                     COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judges Annunziata and
            Bumgardner
Argued at Alexandria, Virginia


FAIRFAX COUNTY DEPARTMENT
 OF FAMILY SERVICES
                                          MEMORANDUM OPINION * BY
v.   Record No. 1304-97-4               JUDGE ROSEMARIE ANNUNZIATA
                                              MARCH 31, 1998
LARRY NEIDIG


               FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                        Gerald Bruce Lee, Judge

           Louise M. DiMatteo, Assistant County Attorney
           (David P. Bobzien, County Attorney; Robert
           Lyndon Howell, Deputy County Attorney;
           Dennis R. Bates, Senior Assistant County
           Attorney; Office of the County Attorney, on
           briefs), for appellant.

           Harvey J. Volzer (William J. Schewe;
           Kilcarr & Volzer; Graham & Schewe, on brief),
           for appellee.



     Fairfax County Department of Family Services (the

Department) appeals from the decision of the circuit court

denying its petition alleging abuse and neglect by Larry Neidig

(father) of his two female children.    The Department contends on

appeal that the trial court erred in finding the evidence

insufficient to support a finding of child abuse and neglect.   We

find no error and affirm.

     On May 12, 1995, the Department filed a petition in the

Juvenile and Domestic Relations District Court of Fairfax County,

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
alleging that the children had been abused and/or neglected by

father.   With the agreement of the parties, on July 16, 1996, the

juvenile court entered a consent order finding that the children

were abused and/or neglected.    The matter was appealed to the

circuit court where, in a trial de novo, the Department presented

evidence of sexual abuse of both children entailing, in large

part, repeated penile penetration of the children.   Father

testified briefly to the events of May 9 and 10, 1995, when the

children were removed from his custody, but did not address the

substance of the charges against him.   Father also presented the

testimony of several expert and lay witnesses and certain medical

evidence relating to the alleged abuse.   In reaching its

decision, the trial court summarized the medical and lay

evidence, noted that the medical evidence was in conflict, and

concluded that the anatomical findings were not consistent with

multiple penile penetration.    The court ruled that the Department

had not carried its burden of proof to prove sexual abuse by a

preponderance of the evidence.
     On appeal, this Court is required to view the evidence in

the light most favorable to father, the prevailing party below,

granting him all reasonable inferences fairly deducible

therefrom.   Logan v. Fairfax County Dept. of Human Development,

13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991) (citing Farley

v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990)).

Thus, any conflicts in the evidence must be resolved in favor of



                                  2
father.   Farley, 9 Va. App. at 328, 387 S.E.2d at 795.    The

evidence, so viewed, is as follows.

     Dr. Robert Fay, a pediatrician, opined, to a reasonable

degree of medical certainty, that his findings with respect to

both children were not consistent with repeated penile

penetration.   He supported his opinion with detailed explanations

of the anatomical findings, including a finding that the

colposcopy of the older child revealed no acute injuries and no

scarring of the hymen.   He testified that she showed a nearly

imperforate hymen, but that she had a whitish area in the fossa

navicularis, which could easily be mistaken for scarring.    Dr.

Fay also stated that the younger child showed no sign of recent

or old injury, although her labia had adhered together which

could mislead an examiner to suspect abuse.   He explained that

some natural features of the children's genital anatomy were

easily mistaken for signs of abuse.   Finally, Dr. Fay presented

slides to the trial court so that the court could evaluate the

medical evidence for itself.
     Howard Fishman, a professor of psychiatry, testified that

the children's report of sexual abuse was likely the result of a

problem adjusting to the loss of their mother and separation from

their loved ones.   Fishman also testified that the examiners had

not taken an adequate history from the children, had not

conducted any testing of the children, and had contaminated the

children's memories with suggestive questioning.   Dr. Fishman



                                 3
testified at length to specific deficiencies in the interviewing

of the children, and explained how the deficiencies impacted the

credibility of the children's statements. 1     Numerous witnesses

testified that, during the period of the alleged abuse, the

children underwent none of the changes expected in victims of

sexual abuse.      The children's nanny, who slept in the room next

to the older child and washed the children's clothes and sheets,

testified that she saw no signs of abuse.      A number of witnesses

who were familiar with the Neidig family testified that they had

observed in the children no personality changes or other

indications of sexual abuse.      Another witness, acquainted with

the Neidig family, testified that the older child's reputation in

the community for truthfulness was bad.
        A court's conclusion that a party has failed to carry its

burden of proof is conclusive upon this Court as a finding of

fact.       Arlington Towers Land Corp. v. McFarland, 203 Va. 387,

393, 124 S.E.2d 212, 216 (1962) (citing Smith v. Board of
Supervisors, 201 Va. 87, 91, 109 S.E.2d 501, 505 (1959)).      The

trial court's judgment, "when based on evidence heard ore tenus,

will not be disturbed on appeal unless plainly wrong or without
        1
      The Department contends that Fishman did not have
sufficient information on the interviewing techniques to render
an opinion. Fishman testified that he had reviewed extensive
transcripts of testimony from prior proceedings, as well as
reports, articles, the older child's diary, audiotapes, and
videotapes. In addition, the trial court heard evidence of the
interviewing techniques from the Department's witnesses, and
could evaluate those techniques in the light of Fishman's
testimony.




                                     4
evidence to support it."    Logan, 13 Va. App. at 128, 409 S.E.2d

at 463 (citing Peple v. Peple, 5 Va. App. 414, 422, 364 S.E.2d

232, 237 (1988)).    We find that the evidence is sufficient to

support the trial court's decision in this case.

     The Department contends that, because the children's

statements were admitted under Code § 63.1-248.13:2 without

objection, 2 the court erred in not finding the statements

credible.   Interpretation of Code § 63.1-248.13:2 is an issue of

first impression.    We find the Department's argument to be

without merit.
     Code § 63.1-248.13:2 does not establish a presumption,

rebuttable or otherwise, that statements made by children

regarding sexual acts are true.   Instead, Code § 63.1-248.13:2

provides that out-of-court statements by children are admissible
     2
      Code § 63.1-248.13:2 provides in relevant part:

                 A. In any civil proceeding involving
            alleged abuse or neglect of a child . . ., an
            out-of-court statement made by a child the
            age of twelve or under at the time the
            statement is offered into evidence,
            describing any act of a sexual nature
            performed with or on the child by another,
            not otherwise admissible by statute or rule,
            may be admissible in evidence if the
            requirements of subsection B are met.
                 B. An out-of-court statement may be
            admitted into evidence as provided in
            subsection A if:

                 *    *     *     *     *     *     *

                 2. The child's out-of-court statement
            is shown to possess particularized guarantees
            of trustworthiness and reliability.



                                  5
under certain circumstances, one of which is that the statements

"possess particularized guarantees of trustworthiness and

reliability."    Code § 63.1-248.13:2 establishes a rule of

evidence, not a substantive presumption.   As such, a court's

ruling that statements are admissible under Code § 63.1-248.13:2

is a ruling only on the threshold question of admissibility and

does not establish the weight to be given to the evidence.      See,

e.g., Price v. Commonwealth, 18 Va. App. 760, 765, 446 S.E.2d

642, 646 (1994) (addressing the distinction between the question

of admissibility and the issue of weight); 1 Charles E. Friend,
The Law of Evidence in Virginia 22 (4th ed. 1993).

     The trial court, as trier of fact, was entitled to consider

the children's statements and the failure of father to personally

deny the allegations of sexual abuse in the context of all of the

admissible evidence.   Although father did not contradict the

children's statements, uncontradicted statements need not be

accepted as true when they are "'inconsistent with circumstances

in evidence.'"    Servis v. Commonwealth, 6 Va. App. 507, 525, 371

S.E.2d 156, 165 (1988) (quoting Stegall v. Commonwealth, 208 Va.

719, 722, 160 S.E.2d 566, 568 (1968)).

     Contrary to the Department's contention that the court found

that the medical evidence was in equipoise, the court found that

the medical evidence was "susceptible to multiple interpretations

and it does not preponderate in the favor of a finding of abuse."

The trial court concluded that the anatomical findings were not




                                  6
"consistent with multiple penile penetration."

     Furthermore, although Dr. Fay's testimony that the children

showed no medical signs of abuse conflicted with expert testimony

presented by the Department to the contrary, the trial court had

the discretion to credit Dr. Fay's opinion over that of the

expert presented by the Department.    The trial court, as finder

of fact, may determine the weight to be given to an expert's

opinion.   Street v. Street, 25 Va. App. 380, 387, 488 S.E.2d 665,

668-69 (1997) (en banc).    Where experts offer conflicting

testimony, it is within the discretion of the trial court to

select either opinion.     Rowe v. Rowe, 24 Va. App. 123, 140, 480

S.E.2d 760, 768 (1997) (citing Reid v. Reid, 7 Va. App. 553, 563,

375 S.E.2d 533, 539 (1989)).

     Finally, the Department argues that the trial court

erroneously concluded that both children had been present for

some interviews.   In explaining its decision, the trial court

stated, "there's evidence that during some of [Dr. Lindahl's]

interviews both children were present when either child was

giving substantive information about the alleged allegations of

sexual contact."   Dr. Lindahl described at least one interview at

which both children were present, and a second interview in which

one child entered the interview room after hearing the other

child yelling, as well as related statements made in her presence

by one child to another regarding sexual abuse by father.     In

light of this testimony, the trial court did not err in finding



                                   7
that both children were present at some interviews.

     Fundamentally, the Department asks us to substitute our

judgment for that of the trial court; this Court is specifically

not permitted to do so.     Waldrop v. Commonwealth, 23 Va. App.

614, 626, 478 S.E.2d 723, 728 (1996) (citing Cable v.

Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218, 220 (1992)).

Applying the principles of review which are applicable here, we

find that the trial court acted within its discretion in finding

that the children's statements, taken in the context of the

medical evidence, the lay witness testimony, and the criticism of

the techniques used in questioning the children, did not compel a

finding by a preponderance of the evidence that father had

sexually abused the children.    The Department has not shown that

the decision of the trial court was plainly wrong or an abuse of

discretion, and we will not substitute our judgment for that of

the trial court.   Id.    For these reasons, we affirm.

                                                          Affirmed.




                                   8
