Velasquez v. Goodwin, Record No. 0033-03-4 (VA 8/10/2004)
| Decision Date | 10 August 2004 |
| Docket Number | Record No. 0033-03-4. |
| Court | Virginia Supreme Court |
| Parties | MIGUEL VELASQUEZ v. RAY GOODWIN, ACTING COMMISSIONER, COMMONWEALTH OF VIRGINIA, DEPARTMENT OF SOCIAL SERVICES. |
Appeal from the Circuit Court of the City of Alexandria, Donald M. Haddock, Judge.
Dorothy M. Isaacs (Surovell Markle Isaacs & Levy PLC, on brief), for appellant.
Allen T. Wilson, Assistant Attorney General (Jerry W. Kilgore, Attorney General; David E. Johnson, Deputy Attorney General; Siran S. Faulders, Senior Assistant Attorney General, on brief), for appellee.
Present: Chief Judge Fitzpatrick, Judges Benton and Clements.
Miguel Velasquez appeals the trial judge's decision, which affirmed the administrative decision of the Virginia Department of Social Services (Department) that Velasquez physically abused his child. Velasquez contends the trial judge erred in finding substantial evidence in the record to support the Department's decision and in ruling that the Department's findings fall within its specialized competence. For the reasons that follow, we reverse the decision.
The Administrative Process Act limits the review of factual issues to a determination whether there is "substantial evidence in the agency record upon which the agency as the trier of the facts could reasonably find them to be as it did." Code § 2.2-4027. It is well settled that "[t]he phrase `substantial evidence' refers to `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Virginia Real Estate Comm'n v. Bias, 226 Va. 264, 269, 308 S.E.2d 123, 125 (1983) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Under this standard, however, an appellate court "may reject the agency's findings of fact . . . `if, considering the record as a whole, a reasonable mind would necessarily come to a different conclusion.'" Bias, 226 Va. at 269, 308 S.E.2d at 125 (citation omitted).
Under equally well-settled standards, we view the evidence in the light most favorable to the Department and limit our review of issues of fact to the agency record. State Bd. of Health v. Godfrey, 223 Va. 423, 432, 290 S.E.2d 875, 880 (1982); Fever's, Inc. v. Virginia Alcoholic Beverage Control Bd., 24 Va. App. 213, 218, 481 S.E.2d 476, 478 (1997). So viewed, the evidence established that on February 3, 2000 Miguel Velasquez and his wife, who was in the United States Army, took their four-month-old daughter to Bethesda Naval Hospital for a well-baby checkup. When Dr. Paul Reed was examining the child, who had had a low birth weight and was petite, the mother informed him of lumps on the child's chest that she had noticed several days earlier while bathing the child. X-rays revealed that the child had suffered eight rib fractures that were in various stages of healing. During the examination, Dr. Reed concluded that the rib fractures were caused by excessive force from the front and the back and were consistent with non-accidental trauma. Dr. Reed notified the social services agency of the City of Alexandria that Velasquez, who was the child's primary caretaker, may have abused his daughter.
When social workers first interviewed Velasquez, he said he sometimes hugged the child too tight because "he loved her so much." He also said that he plays rough with the child and that his wife told him to be careful. In a later interview, Velasquez described squeezing the child with his hands around her midsection to assist her in having a bowel movement because she was constipated. He also described lying in bed and lifting the child from her crib with one hand wrapped around her midsection and passing her to his wife for breast feeding. When the child's mother was interviewed and asked about her family history, she disclosed that both her grandparents had a history of broken bones. She also said she had "broken a lot of bones" but attributed those events to being "a real tom-boy."
Within two weeks of Dr. Reed's examination, Dr. Barbara Craig, the Director of the Armed Forces Center for Child Protection, reviewed the medical reports and examined the child. She reported that the child's injuries could only have been caused by pushing both the front and back of the chest at the same time. Dr. Craig also concluded that either of the activities Velasquez described could have caused the child's rib fractures.
As succinctly contained in the Department's findings of fact, the following are additional circumstances of this case:
12. In the fall of 2000, [the child] underwent a skin biopsy which was submitted for analysis to Dr. Peter Byers, professor of medicine in the Department of Pathology at the University of Washington, Seattle, and director of the University of Washington Collagen Diagnostic Laboratory. Based on the skin biopsy, [the child] was diagnosed as suffering from Osteogenesis Imperfecta, Type I. [The child's] sample was one of only eleven which was positive for OI out of a total of 262 samples analyzed from children who were suspected victims of non-accidental trauma, for the years 1998-2000.
13. Dr. Byers testified that it can be difficult to discriminate between fractures caused by non-accidental trauma and those caused by OI on the basis of a clinical examination alone. Radiographs do not always reflect the presence of OI because there must be a 30% reduction in bone density before osteopenia can be detected on a plain x-ray. OI can exist where the only clinical finding is unexplained fractures, and a collagen study such as the one performed on [the child] is a valuable tool in the differential diagnosis of OI.
14. Dr. Kenneth Rosenbaum, founder and former chairman of the Department of Medical Genetics at Children's National Medical Center, examined [the child] on October 16, 2000, and confirmed her diagnosis as Osteogenesis Imperfecta, Type I. Dr. Rosenbaum observed that [the child] was a very petite child, below the fifth percentile for both weight and length, and that the sclerae of her eyes were "mildly blue." Dr. Rosenbaum found [the child's] joints to be mildly hyperextensive. Dr. Rosenbaum also noted that [the mother's] medical history, was remarkable for her notations that she was five feet, one-half inch tall and that she had "had a number of fractures in childhood associated with some degree of trauma." These included a fractured toe, a fractured ankle, fractured coccyx and some stress fractures of the feet. [The mother] also indicated that she felt that she had some degree of hearing loss. Dr. Rosenbaum concluded that based on all the available information, he concluded that [the child] had Type I Osteogenesis Imperfecta, a hereditary metabolic disorder which affects bone structure with a wide variety of physical manifestations. Dr. Rosenbaum noted that the most common clinical finding is an increased risk of fractures. Dr. Rosenbaum described [the child's] OI, Type I as "mild."
15. Dr. Rosenbaum concluded that even a child with OI would have been exposed to "some initiating trauma," even though very minimal, in order to sustain a rib fracture. It is possible for children with OI to sustain fractures by being removed from car seats or by walking, but he stated that, "even in situations like that, there is some mechanical reason for the fracture." Dr. Rosenbaum declined to give an opinion as to the causes of [the child's] rib fractures.
16. Subsequent to [the child's] diagnosis of OI, Type I, Dr. Craig spoke to Dr. Rosenbaum about [the child's] diagnosis, and read his report of his examination of [the child]. Dr. Craig concluded, in a report written on November 20, 2000, that,
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19. On more than one occasion, [the father] encircled [the child's] chest with his hand, grasped her and lifted her from her crib adjacent to his bed, and handed her to her mother for breast feeding.
20. On one occasion, [the father] encircled [the child's] chest with both of his hands, and squeezed her with some force, to assist her to have a bowel movement.
21. The compression exerted by [the father] in lifting [the child] with one hand and squeezing [the child] with both hands, was the cause of [the child] suffering anterior and posterior rib fractures, of differing ages.
22. The record contains a preponderance of the evidence that [the father] caused injury by non-accidental means to [the child], resulting in serious harm to her.
23. The record contains a preponderance of the evidence that [the father] physically abused [the child], causing serious harm to her.
As relevant to this appeal, Code § 63.2-100(1) defines an abused child as one "[w]hose parents or other person responsible for his care creates or inflicts . . . upon such child a physical. . . injury by other than accidental means." Consistent with the statute, the Department's regulations provide that "[p]hysical abuse occurs when a caretaker creates or inflicts . . . upon a child a physical injury other than by accidental means." 22 VAC 40-705-30.
The Supreme Court long ago noted that "[t]he word `accidental' is not easy to define in specific legal terms applicable to every case." Aetna Ins. Co. v. Carpenter, 170 Va. 312, 324, 196 S.E. 641, 646 (1938). The Court further noted, however, that "[i]f we construe it in its popular and most common meaning, it may be described as an unintended or unexpected event occurring without known or assignable cause." Id. Indeed, the Court has often cited to the...
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