                                COURT OF APPEALS OF VIRGINIA


Present: Judge Elder, Senior Judge Annunziata and Retired Judge Hodges ∗


DELORES WILLIAMS-BROOKS
                                                                   MEMORANDUM OPINION ∗∗
v.      Record No. 2359-08-2                                            PER CURIAM
                                                                      JANUARY 27, 2009
VIRGINIA DEPARTMENT OF SOCIAL SERVICES


                   FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                                Walter W. Stout, III, Judge

                  (Jason T. Jacoby; Hirschler Fleischer, P.C., on brief), for appellant.

                  (Robert F. McDonnell, Attorney General; David E. Johnson, Deputy
                  Attorney General; Kim F. Piner, Senior Assistant Attorney General;
                  Allen T. Wilson, Senior Assistant Attorney General, on brief), for
                  appellee.


        Delores Williams-Brooks (appellant) appeals the circuit court’s order affirming a Level 3

founded disposition of physical neglect (inadequate supervision). Appellant contends that (1) the

circuit court erred by finding that there was sufficient evidence to establish a violation of Code

§ 63.1-248.22, and (2) the burden erroneously shifted to appellant to prove the absence of any threat

of harm, real or imagined. Upon reviewing the record and briefs of the parties, we summarily

affirm the decision of the trial court. Rule 5A:27.

                                            BACKGROUND

        Appellant operated a licensed daycare center. She watched O.H., who was five years old at

the time of the incident. On September 29, 2006, appellant picked up O.H. from the bus stop. At


        ∗
        Retired Judge Hodges took part in the consideration of this case by designation pursuant
to Code § 17.1-400(D).
        ∗∗
             Pursuant to Code § 17.1-413, this opinion is not designated for publication.
approximately 3:30 p.m., appellant took O.H. home. There were two other children in the car, and

they distracted appellant when O.H. exited the vehicle. When appellant turned to watch O.H. enter

his house, she saw the door swing shut. Appellant assumed that O.H.’s grandmother met O.H. at

the door because she is usually home to meet O.H. O.H.’s grandmother usually gives appellant a

visual cue to let her know that O.H. is in the house, or appellant calls the grandmother. However,

the grandmother’s phone was disconnected, and, unbeknownst to appellant, O.H.’s grandmother

was not home on this particular afternoon. After appellant left, a neighbor found O.H. crying in the

parking lot and called the police. Meanwhile, appellant returned the other children to their homes.

When appellant returned to her house, she found the police and O.H. there. O.H. had been left

alone for at least thirty minutes.

        On October 2, 2006, child protective services (CPS) received a complaint that appellant had

not properly supervised O.H. CPS investigated and, on February 20, 2007, determined that the

complaint was founded. On June 24, 2007, appellant met with CPS for an informal conference, and

the disposition of “Founded – Physical Neglect (Inadequate Supervision) – Level Three” was

sustained. 1 Appellant appealed, and, on October 3, 2007, a hearing officer heard evidence and

testimony. On November 30, 2007, the hearing officer sustained the disposition.

        Appellant appealed to the Circuit Court of the City of Richmond. She argued that the

evidence was insufficient and that there was no real or specific threat to the child. She argued that

the disposition was founded based on “conjecture and speculation,” which forced her to prove the

absence of any threat or harm. The circuit court disagreed. On August 12, 2008, the circuit court

entered an order affirming the Level 3 founded charge of physical neglect (inadequate supervision).

Appellant timely noted her appeal.


        1
        A Level 3 finding “includes those injuries/conditions, real or threatened, that result in
minimal harm to a child.” 22 VAC 40-700-20(3).

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                                            ANALYSIS

                                     Sufficiency of the Evidence

       Appellant argues that the circuit court erred in holding that the Level 3 finding was

supported by substantial evidence.

       “‘The reviewing court may reject the agency’s findings of fact only if, considering the

record as a whole, a reasonable mind would necessarily come to a different conclusion.’” Carter

v. Gordon, 28 Va. App. 133, 141, 502 S.E.2d 697, 701 (1998) (quoting Johnston-Willis, Ltd. v.

Kenley, 6 Va. App. 231, 242, 369 S.E.2d 1, 7 (1988)); see also Turner v. Jackson, 14 Va. App.

423, 429-30, 417 S.E.2d 881, 887 (1992).

               Physical neglect occurs when there is the failure to provide food,
               clothing, shelter, or supervision for a child to the extent that the
               child’s health or safety is endangered. This also includes
               abandonment and situations where the parent or caretaker’s own
               incapacitating behavior or absence prevents or severely limits the
               performing of child caring tasks pursuant to Code § 63.2-100 of
               the Code of Virginia.

22 VAC 40-705-30(B).

       Inadequate supervision is a category of physical neglect, and it is defined as follows:

               The child has been left in the care of an inadequate caretaker or in
               a situation requiring judgment or actions greater than the child’s
               level of maturity, physical condition, and/or mental abilities would
               reasonably dictate. Inadequate supervision includes minimal care
               or supervision by the caretaker resulting in placing the child in
               jeopardy of sexual or other exploitation, physical injury, or results
               in status offenses, criminal acts by the child, or alcoholism or drug
               abuse.

Virginia Department of Social Services, Child Protective Services, Volume VII, Section III,

Chapter A, Part II(C)(2.2), July 2008.

       Here, appellant left O.H. alone for at least thirty minutes. Appellant admitted that she

should have insured that O.H. safely went inside the house and that his grandmother was waiting

for him; however, she was distracted by the other children in the car and did not do so.

                                                -3-
Witnesses testified that the child was not left in a dangerous area, but a busy street was nearby.

The CPS worker testified that leaving a five-year-old child alone could have resulted in harm to

the child, especially since he was young and crying in the parking lot. The hearing officer ruled

that there was a real threat of harm to the child and that the child was lucky that the neighbor

who helped the child was not one who would harm him.

       The circuit court did not err in concluding that there was sufficient evidence to support

the disposition.

                          Burden to prove the absence of threat or harm

       Appellant also argues that the founded disposition was based on conjecture and

speculation because there was no evidence of any real threat or harm to O.H. and that the burden

shifted to appellant to show the absence of any threat or harm.

       “Physical neglect may include multiple occurrences or a one-time critical or severe event

that results in a threat to health or safety.” 22 VAC 40-705-30(B)(1).

       Appellant argues that there was only the one incident with O.H. Furthermore, appellant

contends that it was not a “critical or severe” event and O.H.’s health and safety were not

threatened. Appellant states that the Department’s claim that O.H. could have been hurt puts the

burden on appellant to prove that there was no possibility of harm.

       The burden is on the Department to show that there was a threat to the child’s health or

safety. The hearing officer concluded that the Department met its burden because a young child

was left alone for at least thirty minutes. The hearing officer concluded that the possibility of

harm was real, and the circuit court agreed. The burden did not shift to appellant, as she argues.




                                                -4-
                                         CONCLUSION

       The record supports the trial court’s findings to affirm the CPS disposition. Accordingly,

we affirm the judgment of the trial court.

                                                                                  Affirmed.




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