J.P. v. Carter

• Decision Date: 13 May 1997
• Docket Number: No. 1168-96-4,1168-96-4
• Citation: 24 Va.App. 707,485 S.E.2d 162
• Court: Virginia Court of Appeals
• Parties: J.P. v. Clarence CARTER, Commissioner of the Virginia Department of Social Services. Record

Page 162

485 S.E.2d 162

24 Va.App. 707

J.P. v. Clarence CARTER, Commissioner of the Virginia Department of Social Services.

Record No. 1168-96-4.

Court of Appeals of Virginia Alexandria.

May 13, 1997.

Kenneth H. Rosenau, Washington, DC (Rosenau & Rosenau, on brief), for appellant.

Gaye Lynn Taxey, Assistant Attorney General (James S. Gilmore, III, Attorney General; William H. Hurd, Deputy Attorney General; Siran S. Faulders, Senior Assistant Attorney General, on brief), for appellee.

Present: MOON, C.J., and WILLIS and FITZPATRICK, JJ.

FITZPATRICK, Judge.

J.P. (appellant) appeals the trial court's decision affirming the Department of Social

                Services' (DSS) determination of "founded sexual abuse."   On appeal, she contends that the trial court erred in:  (1) failing to find that her constitutional due process rights were violated by the procedures used by DSS in the submission of her name to the central registry as a "founded" sexual abuser;  (2) failing to subpoena additional witnesses and documents to reconstruct and supplement the administrative record as she requested;  (3) preventing appellant from raising additional errors not designated in her petition for appeal;  and (4) finding that the "Juvenile and Domestic Relations Courts law" does not conflict with or supersede the Child Abuse and Neglect Act.  For the following reasons, we affirm the decision of the trial court
                

BACKGROUND

On Saturday, May 8, 1993, the Arlington County Police Department received a report that two children had been sexually molested by appellant, their thirteen-year-old baby- Arlington Police Officer McLeran responded, interviewed the children and their parents, and filed a police report. The report included claims that appellant conducted satanic rituals, used a "magic" crystal and a "magic" ring, as well as allegations of statutory rape, sodomy, and aggravated sexual battery.

Detective Kyle, also of the Arlington County Police, received the report on May 10, 1993, and referred this information to DSS. David Romer (Romer), the DSS social worker assigned to the case, conducted the investigation on behalf of DSS. ¹ On May 11, 1993, as part of the criminal investigation, Detective Kyle contacted appellant's mother (Ms. P.) to arrange for an interview with her and appellant. Later that day, Detective Kyle left a message with Romer informing him that Ms. P. chose to consult with an attorney prior to allowing appellant to be interviewed. The record reflects that Romer did not contact appellant prior to making the initial disposition because he had been informed by Detective Kyle that "there [were] criminal proceedings of the charges made at that point and time. The decision had already been made by [appellant's] mom to retain an attorney for [appellant], [and] not to meet with Det. Kyle." ² Romer assumed that because appellant's attorney would not allow appellant to be interviewed by the police in the criminal investigation, neither would the attorney allow her to be interviewed by him in the parallel DSS investigation. It is undisputed that Romer made no attempt to contact appellant directly during his initial investigation, and that the only contact he had with appellant was at the "local appeal hearing."

On May 20, 1993, Romer mailed a letter to appellant that included the following information:

On 5-10-93, Child Protective Services received a report of alleged child abuse and/or neglect regarding the above-named child(ren).

As a result of that report the following allegations are being investigated: sexual abuse of children.

If you have any questions concerning this investigation, please call me at (703) 358-5100.

Romer's initial investigation consisted of a review of the police reports of the incidents and the taped interviews with the children, their mother, and Detective Kyle. In a letter dated June 1, 1993, Romer issued the initial disposition of the allegations implicating appellant:

Following an investigation of the complaint, it has been determined that this case will be submitted to the State Central Registry as Founded, Level 1: Sexual Molestation, with a "high" risk assessment noted.

Your name will be registered as the abuser with the Commonwealth of Virginia, Department of Social Services, Child Abuse and Neglect Central Registry, where it will remain for eighteen (18) years past the date of the above-noted complaint.

Romer concluded that "[i]ntervention [was] necessary to protect these children and other potential victims," and informed appellant of her appeal rights. With this letter, Romer enclosed a child protective services pamphlet that explained the definitions of abuse and neglect and the appeal process.

Following Romer's initial disposition, a local conference was held pursuant to appellant's request. The conference took place on July 21, 1993 with Barbara Glaser (Glaser), the Chief of DSS, presiding. Appellant, her mother, and Romer were present at the conference. Appellant was given the opportunity to present evidence regarding the allegations and chose to do so. She denied committing the alleged sexual abuse, being involved in satanic rituals, making any statements referencing Satan, or playing any of the "games" with the exception of the "bat game." Ms. P. expressed the concern that perhaps another baby-sitter had committed the abuse.

By letter dated July 21, 1993, Glaser informed Ms. P. that "[d]uring our conference, nothing was said that would lead me to alter Mr. Romer's finding of Sexual Molestation by your daughter, [appellant], of [the children]. The disposition, therefore, remains Founded, Level I: Sexual Molestation." Ms. P., on behalf of appellant, appealed Glaser's decision to the Commissioner pursuant to Code § 63.1-248.6:1(C).

Jody E. Holyst (Holyst), a State Hearing Officer, informed Ms. P. by letter of the purpose of the final administrative hearing:

[You may] appeal information in the record which is inaccurate or irrelevant. You may also appeal the disposition(s) of the allegation of abuse or neglect.

* * * * * * *

You have the right to present additional information and witnesses at the hearing in order to support your request for an amendment to your record.

(Emphasis added.)

The final administrative appeal before the designated hearing officer was conducted on December 10, 1993, was recorded, and appellant was represented by counsel. Appellant and her mother testified regarding the abuse allegations. Appellant denied abusing or touching the children inappropriately or engaging in satanic rituals. Appellant argued that the initial agency finding dated June 1, 1993 deprived her of her right to due process of law, and that the "punishment" under the "Child Abuse and Neglect Act" was inconsistent with the "letter and intent of the 'Juvenile Justice Act.' "

Romer testified, in part, that the children:

[R]eported to their parents that [appellant] had undressed and fondled [one child] on these two different occasions, performed oral sodomy, had [him] touch her breast and sat on top of [him] and quote "hurt his penis." [Appellant] allegedly had [the other child] draw a pentagram and circle and told [him] this is where to love Satan while she fondled his penis.... [The children's mother] said the boys reported that [appellant] talked of Satan's power and that she would kill them and their parents if they told anyone what happened.

Romer further testified that, in reaching the initial disposition of the allegations, he relied on two interviews, "the first completed by Det. Kyle on the 10th of May and then another joint interview with Det. Kyle, myself with the [children] on the 20th of May."

By letter dated January 31, 1994, Holyst sustained the previous disposition and found "that the record contains clear and convincing evidence that the abuse occurred and that it was committed by the Appellant." (Emphasis added.) Moreover, Holyst found that appellant "failed to meet her burden of proving by a preponderance of the evidence that information contained in the agency record is either irrelevant or inaccurate," thus requiring a change in the disposition. Accordingly, Holyst affirmed Romer's conclusion of "founded Sexual Abuse Level One" of the two children.

Appellant filed a notice and petition for appeal in the Circuit Court of Arlington County on February 28, 1994 and March 28, 1994, respectively. Appellant also filed two requests for subpoenas duces tecum in order to supplement the DSS administrative record. ³ In response, DSS filed a motion to quash the subpoenas and a motion to preclude the taking of additional evidence. The trial court granted DSS' motion to quash and made the following findings:

The Court, having reviewed Appellee's motion, Appellant's response and the authorities cited, concludes that Pursuant to Va.Code § 9-6.14:15 et seq. and Rule 2A of the Rules of the Supreme Court of Virginia, subpoenas may not be issued in an appeal under Va.Code § 9-6.14:15 et seq. Moreover, the Court's review is confined to the Record of Proceedings filed by the Appellee and the Court cannot hear new evidence. Therefore, Appellant may not call witnesses nor present additional evidence at the hearing on the merits scheduled for September 20, 1995. Further, the Court concludes that pursuant to Va.Code § 9-6.14:15 et seq. and Rule 2A of the Rules of the Supreme Court of Virginia, the Appellant must designate the errors assigned in the Petition for Appeal, and having done so, shall be precluded from raising additional errors not so designated.

The trial court heard the appeal on the merits on September 20, 1995. By order dated April 18, 1996, the court found that appellant had not been denied due process and had failed to meet her burden of proof under Code § 9-6.14:17 to demonstrate an error of law as described in her petition for appeal. Additionally, the court affirmed the DSS' finding of "founded sexual abuse." Specifically, the court ruled as follows:

[A]...