JEAN HARRISON CLEMENTS, Judge.
Maurice A. Jones, Commissioner (Commissioner) of the Virginia Department of Social Services (DSS), appeals from a decision of the Circuit Court of Chesterfield County (circuit court) setting aside and ordering the dismissal of a child protective services founded complaint of sexual abuse against Tommie J. West because the Chesterfield/Colonial Heights Department of Social Services (local department) failed to comply with certain procedural requirements in its investigation of the complaint. The Commissioner contends the circuit court erred (1) in determining that the local department’s decision not to tape record its interview with the alleged victim constituted a procedural violation, (2) in concluding that the local department’s procedural violations were not mere harmless error, and (3) in ordering the dismissal of the complaint against West instead of remanding the case to the hearing officer for further adjudication. On cross-appeal, West contends the circuit court erred in failing to award him attorney’s fees and costs. For the reasons that follow, we affirm the circuit court’s judgment.
I. BACKGROUND
On March 29, 2002, the child protective services unit of the local department received a complaint alleging that S.J., a [314]*314fourteen-year-old girl, may have been sexually abused by West, a Mend of S.J.’s family, while she was in West’s care. In response, Jami K. Robinson, a social worker with the local department, and Detective Rick Meadows of the Chesterfield County Police Department conducted a joint investigation of the complaint against West.
Detective Meadows and Robinson interviewed S.J. at the local department office that same day. The interview was not tape recorded. On April 2, 2002, Meadows interviewed West at the police station while Robinson observed from another room. The interview was not tape recorded, and West was not informed of his right to tape record the interview. At the conclusion of the interview, Robinson entered the interview room, introduced herself to West, gave him written notification of the complaint of sexual abuse lodged against him, and explained that she was conducting the child protective services investigation on behalf of the local department. Based on the interviews with S. J. and West, Robinson issued a disposition of “Founded, Level 1, sexual abuse” against West, on May 20, 2002.
Following a stay for the resolution of a related criminal charge,1 a conference appeal was held by the local department on July 24, 2002. By letter dated August 8, 2002, the local department upheld the founded disposition.
West appealed the decision to the Commissioner, arguing, inter alia, that the local department’s failure to comply with certain procedural requirements during the investigation rendered the founded disposition invalid and that the investigatory evidence obtained by the local department did not support the founded disposition. Specifically, West argued the record did not show that West had the requisite “intent to sexually molest, arouse or gratify” when he touched S.J. in what he claimed was a “playful and Mendly” manner or that S.J. suffered serious harm as a result of the touching. The [315]*315administrative hearing officer designated by the Commissioner to hear the appeal conducted an evidentiary hearing on March 27, 2003. The local department’s investigative record was made a part of the hearing record.
Robinson’s account of the March 29, 2002 interview with S.J., which was included in the investigative record, read as follows:
[S.J.] stated that Tomm[ie] West is about 70 years old, and is married, and used to be their next-door neighbor. She calls him Grandpa and has known him since 1997. She stated that nothing had happened before this school year and the last incident was on Thursday (the previous day). [S.J.] reported that [West] would put his hand high up on her leg and she told him to stop, that she didn’t like it. This would occur in the car and was an every day thing. He would grab her whole leg, up near the crease, where her leg meets her hip, and sometimes his fingers would brush against her genitals. This always occurred over her clothes, not under them. [West] will often ask her for a hug before he leaves and he has grabbed the bottom of her butt and lifted her off the ground. He then holds her against him for 35 seconds, until she asks him to let her go. This has happened 3 times, the last time being last Friday. [S.J.] stated that he tells her how pretty she is, “like the girls in magazines.” When [S.J.] would tell [West] that she didn’t like it, he would say to her, “You don’t love me any more,” and act disappointed. [S.J.] stated that sometimes, while they were in the car, he would reach over and rub her chest, not her breasts, but her upper chest, near her neck, with the palm of his hand. If she were wearing a lower cut shirt, he would touch skin sometimes. [S.J.] stated that she has to physically remove his hand from her and he says to her that he would never do anything to offend her. The last time that this happened was last week. [S.J.] stated, when asked, that sometimes he brushes her breasts, but not every time. [West] has never asked her to touch him in any way. [S.J.] reported that [West] has said to her that he wants to see her naked before he dies. When this happens, it is sort [316]*316of a random comment, with nothing leading up to it. He has also asked to see her underwear and he asks her often what color they are.
However, one time [West] brought her over a birthday cake, and she had on some low cut jeans, and her underwear was showing a little bit. [S. J.] stated that [West] came over to her and pulled her underwear up so that he could look at them (she thought he was joking with her and giving her a wedgie). He commented on how pretty they were, and went on and on about them. [S.J.], when asked, speculated that all of this just started happening because of the opportunity, he hasn’t had any prior to this year. [S.J.] mentioned one more thing that she thought was inappropriate— [West] once said to her that he liked to see her roll around on his floor with her skirt pulled above her head when she was little. [S.J.] thought that was weird.
Robinson’s account of Detective Meadows’s April 2, 2002 interview with West, also a part of the investigative record, read as follows:
Mr. West stated that he has known the family for a while now and he figured he’d been running errands for them for 6 years. He stated that sometimes he would reach over in the car and hit [S.J.] on the leg jokingly, but never really high up on her leg. He stated that he would never do anything to [S.J.] or [her sister], he thinks of them as his own kids. Mr. West stated that he has pinched her on the leg in a playful manner, but he has never touched her on her privates, because he’s “too old to even think anything.” Mr. West stated that sometimes they hold hands, but he has never touched her breasts. He stated he has stroked her face before and grabbed her chin, but nothing further.... When asked specifically about grabbing [S.J.’s] underwear, Mr. West stated that he hasn’t ever done that. He stated that he has pinched her butt before and one time when she hugged him (she’s always hugging him), he said to her, “I oughtta pinch your little butt.” [S.J.] said OK and he did. He stated that this happened maybe twice____When asked if he had ever made comments about her underwear he [317]*317stated that he had; things like, “you’ve got pretty blue panties on today.” ... When asked if he had ever told her that he would like to see her naked, he replied that he had once told her that if he had the money, he would give it to her to get those clothes from Victoria’s Secret because “she would be a work of art.” Mr. West stated that [S.J.] often hugs him and rubs her breasts on his shoulder and that she has sat in his lap before, but that he never touched her privates.
Mr. West reported that he has never touched [S.J.] inappropriately, but then stated that on Thursday when he was touching her, she told him that he needed to stop because she didn’t like it. He told her that he would stop. When asked specifically if he had made a comment about wanting to see her naked before he died, Mr. West stated that if [S.J.] said that he said it then he might have, but he didn’t really remember. Det. Meadows stated to Mr. West that everything [S.J.] had told him, Mr. West was admitting to, except touching her chest. He agreed that he had done all of the stuff that he said, but remained sure that he didn’t touch her breasts.
The hearing record also included a statement prepared by Detective Meadows regarding his interview with West:
I spoke to the suspect on 4-2-02____Jami[] Robinson observed. The suspect stated he didn’t know where this was coming from. He did say that on the way home he would sometimes grab her leg and squeeze it and demonstrated and it was fairly high on the leg a couple inches away from the vagina area. He states that he has hugged her and one time he said “I feel like squeezing your little buns” and that the victim said “go ahead I would like that.” He says this has happened a couple times. He states that he has made comments about her underwear when he saw it out of her pants by saying “you have pretty underwear on today” and he did tell her once that if he had lots of money he would take her to Victoria Secrets and let her buy everything because she would be a work of art. He says he has done these things but has no sexual intentions when he [318]*318does it, that he is just playing with her and teasing her. He says that last Thursday she told him not to grab her leg anymore and he said ok.
Robinson was the only witness to testify on behalf of the local department at the March 27, 2003 hearing. In addition to reiterating much of the information contained in her written accounts of the interviews with S.J. and West, Robinson testified that S.J. stated during her interview that West helped her mother by driving S.J. and her six-year-rold sister to and from school. According to Robinson, S.J. further stated that she had a close relationship with West and that, when West did something that made her uncomfortable, she would tell him to stop and he would, “but then it would happen again.” Robinson also testified that S.J. stated it made her uncomfortable when West talked about and grabbed her underwear. Robinson further testified that she felt S.J.’s statements were reliable and that S.J. felt bad about getting West in trouble.
Robinson also testified that the interviews with S.J. and West constituted the full extent of her investigation and that the founded disposition she issued was based solely on S.J.’s statement and West’s admissions “about what he had done.”
When asked why the interview with S.J. was not tape recorded, Robinson explained that, during joint investigations with the police, “the team leader who is the police department in this case is the person that decides whether or not there will be a tape recorder needed. The police do not tape [victim] interviews, so I did not tape it.”
On cross-examination, the following exchange between West’s counsel and Robinson took place:
[WEST’S COUNSEL]: Right, so it’s an instance where [S.J.’s] in the passenger seat, [West’s] in the driver seat and he reaches over and grabs her leg.
MS. ROBINSON: Correct.
[WEST’S COUNSEL]: Okay. And did anybody ask her if that was kind of an affectionate thing that he had done many times in the past?
[319]*319MS. ROBINSON: I don’t know that those words were used, but she said that it made her uncomfortable and she had to remove his hands so I interpreted that as she didn’t like it.
[WEST’S COUNSEL]: Okay. What instance was she talking about when she became uncomfortable about?
MS. ROBINSON: When he would grab her high up on her leg and brush her genitals from time to time.
[WEST’S COUNSEL]: But wasn’t it this time just before the report [of abuse] that she finally said I don’t like it for you to do that?
MS. ROBINSON: That’s when she finally said that. Yes.
[WEST’S COUNSEL]: Okay. And as soon as she said that didn’t she say that he took his hand away? As soon as she said I don’t like it when you do that. Didn’t she also say that he took his hand away?
MS. ROBINSON: Yes.
[WEST’S COUNSEL]: Okay. And actually in the interview with Mr. West, he told you about that too____
MS. ROBINSON: Right.
[WEST’S COUNSEL]: He said that as soon as she said anything to him that made her uncomfortable he said, okay I won’t do it anymore. And that was the last time he saw her when that interchange occurred. Is that—
MS. ROBINSON: That’s my understanding. Yes.
Robinson also testified on cross-examination that, prior to the March 29, 2002 interview with S. J., no discussion was held about whether the interview should be tape recorded. Robinson further testified that, in demonstrating during his interview how he grabbed S.J.’s leg in the car, West’s hand was “midway up” the leg. Robinson described the relationship between S.J. and West as “affectionate” and testified that “it was common for the two of them to hug.” Robinson further testified that, in responding to a general question about other things West may have done that made her uncomfortable, S.J. did not reveal the temporal or circumstantial context in which [320]*320West’s comments to S.J. about her underwear, his wanting to see her naked before he died, and her being pretty like the girls in the magazines were made.
Testifying on his own behalf at the March 27, 2003 hearing, West denied ever putting his hand on S.J.’s “thigh up close to her genitals.” He admitted that he had touched SJ.’s leg near the knee and her face while driving. He insisted, however, that the touching was strictly playful and friendly and that he never had “any sexual feelings or intents with regard to [S.J.].” He further admitted that the subject of Victoria’s Secret had come up in a conversation with S.J. but denied telling her that he would buy her any clothes from there. He and S.J., he explained, were merely discussing the modeling classes she was taking at the time and talking about the “different magazines with modeling” in them that she said her mother had. West also admitted having had a discussion with S.J. about her underwear once when “she was wearing low-riding pants.” He told her, he explained, that her father, who often disliked the way she dressed, would not “be too happy” that she was wearing her “little underwear.” West also testified that the only time S.J. asked him to stop touching her was the last time he saw her. They were “kidding around,” he explained, and he reached over and “hit her on the leg.” She said she wished he “wouldn’t do that anymore,” and he said, “Okay. No problem.”
West’s daughter, Donna West Knight, testified that West and S.J. had a close, affectionate, grandfather-granddaughter-type relationship. Knight stated that S. J. called West “grandpa” and would frequently “call up and just talk to [West] about what was going on in her life or even ask if ... she could come over and talk to him” and his wife or go out to lunch with them. According to Knight, S.J. was “a very affectionate girl” who “liked to hug” West. Knight observed that S.J. initiated the hugs and never “seemed to feel uncomfortable around” West, even in the weeks immediately preceding the local department’s receipt of the sexual abuse complaint against West.
[321]*321On June 2, 2003, the administrative hearing officer issued an extensive written decision concluding, inter alia, that the local department’s procedural violations were not fatal to the founded disposition and the evidence supported the founded disposition of sexual abuse, but did not establish that S.J. suffered “serious harm” as a result of the abuse, as required for a level one disposition. Accordingly, the hearing officer reduced the founded disposition to sexual abuse, level two.2 In determining that the evidence supported the founded disposition of sexual abuse, the hearing officer specifically found that, given the many similarities between S.J.’s statement and West’s statement, it was “more likely than not that [S.J. was] telling the truth about what happened in [West’s] car” and that, “[w]hen West touched SJ.’s genital area, breasts and buttocks, he did so intentionally and with the intent of providing himself sexual gratification.” The hearing officer also noted that, although West did not appear physically capable of lifting S.J. “into the air by her buttocks,” S.J. “described other touching and pinching of her buttocks, which ... fits the policy description of ‘Sexual Molestation.’ ”
West appealed the hearing officer’s decision to the circuit court. As before, he sought reversal of the founded disposition on the grounds that the evidence failed to support a finding of sexual abuse and the local department’s procedural violations rendered the founded disposition invalid. West also requested reasonable attorney’s fees and costs. Upon reviewing the case, the court determined that, despite revealing “disagreement over certain factual details” and “what inferences are supported by the facts,” the record contained “more than ample evidence to affirm the [hearing officer’s] findings of fact.” The court further determined, however, that, in failing to record the interview with S.J. in deference to the police department’s “blanket policy of not tape recording interviews [322]*322with alleged victims,” in failing to conduct a face-to-face interview with West, and in failing to advise West of his right to tape record his interview with Detective Meadows, the local department failed to “observe applicable mandates of the Virginia Administrative Code.” Those collective failures to comply with required procedure, the court concluded, “could have had a significant impact on the ultimate decision to classify the allegation against ... West as a founded complaint” and, thus, were “not mere harmless error.” Observing that the local department’s procedural violations were “such that new proceedings on remand [could not] cure the procedural deficiencies of the agency’s investigation,” the circuit court set aside the founded disposition and ordered that the complaint against West be dismissed. The court then denied West’s request for attorney’s fees and costs, finding them unwarranted under the circumstances of this case.
This appeal by the Commissioner and cross-appeal by West followed.
II. PROCEDURAL ERRORS
A. Failure to Tape Record the Alleged Victim’s Interview
The Commissioner contends that Robinson, the local department’s child protective services investigator in this case, properly declined to tape record the interview with S.J. because the local department and the police department conducted a joint investigation of the complaint against West, and the team leader, Detective Meadows, determined that tape recording the interview with S.J. was “inappropriate.” Thus, the Commissioner argues, the exception set forth in 22 VAC 40-705-80(B)(1)(d) applies and the local department was not required to tape record the interview. Consequently, the Commissioner concludes, the circuit court erred in ruling that the local department’s decision not to tape record the interview with S.J. constituted a procedural violation. We disagree.
Judicial review of a child protective services founded disposition of child abuse is governed by the Administrative Process Act (APA), codified at Code §§ 2.2-4000 to 2.2-4033. [323]*323See Code § 63.2-1526(B). Accordingly, “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); Code § 2.2-4027. The reviewing court will view “the facts in the light most favorable to sustaining the [agency’s] action,” Atkinson v. Virginia Alcohol Beverage Control Comm’n, 1 Va.App. 172, 176, 336 S.E.2d 527, 530 (1985), and “take due account of the presumption of official regularity, the experience and specialized competence of the agency, and the purposes of the basic law under which the agency has acted,” Code § 2.2-4027. Moreover, the review of an agency’s factual findings “is limited to determining whether substantial evidence in the agency record supports its decision,” Avante at Lynchburg, Inc. v. Teefey, 28 Va.App. 156, 160, 502 S.E.2d 708, 710 (1998), and “great deference is to be accorded the agency decision,” Holtzman Oil v. Commonwealth, 32 Va.App. 532, 539, 529 S.E.2d 333, 337 (2000). However, “ W the issue falls outside the area generally entrusted to the agency, and is one in which the courts have a special competence, ... there is little reason for the judiciary to defer to an administrative interpretation.’ ” Johnston-Willis, Ltd. v. Kenley, 6 Va.App. 231, 243-44, 369 S.E.2d 1, 8 (1988) (quoting Hi-Craft Clothing Co. v. NLRB, 660 F.2d 910, 914-15 (3d Cir.1981)). Hence, where, as here, “the legal issues require a determination by the reviewing court whether an agency has ... failed to observe required procedures, less deference is required and the reviewing courts should not abdicate their judicial function and merely rubber-stamp an agency determination.” Id. at 243, 369 S.E.2d at 7-8.
DSS’s regulation 22 VAC 40-705-80(B)(l) provides, in pertinent part, as follows:
The child protective services worker shall conduct a face-to-face interview with and observation of the alleged victim child. All interviews with alleged victim children must be audio tape recorded except when the child protective services worker determines that:
a. The child’s safety may be endangered by audio taping;
[324]*324b. The age and/or developmental capacity of the child makes audio taping impractical;
c. A child refuses to participate in the interview if audio taping occurs; or
d. In the context of a team investigation with law-enforcement personnel, the team or team leader determines that audio taping is not appropriate.
... A child protective services worker shall document in detail in the record and discuss with supervisory personnel the basis for a decision not to audio tape record an interview with the alleged victim child.
As the circuit court pointed out in its ruling, the Commissioner, in arguing that Robinson was excused under 22 VAC 40-705-80(B)(1)(d) from having to tape record the interview with S.J., disregards the express mandate of the regulation that the child protective services worker must “document in detail in the record and discuss with supervisory personnel the basis for a decision not to audio tape record an interview with the alleged victim child.” 22 VAC 40-705-80(B)(l) (emphasis added). That mandate makes it clear that not only must the child protective services investigator determine in each instance whether extenuating circumstances exist that make the recording of the interview impractical or inappropriate under the standards of 22 VAC 40-705-80(B)(1), the investigator must also, in each instance where the interview is not recorded, reference and articulate specific evidence and findings based on that evidence that support the conclusion that tape recording the alleged victim’s interview was impractical or inappropriate. It is not enough, therefore, in deciding not to tape record the alleged victim’s interview under 22 VAC 40-705-80(B)(1), to merely state in conclusory fashion, or rely on a team or team leader’s conclusory statement, that recording the interview is impractical or inappropriate. There must be evidence specifically relating to the alleged victim that supports the determination that recording the interview is impractical or inappropriate. If no such evidence exists, the decision not to tape record the interview is invalid and the [325]*325failure to record the interview is a violation of required procedure. See Johnston-Willis, Ltd., 6 Va.App. at 244, 369 S.E.2d at 8 (holding that “ ‘ “judicial interference is permissible ... for relief against the arbitrary or capricious action that constitutes a clear abuse of the [administrative agency’s] delegated discretion” ’ ” (quoting Va. Alcoholic Beverage Control Comm’n v. York Street Inn, Inc., 220 Va. 310, 315, 257 S.E.2d 851, 855 (1979) (quoting Schmidt v. Bd. of Adjustment of the City of Newark, 9 N.J. 405, 88 A.2d 607, 616 (1952)))).
In this case, the reason given in the local department’s investigative record for not taping the interview with S.J. is that the team leader deemed it “inappropriate.” No basis for that characterization is provided in the investigative record, however. Robinson testified at the evidentiary hearing that, prior to the interview with S.J., no discussion was held with either Detective Meadows, the team leader of the joint investigation, or her supervisory personnel about whether the interview should be tape recorded. Robinson explained that she did not tape record the interview with S.J. solely because the police department was always the team leader in joint investigations with the police and, since “[t]he police do not tape [victim] interviews,” she did not tape the interview. No other reason for not taping the interview was offered, and none is evident in the record.
It is clear, therefore, that Robinson’s interview with S.J. was not tape recorded simply because it was the local department’s policy to automatically defer in joint investigations with the police to the police department’s blanket policy of not recording interviews with complaining witnesses. We agree with the circuit court that the local department’s blind adherence in this case to the police department’s blanket policy of never recording such interviews does not, by itself, support the conclusion that tape recording the interview with S.J. was inappropriate under 22 VAC 40-705-80(B)(1)(d). Because there was no specific determination made that tape recording the interview with S.J. was either impractical or inappropriate under 22 VAC 40-705-80(B)(1), and because [326]*326Robinson knew of no evidence specifically related to S.J. indicating that tape recording the interview was either impractical or inappropriate and the record reveals no such evidence, we conclude, as a matter of law, that the local department’s decision not to tape record the interview is invalid.
Accordingly, we agree with the circuit court that the local department’s failure to tape record the interview with S.J. constituted a violation of the regulatory procedure required by 22 VAC 40-705-80(B)(1).
B. Harmless Error Claim
As discussed above, the local department failed to tape record Robinson’s interview with S.J., in violation of 22 VAC 40-705-80(B)(1). Additionally, the Commissioner does not challenge, on appeal, the circuit court’s determination that the local department failed to conduct a face-to-face interview with West, in violation of 22 VAC 40—705—80(B)(2), and failed to advise, or have Detective Meadows advise, West of his right to tape record his interview with Meadows, in violation of 22 VAC 40-705-80(B)(2)(a). Instead, the Commissioner contends, in reliance on a reversible-error standard applied by this Court in Johnston-Willis, Ltd., 6 Va.App. at 258, 369 S.E.2d at 16, that all of these procedural violations by the local department were mere harmless error because West did not demonstrate that he was prejudiced by the violations or that “a contrary result would have been reached” had the violations not occurred. Thus, the Commissioner concludes, the circuit court erred in ruling that the local department’s failure to observe required procedure was not mere harmless error and in setting aside the hearing officer’s founded disposition of sexual abuse against West on that basis. We disagree.
In an appellate review of a hearing officer’s decision, the burden is on the “party complaining of agency action to designate and demonstrate an error of law subject to review by the court. Such issues of law include: ... observance of required procedure where any failure therein is not mere harmless error.” Code § 2.2-4027. Accordingly, a party seek[327]*327ing relief from a founded disposition of abuse on grounds that the local department failed to comply with required procedure “must demonstrate such failure was not mere harmless error.” J.B. v. Brunty, 21 Va.App. 300, 305, 464 S.E.2d 166, 169 (1995). If the party seeking relief satisfies that burden, the reviewing court “shall suspend or set [the case decision] aside.” Code § 2.2-4029.
Although what constitutes “mere harmless error” under the Administrative Process Act is not amenable to precise definition and inevitably requires a case-by-case analysis, see, e.g., Ford Motor Co. v. Courtesy Motors, Inc., 237 Va. 187, 190-91, 375 S.E.2d 362, 364 (1989) (applying three different analyses in concluding that the agency’s failure to comply with required procedure constituted mere harmless error), it is clear that procedural violations that “could have had a significant impact on the ultimate decision so as to undermine the ‘substantiality of the evidential support’ for the factual findings” are not mere harmless error, Virginia Board of Medicine v. Fetta, 244 Va. 276, 283, 421 S.E.2d 410, 414 (1992).3 Such is the case here.
Guidelines promulgated to help “the local departments of social services throughout the Commonwealth in interpreting the definitions of abuse and neglect provided by statute” are contained in DSS’s Child Protective Services Policy Manual, [328]*328see 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. The Administrative Code defines “sexual abuse” as “any act of sexual exploitation or any sexual act upon a child in violation of the law which is committed or allowed to be committed by the child’s parents or other persons responsible for the care of the child pursuant to [Code] § 63.2-100.” 22 VAC 40-705-30(E). The hearing officer noted that, according to Volume VII, Section 3, Chapter A of DSS’s Child Protective Services Policy Manual, the definition of “sexual abuse” encompasses “sexual molestation,” which is “ ‘an act committed with the intent to sexually molest, arouse or gratify any person, including where ... [t]he caretaker intentionally touches the child’s intimate parts or clothing directly covering such intimate parts,’ ” which include the “ ‘genitalia, anus, groin, breast, or buttocks of any person.’ ” See also Code § 18.2-67.10 (providing a similar definition of “sexual abuse”).
The gravamen of the sexual abuse complaint against West was that, when West reached over to touch S.J. in the passenger seat of the car, his hand sometimes “brush[ed]” her genitals over her clothes and the upper part of her breasts and that West touched her buttocks over her clothes while hugging her on three occasions. West admitted at the evidentiary hearing that, in the context of the close relationship he had with the child, he had touched S. J.’s leg near the knee and her face while driving and that he had hugged her, but he denied that he had ever touched her inappropriately. He insisted that the touching was strictly playful and friendly and that he never had “any sexual feelings or intents with regard to [S.J.].” He further argued that, if he did touch S.J.’s intimate parts or the clothing over her intimate parts, it was purely incidental and inadvertent. He also argued that the child protective services investigator took out of context and gave an unintended sexual bent to several remarks he made to S.J. that, given the grandfather-granddaughter-type relationship he had with her, were entirely innocent. Thus, West asserted, the local department’s indirect evidence regarding [329]*329S.J.’s and his interview statements did not show that he touched S.J. with the requisite intent. Considering the totality of the circumstances, the hearing officer found that West “intentionally” touched S.J.’s breasts and the clothing directly covering S.J.’s genital area and buttocks, and did so “with the intent of providing himself sexual gratification.”
While it is clear that, as the circuit court determined, the evidence in the record, when viewed in the light most favorable to sustaining the agency’s action, is sufficient to support the hearing officer’s decision, it is equally clear that, at the time the hearing officer made that decision, “the factual issues were very much in dispute,” particularly with regard to the nature of West’s touching and his intent relative to that touching. Fetta, 244 Va. at 283, 421 S.E.2d at 414. The question before us, then, is whether any of the procedural violations committed by the local department during its investigation of the sexual abuse complaint against West “could have had a significant impact on the ultimate decision so as to undermine the ‘substantiality of the evidential support’ for the factual findings.” Id. Upon reviewing the record, we conclude that, under the circumstances of this case, the local department’s failure to tape record S.J.’s interview very well could have.
The absence of a tape recording of S.J.’s interview is particularly critical in this case because, given the close, grandfather-granddaughter-type relationship West and S.J. had, the meaning and import of S.J.’s statements about West touching her genitals, breasts, and buttocks were susceptible to more than one plausible interpretation and necessarily turned on the subtle nuances of those statements and the conduct they described. Indeed, slight nuances in the inflection or context of the words spoken by S.J. could substantially change the meaning of statements that directly impacted the question of whether West had the requisite intent. West could not depose S.J. or call her as a witness at the administrative hearing, see Code § 63.2-1526(B), and yet the evidence regarding S.J.’s statements provided the basis for the hearing officer’s finding of sexual abuse. It was essential, therefore, [330]*330for the hearing officer to have access to the precise substance of S.J.’s statements.
Nevertheless, the only evidence the hearing officer had before her regarding what S.J. was asked during the interview, what she said, and how she said it was limited to the child protective services investigator’s indirect evidence, based on her recall and interpretation, of what was said at the interview. Because there was no opportunity to listen to the questions posed to S.J., the manner in which the child responded, or, indeed, the responses themselves, the hearing officer was left to rely on the inferences drawn by Robinson and her interpretive conclusion that West’s touching was intentional and for the purpose of sexual gratification. However, unlike Robinson’s written account of the interview in the investigative record and her mostly verbatim testimony from that account, an audiotape of S.J.’s interview would have revealed the actual language used by S.J., as well as the tone, pauses, certainties, and other nuances of the child’s statements. The ability to hear the actual interview could well have led the hearing officer to draw different inferences from S.J.’s statements and to conclude that it was at least as likely as not that West did not intentionally touch S.J.’s intimate parts or material directly covering such parts with the intent to sexually molest, arouse, or gratify. Indeed, although it is clear from the evidence that S.J. was discomforted by West’s touching, it is not at all clear, particularly in light of the affectionate relationship she and West had, that S.J. believed that West “brushfed]” her intimate parts intentionally. Nor is it clear, as a matter of law, from her reported version of what occurred that any of West’s touching was for a sexual purpose. Given the child’s age, it is entirely possible, as West suggests, that she simply began to feel that the innocent, friendly touching she once appreciated as a child was now embarrassing and unwelcome as an adolescent.
The need for a tape recording of S.J.’s interview is further borne out in this ease by the ambiguity in Robinson’s accounts of S.J.’s statements regarding the frequency and timing of S.J.’s protestations to West about his touching her. In her [331]*331written account, Robinson reported that S.J. said West’s touching her “high up on her leg” and her telling him “to stop, that she didn’t like it” were a daily occurrence. Robinson also testified at the administrative hearing that, when West’s touching made S.J. uncomfortable, S.J. would tell him to stop and he would, “but then it would happen again.” However, Robinson later testified on cross-examination that S.J. only “finally” told West that she did not like his touching her just before the complaint of sexual abuse was made against West. Although plainly not dispositive in and of itself, this discrepancy tended to undermine the reliability of Robinson’s secondhand version of S.J.’s statements, particularly in a case like this where nuance was critical. Without a tape recording of the interview, that reliability could not be assured by the hearing officer. Cf. 22 VAC 40-705-190(H)(12) (providing that, although not “bound by the strict rules of evidence,” the hearing officer may “only consider that evidence, presented by either party, which is substantially credible or reliable”). Likewise, the local department’s failure to tape record the interview with S.J. left West with no meaningful recourse against any possible misapprehension or misinterpretation of S.J.’s statements by Robinson.
We hold, therefore, that the local department’s failure to tape record the interview with S.J. “could have had a significant impact on the ultimate decision so as to undermine the ‘substantiality of the evidential support’ for the factual findings.” Fetta, 244 Va. at 283, 421 S.E.2d at 414. Accordingly, that violation was not mere harmless error, id,., and the founded disposition of sexual abuse must be set aside, Code § 2.2-4029.4
C. Lack of Remand for Further Adjudication
The Commissioner contends, that having set aside the founded disposition of sexual abuse based on the local depart-[332]*332merit’s failure to comply with required procedure in the investigation of the complaint against West, the circuit court was required under Code § 2.2-4029 to remand the case to the hearing officer for further adjudication and correction of that procedural failure. Thus, the Commissioner concludes, the circuit court erred in failing to remand the case to the hearing officer to allow the local department to cure its failure to comply with required procedure. We disagree.
Code § 2.2-4029 provides, in pertinent part, that, “[w]here a ... case decision is found by the court not to be in accordance with law under [Code] § 2.2-4027, the court shall suspend or set it aside and remand the matter to the agency for further proceedings, if any, as the court may permit or direct in accordance with law.” (Emphasis added.) As the Supreme Court observed in Fetta, the statute explicitly grants the circuit court “the discretion to specify exactly what shall be done on remand.” 244 Va. at 280, 421 S.E.2d at 412. Hence, the Court further observed, “the clear statutory language contemplates that the circuit court may order a new hearing upon remand or, as here, may order dismissal of the charges, resulting in no further hearing at all.” Id.
Thus, as in Fetta, the dispositive issue now before us “simply is whether the circuit court abused its judicial discretion in refusing to order a new hearing of the same charges and in ordering the proceeding dismissed.” Id. In Fetta, the Court concluded that the circuit court did not abuse its discretion because a rehearing on remand could not undo the harm done by the agency’s flawed procedure to “the fact-finding process.” Id. Likewise, the harm done in this case to the fact-finding process by the local department’s failure to tape record the interview with the alleged child victim cannot be corrected by a rehearing on remand. The clock cannot be turned back. Obviously, the same interview with S.J. cannot now be tape recorded. Moreover, under the circumstances of this case, any interview now conducted and tape recorded on remand would plainly be tainted by the passage of time. As we previously noted, given the close, affectionate relationship that existed between West and S.J. at the time the touching at [333]*333issue occurred, the dispositive factual determination whether, in touching S.J., West had the requisite intent turned less on the basic facts of the case than on the subtle evidentiary nuances of the statements given by S.J. on March 29, 2002, regarding incidents that had occurred as recently as the day before. The passage of more than three years has clearly made the recapturing of such ephemeral nuances impossible. Cf. Toussie v. United States, 397 U.S. 112, 114, 90 S.Ct. 858, 860, 25 L.Ed.2d 156 (1970) (noting the usefulness of statutes of limitations in criminal cases because even “basic facts may ... become obscured by the passage of time” and intervening factors).
Hence, we cannot say that the circuit court abused its discretion in refusing to remand the case to the hearing officer for a new hearing and in ordering the dismissal of the complaint against West.
III. ATTORNEY’S FEES AND COSTS
West contends, on cross-appeal, that, having ruled in his favor, the circuit court erred in failing to award him his attorney’s fees and costs. He also requests an award of attorney’s fees and costs incurred in defending this appeal.
Code § 2.2-4030(A) provides, in pertinent part, that a person contesting an agency decision “shall be entitled to recover from that agency ... reasonable costs and attorneys’ fees if such person substantially prevails on the merits of the case and the agency’s position is not substantially justified.” Although West prevailed in the circuit court and prevails again in this Court, we conclude that the Commissioner’s position in this case was “substantially justified.” As previously mentioned, there was ample evidence to support the hearing officer’s decision. Moreover, the Commissioner’s position that the local department’s decision not to tape record its interview with the alleged child victim did not constitute a procedural violation was “substantially plausible and was based on the [local department’s] long-standing practice,” under 22 VAC 40-705-80(B)(l)(d), of deferring to the police department’s [334]*334procedural policy when conducting a joint investigation, a practice which, prior to the instant appeals, “had never been [fully] tested in court.” Motor Vehicle Dealer Bd. v. Morgan, 38 Va.App. 665, 672, 568 S.E.2d 378, 381 (2002). Thus, although wrong, the Commissioner’s position was not unreasonable.
We hold, therefore, that West is not entitled to an award of attorney’s fees and costs incurred in the circuit court or in this Court, under Code § 2.2-4030(A).
IV. CONCLUSION
For these reasons, we affirm the circuit court’s judgment in deciding that the local department’s failure to tape record its interview with the alleged victim constituted a procedural violation and was not mere harmless error, in ordering the dismissal of the complaint against West rather than remanding the case to the hearing officer for further adjudication, and in denying West’s request for attorney’s fees and costs. Accordingly, we remand this case to the circuit court for remand to the Commissioner with instructions to dismiss the complaint of sexual abuse against West.
Affirmed.