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Administrative – Child Abuse Finding – Gun In Children’s Presence

Although a hearing officer found that a father did not intend to harm his 15-year-old daughter when he displayed a loaded firearm to his daughter to express frustration with her behavior, his display of the weapon in the presence of his daughter and his four-year-old son created a substantial risk of death, disfigurement or impairment of bodily function and meets the definition of physical abuse in 22 VAC § 40-705-30, and the Court of Appeals upholds a circuit court’s affirmance of a “founded” Level 2 complaint of physical abuse.

As an initial matter and in an issue of first impression with respect to administrative appeals, the agency contends the circuit court erred in refusing to dismiss the father’s petition for review for his failure to strictly comply with S.Ct. Rule 2A:4, governing appeals to the administrative process act. The Rule requires that a petition for appeal in a proceeding for review brought pursuant to the Administrative Process Act.

We disagree.

The agency does not dispute that the father filed his petition for appeal within the 30-day time period required by Rule 2A:4(a). Rather, the agency argues that, like Rule 2A:4(a), Rule 2A)4(b) is mandatory and jurisdictional and thus, the circuit court should have dismissed the father’s petition for its failure to specify the errors assigned to the agency’s case decision and to include a statement of the relief requested.

While it is true that civil remedies and procedures contained in Title 8.01 of the Virginia Code may not apply in administrative proceedings, it is equally true that the APA grants an aggrieved party a right to the direct review of the hearing officer’s decision by an appropriate and timely court action against the agency, in the manner provided by the rules of the Supreme Court of Virginia. Thus, appeals from an agency decision necessarily implicate the Supreme Court Rules, even if they do not invoke the civil remedies and procedures addressed in Title 8.01.

We disagree with the agency that the APA contemplates a different application of the Rules of the Virginia Supreme Court to administrative agency decisions than to appeals of other civil matters. We hold that while Rule 2A:4(a) is jurisdictional, Rule 2A:4(b) is not. Once the father timely filed his petition for review in the circuit court, he was entitled to ask for, and the circuit court was entitled to grant, leave to amend its contents. The circuit court did not err in refusing to dismiss the father’s petition.

Turning to the child abuse complaint, the hearing officer found that the father “held and displayed” a loaded firearm to his daughter “as a means of expressing his frustration” with her behavior. While the hearing officer found that the father did not threaten either his daughter or his four-year-old son with the firearm itself, he found nonetheless that the handling of a loaded weapon during a heated verbal altercation meets the departmental definitions for physical abuse, since the potential escalation poses a threat of injury.

The circuit court agreed with the hearing officer’s findings, as do we.

Agency decision upheld.

Chabolla v. Va. Dep’t of Social Servs. (Humphreys, J.) No. 0293-09-1, Jan. 12, 2010; Va. Beach Cir.Ct. (West) Melinda F. Seemar for appellant; Cheryl A. Wilkerson, Sr. AAG, for appellee. VLW 010-7-006, 10 pp.

VLW 010-7-006

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