                               COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Beales and Senior Judge Fitzpatrick


JACQUELINE REYNOLDS
                                                                MEMORANDUM OPINION*
v.     Record No. 1086-07-2                                         PER CURIAM
                                                                   AUGUST 14, 2007
ANTHONY CONYERS, JR., COMMISSIONER
 VIRGINIA DEPARTMENT OF SOCIAL SERVICES


                    FROM THE CIRCUIT COURT OF RICHMOND COUNTY
                               Harry T. Taliaferro, III, Judge

                 (Horace F. Hunter, 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, Special Counsel, on brief), for appellee.


       Jacqueline Reynolds appeals from a Child Protective Services (CPS) founded disposition

of level one physical neglect and inadequate supervision. She contends that substantial evidence

does not exist in the agency record to sustain that finding. Upon reviewing the record and the

briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily

affirm the circuit court’s decision. See Rule 5A:27.

                                      STANDARD OF REVIEW

       On appeal from the decision of an administrative agency, “[t]he reviewing court will

view ‘the facts in the light most favorable to sustaining the [agency’s] action,’ and ‘take due

account of the presumption of official regularity, the experience and specialized competence of

the agency, and the purposes of the basic law under which the agency has acted.’” Jones v.



       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
West, 46 Va. App. 309, 323, 616 S.E.2d 790, 797 (2005) (quoting Atkinson v. Virginia Alcohol

Beverage Control Comm’n, 1 Va. App. 172, 176, 336 S.E.2d 527, 530 (1985); Code § 2.2-4027).

       “Judicial review of a child protective services founded disposition of child abuse is

governed by the Administrative Process Act (APA), codified at Code §§ 2.2-4000 to

2.2-4033. . . . Accordingly, ‘the burden is upon the appealing party to demonstrate error.’” Id. at

322-23, 616 S.E.2d at 797 (quoting Carter v. Gordon, 28 Va. App. 133, 141, 502 S.E.2d 697,

700-01 (1998)).

       “[T]he substantiality of the evidentiary support for findings of fact” is among the

“error[s] of law subject to review by the court.” Code § 2.2-4027. “Review of agency factual

decisions is governed by the ‘substantial evidence’ test.” Turner v. Jackson, 14 Va. App. 423,

429, 417 S.E.2d 881, 886 (1992) (quoting Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231, 242,

369 S.E.2d 1, 6 (1988)). “Under this standard, the scope of review is limited to ascertaining

whether there was substantial evidence in the agency record to support the decision.” Id. at

429-30, 417 S.E.2d at 886. “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.” Johnston-Willis, Ltd., 6 Va. App. at 242, 369 S.E.2d at 7.

                                        BACKGROUND

       On July 27, 2004, the Richmond County Department of Social Services received a CPS

complaint alleging that four-year-old M.K., born March 23, 2000, was left unattended in a van

for a period of time by appellant, his daycare teacher, while under her care as an employee of

Segar’s Tender Loving Care Center (“the Center”). In response to the complaint, a CPS worker

conducted an investigation and determined Founded Physical Neglect; Inadequate Supervision -

Level I, a disposition subsequently affirmed in successive appeals, - - by the local conference, a




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review panel within the local department, the Commissioner of the Virginia Department of

Social Services (DSS) and, finally, by the circuit court.

       The record of the administrative and related proceedings below includes an investigative

narrative report prepared by Liz Smith, the CPS social worker, together with the hearing

testimony of Debbie Beirne, DSS Licensing Inspector; Nolan Lloyd, an eyewitness; Paulina

Thompson, an employee of the Rappahannock Community College (RCC) library; appellant; her

sister, Jaynell Segar Brooks; Raymond Whitaker; and Reverend Russell B. Smith, along with

certain documentary proofs.

       Such evidence disclosed that on July 27, 2004, appellant, a daycare teacher employed by

the Center, took a group of children on a field trip to the RCC library for storytime. During the

CPS investigation, appellant told Smith and Beirne that she loaded the children into the Center’s

van and left from the Center at approximately 9:55 a.m. Appellant told Smith and Beirne that

she arrived at RCC at approximately 10:10 a.m., and entered the library at approximately

10:15 a.m. Appellant stated that at approximately 10:40 a.m., she lined the children up to leave

the library and head to the van.

       Lloyd, a student and part-time employee of RCC, arrived there on July 27, 2004, at

approximately 10:50 a.m., to take a test. Upon exiting his vehicle and while in the parking lot,

Lloyd heard a child calling for his mother. When the child continued calling, Lloyd looked

around the parking lot and found the Center’s van with M.K. inside it, in the back. The van’s

windows and doors were closed. The front two doors were locked, but the side door was

unlocked. Two to three minutes from the time he entered the parking lot, Lloyd opened that side

door, and M.K. exited the van upon Lloyd motioning for him to do so. When Lloyd opened the

van’s side door, he had to step back due to the amount of heat escaping from the van. M.K. had

tears running down his face, mucus coming from his nose, and Lloyd could tell he had been

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sweating. Lloyd described M.K. as “definitely hot and uncomfortable.” Lloyd wrote down the

Center’s information from the side of the van, and then walked toward RCC with M.K.

       As Lloyd and M.K. approached the library building, they encountered appellant, who had

a group of children with her. Lloyd asked appellant how many children she had, and she told

him eleven. Counting M.K., appellant had twelve children. Appellant, who appeared upset and

“obviously remorseful” that she had forgotten M.K., picked him up and hugged him, took him

into her custody, and returned to the Center, where she reported the incident to her employer.

During the CPS investigation, appellant stated that M.K. was warm and had sweat on his shirt.

       During that investigation, appellant also indicated to Beirne that she normally made a list

of children going on a field trip. She would then check the list when the children exited the van

at their destination to ensure that all of them were present. Appellant claimed she had the list on

July 27, 2004, but M.K.’s name was not on it. Appellant admitted to Smith that on July 27,

2004, she did not check the children against the names on her list nor did she do a head count,

because she was running late for the storytime. She stated she did a “quick look” inside the van,

but denied seeing M.K.

       Lloyd estimated that the temperature that day was approximately eighty-five degrees.

While Smith was not able to obtain the exact temperature for Warsaw, Virginia for that day from

the National Oceanic and Atmospheric Administration, William Brown, a meteorologist,

provided her with information concerning temperatures for Richmond, Virginia, Washington

D.C., and Salisbury, Maryland. That information indicated that for those areas the lowest

temperature on July 27, 2004, between 10:00 a.m. and 11:00 a.m., was seventy-nine degrees

Fahrenheit, and the highest temperature was eighty-six degrees Fahrenheit. Lloyd confirmed that

when the child exited the Center’s van, he was “definitely hot and uncomfortable.”




                                               -4-
                                              ANALYSIS

       “Physical Neglect” is defined under the Virginia Administrative Code as:

                 [W]hen 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’s or caregiver’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.1

22 VAC 40-705-30(B). Physical neglect can be “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). “Level 1”

“includes those injuries/conditions, real or threatened, that result in or were likely to have

resulted in serious harm to a child.” 22 VAC 40-700-20(1). “‘Founded’ means that a review of

the facts shows by a preponderance of the evidence that child abuse and/or neglect has

occurred.” 22 VAC 40-705-10.

       Here, evidence proved that appellant left four-year-old M.K. in the Center’s van without

taking adequate measures to ensure that all children had exited the van and that they were present

and accounted for before she left the van and entered the RCC library. Substantial evidence

exists in the record from which the fact finder could reasonably infer that it was between

seventy-nine and eighty-six degrees Fahrenheit between 10:00 a.m. and 11:00 a.m. on July 27,

2004, at the location where appellant left M.K. in the Center’s van. When Lloyd found M.K.

approximately thirty-five minutes after the time appellant stated that she entered the library with

       1
           Code § 63.2-100 provides in its pertinent part as follows:

                        “Abused or neglected child” means any child less than 18
                 years of age:

                         1. Whose parents or other person responsible for his care
                 creates or inflicts, threatens to create or inflict, or allows to be
                 created or inflicted upon such child a physical or mental injury by
                 other than accidental means, or creates a substantial risk of death,
                 disfigurement, or impairment of bodily or mental functions . . . .

                                                  -5-
the other children, the van’s windows were closed and one door was unlocked. When Lloyd

opened the van door, the heat escaping from the van caused him to step back. He found M.K. in

a car seat, crying, sweaty, and obviously hot and uncomfortable. Appellant’s conduct, which

constituted a failure to provide supervision for M.K., endangered and threatened M.K.’s health

and safety. Moreover, the conditions under which appellant left the child, did not, but were

likely to have resulted in serious harm to the child.

       Thus, we find that substantial evidence in the record supports the administrative

disposition, and a reasonable mind would not necessarily come to a different conclusion.

       We find no merit in appellant’s argument that the record’s lack of medical or scientific

evidence to prove that the child was likely to suffer serious harm as a result of appellant’s actions

necessitates a reversal of the circuit court’s decision. First, contrary to appellant’s assertions, the

record does contain evidence regarding the weather on July 27, 2004 through the testimony of

Lloyd and Smith. It is well established that hearsay evidence is admissible at an administrative

hearing conducted in accordance with the Administrative Process Act. See Carter v. Gordon, 28

Va. App. 133, 141, 502 S.E.2d 697, 701 (1998). “If the agency relies on hearsay evidence, the

court reviewing the sufficiency of that evidence on appeal may give it the same weight as any

other record evidence.” Id. Moreover, it is certainly within the realm of common knowledge

that leaving a four-year-old child for at least thirty-five minutes, in a closed vehicle, at the end of

July, in Virginia, on a day when temperatures were in the low to mid-eighties, was likely to

result in serious harm to that child.

       Accordingly, we summarily affirm the decision of the circuit court.

                                                                                             Affirmed.




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