Jeffrey Bothen v. Virginia DSS

• Court: Court of Appeals of Virginia
• Decided: July 9, 2002
• Docket: 0118024
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Agee, Annunziata and Senior Judge Coleman

JEFFREY BOTHEN MEMORANDUM OPINION * v. Record No. 0118-02-4 PER CURIAM JULY 9, 2002 VIRGINIA DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Dennis J. Smith, Judge

(Wade P. Luther; The Lewis Law Firm, P.C., on brief), for appellant.

(Jerry W. Kilgore, Attorney General; Francis S. Ferguson, Deputy Attorney General; Siran S. Faulders, Senior Assistant Attorney General; Donald G. Powers, Assistant Attorney General, on brief), for appellee.

Jeffrey Bothen (appellant) appeals from a decision of the

Fairfax County Circuit Court finding substantial evidence to

support the determination of the Virginia Department of Social

Services (VDSS) that a complaint of "Physical Neglect -

Inadequate Supervision — Level Three" against appellant was

"Founded." On appeal, he contends there was insufficient

evidence to support VDSS's finding of neglect. Upon reviewing

the record and briefs of the parties, we conclude that this appeal

is without merit. Accordingly, we summarily affirm the decision

of the trial court. Rule 5A:27.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. The standard of review of an agency's factual findings on

appeal to a circuit court is limited to determining whether

substantial evidence in the agency record supports its decision.

See Code § 9-6.14:17; Turner v. Jackson, 14 Va. App. 423,

429-30, 417 S.E.2d 881, 886 (1992). On appeal, we do not

disturb factual findings if credible evidence supports them.

See James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382

S.E.2d 487, 488 (1989). "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).

On April 19, 2000, the Fairfax Department of Family Services

(FDFS) received a complaint that appellant's fifteen-year-old

daughter, Alina, was being inadequately supervised. FDFS

investigated the complaint, and on June 20, 2000, it notified

appellant of its finding, "Founded – Physical Neglect – Inadequate

Supervision – level 3." On September 29, 2000, the local agency

director upheld that disposition.

Appellant appealed that decision to the Commissioner of VDSS.

On April 23, 2001, a VDSS hearing officer conducted an

administrative hearing. Appellant had sole physical custody of

his daughter. Evidence showed that he received six-weeks' notice

before being deployed to Kuwait for two weeks with his National

Guard unit. Appellant initially planned for Alina to visit her

- 2 - mother the first week and stay with another family the second

week. Three weeks before the trip, those plans proved unworkable,

so appellant asked Alina to suggest some school friends with whom

she could stay. On a previous occasion when appellant left Alina

alone overnight, she had a party at which drugs and alcohol were

consumed and during which someone stole one of appellant's guns.

Moreover, appellant suspected Alina may have been using drugs, and

he knew she took medication for depression and migraines. Despite

that knowledge, appellant left for Kuwait solely on Alina's oral

representation that Holly Sitnick's parents agreed to let her stay

with them. Appellant never talked with the Sitnicks before

leaving for Kuwait. During the first four days of appellant's

absence, Alina had several friends visit, alcohol and drugs were

consumed, and Alina was involved in a hit and run accident while

driving without a license. Appellant filed a plan with the

military when he left for Kuwait indicating that his mother or

Alina's mother would provide childcare. Alina remained

unsupervised until FDFS contacted appellant on April 19, 2000.

After taking and reviewing extensive evidence, the VDSS

hearing officer found that appellant failed to adequately provide

for his daughter's supervision, thereby placing her in a situation

that required judgment or actions beyond her level of maturity.

Accordingly, the officer sustained the local agency's disposition.

- 3 - The trial court reviewed the record and found that the

agency's findings were supported by substantial evidence, and it

affirmed the hearing officer.

Code § 63.1-248.2 defines an "[a]bused or neglected child,"

inter alia, as any child less than eighteen years of age:

1. Whose parents or other person responsible for his care . . . creates a substantial risk of death, disfigurement, or impairment of bodily or mental functions; [or]

2. Whose parents or other person responsible for his care neglects or refuses to provide care necessary for his health. However, no child who in good faith is under treatment solely by spiritual means through prayer in accordance with the tenets and practices of a recognized church or religious denomination shall for that reason alone be considered to be an abused or neglected child; . . . .

Guidelines promulgated to help the local departments "in

interpreting the definitions of abuse and neglect provided by

statute" are contained in VDSS's Protective Services Manual, see

Jackson v. W., 14 Va. App. 391, 399, 419 S.E.2d 385, 389 (1992),

as well as in the Virginia Administrative Code, see 22 VAC

40-705-30(B). The Administrative Code defines "[p]hysical

neglect" as "[t]he failure to provide food, clothing, shelter or

supervision for a child to the extent that the child's health or

safety is endangered." Id. Moreover, "[p]hysical neglect may

include multiple occurrences or a one-time critical or severe

event that results in a threat to health or safety." The

- 4 - hearing officer quoted the following from Volume VII, Section 3

of VDSS's Child Protective Services Policy Manual:

Physical neglect includes the following when the conditions threaten the child's health or safety:

b) Inadequate supervision: the child has been left in the care of an inadequate caretaker or in a situation which requires judgment or actions greater than the child's level of maturity, physical condition, and/or mental abilities would reasonably dictate; or [under] minimal care/supervision which results in placing the child in jeopardy of or at risk of . . . physical injury . . . .

Based upon our review of the record, including appellant's

failure to obtain supervision for his daughter before leaving

the country for two weeks despite his awareness of her prior

difficulties, substantial evidence supports the finding by VDSS.

Accordingly, we summarily affirm the circuit court's ruling.

Affirmed.

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