                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bray and Bumgardner
Argued at Salem, Virginia


DOUGLAS JAMES, JR.
                                          MEMORANDUM OPINION * BY
v.   Record No. 0082-00-2                  JUDGE RICHARD S. BRAY
                                              AUGUST 22, 2000
CLARENCE H. CARTER, COMMISSIONER,
 VIRGINIA DEPARTMENT OF SOCIAL SERVICES


          FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                   Herbert C. Gill, Jr., Judge

          William T. Fitzhugh (Beddow, Marley,
          Trexler & Fitzhugh, on brief), for appellant.

          Eleanor Anne Chesney, Assistant Attorney
          General (Mark L. Earley, Attorney General;
          Ashley L. Taylor, Jr., Deputy Attorney
          General; Siran S. Faulders, Senior Assistant
          Attorney General, on brief), for appellee.


     In disposition of a complaint alleging "sexual abuse" by

Douglas James, Jr. (appellant), the Department of Social Services

(DSS) determined "Founded - Sexual Abuse - Level I," a decision

affirmed by the trial court.   On appeal, appellant urges us to

reverse, contending that the evidence was insufficient to support

the finding and, further, that DSS failed to audio tape the

interview with the alleged victim in violation of the Virginia

Administrative Code and related DSS policy.   Finding no error, we

affirm the disputed order.

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.   We view the facts in the light most

favorable to the DSS.

                                 I.

     On March 17, 1998, the Chesterfield/Colonial Heights

Department of Social Services (local agency) received a complaint

that N.F., a minor female, had been "sexually abused" by

appellant, while she was a "ward" of the Bon Air Juvenile

Correctional Center (Bon Air) and he was employed as a Juvenile

Correction Officer at the facility.    In response to the complaint,

a Child Protective Services worker (CPS worker) conducted an

investigation and determined "Founded - Sexual Abuse - Level I," a

disposition subsequently affirmed in successive appeals, first by

the local agency, followed by the Commissioner, Virginia

Department of Social Services (DSS) after an administrative

hearing and, finally, by the trial court.

     The record of the administrative and related proceedings

below includes the investigative report prepared by the CPS

worker, together with the hearing testimony of both the CPS worker

and defendant and certain documentary proofs.   Such evidence

disclosed that appellant oftentimes visited Keller Cottage, the

unit that housed N.F. while a resident at Bon Air, during his

"breaks" from assigned duties elsewhere.    On these occasions, N.F.

"always came to him," once dressed only in "a robe and panties,"

                               - 2 -
and the two would engage in conversation, without "touching."       The

frequency of appellant's visits prompted another staff member to

question him "about the youth."   Appellant responded that he "knew

[N.F.] from the street during the time that she dated his

brother."   Appellant's regular appearances at Keller Cottage

ceased after N.F. was discharged from Bon Air.

     Shortly thereafter, J.H., also a female ward at Bon Air

during N.F.'s stay, reported to staff person Andrea Arrayo that

N.F. had stated she and appellant "had sex" in the shower area of

Keller Cottage prior to N.F.'s release.     J.H. further recalled

appellant and N.F. "talking about a relationship" and described

"notes" appellant had written to N.F., both before and after the

incident.   After speaking with J.H., Arrayo remembered that, on

the single evening appellant assisted her at Keller Cottage, she

returned from an errand, after an absence of "five to seven

minutes," to find "the [cottage] lights . . . dimmed" and

appellant "locking [N.F.'s] door."     Upon her inquiry, appellant

had explained that N.F. had "to go to the bathroom."

     Within a month, N.F. was returned to Bon Air, interviewed by

the CPS worker and confirmed the allegations.    In recounting

events, N.F. stated that appellant opened the door to her room at

Keller Cottage and "told her to come to the bathroom," demanding,

"you're gonna give me some."   Despite her protest, "it was not

right," appellant "rushed her to pull her pants down," and "had

sex" with her for "two to five minutes."     N.F. reported that she

                               - 3 -
and appellant had intercourse only on the single occasion, and

insisted she "did not want to."    The interview "wasn't taped" by

the CPS worker, "[d]ue to the noisy environment, lack of privacy

and constant interruptions."

     Testifying at the administrative hearing, appellant admitted

an "inappropriate relationship" with N.F. and inexplicably lying

"about knowing [her] from the street," but denied the alleged

sexual activity.   He acknowledged writing and telephoning N.F.

following her release, but claimed such contacts were only to

ascertain "why she was lying on [him]."    Attacking N.F.'s

credibility, appellant emphasized that she had previously denied

"having sex" with a staff member in an interview with State

Trooper James Inge and otherwise made inconsistent statements with

respect to the allegations.

                                  II.

     "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); Code § 9-6.14:17.    The evidence is viewed in the

light most favorable to the 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; Code § 9-6.14:17.   The Administrative Process Act provides

that "the duty of the court with respect to issues of fact is

limited to ascertaining whether there was substantial evidence in

the agency record upon which the agency as the trier of the facts

                               - 4 -
could reasonably find them to be as it did."    Code § 9-6.14:17

(emphasis added).

             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).

     It is well established that hearsay evidence is admissible

at an administrative hearing conducted in accordance with the

Administrative Process Act.     See Carter, 28 Va. App. at 141, 502

S.E.2d at 701.    "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.

     The Virginia Administrative Code defines "Founded - Sexual

Abuse - Level I":

             "Founded" means that a review of the facts
             shows by a preponderance of the evidence
             that child abuse and/or neglect has
             occurred. A determination that a case is
             founded shall be based primarily on first
             source evidence; in no instance shall a
             determination that a case is founded be



                                 - 5 -
          based solely on indirect evidence or an
          anonymous complaint.

22 Va. Admin. Code 40-705-10.

          Sexual abuse occurs when there is any act of
          sexual exploitation or any sexual act upon a
          child in violation of the law which is
          committed or allowed to be committed by the
          child's parents or other persons responsible
          for the care of the child pursuant to
          § 63.1-248.2 of the Code of Virginia.

22 Va. Admin. Code 40-705-30(E).

          Level 1. This level includes those
          injuries/conditions, real or threatened,
          that result in or were likely to have
          resulted in serious harm to a child.

22 Va. Admin. Code 40-700-20(1).

     Here, N.F. reported details of her relationship with

appellant, including the subject sexual activity, to both the

CPS worker and J.H.   Her recollections were corroborated by

appellant's unusual attention to the child, both immediately

preceding and following the incident, including frequent visits

with her at Keller Cottage and personal notes, and the

observations of Arrayo on the evening of the incident.    When

called upon to explain his interests in N.F., appellant

untruthfully claimed a prior acquaintance "from the street,"

later acknowledging "inappropriate" contact with her.    In

rendering the administrative decision, the DSS Commissioner

expressly found both N.F. and J.H. "credible."

     Thus, substantial evidence in the record supports the

administrative disposition, and a reasonable mind would not


                                - 6 -
necessarily come to a different conclusion.   Accordingly, we

affirm the decision of the trial court. 1

                                                   Affirmed.




     1
       Appellant also argues that the DSS disposition must be
reversed because the local agency neglected to "audio tape" the
interview with N.F., in violation of the Virginia Administrative
Code and attendant DSS policy. 22 Va. Admin. Code 40-705-30(B).
However, appellant failed to specifically "assign[]" such
"error[]" in his "petition for appeal" to the trial court, as
mandated by Rule 2A:4(b). Thus, the court correctly recited in
the disputed order that the issue was "not properly before the
court" for judicial review. See Mayo v. Commonwealth, 4 Va.
App. 522-23, 358 S.E.2d 759, 760 (1987).

                              - 7 -
Benton, J., dissenting.

     The Commissioner argues that consideration of the issue

whether the DSS followed its mandated procedure is procedurally

defaulted.    Specifically, he asserts that "[r]eview of the

issues raised by . . . [Douglas] James is barred . . . because

he failed to preserve any objections he may have raised before

the circuit court."    The majority holds that James' claim that

the DSS neglected to "audio tape" the interview with the child

in violation of its rules is procedurally barred.    I disagree.

     The record contains the trial judge's opinion letter, which

states as follows:

             In his petition [James] designates two . . .
             errors of law for review. First, [James]
             contends that there was insufficient
             evidence to support the agency finding of
             fact, and second, [James] contends that the
             disposition is not based on "primarily first
             source evidence" and therefore violates the
             Department of Social Services policy manual.

     On this appeal, James raises the following two issues:

"Whether the evidence was insufficient as a matter of law for a

founded level 1 disposition against James" and "Whether the

agency's determination is insufficient as a matter of law as the

agency did not follow its mandated procedures."    We have

consistently held that the primary purpose of requiring timely

and specific objection is to "'provide the trial [judge] with

the opportunity to remedy any error so that an appeal is not

necessary.'"     McLean v. Commonwealth, 30 Va. App. 322, 331, 516


                                 - 8 -
S.E.2d 717, 721 (1999) (citation omitted).    When the trial judge

has the opportunity to rule on the merits of the issue, the

matter has been properly preserved for appeal.     See Campbell v.

Commonwealth, 12 Va. App. 476, 480, 405 S.E.2d 1, 2 (1991) (en

banc) (holding that an issue is preserved for appeal when "the

trial [judge] was adequately advised of the defendant's

position, . . . consider[ed] the issue raised, and . . . had the

opportunity to take corrective action").

     Although the majority decides that James did not preserve

for appeal the issue of the agency's failure to "audio tape" the

interview, the record establishes that James' petition for

appeal to the circuit court does allege that the DSS's

disposition violates its policy because it is not based

"primarily on first source evidence."    I believe that allegation

was sufficient to present the issue in the trial court.

Notably, the Commissioner does not contend that the petition for

appeal was deficient in that regard.     I would hold that the

issue whether the DSS failed to follow its mandated procedure

has been preserved for appeal.

     Neither the Administrative Process Act nor the DSS's basic

law permits the introduction of hearsay evidence in the agency

hearing.   See Code § 9-6.14:1, et seq.; Code § 63.1-248.6:1.

Although the Commissioner in his brief states that Code

§ 9-6.14:12 permits hearsay, one only need read the statute to



                                 - 9 -
see that it does not sanction the use of hearsay.   Code

§ 9-6.14:12 provides, in pertinent part, as follows:

          A. The agency shall afford opportunity for
          the formal taking of evidence upon relevant
          fact issues in any case in which the basic
          laws provide expressly for decisions upon or
          after hearing and may do so in any case to
          the extent that informal procedures under
          § 9-6.14:11 have not been had or have failed
          to dispose of a case by consent.

          *      *      *      *      *      *          *

          C. In all such formal proceedings the
          parties shall be entitled to be accompanied
          by and represented by counsel, to submit
          oral and documentary evidence and rebuttal
          proofs, to conduct such cross-examination as
          may elicit a full and fair disclosure of the
          facts, and to have the proceedings completed
          and a decision made with dispatch. The
          burden of proof shall be upon the proponent
          or applicant. The presiding officers at
          such proceedings are empowered to (i)
          administer oaths and affirmations, (ii)
          receive probative evidence, exclude
          irrelevant, immaterial, insubstantial,
          privileged, or repetitive proofs, rebuttal,
          or cross-examination, rule upon offers of
          proof, and oversee an accurate verbatim
          recording of the evidence, (iii) hold
          conferences for the settlement or
          simplification of issues by consent, (iv)
          dispose of procedural requests, and (v)
          regulate and expedite the course of the
          hearing.

Our decision of Carter v. Gordon, 28 Va. App. 133, 141, 502

S.E.2d 697, 701 (1998), also incorrectly states that the Act

permits hearsay evidence and, as its sole authority for that

proposition, wrongly cites to Code § 9-6.14:12.   The




                             - 10 -
Commissioner points to no other statutory authorization for its

consideration of hearsay evidence.

     The DSS's regulations define a founded complaint as

follows:

           "Founded" means that a review of the facts
           shows by a preponderance of the evidence
           that child abuse and/or neglect has
           occurred. A determination that a case is
           founded shall be based primarily on first
           source evidence; in no instance shall a
           determination that a case is founded be
           based solely on indirect evidence or an
           anonymous complaint.

22 Va. Admin. Code § 40-705-10.   The DSS's policy manual

addresses various levels of dispositions in the following

manner:

           Founded dispositions must be categorized
           into one of three levels. Categorization is
           dependent on the nature of the act and the
           seriousness of the harm or threatened harm
           to the child as a result of maltreatment.
           In all founded cases, there may be
           circumstances influencing the severity of
           the abusive or neglectful incident. The
           circumstances may increase or decrease the
           severity of harm or threatened harm. The
           level for a founded disposition must be
           supported by a preponderance of the
           evidence. The evidence supporting the level
           must be documented in the record.

7 DSS Service Programs Manual, § III (Child Protective Services

Manual), Ch. A, Part IV (July 1998 ed.).   The regulations also

provide the following explanation:

           Level 1. This level includes those
           injuries/conditions, real or threatened,




                              - 11 -
          that result in or were likely to have
          resulted in serious harm to a child.

22 Va. Admin Code § 40-700-20.

     According to the DSS's own regulations, in making these

determinations, "the hearing officer shall only consider that

evidence, presented by either party, which is substantially

credible or reliable."   22 Va. Admin. Code 40-705-190(H)(12).

Implementing that requirement, the DSS's regulations require

that the child protective service worker's interview with the

child "must be audio tape recorded" unless the following

specified extenuating circumstances exist:

          1. The child protective services worker
          shall conduct a face-to-face interview with
          and observation of the alleged victim child.
          All interviews with alleged victim children
          must be audio tape recorded except when the
          child protective services worker determines
          that:

               a.   The child's safety may be
                    endangered by audio taping;

               b.   The age and/or developmental
                    capacity of the child makes audio
                    taping impractical;

               c.   A child refuses to participate in
                    the interview if audio taping
                    occurs; or

               d.   In the context of a team
                    investigation with law-enforcement
                    personnel, the team or team leader
                    determines that audio taping is not
                    appropriate.

22 Va. Admin. Code 40-705-80.    The service worker testified,

however, that when she interviewed the complainant she did not


                                - 12 -
make an audio tape recording because "we don't tape those

events."

     At the hearing, the service worker testified and gave her

version of statements the child made concerning the events in

question.   Although none of the extenuating circumstances

existed, the child's interview was not audio taped.    In view of

the proscription in the regulations, the service worker's

testimony should not have been admitted in evidence.   "[H]earsay

. . . traditionally has been considered unreliable evidence."

Myrick v. Commonwealth, 13 Va. App. 333, 337, 412 S.E.2d 176,

178 (1991).   Under the DSS's own rules, the "first source

evidence" would have been either the child's testimony or an

"audio tape record[ing]" of the child's statement.    Under the

circumstances of this case, any other evidence of her complaint

was not reliable evidence pursuant to the regulatory scheme.

     This record supports James' contention that the evidence

supporting the DSS's finding was based on unreliable hearsay

evidence.   The DSS's determination is based on "indirect

evidence" contrary to the DSS's own rules, which require that

the "determination that a case is founded shall be based

primarily on first source evidence."   Accordingly, I would hold

that there is not "substantial evidence in the agency record" to

support a determination of "Founded Sexual Abuse Level I."     See

Code § 9-6.14:17; Atkinson v. Virginia Alcoholic Beverage

Control Comm'n, 1 Va. App. 172, 176, 336 S.E.2d 527, 529 (1985).

                              - 13 -
     For these reasons, I would reverse the trial judge's

decision. 2




     2
       In accordance with the DSS's determination that the
child's allegations against James were founded, the DSS sent
James a letter, stating, in pertinent part:

                  After our investigation, we feel that
              there is a preponderance of evidence that
              the alleged Sexual Abuse occurred.
              Therefore, we have submitted a disposition
              of Founded, Sexual Abuse, Level I of [N.F.]
              by you to our Child Abuse Central Registry,
              where it will be retained for 18 years.

(Emphasis added). Although the DSS's disposition was "Founded,
Sexual Abuse, Level I," the administrative code indicates that
in the context of the central registry: "'Founded' means that a
review of all the facts shows clear and convincing evidence that
child abuse and neglect has occurred." 22 Va. Admin. Code
40-700-10 (emphasis added). Therefore, James' name should not
have been placed on the central registry because the agency
found only by a preponderance of the evidence, not by clear and
convincing evidence, that the allegations were established.


                                 - 14 -
