Comm. Dept. of Soc. Ser. v. Fulton

• Citation: 683 S.E.2d 837,55 Va. App. 69
• Decision Date: 13 October 2009
• Docket Number: Record No. 0152-09-1.
• Court: Court of Appeals of Virginia
• Parties: COMMISSIONER, VIRGINIA DEPARTMENT OF SOCIAL SERVICES v. Timothy J. FULTON.

683 S.E.2d 837

55 Va. App. 69

COMMISSIONER, VIRGINIA DEPARTMENT OF SOCIAL SERVICES v. Timothy J. FULTON.

Record No. 0152-09-1.

Court of Appeals of Virginia, Chesapeake.

October 13, 2009.

Cheryl A. Wilkerson, Senior Assistant Attorney General (William C. Mims, Attorney General; David E. Johnson, Deputy Attorney General; Kim F. Piner, Senior Assistant Attorney General, on briefs), for appellant.

Melinda R. Glaubke (Slipow, Robusto & Kellam, on brief), Virginia Beach, for appellee.

Present: FELTON, C.J., FRANK and POWELL, JJ.

POWELL, Judge.

The Commissioner of the Virginia Department of Social Services (DSS) appeals from a decision of the Circuit Court of the City of Virginia Beach (circuit court) finding that there is not substantial evidence in the agency's record to support its March 4, 2004 "founded disposition" and ordering that this decision be amended to "unfounded" and that all records concerning the investigation and disposition of the complaint be purged from the central registry and the records of the Virginia Beach Department of Social Services. The Commissioner alleges that the circuit court erred in determining that the agency's record lacked substantial evidence to support a finding of sexual abuse. On cross-appeal, Timothy J. Fulton contends that the investigator's failure to tape record the interviews with the alleged victim is reversible error. For the reasons that follow, we reverse the circuit court's judgment and remand for entry of an order consistent with this opinion.

I. BACKGROUND

On the morning of November 26, 2002, the child protective services unit of the local department received a complaint that A.J., a twelve-year-old girl, may have been sexually abused by Fulton, the father of one of A.J.'s friends ("H.M."), while she was in his care. In response, Shana Prohofsky, a social worker with the local department, and Detectives Ron D. Montrose and Lisa Krisik of the Virginia Beach Police Department conducted a joint investigation of the complaint against Fulton.

After A.J. and her father filed the complaint against Fulton, A.J.'s father took her to the Virginia Center for Women for a SANE examination. There, Detective Montrose and Prohofsky conducted an initial interview of A.J., which was not recorded. In that interview, A.J. told her interviewers that she had gone over to her friend H.M.'s house after school and spent the night. Around 1:00 or 1:15 a.m., Fulton came into H.M.'s room, where the girls were sleeping, to check on them. A.J. told Fulton that her wrist hurt, and he brought her "a slippery blue clear oval-like capsule and a white circular pill, resembling a really big Tylenol." A.J., who was "really sleepy" both before and after taking the pills, said that H.M. was awake when she took the pills but soon fell back asleep. A.J. told her interviewers that she was soon back asleep as well. She said that she awoke awhile later when she felt something hard in her mouth. As A.J. squinted, she saw Fulton's stomach and "some parts of his penis" in front of her. She opened her eyes and saw Fulton standing before her with his red boxer shorts around his ankles. A.J. closed her eyes and yawned to "get away." When she opened her eyes, Fulton had raised his boxer shorts and was petting one of the family's rottweilers that was lying down on H.M.'s bed. H.M. was now awake and also petting the dog. Before Fulton left H.M.'s room, A.J. said that she wanted to call her father, so Fulton brought her a phone. A.J. said that she told her father that she really wanted to come home, and her father said that was fine as long as Fulton agreed. Because A.J.'s father was sleeping, Fulton drove A.J. home. After Fulton left, A.J. told her father what Fulton had done to her and her father called the police.

Later that day, A.J. spoke with Prohofsky again. This time Detective Krisik joined them. A.J. told the interviewers substantially the same version of events that she previously described to her father and repeated to Prohofsky and Detective Montrose.

A.J.'s father also spoke with Prohofsky and Detective Montrose on November 26, 2002. In that interview, he told them that after she came home from Fulton's home, A.J. came into his room and sat on the edge of his bed. He was still asleep at the time. He said that A.J., who was "fidgety" and "nervous," began crying. She did not want to talk but then made a hand gesture to indicate what she was trying to say. A.J.'s father replied, "please don't tell me he put his penis in your mouth." He said that A.J. then finally told him what happened and he decided to call the police.

Prohofsky and Detective Krisik interviewed H.M. at her school at approximately 9:45 a.m. on November 26, 2002. H.M. told her interviewers that A.J. is her best friend and that A.J. visits her home every other day. H.M. said that A.J. was at her house the night before while their fathers went out, but that A.J. had intended to return home when her father came to pick her up. During this time, H.M.'s stepbrother taught the girls to box, and during that lesson, A.J. injured her wrist. H.M. said that she and A.J. fell asleep in Fulton's bedroom,¹ and when he returned home, he woke the girls to tell them to go to H.M.'s room. A.J. asked to go home, but she was unable to reach her father on the phone. H.M. said that her father took A.J. home. When interviewed, H.M. said that she knew A.J. was absent from school that morning but did not know why. H.M. also told the interviewers that "no one has ... showed her their [sic] private parts" and that "she does not know anyone who this has happened to."

Carolyn Dressen, a roommate who lived with A.J. and her father, also spoke with Prohofsky and Detective Krisik. She said that she called Fulton at 7:30 a.m. to "figure out what was going on." Fulton told her he did not know what was going on and that A.J.'s father would be over shortly to pick him up for work. Dressen told Fulton what A.J. had alleged. Dressen stated that she heard Fulton tell H.M. what A.J. claimed happened and then Fulton told her that H.M. said she was awake and nothing happened. Dressen stated that neither H.M. nor A.J. had ever lied to her. She added that she believes that A.J. is generally very truthful, especially with her father.

During the investigation, Prohofsky and Detective Krisik also interviewed Fulton. In his interview, Fulton told police that he had been out drinking with A.J.'s father and others the night before. When he arrived home around 1:15 a.m., the girls were asleep in his room. He woke them up and told A.J. that her father was on his way to pick her up. The girls went into H.M.'s room. He denied knowing that A.J. had hurt her wrist or giving her medicine. When A.J.'s father never arrived, she asked Fulton to call her father. Fulton asked A.J what she wanted him to do when A.J.'s father did not answer the phone. She informed him that she wanted to go home, and he took her home. Fulton said that A.J. always becomes angry when her father fails to pick her up as promised.

At the conclusion of her investigation, Prohofsky determined that the complaint of sexual abuse was founded. Specifically, she found that A.J.'s

behaviors and emotions are consistent with that of a victim. Additionally, according to both [A.J.] and [H.M.], [A.J.] has had no other sexual contact. [A.J.] was able to describe the sexual act in detail, including sensory descriptions. [A.J.] had no motive for fabricating an allegation of sexual abuse.... As a result of [A.J.] coming forward with these allegations, [A.J.] lost her best friend.

Prohofsky further concluded that Fulton's memory of the night was impaired by the alcohol he consumed because he was unable to recall events that A.J. described and H.M. confirmed. Prohofsky notified Fulton by letter dated January 24, 2003 of the result of her investigation. On February 11, 2003, Fulton noted his appeal, which was stayed during the pendency of a related criminal matter.

A preliminary hearing for Fulton's criminal charge was held in Virginia Beach Juvenile and Domestic Relations District Court on April 9, 2003. During that hearing, A.J. again repeated the account that she told her father and investigators. On cross-examination, A.J. said that she knew how serious it was to allege that someone committed a sexual offense when challenged as to her past veracity. She admitted that she erroneously told neighborhood boys and a friend of hers that a neighbor had raped her mother. She stated that she did so because that is what her mother told her. A.J. also admitted that she thought her dad drank too much and spent too much time with Fulton, his drinking companion. A.J. said that she and H.M. never left H.M.'s room after 7:00 that night. Though other inconsistencies between A.J.'s testimony and her interviews with the investigators were revealed on cross-examination, at the conclusion of the hearing, the judge certified the case to the grand jury.

Pursuant to Fulton's administrative appeal, a hearing was held before a hearing officer on July 9, 2003. On July 14, 2003, the hearing officer for DSS upheld the investigator's "founded level one" disposition of sexual abuse. Specifically, the hearing officer noted that there were discrepancies in both Fulton's and A.J.'s versions of events. That said, the officer concluded that the evidence meets the preponderance of the evidence standard because:

1. The DNA report submitted presupposes that Fulton had not previously showered. The report does not indicate that the underwear tested was the one he wore the night of the alleged abuse.

2. [A.J.] submitted to a full sexual assault examination and did not recant any of her statements.

3. [A.J.] was consistent with the details surrounding the actual assault. She described [Fulton's] position over her, the underwear down around [Fulton's] legs, seeing mostly [Fulton's] stomach and a little of [Fulton's] penis, the smell of alcohol, and the texture...