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Dart v. Jackson

Court of Appeals of Virginia
Jun 1, 1993
Record No. 1863-92-2 (Va. Ct. App. Jun. 1, 1993)

Opinion

Record No. 1863-92-2

June 1, 1993

FROM THE CIRCUIT COURT OF HENRICO COUNTY BUFORD M. PARSONS, JUDGE.

(Sherri P. Eliades; Eliades Eliades, on brief), for appellant.

(Stephen D. Rosenthal, Attorney General; Barbara J. Gaden, Assistant Attorney General, on brief), for appellees.

Present: Judges Baker, Elder and Fitzpatrick.


MEMORANDUM OPINION

Pursuant to Code § 17-116.010 this opinion is not designated for publication.


Upon reviewing the record and briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the trial court. Rule 5A:27.

Kathleen Dart appeals an order of the circuit court denying a petition for appeal from the decision of the Commissioner upholding a finding of "founded physical abuse." Dart raises the following arguments:

I. Dart was denied her constitutional right to due process of law by the hearing officer's refusal to allow Dart's daughter to testify;

II. The procedures of the Board of Social Services were violated by the hearing officer's refusal to allow Dart's daughter to testify;

III. The evidence does not support a finding of "founded physical abuse."

Under the Virginia Administrative Process Act ("VAPA"), Code §§ 9-6.14:1 through -6.14:25, the burden is on the party complaining of agency action to demonstrate an error of law subject to review. Code § 9-6.14:17; Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231, 241, 369 S.E.2d 1, 6 (1988). The court will review the facts in the light most favorable to sustaining the agency's action, with due consideration 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 § 9-6.14:17. See also Bio-Medical Applications of Arlington, Inc. v. Kenley, 4 Va. App. 414, 427, 358 S.E.2d 722, 727 (1987). Under the VAPA, a court, in reviewing an agency decision, reviews only whether the agency 1) acted in accordance with the law; 2) made a procedural error which is not harmless; and 3) had sufficient evidential support for its findings of fact. Johnston-Willis, Ltd., 6 Va. App. at 242, 369 S.E.2d at 7.

I.

Dart's due process argument is governed by our recent decisions in Turner v. Jackson, 14 Va. App. 423, 417 S.E.2d 881 (1992), and Jackson v. W., 14 Va. App. 391, 419 S.E.2d 385 (1992). In those cases we held that the investigation and disposition of child abuse complaints as "founded," "unfounded," or "reason to suspect," do not implicate liberty or property interests entitled to due process protection. Therefore, this argument is without merit.

II.

Dart next contends that the procedures of the Board of Social Services were violated by the hearing officer's refusal to allow Dart's daughter to testify. Under Code § 9-6.14:12(c), an accused in an administrative procedure is permitted "to submit oral and documentary evidence and rebuttal proofs. . . ." The hearing officer has the power to "receive probative evidence, exclude irrelevant, immaterial, insubstantial, privileged, or repetitive proofs, rebuttal, or cross-examination, [and] rule upon proffers of proof. . . ." Code § 9-6.14:12(c)(ii).

Here, the hearing officer declined to allow Dart's daughter to testify because of her youth. However, the hearing officer accepted a proffer of the testimony, and stated several times that she would consider that proffer as if the daughter had testified. Because of the proffer, the daughter's testimony was not subject to cross-examination. In her report, the hearing officer set forth the evidence in the proffer. Her conclusion of "founded physical abuse" was based on Dart's own admissions of the fact that she hit her daughter in the face in reaction to a lie told by the daughter. The daughter's testimony that she loves Dart and is not afraid of her, that she does not feel abused, that she believes that she had pushed her mother to the limit by lying, does not change the facts on which the hearing officer based her finding. Therefore, the decision by the hearing officer refusing to allow the daughter to testify resulted in no prejudice and is not reversible error. See Johnston-Willis, Ltd., 6 Va. App. at 258, 369 S.E.2d at 16 (fact that agency considered evidence beyond the record not reversible unless substantial prejudice results).

Dart's daughter was eleven years old at the time of the hearing.

III.

Dart alleges that a single, disciplinary blow by a parent to the face of a child does not constitute "founded physical abuse." She argues that the record contains insufficient evidence to support the hearing officer's findings and disposition. Our scope of review is limited to "the substantiality of the evidential support for findings of fact." Code § 9-6.14:17. See Bio-Medical Applications of Arlington, Inc., 4 Va. App. at 427, 358 S.E.2d at 729. "Substantial evidence refers to 'such relevant evidence as a reasonable mindmight accept as adequate to support a conclusion.' . . . Under this standard the court may reject the findings of fact of the agency 'only if, considering the record as a whole, a reasonable mind would necessarily come to a different conclusion.'"Roanoke Memorial Hospitals v. Kenley, 3 Va. App. 599, 610, 352 S.E.2d 525, 531 (1987) (quoting Virginia Real Estate Commission v. Bias, 226 Va. 264, 269, 308 S.E.2d 123, 125 (1983)) (emphasis in original).

Dart admits that she meant to hit her daughter in the face for disciplinary purposes, although she alleges she was aiming for the mouth rather than for the nose or eyes. Dart agrees that bruising resulted from the blow, although she contests the description of "two black eyes." She argues, however, that the hearing officer failed to abide by the guideline which directs that consideration must be given to the degree of harm suffered by the child. Our review of the record convinces us that the hearing officer did consider the degree of harm. She acknowledged Dart's description of the injuries, but stated, "[h]owever, the school described the child as having two 'black eyes.'"

Dart seeks to rely on holdings in criminal prosecutions for malicious wounding and assault and battery to argue that the evidence was insufficient in this case. Criminal proceedings and penalties do not directly result from the Commissioner's finding and those decisions are inapposite. Jackson, 14 Va. App. at 410, 419 S.E.2d at 395. This record contains substantial evidence to support the Commissioner's decision of "founded physical abuse."

For the reasons stated, we affirm the circuit court's decision.

Affirmed.


Summaries of

Dart v. Jackson

Court of Appeals of Virginia
Jun 1, 1993
Record No. 1863-92-2 (Va. Ct. App. Jun. 1, 1993)
Case details for

Dart v. Jackson

Case Details

Full title:KATHLEEN DART v. LARRY D. JACKSON, COMMISSIONER, VIRGINIA DEPARTMENT OF…

Court:Court of Appeals of Virginia

Date published: Jun 1, 1993

Citations

Record No. 1863-92-2 (Va. Ct. App. Jun. 1, 1993)