Sesay v. Carter

43 Va. Cir. 31, 1997 Va. Cir. LEXIS 322

• Court: Alexandria County Circuit Court
• Decided: April 4, 1997
• Docket: Case No. (Chancery) CH961603
• Status: Published

Opinion

By Judge John E. Kloch

This matter was heard on February 28, 1997, upon Ms* Sesay’s petition appealing die decision and order of the State Department of Social Services sustaining a local department detemunatica that tie Petitioner had abused to daughter.

Paraphrasing her petition, Ms. Sesay, through counsel, avers that die decision rendered by the Virginia Department of Social Services ("the Department”) is defective as a matter of law, in tot*

1. The decision is not in compliance with die statutory authority, die Department having misapplied the standard for child abuse;

2. The decision is not in compliance with Virginia case law which holds that die Department is precluded from proceeding against the Petitioner ato she was acquitted by a criminal court;

3. The decision is not in compliance with the stated objectives of die Department regulations to protect children in dial the local department dismissed a related petition against the petitioner here for the reason that die child in issue was emancipated, and therefore die decision in this case is barred by regulations and by res judicata;

4. That diere lacks substantial evidence in the Department’s record to support the Endings ci fact

In rendering a decision in this case, the Circuit Court acts in die capacity of mi appellate court, and its review is limited to a review of to record, and it is not permitted to take additional evidence. School Bd. v. Nicely, 12 Va. App. 1051, 408 S.E.2d 545 (1991).

After a review of the records of this case, including die full report of the Department’s hearing officer, this court makes the following findings and conclusions of law, responding to die points in die Petition for Appeal, seriatim:

1. That die hearing officer’s decision is in substantial compliance with statutory authority, the Hearing Officer having applied the clear and convincing standard;

2. That the fact that the Petitioner was found not guilty in die criminal proceeding does not bar die proceedings here. In a number of opinions, courts have consistently held that because of the different standards of proof, a favorable disposition in the criminal proceeding does not preclude a civil determination of abuse. See Garrigues v. Department of Social Services, Record No. 0067-92-1 (Court of Appeals, July 14, 1992); Outten v. Department of Social Services, Record No. 2079-90-1 (Court of Appeals, May 14, 1991); William H. Danyus v. Department of Social Services, Chancery No. 22083-RF (Circuit Court of Newport News, August 5, 1992);

3. That die subsequent filing and dismissal on die grounds that the child in question was emancipated has no legal efficacy on these proceedings, and therefore this proceeding is not barred by res judicata;

4. That after a complete review of the record, there is substantial evidence to support the findings of die Hearing Officer. The record indicates that the affiay between the Petitioner and her daughter developed into a mutual affray ... a battle of will, rather than a situation where one is aggressor and the odio: in a posture of self-defense as Petitioner argues. He Hearing Officer heard detailed evidence as to the sequence of events, die positioning of die parties, ti» resulting serious injuries, as well as had an opportunity to observe the demeanor of the parties. It cannot be said that considering the record taken as a whole, a reasonable mind would necessarily come to a different conclusion.

Accordingly, the decision of the Hearing Officer is hereby affirmed, and the appeal is denied.