A special education teacher who ended up in a brief physical altercation with a chronically disrespectful student was acting defensively only, which did not support a finding of child abuse or neglect.
This case concerns an altercation between Appellee Erica Betts, a Norfolk middle school teacher for the past eight years, and M.C., a student.
M.C. had been disrupting Betts’ class for almost 25 minutes, repeatedly talking and cursing. M.C. responded to multiple warnings with various disrespectful and belligerent retorts, including “shut the f*** up.” Betts asked M.C. to leave the classroom. M.C. called Betts a “fat bitch” and began another stream of cursing before walking in the direction of the classroom door.
Betts positioned herself near the door as M.C. walked by. He moved his hand toward her face. A guest teacher in the classroom later said that M.C. “turned and tried to grab [Betts’s] face or smash [Betts’s] head or something.” Multiple students stated that M.C. made contact with Betts’s face, while others stated that M.C. raised his hand toward Betts’s face and said “talk to the hand.”
Betts pushed M.C.’s hand back toward him to stop him from making contact with her. A physical altercation between Betts and M.C. ensued. Betts grabbed M.C.’s hand, wrist, and arm and attempted to move him toward the classroom door and out into the hallway. She explained that at this point she was trying to get M.C. on the floor and did not restrain him; but was trying to support him. The guest teacher said she never witnessed Betts do anything to incite or provoke M.C.
M.C. aggressively resisted being moved out of the classroom, so Betts attempted to get him down onto the floor, wrapping her legs around his legs to restrain him and lay him down. M.C. became so physically antagonistic that he and Betts were thrashing around the hallway and bumped into the lockers on the wall. Soon thereafter, other teachers arrived. One described M.C. and Betts facing each other with their arms straight out and locked together. Several individuals stepped in to separate M.C. and Betts, and it took three people to pull M.C. away.
Only the portion of the encounter that occurred in the hallway was captured on video from a hallway camera. The entire altercation lasted approximately 30 seconds.
Prior to this incident, M.C. had sustained multiple injuries in an altercation with another student – he had a severely swollen black eye, scratches on his neck and around his face, and scratches on his arms. M.C. reported that the scratches were due to Betts, but the Department’s investigator did not observe any injuries to corroborate that statement.
Shana Purvis-Stoker, another teacher, testified that Betts is “awesome with the kids.” Purvis-Stoker stated that M.C. only appears in class around half of the time, usually arrives late, often puts his head on his desk, and constantly uses inappropriate language. Multiple teachers stated that they overheard M.C. boasting about hitting Betts in the face and getting her fired.
Sonya Russell, a reading teacher, described M.C. as a very disrespectful and volatile student who never cared about school, and was medicated for his problems. She stated that M.C. boasted to her that he had gotten Betts fired but he never spoke about any injuries from the altercation. Russell testified that all teachers are trained to hold or restrain a violent child who approaches them in a violent way.
Following the initial investigation, the Department concluded that Betts had committed level three abuse and engaged in willful misconduct, demonstrated by the scratches on M.C.’s body and the video footage of the encounter. The investigator never reviewed M.C.’s disciplinary record, which contained five different disciplinary actions between September 2014 and March 2015, or the medical reports stemming from M.C.’s fight with the other student.
Betts appealed the Department’s finding, first to an administrative hearing officer and then to the circuit court. The circuit court concluded that, because Betts had never made a verbal or spoken threat, the “threaten” clause in Code § 63.2-100 did not apply. The Commonwealth appealed.
This court has jurisdiction to consider this appeal, even though the circuit court, in its appellate capacity, remanded the case back to the administrative hearing officer.
The critical concern is that the circuit court’s order may not be “final” because it potentially left an issue unresolved. But all involved parties presented their evidence to the administrative hearing officer, and during the first appeal to the circuit court, the circuit court issued a decision on the merits, ruling the evidence was insufficient to support a finding of “actual injury” to M.C.
Finally, the Commonwealth does not ask that we affirm or reverse anything regarding the “actual injury” issue. Rather, the Commonwealth argues that “there are different situations that inflict abuse or neglect upon a child and it is not the Commonwealth’s policy to require actual injury…. The [circuit court’s] interpretation is contrary to Virginia law and to the Commonwealth’s policy of protecting children before actual injury is incurred.”
These assertions indicate that the Commonwealth has abandoned argument on the “actual injury” theory of culpability.
Abuse or neglect
Although the circuit court erred in concluding that the “threaten” clause of Code § 63.2-100 cannot be applied to Betts’s conduct, that conduct does not fall within that clause.
The Commonwealth contends that the “threaten” clause applies to Betts’s conduct in this case, relying on Jenkins v. Winchester Dep’t of Soc. Servs., 12 Va. App. 1178 (1991), for the principle that “threatens to create or inflict injury” has been applied despite the absence of a verbal threat. But “threat” in Jenkins referred to a likelihood of prospective harm and suffering via an unsafe environment created by the mother’s past and probable future conduct, thus implicating an abstract definition of “threat.”
Here, Betts’s defensive responses to M.C.’s actions lasted less than a minute as she simply attempted to restrain M.C. as a consequence of his provocative behavior. No evidence was presented to support the conclusion that Betts represents a future harm to M.C. or any other student, nor that an “environment” exists in which prospective physical injuries to M.C. or any other student are likely to occur.
The environment created here was fostered and cultivated by the inflammatory, confrontational, and offensive actions of M.C. The court is not persuaded that the General Assembly intended for the phrase “threatens to create or inflict injury” to apply when there is no evidence that an “actual injury” exists or when vague allegations and mere suggestions of prohibited conduct are claimed yet are not proven by the applicable evidentiary standard.
Accordingly, the Commonwealth did not present adequate proof of abuse within the meaning of the statute. The finding of level three abuse rendered by the Department and upheld by the hearing officer is vacated, as is the portion of the circuit court’s order remanding this case. We reverse the circuit court in regard to its reliance on Wolf v. Fauquier Cnty. Bd. of Sup’rs, 555 F.3d 311 (4th Cir. 2009), but affirm its conclusion that “a determination of level three abuse cannot rest on the creation of a risk of injury.”
Affirmed in part, reversed in part, and vacated in part.
Va. Dep’t of Soc. Servs. v. Betts, Record No. 1447-17-1, June 12, 2018. CAV (Alston), from Norfolk Cir. Ct. (Martin). Michelle A. L’Hommedieu for Appellant; no argument for Appellee. VLW No. 018-7-150, 13 pp.