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CARTER, et. al.
DECEMBER 7, 1999
Record No. 0031-99-4
CLARENCE H. CARTER, COMMISSIONER,
VIRGINIA DEPARTMENT OF SOCIAL SERVICES
Present: Judges Elder, Annunziata and Lemons
Argued at Alexandria, Virginia
MEMORANDUM OPINION  BY JUDGE LARRY G. ELDER
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jonathan C. Thacher, Judge
Robert D. Weiss for appellant.
Gaye Lynn Taxey, Assistant Attorney General
(Mark L. Earley, Attorney General; Ashley L. Taylor, Jr., Deputy
Attorney General; Siran S. Faulders, Senior Assistant
Attorney General, on brief), for appellee.
Charles Schultz (appellant) appeals the
decision of the circuit court affirming the administrative
finding of the Virginia Department of Social Services (DSS) that
Schultz physically abused his daughter. Schultz contends on
appeal that the trial court erroneously (A) required him to prove
that he did not abuse his daughter; (B) found that substantial
evidence supported DSS’s finding that he physically abused his
daughter; (C) deferred to the experience and competence of DSS;
and (D) failed to consider the whole evidential record. We hold
that the trial court applied the proper standard of review and
that substantial evidence supported the founded complaint of
Level 3 physical abuse. Therefore, we affirm the decision of the
In reviewing this matter, we note that
"[t]he scope of court review of a
litigated issue under the APA is limited to determination
[of] whether there was substantial evidence in the agency
record to support the decision." State Board of
Health v. Godfrey, 223 Va. 423, 433, 290 S.E.2d 875, 880
(1982); see CodeSect.9-6.14:17. The substantial
evidence standard is "designed to give great stability
and finality to the fact-findings of an administrative
agency." Virginia Real Estate Comm’n v. Bias, 226
Va. 264, 269, 308 S.E.2d 123, 125 (1983). A trial court may
reject the findings of fact "only if, considering the
record as a whole, a reasonable mind would necessarily come
to a different conclusion." Id. (citing B.
Mezines, Administrative LawSect.51.01 (1981)). The
burden of proof rests upon the party challenging the agency
determination to show that there was not substantial evidence
in the record to support it. See CodeSect.9-6.14:17.
Smith v. Department of Mines, Minerals and
Energy, 28 Va. App. 677, 684-85, 508 S.E.2d 342, 346 (1998); see
also CodeSect.63.1-248.6:1(B). "[T]he reviewing court
‘"may not exercise anew the jurisdiction of the
administrative agency and merely substitute its own independent
judgment for that of the body entrusted by the Legislature with
the administrative function."’" Turner v. Jackson,
14 Va. App. 423, 430-31, 417 S.E.2d 881, 887 (1992) (citations
STANDARD OF REVIEW
We find no merit in appellant’s contention that
the trial court applied an erroneous standard when it stated that
"this Court may reverse the agency’s decision only if,
considering the evidence on the record, a reasonable mind would
necessarily conclude that [appellant] did not abuse [his
daughter]." The trial court set out the proper standard of
review in its detailed opinion letter. It reviewed DSS’s factual
findings and listed five "undeniable" facts which it
found dispositive. It determined that the evidence was not such
as to necessarily lead a reasonable mind to a different
conclusion, and found that DSS’s disposition of Level 3 physical
abuse was "a plausible explanation based on the record in
the case." 
We do not agree with Schultz’s argument that
the standard to be applied by the trial court was whether,
considering the record as a whole, a reasonable mind would
necessarily conclude that there was not clear and convincing
evidence to support the agency’s findings. "Review of agency
factual decisions is governed by the ‘substantial evidence’ test.
Under this standard, the scope of review is limited to
ascertaining whether there was substantial evidence in the agency
record to support the decision." Turner, 14 Va. App.
at 429-30, 417 S.E.2d at 886 (citations omitted). 
Therefore, nothing in the trial court’s
analysis indicates that it required Schultz to bear an erroneous
burden of proof in his appeal from the agency’s decision.
EVIDENCE OF ABUSE
Schultz contends that the evidence in the
record does not support DSS’s findings. He did not deny spanking
his daughter with a belt, but denied spanking her anywhere but on
the buttocks and denied that the spanking caused bruises. He
argued that the bruises on the child’s hip and leg were caused by
an incident when the child was tangled in a dog leash.
The court noted five specific facts that
supported DSS’s conclusions, including the nature of the child’s
bruises as well as her statements to the investigator and
clinical social worker. While Schultz contends that his
daughter’s statements were unreliable, the record as a whole
supports the conclusion that the child’s report was truthful.
Schultz admitted spanking the child with a belt, and the child
admitted to the DSS investigator that her initial report
concerning other actions by Schultz had not been truthful. In
addition, while the doctor who viewed the photographs of the
child’s injuries indicated it was possible they were caused by
the incident with the dog leash, he noted that the nature of the
bruises and their orientation were not consistent with the
description of the dog leash incident he received. He also noted
that the color of the bruises indicated that they occurred at
different times. Father admitted that he was aware of only one
occasion contemporaneous with the bruising on which R.S. became
entangled in the dog leash. Mother noted that she saw the bruises
the day after the child was spanked, although she testified that
she did not believe the spanking caused the bruises.
We cannot say that the trial court erred in
finding that substantial evidence in the record supported DSS’s
DEFERENCE TO DSS DETERMINATION
We find no merit in Schultz’s argument that
DSS’s factual finding was not entitled to any deference in this
case. Schultz admitted spanking his daughter with a belt as
reported by his daughter. The question before the agency was not
one of law, but of fact: whether the spanking Schultz admitted
administering caused his daughter’s bruises. On appeal, an
agency’s resolution of "factual issues [is] accorded greater
deference in order to give stability and finality to the fact
finding of the agency." Johnston-Willis, Ltd. v. Kenley,
6 Va. App. 231, 243, 369 S.E.2d 1, 7 (1988).
We also find no merit in Schultz’s contention
that the agency waived any right to deference by using an outside
medical expert. The DSS fact finder who heard and saw the
witnesses testify determined their credibility and the weight to
be afforded their testimony. The trial court on review
ascertained whether substantial evidence supported DSS’s
decision. It was not the role of the trial court to either
reweigh the evidence or re-evaluate the witness’ credibility.
Therefore, the circuit court properly deferred to the findings of
fact rendered by the DSS decision maker.
CONSIDERATION OF ENTIRE RECORD
We find no support for Schultz’s contention
that the trial court failed to consider the record as a whole.
Schultz bases this contention on the fact that there was other
evidence in the record which the DSS fact finder rejected.
The trial court’s decision indicated that it
relied upon the record of the proceedings before DSS. See generally
Townes v. Commonwealth, 234 Va. 307, 323 n.3, 362 S.E.2d
650, 659 n.3 (1987). Because it was not the fact finder, the
trial court was not free to disregard the factual findings, based
upon credibility determinations, made by DSS. See Turner,
14 Va. App. at 430-31, 417 S.E.2d at 887. Therefore, as long as
the trial court evaluated the DSS decision based upon whether
there was substantial supporting evidence, the fact that there
was other evidence in the record rejected by the DSS hearing
officer did not indicate that the trial court failed to review
the record as a whole.
For these reasons, we affirm the decision of
the trial court.
 Pursuant to CodeSect.17.1-413,
recodifying CodeSect.17-116.010, this opinion is not designated
 DSS’s Child Protective
Services Manual defines physical abuse as a "physical
injury . . . , regardless of intent, [which] is
inflicted . . . by non-accidental means" and
includes bruising, which it defines as "an injury which
results in bleeding within the skin, where the skin is discolored
but not broken." 7 Child Protective Services ManualSect.III,
ch. A, at 3-5. A founded complaint of Level 3 abuse requires
clear and convincing evidence of an injury "that result[s] in minimal harm to a child" and may include one which
"[r]equire[s] no medical attention to remediate." Id.
 Of course, the record must
include substantial evidence to support the agency’s finding by
clear and convincing evidence that Level 3 abuse occurred. See
Turner, 14 Va. App. at 428-29, 417 S.E.2d at 885-86.