Jones v. West
Decision Date | 09 August 2005 |
Docket Number | Record No. 2144-04-2. |
Citation | 616 S.E.2d 790,46 Va. App. 309 |
Court | Virginia Supreme Court |
Parties | Maurice A. JONES, Commissioner, Virginia Department of Social Services v. Tommie J. WEST. |
A. Cameron O'Brion, Assistant Attorney General (Jerry W. Kilgore, Attorney General; David E. Johnson, Deputy Attorney General; Kim F. Piner, Senior Assistant Attorney General, on briefs), for appellant.
Gail H. Miller (Gail Harrington Miller, P.C., on brief), Richmond, for appellee.
Present: Judges BUMGARDNER, CLEMENTS and McCLANAHAN.
Maurice A. Jones, Commissioner (Commissioner) of the Virginia Department of Social Services (DSS), appeals from a decision of the Circuit Court of Chesterfield County (circuit court) setting aside and ordering the dismissal of a child protective services founded complaint of sexual abuse against Tommie J. West because the Chesterfield/Colonial Heights Department of Social Services (local department) failed to comply with certain procedural requirements in its investigation of the complaint. The Commissioner contends the circuit court erred (1) in determining that the local department's decision not to tape record its interview with the alleged victim constituted a procedural violation, (2) in concluding that the local department's procedural violations were not mere harmless error, and (3) in ordering the dismissal of the complaint against West instead of remanding the case to the hearing officer for further adjudication. On cross-appeal, West contends the circuit court erred in failing to award him attorney's fees and costs. For the reasons that follow, we affirm the circuit court's judgment.
On March 29, 2002, the child protective services unit of the local department received a complaint alleging that S.J., a fourteen-year-old girl, may have been sexually abused by West, a friend of S.J.'s family, while she was in West's care. In response, Jami K. Robinson, a social worker with the local department, and Detective Rick Meadows of the Chesterfield County Police Department conducted a joint investigation of the complaint against West.
Detective Meadows and Robinson interviewed S.J. at the local department office that same day. The interview was not tape recorded. On April 2, 2002, Meadows interviewed West at the police station while Robinson observed from another room. The interview was not tape recorded, and West was not informed of his right to tape record the interview. At the conclusion of the interview, Robinson entered the interview room, introduced herself to West, gave him written notification of the complaint of sexual abuse lodged against him, and explained that she was conducting the child protective services investigation on behalf of the local department. Based on the interviews with S.J. and West, Robinson issued a disposition of "Founded, Level 1, sexual abuse" against West, on May 20, 2002.
Following a stay for the resolution of a related criminal charge,1 a conference appeal was held by the local department on July 24, 2002. By letter dated August 8, 2002, the local department upheld the founded disposition.
West appealed the decision to the Commissioner, arguing, inter alia, that the local department's failure to comply with certain procedural requirements during the investigation rendered the founded disposition invalid and that the investigatory evidence obtained by the local department did not support the founded disposition. Specifically, West argued the record did not show that West had the requisite "intent to sexually molest, arouse or gratify" when he touched S.J. in what he claimed was a "playful and friendly" manner or that S.J. suffered serious harm as a result of the touching. The administrative hearing officer designated by the Commissioner to hear the appeal conducted an evidentiary hearing on March 27, 2003. The local department's investigative record was made a part of the hearing record.
Robinson's account of the March 29, 2002 interview with S.J., which was included in the investigative record, read as follows:
[S.J.] stated that Tomm[ie] West is about 70 years old, and is married, and used to be their next-door neighbor. She calls him Grandpa and has known him since 1997. She stated that nothing had happened before this school year and the last incident was on Thursday (the previous day). [S.J.] reported that [West] would put his hand high up on her leg and she told him to stop, that she didn't like it. This would occur in the car and was an every day thing. He would grab her whole leg, up near the crease, where her leg meets her hip, and sometimes his fingers would brush against her genitals. This always occurred over her clothes, not under them. [West] will often ask her for a hug before he leaves and he has grabbed the bottom of her butt and lifted her off the ground. He then holds her against him for 35 seconds, until she asks him to let her go. This has happened 3 times, the last time being last Friday. [S.J.] stated that he tells her how pretty she is, "like the girls in magazines." When [S.J.] would tell [West] that she didn't like it, he would say to her, "You don't love me any more," and act disappointed. [S.J.] stated that sometimes, while they were in the car, he would reach over and rub her chest, not her breasts, but her upper chest, near her neck, with the palm of his hand. If she were wearing a lower cut shirt, he would touch skin sometimes. [S.J.] stated that she has to physically remove his hand from her and he says to her that he would never do anything to offend her. The last time that this happened was last week. [S.J.] stated, when asked, that sometimes he brushes her breasts, but not every time. [West] has never asked her to touch him in any way. [S.J.] reported that [West] has said to her that he wants to see her naked before he dies. When this happens, it is sort of a random comment, with nothing leading up to it. He has also asked to see her underwear and he asks her often what color they are.
However, one time [West] brought her over a birthday cake, and she had on some low cut jeans, and her underwear was showing a little bit. [S.J.] stated that [West] came over to her and pulled her underwear up so that he could look at them (she thought he was joking with her and giving her a wedgie). He commented on how pretty they were, and went on and on about them. [S.J.], when asked, speculated that all of this just started happening because of the opportunity, he hasn't had any prior to this year. [S.J.] mentioned one more thing that she thought was inappropriate—[West] once said to her that he liked to see her roll around on his floor with her skirt pulled above her head when she was little. [S.J.] thought that was weird.
Robinson's account of Detective Meadows's April 2, 2002 interview with West, also a part of the investigative record, read as follows:
Mr. West stated that he has known the family for a while now and he figured he'd been running errands for them for 6 years. He stated that sometimes he would reach over in the car and hit [S.J.] on the leg jokingly, but never really high up on her leg. He stated that he would never do anything to [S.J.] or [her sister], he thinks of them as his own kids. Mr. West stated that he has pinched her on the leg in a playful manner, but he has never touched her on her privates, because he's "too old to even think anything." Mr. West stated that sometimes they hold hands, but he has never touched her breasts. He stated he has stroked her face before and grabbed her chin, but nothing further.... When asked specifically about grabbing [S.J.'s] underwear, Mr. West stated that he hasn't ever done that. He stated that he has pinched her butt before and one time when she hugged him (she's always hugging him), he said to her, "I oughtta pinch your little butt." [S.J.] said OK and he did. He stated that this happened maybe twice.... When asked if he had ever made comments about her underwear he stated that he had; things like, "you've got pretty blue panties on today." ... When asked if he had ever told her that he would like to see her naked, he replied that he had once told her that if he had the money, he would give it to her to get those clothes from Victoria's Secret because "she would be a work of art." Mr. West stated that [S.J.] often hugs him and rubs her breasts on his shoulder and that she has sat in his lap before, but that he never touched her privates.
Mr. West reported that he has never touched [S.J.] inappropriately, but then stated that on Thursday when he was touching her, she told him that he needed to stop because she didn't like it. He told her that he would stop. When asked specifically if he had made a comment about wanting to see her naked before he died, Mr. West stated that if [S.J.] said that he said it then he might have, but he didn't really remember. Det. Meadows stated to Mr. West that everything [S.J.] had told him, Mr. West was admitting to, except touching her chest. He agreed that he had done all of the stuff that he said, but remained sure that he didn't touch her breasts.
The hearing record also included a statement prepared by Detective Meadows regarding his interview with West:
I spoke to the suspect on 4-2-02.... Jami[] Robinson observed. The suspect stated he didn't know where this was coming from. He did say that on the way home he would sometimes grab her leg and squeeze it and demonstrated and it was fairly high on the leg a couple inches away from the vagina area. He states that he has hugged her and one time he said "I feel like squeezing your little buns" and that the victim said "go ahead I would like that." He says this has happened a couple times. He states that he has made comments about her underwear when he saw it out of her pants by saying "you have pretty underwear on today" and he did tell her once that if he had lots of money he would take her...
To continue reading
Request your trial-
Hollowell v. VA. MARINE RESOURCES COM'N
...was "substantially justified" under the statute upon concluding that its "position was not unreasonable." Jones v. West, 46 Va.App. 309, 333-34, 616 S.E.2d 790, 803 (2005). Looking to federal case law, we find additional guidance, as this same requirement or standard for justification of a ......
-
Tuma v. Commonwealth
...Witness Statements With few exceptions, DSS interviews of sexual assault victims must be orally recorded. See Jones v. West, 46 Va.App. 309, 323, 616 S.E.2d 790, 798 (2005) (citing 22 Va. Admin. Code § 40–705–80(B)(1)). For Brady purposes, the audio recording is nothing more than a statemen......
-
Virginia Retirement System v. Cirillo, Record No. 2119-08-1.
...As quoted above, Code § 2.2-4027(iii) further requires that any procedural error be "not mere harmless error." In Jones v. West, 46 Va.App. 309, 327, 616 S.E.2d 790, 799 (2005), we noted Although what constitutes "mere harmless error" under the Administrative Process Act is not amenable to ......
-
Loudoun Hosp. Center v. Stroube, Record No. 1273-06-4.
...the standard that governs us in reviewing the Commissioner's conduct. LHC urges us to adopt the reasoning set forth in Jones v. West, 46 Va.App. 309, 616 S.E.2d 790 (2005). There, a local social services agency failed to comply with its regulations to either tape record an interview of an a......