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COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Senior Judge Overton
Argued at Richmond, Virginia
Record No. 3346-02-2
ROBERT C. MULVEY
MAURICE A. JONES, COMMISSIONER,
VIRGINIA DEPARTMENT OF SOCIAL SERVICES
OPINION BY JUDGE RUDOLPH BUMGARDNER, III
OCTOBER 28, 2003
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Herbert C. Gill, Jr., Judge
Stephen A. Isaacs (Gentle E. Winter; Stephen A. Isaacs Law
on briefs), for appellant.
A. Cameron O’Brion, Assistant Attorney General (Jerry W.
Attorney General; David E. Johnson, Deputy Attorney General;
Siran S. Faulders, Senior Assistant Attorney General, on brief),
The Chesterfield Department of Social Services determined a
complaint that Robert C.
Mulvey physically abused a student was founded. The Commissioner
of the DSS affirmed that
decision after an administrative hearing, and the trial court
affirmed the agency’s decision. The
appellant contends the evidence was insufficient to support the
agency’s factual findings. He
argues he had no intent to injure the student and that his
conduct was authorized. We affirm.
We view the evidence in the light most favorable to the agency
and limit our review of
issues of fact to the agency record. Carter v. Gordon, 28 Va.
App. 133, 141, 502 S.E.2d 697, 701
(1998). On May 18, 2001, an eleven-year-old student was
misbehaving and disrupting the
appellant’s classroom. The appellant asked the student to leave
the room three times. He took
the student’s book bag and placed it at a desk in the hallway.
The student protested because he
would lose points if he were removed from the classroom, but he
went to the hallway crying and
whining. The student then refused to sit, kicked the chair, and
called the appellant a "butthead."
The appellant grabbed the student from behind with a strong grip
on the shoulders, lifted him,
and pushed him into the chair. He "squeezed and hurt [the
student] by accident." Student
witnesses reported the appellant "slammed" the student
into the chair. Another witness reported
the student kept saying "ow, ow." Less than an hour
later, the student had abrasions on his left
shoulder and bruising on his right underarm.
A Child Protective Services worker conducted an investigation
three days later and
determined the complaint was "Founded, Level Three, for
Physical Abuse." The worker
concluded that the appellant placed his hands on the student and
the resulting bruises "appear
consistant [sic] with that of rough handling."
The intake report noted that the appellant denied touching the
student at all. The
appellant subsequently denied making that statement. In a June
19, 2001 letter, the appellant
admitted he grabbed the student’s shoulders but denied he
intended to injure him. At the
administrative hearing, the appellant asserted he was facing the
student, whose arms were
crossed in front of his chest, and that he grabbed the student
to prevent him from falling. The
appellant admitted he was frustrated during the incident,
"I was upset at that time." The hearing
officer determined that the appellant "lost his
composure," "forcefully grabbed" the student, and
then fabricated an explanation for touching him.
Under the Administrative Process Act, the trial court’s duty is
"limited to ascertaining
whether there was substantial evidence in the agency
record" to support its decision. Code
? 2.2-4027. "The phrase ‘substantial evidence’ refers to
‘such relevant evidence as a reasonable
mind might accept as adequate to support a
conclusion.’" Virginia Real Estate Comm’n v. Bias,
226 Va. 264, 269, 308 S.E.2d 123, 125 (1983) (citation omitted).
A 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.
(quoting B. Mezines, Administrative Law
? 51.01 (1981)).
"Physical abuse occurs when a caretaker . . . inflicts . .
. physical injury by other than
accidental means . . . ." 22 VAC 40-705-30(A). Regardless
of the appellant’s lack of intent to
injure, he acted intentionally when he grabbed the student in a
strong grip and shoved him into
the chair. Those acts inflicted bruises and abrasions. The
results of his actions were reasonably
foreseeable. "[A] person is presumed to intend the
immediate, direct, and necessary
consequences of his voluntary act." Nobles v. Commonwealth,
218 Va. 548, 551, 238 S.E.2d
808, 810 (1977). The agency was permitted to accept the
description of the incident given by the
students, and it was permitted to discount the conflicting
characterization given by the appellant.
The appellant maintains Code ? 22.1-279.1authorized
his conduct because he intended
to maintain control and prevent the student from harming himself
or others. The bruises to the
student make evident that the touching was not incidental,
minor, or reasonable. The appellant
admitted he was upset when he grabbed the student, and the
witnesses described the degree of
force employed. No evidence indicated the appellant was acting
to prevent the student from
harming himself or others.
We conclude substantial evidence supported the agency’s findings
that the injury was not
accidental and constituted physical abuse. Accordingly, we
Elder, J., dissenting.
The majority holds that an intentional act resulting in bruising
is physical abuse under 22
VAC 40-705-30(A) and that the mere occurrence of bruising proved
the intentional act was
unreasonable under Code ? 22.1-279.1, the corporal punishment
statute. The Department of
Social Services (DSS) hearing officer similarly concluded that
proof "appellant caused the
[student's] injuries . . . by an intentional act" was
sufficient to "meet the definition of physical
abuse pursuant to [Child Protective Services] Policy." I
would hold that finding either the
occurrence of physical abuse or a violation of the corporal
punishment statute requires
independent proof that the act was unreasonable under the
circumstances. Because the DSS
hearing officer committed an error of law in failing to consider
whether the act was
unreasonable, I would vacate DSS’s finding that appellant, a
fifth grade teacher of special
education, committed physical abuse and remand to the circuit
court to remand to DSS for
additional findings based on application of the proper standard.
Thus, I respectfully dissent.
The DSS hearing officer found that appellant "undoubtedly
did not intend the . . .
bruising" that resulted from his intentional acts. The
hearing officer concluded that appellant
"lost his composure" when the student became
disruptive and that "he forcefully grabbed" the
student and "shoved him into a chair." The hearing
officer did not determine whether these
actions were unreasonable under the circumstances.
Code ? 63.1-248.2 defines an abused or neglected child as one, inter
parent or other person responsible for his care creates or
inflicts . . . upon such child a physical
or mental injury by other than accidental means . . . ."
DSS regulations track the language of that
code section, providing that "[p]hysical abuse occurs when
a caretaker . . . inflicts . . . physical
injury by other than accidental means . . . ." 22 VAC
40-705-30(A). The purpose of the statute
and related regulations is not to punish but to protect the
abused child and the community. J.P. v.
Carter, 24 Va. App. 707, 727, 485 S.E.2d 162, 172 (1997).
Although "the interpretation which an administrative agency
gives its [law] must be
accorded great deference," an agency’s interpretation may
be reversed "if [its] construction . . . is
arbitrary or capricious or fails to fulfill the agency’s law as
defined by its basic law." Jackson v.
W., 14 Va. App. 391, 401, 419 S.E.2d 385, 390 (1992).
We interpreted the statutory definition of an abused or
neglected child in Turner v.
Jackson, 14 Va. App. 423, 417 S.E.2d 881 (1992). In that case,
the father was found to have
physically abused his three-year-old daughter by pulling out a
section of her hair. Id. at 427, 417
S.E.2d at 884-85. The father’s children reported that after the
daughter spilled water in her room,
the father grabbed her by her hair and attempted to take her
from one room to another. Id. at
427, 417 S.E.2d at 884. The father contended first that he
grabbed the child by the hair to
prevent her from being harmed by stepping out onto a busy
street. Id. at 432, 417 S.E.2d at 887.
He subsequently admitted that he pulled the hair out while
attempting to discipline his daughter
in her room, although he contended the hair loss was accidental
and gave conflicting accounts as
to precisely how it occurred. Id. We upheld the ruling that
substantial evidence existed to
support the finding that the father abused the child. Id. at
432, 417 S.E.2d at 888. In rejecting
the father’s claim that the language "physical injury"
was unconstitutionally vague, we held that
"a person of average intelligence would understand that
pulling out a section of hair from a
three-year-old child’s head would result in a physical injury to
that child." Id. at 433-34, 417
S.E.2d at 888-89.
The facts in Turner illustrate why the definition of physical
abuse must be construed to
take into account whether the intentional act that caused
physical injury was reasonable or
unreasonable under the circumstances. Under the father’s first
version of events, he grabbed the
child by her hair and caused injury but did so in order to
protect her from greater harm that was
likely to occur if she stepped out into traffic. If the injury
had occurred under those
circumstances, the father’s acts would have been reasonable and
would not have constituted
physical abuse. However, because the evidence established that
the father grabbed the child by
her hair and attempted to pull her from one room to another,
either out of anger or in order to
discipline her, it supported a finding that his intentional act
was unreasonable under the
The language in Code ? 22.1-279.1, cited by appellant, supports
this interpretation of the
abuse and neglect statute as it applies to teachers and other
school personnel. Code ? 22.1-279.1
proscribes corporal punishment, but it exempts from the
definition of corporal punishment, inter
alia, "the use of incidental, minor or reasonable
physical contact or other actions designed to
maintain order and control." Code ? 22.1-279.1(A). It also
expressly acknowledges that
"physical pain, injury or discomfort" may be
"caused by the use of incidental, minor or
reasonable physical contact or other actions designed to
maintain order and control." Code
? 22.1-279.1(C) (emphasis added). Thus, under the corporal
punishment statute, contrary to the
conclusion of the majority, the mere occurrence of bruising does
not, in fact, make evident that
the touching was not incidental, minor, or reasonable.
Rather, the corporal punishment statute
requires an independent finding, based on all the circumstances
surrounding the encounter, that
the touching was not, among other things, reasonable. It would
be anomalous to hold that Code
? 22.1-279.1 permitted appellant’s actions but that those same
actions constituted physical abuse
under the abuse and neglect statute and related DSS regulations.
For these reasons, I would hold that, in order to find appellant
"inflict[ed] . . . physical
injury [on the student] by other than accidental means,"
the DSS hearing officer had to conclude
not only that the contact which caused the bruising was
intentional but also that the contact was
unreasonable under the circumstances. Because the DSS hearing
officer failed to consider
whether the evidence proved the act was unreasonable, I would
vacate DSS’s finding that
appellant committed physical abuse and remand to the circuit
court to remand to DSS for
additional findings based on application of the proper standard.
Thus, I respectfully dissent.
prohibition of corporal punishment shall not be deemed to
(i) the use of incidental, minor or reasonable physical contact
other actions designed to maintain order and control; (ii) the
reasonable and necessary force to . . . remove a student from
scene of a disturbance which threatens physical injury to
or damage to property; [and] (iii) the use of reasonable and
necessary force to prevent a student from inflicting physical
on himself . . . .
Code ? 22.1-279.1.
seems to acknowledge the hearing officer’s finding that appellant did not
act with an intent to injure, but it holds that appellant’s acts
nevertheless constituted physical
abuse because the resulting bruising and abrasions were
"reasonably foreseeable." It then notes
the general principle of law that "[a] person is presumed
to intend the immediate, direct, and
necessary consequences of his voluntary act." This
principle is a presumption only. If the
evidence establishes as a fact that appellant did not intend to
cause injury, then we may not apply
the presumption to conclude, contrary to the evidence, that
appellant intended to cause injury.
However, as outlined above, the statute does not require proof
of an intent to cause injury.
Rather, it requires proof that the actor intended the act,
whether or not injury was intended. I do
not disagree with the conclusion that appellant may be
considered "responsible" for causing the
bruising if it was a "reasonably foreseeable" result
of his intentional act. What I dispute is the
majority’s conclusion that appellant’s act constituted physical
abuse without a concomitant
finding that the intentional act that caused the bruising was
unreasonable under the
events at issue in this case occurred on May 18, 2001, legislation took effect
that was designed to prevent such an anomalous result. As of
July 1, 2001, Virginia’s "Welfare
(Social Services)" statutes reference the exceptions to the
statutory prohibition against corporal
punishment in Code ? 22.1-279.1. See Code ? 63.1-248.4:1 (1995
Repl. Vol. & Supp. 2001);
2001 Va. Acts ch. 588; see also 2002 Va. Acts ch. 747 (effective
October 1, 2002, recodifying
former Code ? 63.1-248.4:1 as Code ? 63.2-1511). The
legislature has expressly provided as
In determining whether the actions of a teacher, principal or
other person employed by a school board or employed in a school
operated by the Commonwealth are within the exceptions
[contained in the corporal punishment statute and repeated
verbatim] . . . in this section, the local [social services] department
shall examine whether the actions at the time of the event that
made by such person were reasonable.
Code ? 63.2-1511. This legislative enactment, although not
controlling in appellant’s case,
provides support for the conclusion I would reach.