Virginia Lawyers Weekly VA Lawyers Weekly
A circuit court erroneously usurped a hearing officer’s fact finding authority, and because the hearing officer’s disposition of “Founded-Sexual Abuse-Level One” was supported by substantial evidence, the Court of Appeals reverses the circuit court and remands with directions to reinstate the DSS determination.
We conclude the evidence, viewed in the light most favorable to the agency, supported the hearing officer’s decision to credit appellee’s recorded confession to Detective Thea Haddix. The evidence showed that although appellee had an IQ of around 70, had been in special education classes in school and continued to live with his parents at age 22, he had graduated from high school and was working full-time as an associate trainer at Panera Bread at the time of the incident at issue.
Appellee’s high-school teacher later reported to Detective Haddix that appellee’s learning deficit had been primarily in reading, and his teacher and both his parents also confirmed that he knew right from wrong. The record does not compel a finding that the detective badgered him into confessing and fed him incriminating statements that he merely repeated.
Absent evidence to support a conclusion that no reasonable fact finder could credit appellee’s confession, the circuit court lacked authority to reject the agency’s determination that appellee’s confession was worthy of belief. We hold the circuit court erroneously usurped the agency’s fact finding authority.
Further, there was sufficient evidence to support the founded complaint. The victim was in the care of appellee’s mother. The evidence showed the mother delegated her authority to appellee’s aunt and to appellee. Appellee told the detective that he watched the daycare children, including the victim, “every day” for about 20 minutes while his mother and his aunt showered and performed tasks such as cooking and doing laundry. He also operated the DVD player in the basement when needed for the children because his mother was unable to do so herself. Appellee reported that on the day of the incident, the victim came to the second floor of the house to ask him to put on a DVD in the basement. Appellee, instead of going to the basement, took advantage of his role as a caretaker to the child and asked her to accompany him to his bedroom, where he committed the acts of abuse upon which the founded complaint was based. Appellee’s confession to the detective, coupled with the victim’s statements to her mother and an officer, provided sufficient evidence to support the agency finding of sexual abuse.
Reversed and remanded.
Commonwealth of Va., DSS v. Velasquez-Flores (Elder, J.) No. 2807-09-4, June 29, 2010; Fairfax Cir.Ct. (Smith) Noelle L. Shaw-Bell, AAG, for appellant; Melinda L. VanLowe for appellee. VLW 010-7-254(UP), 9 pp.
