conduct which . . . the statute seeks to
reach defies precise definition. In number and kind the
situations where a child's life or health may be imperiled are
infinite.'" Id. at 267 (quoting People v. Beaugez, 43 Cal.
Rptr. 28, 32 (Cal. Ct. App. 1965)).
- 20 - In upholding the constitutionality of a criminal child
cruelty and neglect statute in a case involving a bruised child,
the Court of Appeals of Indiana stated, "[V]iolence sufficient
to produce severe bruises is enough to allow an ordinary man to
test the 'unnecessary' nature of the punishment inflicted. The
statute need only inform the individual of the generally
proscribed conduct, it need not list with itemized exactitude
each item of conduct prohibited." Hunter v. State, 360 N.E.2d
588, 595 (Ind. App. 1977). See also Watso v. Colorado Dep't of
Soc. Servs, 841 P.2d 299, 310 (Col. 1992) ("Generality is not
the equivalent of vagueness."); Chambers v. State, 364 So. 2d
416 (Ala. Crim. App. 1978) ("willful abuse" and "torture" are
not so vague as to render criminal statute void for vagueness).
Ables also contends the definition of "founded" in the
Administrative Code is vague because different sections of the
Code and the CPS Manual define the term incongruously concerning
the standard of proof necessary to make a disposition of
founded.
At the time of the incident, May 1999, Title 22 of the
Virginia Administrative Code contained two chapters addressing
Child Protective Services that were then in effect. Chapter
710, entitled "Child Protective Services Client Appeals," was
effective on December 6, 1989 and was repealed, effective
December 8, 1999. Chapter 705, entitled "Child Protective
- 21 - Services," became effective on January 1, 1998. This chapter
included a section on appeals. Both of these chapters were in
effect in May 1999.
The chapters contain different standards of proof for a
disposition of "founded" child abuse. Chapter 705, currently in
effect, provides that "founded" "means that a review of the
facts shows by a preponderance of the evidence that child abuse
and/or neglect has occurred." 22 VAC 40-705-10. Chapter 710,
now repealed, provided that "founded" "means that a review of
the facts shows clear and convincing evidence that child abuse
or neglect has occurred." 22 VAC 40-710-10.
On July 19, 1999, Volume 15, Issue 22 of the Virginia
Register of Regulations contained a proposed regulation
repealing 22 VAC 40-710-10 et seq., effective on December 8,
1999. The basis for the proposed regulation provided: "The
department proposes to repeal the original appeal regulation, 22
VAC 40-710-10 et seq., because it is part of a broader and more
recent regulation, 22 VAC 40-705-10 et seq., which combines both
programmatic and appeals regulations." 15 Va. Regs. Reg. Issue
22 at 2833 (July 19, 1999). "The purpose of repealing the
regulation is to eliminate a redundant regulation." Id.
Chapter 710 was repealed, effective December 8, 1999. 22 VAC
40-710-10 (Cum. Supp. 2002).
- 22 - We conclude that this regulatory history shows that any
inconsistency between the two chapters reflected an oversight by
DSS in failing to timely recognize that the enactment of Chapter
705 was redundant with Chapter 710. In other words, DSS
intended that the more recently-enacted provision, Chapter 705,
applied at the time of this offense. In addition, the CPS
Manual provided that "'founded' means that a review of the facts
shows by a preponderance of the evidence that child abuse . . .
had occurred." CPS Manual Vol. VII, Sec. III, Chap. A at 108
(citing 22 VAC 40-705-10). The CPS Manual also provided that
when an accused appeals the decision of the local conference to
the commissioner, "the local department shall have the burden to
show that the preponderance of the evidence supports the founded
disposition." Id. at 255 (citing 22 VAC 40-705-190(H)(9)).
Therefore, in accordance with 22 VAC 40-705-10 and the CPS
Manual, the hearing officer used the correct standard of proof
in her determination that the facts showed by a preponderance of
the evidence that Ables physically abused the teenage child.
Accordingly, we find that the regulations and policies were not
so vague as to render them unconstitutional and the hearing
officer used the proper standard of proof.
Moreover, we note that in the trial court's final order,
affirming the hearing officer's decision, the court stated, "the
evidence in the agency record reached a clear and convincing
- 23 - level of proof." "Clear and convincing proof is a higher
standard of proof than that required under a preponderance
standard." Turner, 14 Va. App. at 428, 417 S.E.2d at 885.
Thus, even under the higher standard of proof, the trial court
found that the record contained substantial evidence upon which
DSS could make a disposition of founded child abuse.
For these reasons, the judgment of the trial court is
affirmed.
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