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BEATON v. VIRGINIA DEPARTMENT OF SOCIAL SERVICES



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BEATON

v.

VIRGINIA DEPARTMENT OF
SOCIAL SERVICES


MARCH 7, 2000

Record No. 0917-99-1

LISA BEATON

v.

VIRGINIA DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA
BEACH

A. Bonwill Shockley, Judge

Present: Chief Judge Fitzpatrick, Judges Elder
and Bray

Argued at Chesapeake, Virginia

Andrew G. Wiggin (Donald E. Lee, Jr. and
Associates, on briefs), for appellant.

Cheryl A. Wilkerson, Assistant Attorney General
(Mark L. Earley, Attorney General; Ashley L. Taylor, Jr., Deputy
Attorney General; Siran S. Faulders, Senior Assistant Attorney
General; Daniel J. Poynor, Assistant Attorney General, on brief),
for appellee.


MEMORANDUM OPINION[1] BY JUDGE
LARRY G. ELDER

Lisa Beaton (appellant) appeals from a decision
of the Virginia Beach Circuit Court finding substantial evidence
to support the determination of the Department of Social Services
(DSS) that a complaint of "Inadequate Supervision–Level
Three" against appellant was "Founded." On appeal,
appellant contends the circuit court committed reversible error
by (1) refusing to hold that the doctrine of res judicata
required a reversal of DSS’s decision, and (2) finding sufficient
evidence to prove neglect under the statute and under the
guidelines. We hold that the doctrine of res judicata
is inapplicable in this case but that the evidence was
insufficient to establish a violation of either DSS’s guidelines
or the applicable statute. Therefore, we reverse and vacate DSS’s
determination that the complaint of "Inadequate
Supervision–Level Three" against appellant was
"Founded."

I.

BACKGROUND

The basic facts surrounding the inadequate
supervision charge are not in dispute. At about noon on January
15, 1997, appellant left her home by car to pick up her
three-year-old son from pre-school. At the time, her
nine-month-old twins were asleep in their cribs. Appellant tried
to reach several people to stay with the twins, but her regular
sitters were not available. She eventually reached the next-door
neighbor, told the neighbor the twins were asleep, and asked her
to "watch the house" while appellant left briefly to
pick up her son. She did not ask the neighbor to come to the
house and did not provide the neighbor with a key. Appellant knew
the front door to the house was locked but was unaware of the
status of the back door. Appellant left to pick up her son and
returned to the house within fifteen minutes of departing. The
twins were asleep when she arrived home, and she telephoned the
neighbor to report her return.

II.

ANALYSIS

A.

RES JUDICATA

Appellant contends that the juvenile and
domestic relations district court’s September 29, 1997 finding
that she did not neglect her children was binding on the DSS
hearing officer under the doctrine of res judicata.

Assuming without deciding that the decision of
a district court regarding neglect may be res judicata
in a related administrative proceeding, we are unable to conclude
that the doctrine of res judicata applies in this
case. "’One who asserts the defense of res judicata
has the burden of proving that the very point or question was in
issue and determined in the former suit.’" Bernau v.
Nealon
, 219 Va. 1039, 1043, 254 S.E.2d 82, 85 (1979) (quoting
Feldman v. Rucker, 201 Va. 11, 18, 109 S.E.2d 379, 384
(1959)). The party asserting applicability of the doctrine must
offer the record of the prior action into evidence. See id.
at 1041-42, 254 S.E.2d at 84. "’If the courts should
recognize judicially facts adjudicated in another case, it makes
those facts, though unsupported by evidence in the case at hand,
conclusive against the opposing party; while if they had been
properly introduced they might have been met and overcome by
him.’" Id. at 1043, 254 S.E.2d at 85 (citations
omitted).

In an administrative proceeding, a party
ordinarily may offer evidence only in proceedings before the
local department or a DSS hearing officer. See Code
? 63.1-248.6:1. "[T]he circuit court’s role in an
appeal from an agency decision [pursuant to the Administrative
Process Act] is equivalent to an appellate court’s role in an
appeal from a trial court." York County Sch. Bd. v.
Nicely
, 12 Va. App. 1051, 1062, 408 S.E.2d 545, 551 (1991).
"[T]he factual issues on appeal are controlled solely by the
agency record," and "[t]he reviewing court is not free
to take additional evidence, even at the request of one of the
parties." Id.; see also id. at
1051 n.2, 408 S.E.2d at 551 n.2 (noting that APA permits circuit
court to accept evidence in rare circumstance not applicable
here, "where no agency record exists"). In sum, the
applicability of res judicata requires proof of the
fact and details of the prior judgment, and a circuit court may
not accept documents or other evidence purporting to prove these
facts which were not offered and admitted into evidence at the
agency level.

Here, appellant’s counsel informed the DSS
hearing officer by voice mail and letter of the district court’s
decision and expressed the "hope" that she would make
the same finding as the district court. The record contains no
indication that appellant’s counsel provided the hearing officer
with a copy of the order or transcript of the proceedings or
asked her to reopen the record to receive same into evidence.
Therefore, we uphold the circuit court’s ruling that it could not
consider the district court’s order or transcript of the related
proceedings. For the same reason, we also may not consider these
documents on appeal.
[2] Without these
documents we are unable to conclude whether the doctrine of res
judicata may have been a viable defense.
[3]

B.

SUFFICIENCY OF EVIDENCE TO PROVE
NEGLECT

UNDER STATUTE AND GUIDELINES

Appellant contends the agency guidelines she
was found to have violated impermissibly broadened the scope of
Code ? 63.1-248.2, which defines abuse and neglect, such
that the evidence is insufficient to prove neglect under the
statute. She also contends the evidence is insufficient to
establish neglect even under the guidelines. Assuming without
deciding that the relevant portion of the guidelines do not
impermissibly broaden the scope of the statute, we nevertheless
hold that appellant’s actions did not constitute a violation of
the guidelines or the statute, and we reverse and vacate the
agency’s founded determination.

Code ? 63.1-248.2 defines an
"[a]bused or neglected child," inter alia,
as

any child less than eighteen years of age:

1. Whose parents or other person responsible
for his care . . . creates a substantial risk of death,
disfigurement, or impairment of bodily or mental functions; [or]

2. Whose parents or other person responsible
for his care neglects or refuses to provide care necessary for
his health. However, no child who in good faith is under
treatment solely by spiritual means through prayer in accordance
with the tenets and practices of a recognized church or religious
denomination shall for that reason alone be considered to be an
abused or neglected child; . . . .

Guidelines promulgated to help the local
departments "in interpreting the definitions of abuse and
neglect provided by statute" are contained in DSS’s
Protective Services Manual. See Jackson v. W., 14
Va. App. 391, 399, 419 S.E.2d 385, 389 (1992). The relevant
version of that Manual provides that physical neglect includes:

[t]he failure to provide food, clothing,
shelter or supervision for a child to the extent that the child’s
health or safety is endangered. . . .

Physical neglect may include multiple
occurrences or a one-time critical or severe event that results
in a threat to health or safety, such as a toddler left alone.

Physical neglect includes the following when
the conditions threaten the child’s health or safety:

b) Inadequate supervision: the child has

been left in the care of an inadequate
caretaker or in a situation which requires judgment or actions
greater than the child’s level of maturity, physical condition,
and/or mental abilities would reasonably dictate; or [under] minimal care/supervision which results in placing the child in
jeopardy of or at risk of . . . physical injury
. . . .

7 DSS Service Programs Manual
? III (Child Protective Services Manual), ch. A.1.c.2)
(Aug. 1995 ed.) [hereinafter CPS Manual].
[4] A level three finding involves "those
injuries/conditions, real or threatened, that result in minimal
harm to a child" such as "supervision marginal"
which "poses threat of danger to child." Id. ch.
A.3.f.2)(a)(3), at 23-24; see 22 Va. Admin. Code
40-700-20.

The applicable regulation and guidelines
provide that, in proceedings before the local agency, clear and
convincing proof of abuse or neglect is required before a
complaint may be labeled "founded." Jackson, 14
Va. App. at 410, 419 S.E.2d at 396 (citing CPS Manual); 22
Va. Admin. Code 40-700-10; CPS Manual, ch. A.3.f.2)(a), at
23-24.
[5] This requirement serves "to protect not only the
interests of the child but also the rights of the person
accused." Jackson v. Marshall, 19 Va. App. 628, 635,
445 S.E.2d 23, 27 (1995).

On appeal, the Administrative Process Act
limits the review of factual issues to a determination of whether
there is "substantial evidence in the agency record upon
which the agency as the trier of the facts could reasonably find
them to be as it did." Code ? 9-6.14:17. Substantial
evidence is "’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) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229, 59 S. Ct. 206, 216, 83 L. Ed. 126
(1938)) (emphasis in Bias). Under this standard, the court
"may reject the agency’s findings of fact . . .
if, considering the record as a whole, a reasonable mind would
necessarily come to a different conclusion." Johnston-Willis,
Ltd. v. Kenley
, 6 Va. App. 231, 242, 369 S.E.2d 1, 7 (1988).

Combining the clear and convincing and
substantial evidence standards, an appellate court may affirm the
agency’s founded determination only if the record contains
substantial evidence to support the agency’s finding by clear and
convincing evidence that the abuse or neglect occurred. See
Turner v. Jackson, 14 Va. App. 423, 428-29, 417 S.E.2d
881, 885-86 (1992). We hold no reasonable mind could have
concluded, by clear and convincing evidence, that the challenged
acts constituted neglect under the guidelines.

The guidelines, as quoted above, provide that
inadequate supervision may constitute neglect. However, in order
for a one-time event to be sufficient to constitute neglect, it
must be "a critical or severe event that results in a threat
to health or safety, such as a toddler left alone."
[6] Appellant’s children were infants
and, under the facts of this case, were not subject to the same
dangers to which a toddler left alone might be subjected. It was
undisputed that when appellant left the house, the infants were
asleep in separate cribs which contained no items likely to cause
any risk to their safety; that the side rails of the cribs were
positioned such that the infants, if they had awakened, would
have been unable to get out of the cribs and unable to become
trapped between the slats; that the cribs were not located near
any other objects, such as cording attached to blinds, on which
the infants might injure themselves; and that appellant was gone
for less than fifteen minutes. Finally, appellant told her
next-door neighbor that she was leaving and asked her to watch
the house. Although the front door to appellant’s home was
locked, the record did not establish by clear and convincing
evidence that the neighbor would have been unable to gain access
to the home if an emergency had arisen. Under the guidelines,
therefore, we hold that no reasonable mind could have concluded,
by clear and convincing evidence, that this brief, one-time
occurrence constituted neglect.

Nor does the record contain substantial
evidence from which the agency could find, by clear and
convincing evidence, that appellant’s behavior constituted
neglect under the statute. The Commonwealth concedes on brief
that appellant’s behavior did not violate subsection (1) of the
statute because it did not create a "substantial risk of
death, disfigurement, or impairment of bodily or mental
functions." It argues that the behavior violated subsection
(2), which includes the "neglect or refus[al] to provide
care necessary for [the child's] health." For the same
reasons the evidence is insufficient to establish a violation of
the guidelines, it also is insufficient to establish that
appellant failed to provide care "necessary" for the
infants’ health under the facts of this case.

For these reasons, we hold that the doctrine of
res judicata is inapplicable in this case but that
the evidence was insufficient to establish a violation of either
DSS’s guidelines or the statute. Therefore, we reverse the ruling
of the circuit court and vacate DSS’s determination that the
complaint of "Inadequate Supervision–Level Three"
against appellant was "Founded."

Reversed and vacated.

Fitzpatrick, C.J., concurring, in part, and
dissenting, in part.

I respectfully concur in the majority’s holding
that the doctrine of res judicata is inapplicable
to this case, but disagree with their holding that the trial
court erred in upholding the determination of the DSS that a
complaint of "Inadequate Supervision–Level Three"
against appellant was "Founded." I would hold that
leaving nine-month-old twins alone in a locked house, with no
supervision therein, and no evidence establishing an ability of
the "neighbor" to enter the house in case of fire or
other emergency, meets the requirements of Code
? 63.1-248.2 and the attendant DSS guidelines.

 

 

FOOTNOTES:

[1] Pursuant to Code
? 17.1-413, recodifying Code ? 17-116.010, this
opinion is not designated for publication.

[2] Therefore, we grant appellee’s
motion to strike from the appendix the transcript and order
memorializing the district court’s ruling of September 29, 1997.

[3] Appellant also contends that the
doctrine of autrefois acquit applies to bar the DSS
proceedings. Autrefois acquit is a form of double
jeopardy applicable in criminal proceedings. See Highsmith
v. Commonwealth
, 25 Va. App. 434, 444, 489 S.E.2d 239, 243
(1997). Assuming without deciding that the district court had
jurisdiction to impose a criminal penalty on appellant and that
its failure to do so somehow constituted a criminal acquittal,
that fact would bar only a subsequent criminal action, not a
civil one. See id. at 444, 489 S.E.2d at 243-44.

[4] DSS has enacted more detailed
regulations, which took effect on January 1, 1998. See 22
Va. Admin. Code 40-705-10 to 40-705-190, hist. nn. It also
revised its CPS Manual to conform to these new regulations. All
proceedings before DSS in this case took place in 1997, before
enactment of the new regulations and revision of the guidelines,
and we rely on the regulations and guidelines in effect at that
time.

[5] The new regulations and
corresponding guidelines appear to require a different burden of
proof for a founded disposition. See 22 Va. Admin. Code
40-705-10; DSS Manual ch. A, pt. 4, G.1 (July 1998 ed.).

[6] The revised manual provides as an
example that "the caretaker left a toddler alone for
several hours
endangering the safety of the child." DSS
Manual
, ch. A, pt. 2, B.3.0 (July 1998). The prior version of
the DSS Manual implied that any instance of leaving a
toddler alone was "a critical or severe event that results
in a threat to health or safety"; whereas the revised
version makes clear that leaving even a toddler alone for a brief
period may not necessarily endanger its safety sufficiently to
constitute neglect.

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