Turner v. Jackson

• Decision Date: 05 May 1992
• Docket Number: No. 0769-91-2,0769-91-2
• Citation: 417 S.E.2d 881,14 Va.App. 423
• Parties: Stephen C. TURNER v. Larry D. JACKSON, Commissioner. Record
• Court: Virginia Court of Appeals

Page 881

417 S.E.2d 881

14 Va.App. 423

Stephen C. TURNER v. Larry D. JACKSON, Commissioner.

Record No. 0769-91-2.

Court of Appeals of Virginia.

May 5, 1992.

John M. DiJoseph, Arlington (Sattler & DiJoseph, on brief), for appellant.

Diane B. Beck, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., Roger L. Chaffe, Thomas J. Czelusta, Sr. Asst. Attys. Gen., on brief), for appellee.

Present: KOONTZ, C.J., and BRAY and ELDER, JJ.

KOONTZ, Chief Judge.

On May 15, 1989, Larry D. Jackson, the Commissioner of the Department of Social Services, ¹ determined that a complaint of child abuse against Stephen C. Turner was "founded." ² Turner appealed the Commissioner's decision to the Circuit Court of Chesterfield County, which sustained the "founded" disposition of child abuse. On appeal, Turner alleges five grounds of error: (1) the hearing officer applied the incorrect burden of proof and improperly admitted evidence of prior abuse by Turner; (2) the circuit court applied the incorrect standard of review; (3) the Commissioner lacked statutory authority to adopt the child protective services guidelines; ³ (4) the circuit court erred in finding that the statute and guidelines are not unconstitutionally vague; and (5) the circuit court erred in finding that Turner's due process rights were not violated. We affirm the decision of the circuit court.

This matter stems from a complaint of alleged physical abuse by Turner of his three-year-old daughter, Julene. In November 1988, the complaint was investigated by the Chesterfield County Department of Social Services ("department"), and determined to be "founded physical abuse." Turner appealed the finding and, in an informal conference on February 21, 1989, the local director upheld the "founded" disposition. Turner appealed the decision to the Commissioner. On April 28, 1989, a hearing was conducted before a hearing officer, acting by designation of Commissioner. On May 15, 1989, the hearing officer sustained the "founded" disposition. Turner appealed the hearing officer's determination to the Circuit Court of Chesterfield County.

Turner's involvement with the department began in February 1986, when the department received a complaint that the Turners were leaving their four children, then ages four, two, and nine months (twins), alone for thirty to forty minutes while Mrs. Turner drove Mr. Turner to work. After an investigation by the department, the complaint was determined to be "founded." In a letter dated January 31, 1989, Turner admitted to leaving the children alone for twenty minutes approximately six times. On brief, Turner states that the children were left alone and asleep one morning for about fifteen minutes.

On April 28, 1988, Turner was again referred to the department for possible child abuse. On this occasion, Turner allegedly hit his daughter, Rachel, on her face with his fist, resulting in a bruised temple and black eye. The incident was determined to be "reason to suspect."

On November 23, 1988, the department received a complaint of abuse that is the basis for this appeal. According to the complaint, Turner pulled a nickel-sized plug of hair from the head of his daughter Julene, then three-years-old. The complaint was investigated by Jim McDonald. During the investigation, the Turner children explained that Julene had spilled water in the bedroom. Turner tried to get her to go to the living room by holding and pulling her hair, but Julene resisted. Subsequently, Turner came to the department's office to discuss the incident. At that time, he admitted pulling Julene's hair but denied that it happened at home. Jim McDonald stated that:

Turner stated that he had the children with him and was crossing Midlothian Turnpike and Julene had jumped ahead of him and the only way he could stop her from going out in front of a car was to pull her by the hair. He stated that he was surprised that he had hair in his fingers after that incident.

In his January 31, 1989, letter to the department, Turner stated that he was attempting to discipline Julene in her bedroom and grabbed her by the hair:

Julene was messing up her bedroom with water, I do believe. When I attempted to go into her bedroom to stop her from fighting with Stephanie and to try to discipline Julene, as I got closer to her she began to fight and pull away from me. And as she fought I grabbed for her wherever I could and got her hair. As I did grab her hair a small part came out as she pulled away from me. I was shocked.

At the hearing before the Commissioner, Turner testified that he saw that some liquid had been spilled in the bedroom and determined that Julene had done it. Turner told her "to come to me" two times, and then "she started swinging her arms wildly." Julene "kept on ... trying to fight ... away from me, so in the midst of it, I was trying to block with one hand and grab hold to any part of her body I could ... and it just happened ... that I just grabbed a small piece of hair" as she pulled away.

Affirming the "founded" disposition, the circuit court held that (1) the hearing officer applied the correct burden of proof and did not improperly admit prior acts of abuse by Turner; (2) the proper standard of review of the agency determination is the substantial evidence test; (3) Turner was not denied due process; (4) Code § 63.1-248.2 and the guidelines are not unconstitutionally vague; and (5) the evidence was sufficient to support the hearing officer's determination.

I.

Turner argues that the hearing officer (1) applied the wrong burden of proof and (2) improperly admitted prior acts of abuse by Turner in this proceeding.

First, Turner asserts that the hearing officer erred in applying the "clear and convincing" standard. In the informal conference, the first step in the administrative process, abuse or neglect can be found only if the evidence is "clear and convincing." ⁴ Protective Services Manual, Vol. VII, Sec. III, Chap. A at 17. In the administrative appeal before the Commissioner, however, the appellant must prove only by a preponderance of the evidence that the record should be amended because it contains information which is "irrelevant or inaccurate." Code § 63.1-248.6:1(A).

In the administrative appeal, the hearing officer, acting by designation of the Commissioner, found "clear and convincing" evidence of physical abuse. The hearing officer's finding of clear and convincing proof of physical abuse by Turner necessarily negates Turner's contention that he met his burden of proof by a preponderance of the evidence that the record shall be amended because it contained irrelevant or inaccurate information. Clear and convincing proof is a higher standard of proof than that required under a preponderance standard.

Clear and convincing evidence [is] ... "[t]hat measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal."

Martin v. Pittsylvania County Dep't of Social Servs., 3 Va.App. 15, 21, 348 S.E.2d 13, 16 (1986) (emphasis added) (quoting Gifford v. Dennis, 230 Va. 193, 198 n. 1, 335 S.E.2d 371, 373 n. 1 (1985)). The hearing officer found clear and convincing proof of physical abuse by Turner. He did not require Turner to prove by this higher standard that the record should be amended. Thus, there is no merit to Turner's assertion that he was harmed by the hearing officer's determinations based upon the clear and convincing standard of proof.

Turner also assigns as error in the hearing before the Commissioner the admission of prior acts of abuse. Turner cites several cases supporting his position that the admission of other crimes or bad acts is reversible error. A review of the record indicates that it was Turner, not the department, who first introduced these prior acts into the case through his letter to the local director. Turner cannot introduce these acts into the case and later complain that they were considered by the agency. Furthermore, even if the prior abuse of the children by Turner would be inadmissible in a judicial proceeding, admission of such acts in an administrative proceeding is not error. "The rules of evidence are considerably relaxed in administrative proceedings, and the findings of administrative agencies will not be reversed solely because evidence was received which would have been inadmissible in court." Virginia Real Estate Comm'n v. Bias, 226 Va. 264, 270, 308 S.E.2d 123, 126 (1983); Johnston-Willis, Ltd. v. Kenley, 6 Va.App. 231, 258, 369 S.E.2d 1, 16 (1988). Consequently, any consideration of these prior instances of abuse by Turner was not error.

II.

Turner next contends that the circuit court applied the wrong standard of review in determining whether the agency decision was supported by the evidence. Review of agency factual decisions is governed by the "substantial evidence" test. Johnston-Willis, Ltd., 6 Va.App. at 242, 369 S.E.2d at 6. Under this standard, the scope of review is limited to ascertaining whether there was substantial evidence in the agency record to support the decision. Code § 9-6.14:17.

Turner claims that this standard of review is inappropriate because this case involves issues of constitutional rights and procedures. According to Turner, our decision in Johnston-Willis requires a reviewing court to give less deference to an agency's decision where the issues involve allegations of a denial of constitutional rights or a failure to follow required procedures. Because he has alleged certain constitutional and procedural violations, Turner concludes that the circuit court should have given the department's decision less weight on review. However, Turner misconstrues our decision in Johnston-Willis.

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