                      COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Senior Judge Coleman
Argued at Chesapeake, Virginia


GARY WAYNE ABLES
                                           MEMORANDUM OPINION * BY
v.   Record No. 0973-02-1                 JUDGE SAM W. COLEMAN III
                                              FEBRUARY 19, 2003
SONIA RIVERO, COMMISSIONER,
 VIRGINIA DEPARTMENT OF SOCIAL SERVICES


         FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
                      Bruce H. Kushner, Judge

          Catherine L. MacLean (John J. Flora, III;
          Bennett and Zydron, P.C., on brief), for
          appellant.

          Cheryl A. Wilkerson, Assistant Attorney
          General (Jerry W. Kilgore, Attorney General;
          Francis S. Ferguson, Deputy Attorney General;
          Siran S. Faulders, Senior Assistant Attorney
          General; A. Cameron O'Brion, Assistant
          Attorney General, on brief), for appellee.


     Gary Wayne Ables appeals a decision of the trial court

affirming a disposition of founded child abuse by the Virginia

Department of Social Services (DSS).   Ables contends the finding

that he committed child abuse is fundamentally unfair and that he

was denied due process during the proceedings.   He also asserts

that the trial court erred by failing to find that the disposition

was not in accordance with constitutional right, power, privilege,

or immunity.   In addition, Ables argues that the statutes,


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
regulations, and polices applied in determining physical abuse in

this case are void for vagueness.    Finding no error, we affirm.

                              BACKGROUND

     Ables is the stepfather of the teenage child, who was

fourteen years old at the time of the incident.    On May 27, 1999,

the teenage child showed signs of discomfort when sitting in her

school classes.   She reported that Ables had spanked her on the

buttocks with a board or paddle more than once a day for the past

several days as punishment for various incidents of misbehavior

and poor progress reports from school.     A Child Protective

Services worker (CPS worker) interviewed the teenage child that

day at her junior high school.    In her intake assessment, the CPS

worker reported that the teenage child's buttocks "were almost a

solid bruise."    Some of the marks appeared red and fresh, while

others appeared "darker blue" and "yellowish," indicating a

"different stage of marks."    The intake assessment indicates that

the school nurse observed the teenage child's injury and declared

that it was "one of the worst bruising situations she had seen in

all her years of nursing."    The teenage child did not receive

medical treatment for the injury.

     The teenage child told the CPS worker that Ables had spanked

her seven times in the past three and one-half days and that Ables

indicated he would continue the beatings every day until she

received a good progress report.    The teenage child estimated that



                                 - 2 -
Ables struck her twelve times on the preceding day.    The teenage

child also stated that Ables used a "paddle-type board" when he

struck her.    She described it as being about two feet long and

several inches thick.    The teenage child told the CPS worker that

she once wore several layers of undergarments in anticipation of

the beating.    The CPS worker indicated the extra clothing did not

appear to lessen the intensity of the blows.    The teenage child

also advised the CPS worker of a similar beating that had occurred

in the previous year in which Ables struck her and caused

bruising.

        The CPS worker interviewed Ables at the family home on the

same day she interviewed the teenage child.    He admitted that he

had spanked the teenage child approximately six times in the past

week.    He also agreed that he used a "paddle," but he was unable

to locate the paddle to show the CPS worker.    Ables and his wife,

the teenage child's mother, explained that the teenage child was

disciplined for various incidents of misbehavior and for her poor

performance in school.    They indicated that they believed similar

discipline had been effective in the past.    The CPS worker

expressed concern in her report that the parents did not "see the

severity of their actions and [they felt] that [the teenage

child], by her own actions, brought them to this point of

excessive discipline."




                                 - 3 -
     The CPS worker also noted that Ables is "a very well built

strong individual," with a handshake of "tremendous strength."

The record indicates that Ables is six feet, two inches tall and

weighs 280 pounds.

     The CPS worker met with her supervisor and co-workers on June

30, 1999, to review and consider the case.   The staff made a

disposition of founded for physical abuse based on the severity of

the injuries and the numerous times Ables struck the teenage child

over a time period of several days.    By letter dated July 7, 1999,

Child Protective Services informed Ables that, based upon its

investigation of the matter, it "ha[d] made a disposition of

Founded case of physical abuse of [the teenage child] by . . .

Ables."   The letter further advised Ables this was a Level I

disposition "in that the abuse resulted, or was likely to have

resulted, in severe harm to the child."   The letter also stated

that, as a result of the action taken by DSS, Ables' name had been

reported to the Central Registry.

     Ables appealed the decision of Child Protective Services to a

local agency "conference" on August 11, 2000, where he was

represented by counsel.   Ables presented evidence at the

conference, including a paint stirrer that he described as being

"similar" to the paddle he used to strike the teenage child.

Ables described the teenage child's misbehavior which he felt

justified the punishment.   He indicated that he had not intended



                               - 4 -
to cause the bruising and had intended only to discipline the

teenage child.     Ables also stated that he had spanked the teenage

child once a day for four days in a row, whereas he had earlier

stated to the CPS worker that he paddled her six times in that

time frame. 1

     By letter dated August 21, 2000, the Chief of Services for

Chesapeake DSS advised Ables that the disposition of founded abuse

was upheld.     However, she amended the Level I finding to a Level

II finding, which includes "'those injuries/conditions, real or

threatened, that result in or were likely to have resulted in

moderate harm to a child.'"    The letter further set forth the

definition of "physical abuse" that is found in the DSS

regulations and stated that "bruising" is considered a physical

injury within the meaning of physical abuse.    The letter advised

Ables that his name was being forwarded to the Central Registry

where it would be retained for a period of seven years.

     Ables appealed the local agency decision to the Commissioner

of DSS.   On December 1, 2000, an administrative hearing before a

hearing officer was conducted by telephone conference call.    Both


     1
       The record contains a court order from the Chesapeake
Juvenile and Domestic Relations District Court which addresses
the custody of the teenage child and was entered on July 21,
2000. Ables signed this order, which states that Ables "had
spanked" the teenage child with a paddle "twice a day over the
course of several days."




                                 - 5 -
Ables and the CPS worker testified and cross-examined each other.

At the request of both parties, the administrative record was held

open until January 19, 2001 to allow for the submission of

additional evidence.   At the hearing, appellant again acknowledged

that he struck the teenage child with a paddle for several days,

resulting in the bruising.   Ables argued that his actions were not

malicious and were intended as discipline.

     In her decision, the hearing officer wrote:

          Regardless of the intent of [Ables'] actions
          in spanking [the teenage child] with the
          paddle, he undertook a volitional act by
          repeatedly spanking her, which resulted in
          severe injuries to her buttocks. [Ables]
          is, as described by the worker, a large man.
          The bruises covering [the teenage child]'s
          buttocks were inflicted through her jeans
          and, for at least some of the paddlings,
          through several pairs of underwear.
          Afterwards, [the teenage child] was
          uncomfortable and had difficulty trying to
          sit down at school. After viewing the
          bruises in the photographs, there can be no
          question that these injuries were painful
          and that a great deal of force was used by
          [Ables] when he paddled the child. Clearly,
          [Ables'] behavior crossed the line from
          discipline to physical abuse when he hit
          [the teenage child] with the paddle
          repeatedly over several days and with
          sufficient force to cause such severe
          bruising through her clothing.

     The hearing officer sustained the disposition of

"Founded-Physical Abuse-Level 2," and Ables appealed the

decision to the circuit court.




                                 - 6 -
     The circuit court's written statement of facts states that

the parties appeared before the court on two occasions.     Neither

hearing was transcribed.   Ables argued to the trial court that

because his name has been placed in the Central Registry, he is

prohibited from coaching his son in volunteer sporting

activities.   He also filed a petition for review and appeal in

which he presented constitutional arguments.    The trial court

affirmed the hearing officer's decision.    By order dated March

21, 2002, the trial court held that the procedures used by DSS

"did not constitute a constitutional deprivation;" the agency

record contained substantial evidence to support the factual

findings; "the evidence in the agency record reached a clear and

convincing level of proof;" and Ables' corporal punishment "went

beyond the 'bounds of moderation and reason.'"

                              ANALYSIS

                      1.   Standard of Review

     "In an appeal to the circuit court from a decision by an

agency, the burden is upon the appealing party to demonstrate

error."   Carter v. Gordon, 28 Va. App. 133, 141, 502 S.E.2d 697,

700-01 (1998).   The evidence is viewed in the light most

favorable to DSS, and the "court's review of issues of fact is

limited to the agency record."     Id. at 141, 502 S.E.2d at 701.

The Administrative Process Act provides that "the duty of the

court with respect to issues of fact is limited to ascertaining



                                 - 7 -
whether there was 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."    Former Code § 9-6.14:17 (re-codified as

Code § 2.2-4027).

             The "substantial evidence" standard, adopted
             by the General Assembly, is designed to give
             great stability and finality to the
             fact-findings of an administrative agency.
             The phrase "substantial evidence" refers to
             "such relevant evidence as a reasonable mind
             might accept as adequate to support a
             conclusion." Under this standard,
             applicable here, the 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."

Virginia Real Estate Comm'n v. Bias, 226 Va. 264, 269, 308

S.E.2d 123, 125 (1983) (citations omitted) (emphasis in

original).

         2.     Whether the Finding was Fundamentally Fair

     Ables contends that the administrative procedures followed

by DSS in making its disposition and in its appellate process

denied him the opportunity to have an impartial trier of fact.

However, this Court has held that the administrative procedures

adopted by DSS are constitutional even where a protected liberty

or property interest exists.     Jackson v. W., 14 Va. App. 391,

405-12, 419 S.E.2d 385, 393-98 (1992).

             [T]he government has an important interest
             in preventing child abuse and neglect.
             Considering the value of additional



                                 - 8 -
          procedures in reducing the risk of an
          erroneous deprivation, we are mindful that
          the department's initial determination was
          subject to two appeal proceedings. [The
          accused] was given notice and an opportunity
          to be heard. Moreover, the burden on the
          Commonwealth, in terms of administrative
          efficiency and financial cost, of requiring
          additional procedural requirements is
          significant. As a practical matter,
          permitting witnesses appearing before the
          department to enjoy the rights that
          typically pertain in adjudicatory
          proceedings would have adverse identifiable
          consequences. The primary function of the
          department is to investigate complaints of
          child abuse and neglect. The Supreme Court
          has warned that "the investigative process
          could be completely disrupted if
          investigative hearings were transformed into
          trial-like proceedings." Indeed, requiring
          the department to provide "the full panoply"
          of procedures normally associated with an
          adjudication would severely undermine the
          fact-finding duties of the agency.
          Consequently, the challenged procedures are
          constitutionally adequate even were it to be
          assumed that [the accused] has a protected
          liberty or property interest under the Due
          Process Clause.

Id. at 412, 419 S.E.2d at 397 (quoting Hannah v. Larche, 363

U.S. 420, 443 (1960)). 2

     The CPS worker interviewed Ables on the day the teenage

child reported the incident.   Ables cooperated in the initial

investigation by speaking with the worker.   Ables then appealed



     2
       In his brief, Ables asserts that Hannah has been
overruled. Although the case has been distinguished and
criticized in some respects over the years, the United States
Supreme Court has not overruled the case.



                               - 9 -
the finding of abuse by Child Protective Services, and he

participated in a conference at the local agency.   He was

represented by counsel at the proceeding where he presented

evidence and argument.    Ables appealed the decision of the local

agency to the Commissioner of DSS and had a hearing before a

hearing officer wherein he was again represented by counsel,

presented evidence and argument, and had the opportunity to

cross-examine adult witnesses.    DSS kept the record open in

order to allow Ables to present additional evidence.   Ables then

appealed the hearing officer's decision to the circuit court

where he filed written arguments and made two appearances in

court.

       "If [Ables] was entitled to due process, he received all

that he was due."    Carter, 28 Va. App. at 146, 502 S.E.2d at

703.   Furthermore, Ables has presented no evidence tending to

show "that the fact-finding procedure was tainted by unfair

prejudice or animosity."    State Bd. of Health v. Godfrey, 223

Va. 423, 434, 290 S.E.2d 875, 881 (1982).    Accordingly, Ables

was not denied due process on this ground.

                     3.   Procedural Due Process

       Ables contends he was denied procedural due process.     He

asserts that the disposition of founded physical abuse has

deprived him of two liberty interests, the estrangement of the

teenage child from the family and his alleged prohibition from



                                - 10 -
coaching his son's athletic teams.       He also asserts that he

suffers a stigma associated with being placed in the Central

Registry.

                 The Fourteenth Amendment to the United
            States Constitution provides that no person
            shall be deprived of life, liberty or
            property without due process of law.
            "Procedural due process rules are meant to
            protect persons not from the deprivation,
            but from the mistaken or unjustified
            deprivation of life, liberty, or property."
            Due process analysis involves a two-part
            inquiry. First, there must be a deprivation
            of a liberty or property interest. Then,
            "'[o]nce it is determined that due process
            applies, the question remains what process
            is due.'"

Jackson, 14 Va. App. at 405-06, 419 S.E.2d 393-94 (citations and

footnote omitted).

     We find that DSS did not deprive Ables of any liberty

interests without due process of law.      In Jackson, the accused

alleged, among other things, that the founded disposition would

damage his dental practice and his reputation.       Id. at 409, 419

S.E.2d at 396.   We held that the record lacked any evidence of

damage to the accused's dental practice and that no likelihood

existed that information from the Central Registry would become

available to the accused's patients because the information in

the registry is confidential.    Id.     "[T]he statute provides for

the confidentiality of all records or files compiled during the

investigation, Code § 63.1-248.7(J), and the data stored in the




                                - 11 -
computerized Central Registry, Code § 63.1-248.8.    Therefore,

information concerning [Ables'] abusive conduct is not generally

available to the public."     Id. at 409-10 n.14, 419 S.E.2d at 396

n.14.

        Furthermore, the Court held that "a person's reputation

alone is not a liberty or property interest and thus is not

entitled to due process protection."     Id. at 411, 419 S.E.2d at

396.    Thus, Ables' argument that he will suffer a "stigma" is

not an interest entitled to due process protection.    Moreover,

the purpose of the Child Abuse and Neglect Act is "not one of

punishment and correction of the alleged abuser.    Rather, under

this statute, the policy of protecting abused children and

preventing further abuse of those children is key."     J.P. v.

Carter, 24 Va. App. 707, 726, 485 S.E.2d 162, 172 (1997).

        In Carter v. Gordon, Gordon complained that the "founded"

disposition deprived him of his teaching job where he had been

suspended by the school from that job.     Carter, 28 Va. App. at

146, 502 S.E.2d at 703.    The Court held that the DSS finding

"was limited to placing his name in the Central Registry," and

DSS had no power to "deprive" Gordon of a teaching job.     Id. at

146, 502 S.E.2d at 703.    Rather, "his separation from that

school system was solely the act of the School Board."     Id.

        Here, Ables offered no evidence that he has been deprived

of the opportunity to coach his son.     Indeed, the regulation he



                                - 12 -
cites as authority for the proposition that the disposition will

deprive him of the coaching opportunity addressed "Minimum

Standards for Local Agency Operated Volunteer Respite Child Care

Programs."   22 VAC 40-790-20 (now repealed).   However, even if,

as a "collateral consequence" of being in the Central Registry,

he is deprived of a coaching opportunity, it would not be as a

result of the action of DSS, whose power is limited to placing

his name in the Central Registry.     Carter, 28 Va. App. at 147,

502 S.E.2d at 704.   Rather, Ables' lack of opportunity to coach

would be solely the result of an act or decision of the

applicable league or athletic body.    "'Although a "founded"

disposition could possibly foreclose [Ables'] chances for

engaging in [coaching] activities,' [Ables] has pointed to 'no

rule . . . that a "founded" disposition of child abuse

automatically disqualifies an applicant' from such activity."

Id. (citation omitted).

     Ables asserts that the teenage child is estranged from the

family as a result of the procedures of DSS and that

interference with his familial relationship is a deprivation of

his liberty interest entitling him to due process.    However, the

"only immediate consequence of the disposition is the placement

of [Ables'] name and the [teenage child's name] in the

computerized Central registry.   The placement of [Ables'] name

in the Central Registry does not interfere with his relationship



                              - 13 -
with [the teenage child]."      Turner v. Jackson, 14 Va. App. 423,

437, 417 S.E.2d 881, 891 (1992) (citation omitted).

     Therefore, Ables "has not identified a deprivation

cognizable under the Due Process Clause."      Carter, 28 Va. App.

at 147, 502 S.E.2d at 704.

              4.   Right to Administer Corporal Punishment

     Ables asserts that DSS failed to consider that he had a

legal responsibility and duty to control the teenage child, and

he had a parental right to administer corporal punishment to

maintain that control.     He also contends "there was no attention

paid to the behavior" of the teenage child which led to the

punishment.

     First, we note that the record shows Ables repeatedly

expressed his opinion to the CPS worker, and at every stage

during the proceedings, that the teenage child's behavioral

issues justified his "disciplinary" actions.     However, even

taking into consideration that the teenage child may have had

behavioral issues, parental punishment may not exceed the bounds

of reason.

                  Courts are agreed that a parent has the
             right to administer such reasonable and
             timely punishment as may be necessary to
             correct faults in his growing children. The
             right cannot be used as a cloak for the
             exercise of malevolence or the exhibition of
             uncontrolled passion on the part of the
             parent.




                                 - 14 -
Carpenter v. Commonwealth, 186 Va. 851, 860, 44 S.E.2d 419, 423

(1947) (involving a criminal charge for assault and battery of a

seven-year-old child).    "[T]he great preponderance of authority

is to the effect that a parent has a right to punish a child

within the bounds of moderation and reason, so long as he does

it for the welfare of the child; but that if he exceeds due

moderation, he becomes criminally liable."      Id. at 861, 44

S.E.2d at 423.

     "[W]here the question involves an interpretation which is

within the specialized competence of the agency and the agency

has been entrusted with wide discretion by the General Assembly,

the agency's decision is entitled to special weight in the

courts."   Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231, 244,

369 S.E.2d 1, 8 (1988).    "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."     Id. at 242, 369 S.E.2d at 7.

     Substantial evidence, including the photographs showing the

teenage child's bruising, supported the hearing officer's

finding that Ables' actions "crossed the line from discipline to

physical abuse."    Ables intentionally struck the teenage child

repeatedly with a board or paddle, on the outside of her

clothing, twice a day, over a period of several days, causing

severe bruising that covered the teenage child's entire buttocks



                                - 15 -
and caused the teenage child discomfort.   Clearly, this

punishment "'went beyond the bounds of moderation and reason'"

as stated by the trial court.    See State v. Arnold, 543 N.W.2d

600, 603 (Iowa 1996) (criminal case finding abuse where beating

caused bruised buttocks on child); Miller v. Walker, 665 A.2d

1252, 1256-57 (Pa. Super. Ct. 1995) (one incident of spanking

with board causing bruising and pain considered "bodily injury"

within meaning of Protection from Abuse Act); In re F.P., 665

A.2d 597, 602 (Vt. 1995) (pain and bruising caused by striking

with hand and belt sufficient to justify conclusion that parent

did not reasonably discipline, but unreasonably abused child).

     In addition, "physical abuse" is defined in 22 VAC

40-705-30 as:   "When a caretaker creates or inflicts, threatens

to create or inflict, or allows to be created or inflicted upon

a child a physical injury by other than accidental means or

creates a substantial risk of death, disfigurement, or

impairment of bodily functions."    The Virginia Department of

Social Services, Child Protective Services Manual (CPS Manual)

lists bruises as one of the categories of physical abuse.

Virginia Department of Social Services, Child Protective

Services, Vol. VII, Sec. III, Chap. A at 10 (1998).

     Thus, regardless of the teenage child's alleged misconduct,

or whether Ables did not intend to cause bruising with the

beatings, the evidence showed that Ables intentionally and



                                - 16 -
repeatedly struck the teenage child's buttocks several times a

day with a paddle or board.     Therefore, Ables intended to strike

the teenage child, and his striking caused bruising and

discomfort.    The result of his actions was not "unforeseen or

unexpected."   Accordingly, substantial evidence supported the

finding of DSS that the injury was not accidental and

constituted physical abuse.

                        5.   Void for Vagueness

     Ables contends the definition of abuse found in former Code

§ 63.1-248.1 3 is vague because it does not incorporate the

constitutional right of a parent to "manage" or discipline a

child.

     "The degree of vagueness that the Constitution tolerates

. . . depends in part on the nature of the enactment."        Village

of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455

U.S. 489, 498 (1982).    "The [United States Supreme] Court has

also expressed greater tolerance of enactments with civil rather

than criminal penalties because the consequences of imprecision

are qualitatively less severe."     Id. at 498-99 (footnote

omitted).




     3
       The Child Abuse and Neglect statutes were revised and
re-codified in 2002 in Code § 63.2-1501 et seq.




                                 - 17 -
       This Court previously addressed a similar challenge to Code

§ 63.1-248.1 and the guidelines, and we held that they are not

unconstitutionally vague insofar as they define "physical

abuse."    Turner, 14 Va. App. at 432-36, 417 S.E.2d at 888-90.

                 "Essentially, the vagueness doctrine
            demands that laws be drawn with a degree of
            precision and clarity." A law must "clearly
            delineate" what conduct is prohibited in
            order to "'give the person of ordinary
            intelligence a reasonable opportunity'" to
            conform his conduct accordingly, and to
            prevent arbitrary and discriminatory
            enforcement. Although absolute precision is
            not required, a law must afford a reasonable
            degree of certainty so that a person is not
            left to guess at what conduct is prohibited.

Id. at 433, 417 S.E.2d at 888 (citations omitted).

       Code § 63.1-248.2(A)(1) defines an "abused or neglected

child" as any child under eighteen years of age:

            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.

       The Turner Court held that the "physical injury" language

"puts the average person on notice that conduct that creates or

inflicts physical harm upon the child falls within the statute's

proscription."    Turner, 14 Va. App. at 433-34, 417 S.E.2d at

888.   As in Turner, we find that a person of average

intelligence would understand that beating the buttocks of a



                               - 18 -
teenager with a paddle or board of the size being utilized twice

a day over a period of several days would result in physical

injury to the teenager.

     Furthermore, the hearing officer amended the original

disposition to a Level 2 founded abuse, which is defined as

including "those injuries/conditions, real or threatened, that

result in or were likely to have resulted in moderate harm to a

child."    CPS Manual, Vol. VII, Sec. III, Chap. A at 113.   The

CPS Manual further provides that injuries that resulted in

moderate harm include, in the case of physical abuse, "use of a

tool which is associated with discipline such as a switch or

paddle."    Id.   Clearly, this language would put the average

person on notice that Ables' conduct fell within its

proscription.

     Our holding is in accord with those of other jurisdictions

that have considered void-for-vagueness challenges involving

similar statutory language.    In Keser v. State, 706 P.2d 263

(Wyo. 1985), a stepparent was convicted of criminal child abuse.

The accused struck the child with a metal spatula, with his

hand, and with a belt on the child's bare buttocks about

fourteen times.    The child suffered bruising on his "posterior."

The statute in effect at the time stated:    "[A]ny adult who

intentionally or in reckless disregard of the consequences

causes physical injury . . . to a child . . . is guilty of child



                                - 19 -
abuse."   Wyo. Stat. Ann. § 6-2-503 (1977, now revised).    The

accused argued that the term "physical injury" was vague because

the statute did not define the term.

      The Wyoming court concluded that "[p]hysical injury is harm

to the body.   It is a term of common usage generally understood

by the average person.   It includes bruises and welts and trauma

of the kind suffered by the victim in this case."    Id. at 268.

The court stated:

           [The accused] should have known that his
           conduct was violative of the statute; and,
           if the definition of child abuse is not as
           precise as he would like it, that, in
           itself, does not render the statute
           unconstitutional. The right to have
           children does not include a corresponding
           right to abuse them by omission or
           commission. Children need protection. This
           statute accomplishes that purpose and is
           sufficiently definite to satisfy
           constitutional requirements.

Id.

      The Court also noted that, in upholding the

constitutionality of a child neglect statute, a California court

wrote, "'The type of conduct which . . . the statute seeks to

reach defies precise definition.   In number and kind the

situations where a child's life or health may be imperiled are

infinite.'"    Id. at 267 (quoting People v. Beaugez, 43 Cal.

Rptr. 28, 32 (Cal. Ct. App. 1965)).




                               - 20 -
     In upholding the constitutionality of a criminal child

cruelty and neglect statute in a case involving a bruised child,

the Court of Appeals of Indiana stated, "[V]iolence sufficient

to produce severe bruises is enough to allow an ordinary man to

test the 'unnecessary' nature of the punishment inflicted.    The

statute need only inform the individual of the generally

proscribed conduct, it need not list with itemized exactitude

each item of conduct prohibited."   Hunter v. State, 360 N.E.2d

588, 595 (Ind. App. 1977).   See also Watso v. Colorado Dep't of

Soc. Servs, 841 P.2d 299, 310 (Col. 1992) ("Generality is not

the equivalent of vagueness."); Chambers v. State, 364 So. 2d

416 (Ala. Crim. App. 1978) ("willful abuse" and "torture" are

not so vague as to render criminal statute void for vagueness).

     Ables also contends the definition of "founded" in the

Administrative Code is vague because different sections of the

Code and the CPS Manual define the term incongruously concerning

the standard of proof necessary to make a disposition of

founded.

     At the time of the incident, May 1999, Title 22 of the

Virginia Administrative Code contained two chapters addressing

Child Protective Services that were then in effect.   Chapter

710, entitled "Child Protective Services Client Appeals," was

effective on December 6, 1989 and was repealed, effective

December 8, 1999.   Chapter 705, entitled "Child Protective



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Services," became effective on January 1, 1998.      This chapter

included a section on appeals.    Both of these chapters were in

effect in May 1999.

        The chapters contain different standards of proof for a

disposition of "founded" child abuse.    Chapter 705, currently in

effect, provides that "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.   Chapter 710,

now repealed, provided that "founded" "means that a review of

the facts shows clear and convincing evidence that child abuse

or neglect has occurred."    22 VAC 40-710-10.

        On July 19, 1999, Volume 15, Issue 22 of the Virginia

Register of Regulations contained a proposed regulation

repealing 22 VAC 40-710-10 et seq., effective on December 8,

1999.    The basis for the proposed regulation provided:   "The

department proposes to repeal the original appeal regulation, 22

VAC 40-710-10 et seq., because it is part of a broader and more

recent regulation, 22 VAC 40-705-10 et seq., which combines both

programmatic and appeals regulations."    15 Va. Regs. Reg. Issue

22 at 2833 (July 19, 1999).    "The purpose of repealing the

regulation is to eliminate a redundant regulation."      Id.

Chapter 710 was repealed, effective December 8, 1999.      22 VAC

40-710-10 (Cum. Supp. 2002).




                                - 22 -
     We conclude that this regulatory history shows that any

inconsistency between the two chapters reflected an oversight by

DSS in failing to timely recognize that the enactment of Chapter

705 was redundant with Chapter 710.     In other words, DSS

intended that the more recently-enacted provision, Chapter 705,

applied at the time of this offense.    In addition, the CPS

Manual provided that "'founded' means that a review of the facts

shows by a preponderance of the evidence that child abuse . . .

had occurred."   CPS Manual Vol. VII, Sec. III, Chap. A at 108

(citing 22 VAC 40-705-10).   The CPS Manual also provided that

when an accused appeals the decision of the local conference to

the commissioner, "the local department shall have the burden to

show that the preponderance of the evidence supports the founded

disposition."    Id. at 255 (citing 22 VAC 40-705-190(H)(9)).

     Therefore, in accordance with 22 VAC 40-705-10 and the CPS

Manual, the hearing officer used the correct standard of proof

in her determination that the facts showed by a preponderance of

the evidence that Ables physically abused the teenage child.

Accordingly, we find that the regulations and policies were not

so vague as to render them unconstitutional and the hearing

officer used the proper standard of proof.

     Moreover, we note that in the trial court's final order,

affirming the hearing officer's decision, the court stated, "the

evidence in the agency record reached a clear and convincing



                               - 23 -
level of proof."   "Clear and convincing proof is a higher

standard of proof than that required under a preponderance

standard."   Turner, 14 Va. App. at 428, 417 S.E.2d at 885.

Thus, even under the higher standard of proof, the trial court

found that the record contained substantial evidence upon which

DSS could make a disposition of founded child abuse.

     For these reasons, the judgment of the trial court is

affirmed.

                                                        Affirmed.




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