MULVEY v. JONES




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MULVEY

v.

JONES


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

v.

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
Office,

on briefs), for appellant.

A. Cameron O’Brion, Assistant Attorney General (Jerry W.
Kilgore,

Attorney General; David E. Johnson, Deputy Attorney General;

Siran S. Faulders, Senior Assistant Attorney General, on brief),
for

appellee.

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 ? 22.1-279.1[1]authorized
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
affirm.

Affirmed.

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
alia
, "[w]hose

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

circumstances.

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.[2]
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.[3]

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.

 

FOOTNOTES:

[1]The

prohibition of corporal punishment shall not be deemed to
prevent

(i) the use of incidental, minor or reasonable physical contact
or

other actions designed to maintain order and control; (ii) the
use of

reasonable and necessary force to . . . remove a student from
the

scene of a disturbance which threatens physical injury to
persons

or damage to property; [and] (iii) the use of reasonable and

necessary force to prevent a student from inflicting physical
harm

on himself . . . .

Code ? 22.1-279.1.

 

[2]The majority
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

circumstances.

 

[3]After 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

follows:

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
were

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.


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