                  COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Elder and Bray
Argued at Chesapeake, Virginia


LISA BEATON
                                         MEMORANDUM OPINION * BY
v.   Record No. 0917-99-1                 JUDGE LARRY G. ELDER
                                              MARCH 7, 2000
VIRGINIA DEPARTMENT OF SOCIAL SERVICES


       FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                    A. Bonwill Shockley, Judge

          Andrew G. Wiggin (Donald E. Lee, Jr. and
          Associates, on briefs), for appellant.

          Cheryl A. Wilkerson, Assistant Attorney
          General (Mark L. Earley, Attorney General;
          Ashley L. Taylor, Jr., Deputy Attorney
          General; Siran S. Faulders, Senior Assistant
          Attorney General; Daniel J. Poynor, Assistant
          Attorney General, on brief), for appellee.


     Lisa Beaton (appellant) appeals from a decision of the

Virginia Beach Circuit Court finding substantial evidence to

support the determination of the Department of Social Services

(DSS) that a complaint of "Inadequate Supervision--Level Three"

against appellant was "Founded."   On appeal, appellant contends

the circuit court committed reversible error by (1) refusing to

hold that the doctrine of res judicata required a reversal of

DSS's decision, and (2) finding sufficient evidence to prove

neglect under the statute and under the guidelines.   We hold


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
that the doctrine of res judicata is inapplicable in this case

but that the evidence was insufficient to establish a violation

of either DSS's guidelines or the applicable statute.

Therefore, we reverse and vacate DSS's determination that the

complaint of "Inadequate Supervision--Level Three" against

appellant was "Founded."

                                 I.

                             BACKGROUND

     The basic facts surrounding the inadequate supervision

charge are not in dispute.   At about noon on January 15, 1997,

appellant left her home by car to pick up her three-year-old son

from pre-school.   At the time, her nine-month-old twins were

asleep in their cribs.   Appellant tried to reach several people

to stay with the twins, but her regular sitters were not

available.   She eventually reached the next-door neighbor, told

the neighbor the twins were asleep, and asked her to "watch the

house" while appellant left briefly to pick up her son.     She did

not ask the neighbor to come to the house and did not provide

the neighbor with a key.   Appellant knew the front door to the

house was locked but was unaware of the status of the back door.

Appellant left to pick up her son and returned to the house

within fifteen minutes of departing.      The twins were asleep when

she arrived home, and she telephoned the neighbor to report her

return.



                               - 2 -
                                 II.

                               ANALYSIS

                                  A.

                           RES JUDICATA

     Appellant contends that the juvenile and domestic relations

district court's September 29, 1997 finding that she did not

neglect her children was binding on the DSS hearing officer

under the doctrine of res judicata.

     Assuming without deciding that the decision of a district

court regarding neglect may be res judicata in a related

administrative proceeding, we are unable to conclude that the

doctrine of res judicata applies in this case.      "'One who

asserts the defense of res judicata has the burden of proving

that the very point or question was in issue and determined in

the former suit.'"   Bernau v. Nealon, 219 Va. 1039, 1043, 254

S.E.2d 82, 85 (1979) (quoting Feldman v. Rucker, 201 Va. 11, 18,

109 S.E.2d 379, 384 (1959)).    The party asserting applicability

of the doctrine must offer the record of the prior action into

evidence.   See id. at 1041-42, 254 S.E.2d at 84.    "'If the

courts should recognize judicially facts adjudicated in another

case, it makes those facts, though unsupported by evidence in

the case at hand, conclusive against the opposing party; while

if they had been properly introduced they might have been met

and overcome by him.'"   Id. at 1043, 254 S.E.2d at 85 (citations

omitted).

                                - 3 -
     In an administrative proceeding, a party ordinarily may

offer evidence only in proceedings before the local department

or a DSS hearing officer.     See Code § 63.1-248.6:1.   "[T]he

circuit court's role in an appeal from an agency decision

[pursuant to the Administrative Process Act] is equivalent to an

appellate court's role in an appeal from a trial court."      York

County Sch. Bd. v. Nicely, 12 Va. App. 1051, 1062, 408 S.E.2d

545, 551 (1991).    "[T]he factual issues on appeal are controlled

solely by the agency record," and "[t]he reviewing court is not

free to take additional evidence, even at the request of one of

the parties."     Id.; see also id. at 1051 n.2, 408 S.E.2d at 551

n.2 (noting that APA permits circuit court to accept evidence in

rare circumstance not applicable here, "where no agency record

exists").   In sum, the applicability of res judicata requires

proof of the fact and details of the prior judgment, and a

circuit court may not accept documents or other evidence

purporting to prove these facts which were not offered and

admitted into evidence at the agency level.

     Here, appellant's counsel informed the DSS hearing officer

by voice mail and letter of the district court's decision and

expressed the "hope" that she would make the same finding as the

district court.    The record contains no indication that

appellant's counsel provided the hearing officer with a copy of

the order or transcript of the proceedings or asked her to

reopen the record to receive same into evidence.    Therefore, we

                                 - 4 -
uphold the circuit court's ruling that it could not consider the

district court's order or transcript of the related proceedings.

For the same reason, we also may not consider these documents on

appeal. 1    Without these documents we are unable to conclude

whether the doctrine of res judicata may have been a viable

defense. 2

                                  B.

               SUFFICIENCY OF EVIDENCE TO PROVE NEGLECT
                     UNDER STATUTE AND GUIDELINES

     Appellant contends the agency guidelines she was found to

have violated impermissibly broadened the scope of Code

§ 63.1-248.2, which defines abuse and neglect, such that the

evidence is insufficient to prove neglect under the statute.

She also contends the evidence is insufficient to establish

neglect even under the guidelines.       Assuming without deciding

that the relevant portion of the guidelines do not impermissibly

broaden the scope of the statute, we nevertheless hold that

appellant's actions did not constitute a violation of the


     1
       Therefore, we grant appellee's motion to strike from the
appendix the transcript and order memorializing the district
court's ruling of September 29, 1997.
     2
       Appellant also contends that the doctrine of autrefois
acquit applies to bar the DSS proceedings. Autrefois acquit is
a form of double jeopardy applicable in criminal proceedings.
See Highsmith v. Commonwealth, 25 Va. App. 434, 444, 489 S.E.2d
239, 243 (1997). Assuming without deciding that the district
court had jurisdiction to impose a criminal penalty on appellant
and that its failure to do so somehow constituted a criminal
acquittal, that fact would bar only a subsequent criminal
action, not a civil one. See id. at 444, 489 S.E.2d at 243-44.

                                 - 5 -
guidelines or the statute, and we reverse and vacate the

agency's founded determination.

     Code § 63.1-248.2 defines an "[a]bused or neglected child,"

inter alia, as

          any child less than eighteen years of age:

               1. Whose parents or other person
          responsible for his care . . . creates a
          substantial risk of death, disfigurement, or
          impairment of bodily or mental functions;
          [or]

               2. Whose parents or other person
          responsible for his care neglects or refuses
          to provide care necessary for his health.
          However, no child who in good faith is under
          treatment solely by spiritual means through
          prayer in accordance with the tenets and
          practices of a recognized church or
          religious denomination shall for that reason
          alone be considered to be an abused or
          neglected child; . . . .

     Guidelines promulgated to help the local departments "in

interpreting the definitions of abuse and neglect provided by

statute" are contained in DSS's Protective Services Manual.     See

Jackson v. W., 14 Va. App. 391, 399, 419 S.E.2d 385, 389 (1992).

The relevant version of that Manual provides that physical

neglect includes:

          [t]he failure to provide food, clothing,
          shelter or supervision for a child to the
          extent that the child's health or safety is
          endangered. . . .

          Physical neglect may include multiple
          occurrences or a one-time critical or severe
          event that results in a threat to health or
          safety, such as a toddler left alone.


                              - 6 -
             Physical neglect includes the following when
             the conditions threaten the child's health
             or safety:

             b)   Inadequate supervision: the child has
                  been left in the care of an inadequate
                  caretaker or in a situation which
                  requires judgment or actions greater
                  than the child's level of maturity,
                  physical condition, and/or mental
                  abilities would reasonably dictate; or
                  [under] minimal care/supervision which
                  results in placing the child in jeopardy
                  of or at risk of . . . physical injury
                  . . . .

7 DSS Service Programs Manual § III (Child Protective Services

Manual), ch. A.1.c.2) (Aug. 1995 ed.) [hereinafter CPS Manual]. 3

A level three finding involves "those injuries/conditions, real

or threatened, that result in minimal harm to a child" such as

"supervision marginal" which "poses threat of danger to child."

Id. ch. A.3.f.2)(a)(3), at 23-24; see 22 Va. Admin. Code

40-700-20.

     The applicable regulation and guidelines provide that, in

proceedings before the local agency, clear and convincing proof

of abuse or neglect is required before a complaint may be

labeled "founded."      Jackson, 14 Va. App. at 410, 419 S.E.2d at

396 (citing CPS Manual); 22 Va. Admin. Code 40-700-10; CPS



     3
       DSS has enacted more detailed regulations, which took
effect on January 1, 1998. See 22 Va. Admin. Code 40-705-10 to
40-705-190, hist. nn. It also revised its CPS Manual to conform
to these new regulations. All proceedings before DSS in this
case took place in 1997, before enactment of the new regulations
and revision of the guidelines, and we rely on the regulations
and guidelines in effect at that time.

                                  - 7 -
Manual, ch. A.3.f.2)(a), at 23-24. 4         This requirement serves "to

protect not only the interests of the child but also the rights

of the person accused."         Jackson v. Marshall, 19 Va. App. 628,

635, 445 S.E.2d 23, 27 (1995).

        On appeal, the Administrative Process Act limits the review

of factual issues to a determination of 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 § 9-6.14:17.   Substantial evidence is "'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

Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct.

206, 216, 83 L. Ed. 126 (1938)) (emphasis in Bias).          Under this

standard, the 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."

Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231, 242, 369 S.E.2d

1, 7 (1988).

        Combining the clear and convincing and substantial evidence

standards, an appellate court may affirm the agency's founded

determination only if the record contains substantial evidence


        4
       The new regulations and corresponding guidelines appear to
require a different burden of proof for a founded disposition.
See 22 Va. Admin. Code 40-705-10; DSS Manual ch. A, pt. 4, G.1
(July 1998 ed.).

                                     - 8 -
to support the agency's finding by clear and convincing evidence

that the abuse or neglect occurred.    See Turner v. Jackson, 14

Va. App. 423, 428-29, 417 S.E.2d 881, 885-86 (1992).    We hold no

reasonable mind could have concluded, by clear and convincing

evidence, that the challenged acts constituted neglect under the

guidelines.

     The guidelines, as quoted above, provide that inadequate

supervision may constitute neglect.    However, in order for a

one-time event to be sufficient to constitute neglect, it must

be "a critical or severe event that results in a threat to

health or safety, such as a toddler left alone." 5   Appellant's

children were infants and, under the facts of this case, were

not subject to the same dangers to which a toddler left alone

might be subjected.   It was undisputed that when appellant left

the house, the infants were asleep in separate cribs which

contained no items likely to cause any risk to their safety;

that the side rails of the cribs were positioned such that the

infants, if they had awakened, would have been unable to get out

of the cribs and unable to become trapped between the slats;


     5
       The revised manual provides as an example that "the
caretaker left a toddler alone for several hours endangering the
safety of the child." DSS Manual, ch. A, pt. 2, B.3.0 (July
1998). The prior version of the DSS Manual implied that any
instance of leaving a toddler alone was "a critical or severe
event that results in a threat to health or safety"; whereas the
revised version makes clear that leaving even a toddler alone
for a brief period may not necessarily endanger its safety
sufficiently to constitute neglect.


                               - 9 -
that the cribs were not located near any other objects, such as

cording attached to blinds, on which the infants might injure

themselves; and that appellant was gone for less than fifteen

minutes.   Finally, appellant told her next-door neighbor that

she was leaving and asked her to watch the house.   Although the

front door to appellant's home was locked, the record did not

establish by clear and convincing evidence that the neighbor

would have been unable to gain access to the home if an

emergency had arisen.   Under the guidelines, therefore, we hold

that no reasonable mind could have concluded, by clear and

convincing evidence, that this brief, one-time occurrence

constituted neglect.

     Nor does the record contain substantial evidence from which

the agency could find, by clear and convincing evidence, that

appellant's behavior constituted neglect under the statute.    The

Commonwealth concedes on brief that appellant's behavior did not

violate subsection (1) of the statute because it did not create

a "substantial risk of death, disfigurement, or impairment of

bodily or mental functions."   It argues that the behavior

violated subsection (2), which includes the "neglect[] or

refus[al] to provide care necessary for [the child's] health."

For the same reasons the evidence is insufficient to establish a

violation of the guidelines, it also is insufficient to

establish that appellant failed to provide care "necessary" for

the infants' health under the facts of this case.

                               - 10 -
     For these reasons, we hold that the doctrine of res

judicata is inapplicable in this case but that the evidence was

insufficient to establish a violation of either DSS's guidelines

or the statute.   Therefore, we reverse the ruling of the circuit

court and vacate DSS's determination that the complaint of

"Inadequate Supervision--Level Three" against appellant was

"Founded."

                                             Reversed and vacated.




                              - 11 -
Fitzpatrick, C.J., concurring, in part, and dissenting, in part.

     I respectfully concur in the majority's holding that the

doctrine of res judicata is inapplicable to this case, but

disagree with their holding that the trial court erred in

upholding the determination of the DSS that a complaint of

"Inadequate Supervision--Level Three" against appellant was

"Founded."   I would hold that leaving nine-month-old twins alone

in a locked house, with no supervision therein, and no evidence

establishing an ability of the "neighbor" to enter the house in

case of fire or other emergency, meets the requirements of Code

§ 63.1-248.2 and the attendant DSS guidelines.




                              - 12 -
