                     COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Annunziata and Lemons
Argued at Alexandria, Virginia


CHARLES SCHULTZ
                                           MEMORANDUM OPINION * BY
v.   Record No. 0031-99-4                   JUDGE LARRY G. ELDER
                                               DECEMBER 7, 1999
CLARENCE H. CARTER, COMMISSIONER,
VIRGINIA DEPARTMENT OF SOCIAL SERVICES


             FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                    Jonathan C. Thacher, Judge

          Robert D. Weiss for appellant.

          Gaye Lynn Taxey, 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.


     Charles Schultz (appellant) appeals the decision of the

circuit court affirming the administrative finding of the

Virginia Department of Social Services (DSS) that Schultz

physically abused his daughter.   Schultz contends on appeal that

the trial court erroneously (A) required him to prove that he

did not abuse his daughter; (B) found that substantial evidence

supported DSS's finding that he physically abused his daughter;

(C) deferred to the experience and competence of DSS; and (D)

failed to consider the whole evidential record.     We hold that


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
the trial court applied the proper standard of review and that

substantial evidence supported the founded complaint of Level 3

physical abuse.   Therefore, we affirm the decision of the trial

court.

     In reviewing this matter, we note that

          "[t]he scope of court review of a litigated
          issue under the APA is limited to
          determination [of] whether there was
          substantial evidence in the agency record to
          support the decision." State Board of
          Health v. Godfrey, 223 Va. 423, 433, 290
          S.E.2d 875, 880 (1982); see Code
          § 9-6.14:17. The substantial evidence
          standard is "designed to give great
          stability and finality to the fact-findings
          of an administrative agency." Virginia Real
          Estate Comm'n v. Bias, 226 Va. 264, 269, 308
          S.E.2d 123, 125 (1983). A trial court may
          reject the findings of fact "only if,
          considering the record as a whole, a
          reasonable mind would necessarily come to a
          different conclusion." Id. (citing B.
          Mezines, Administrative Law § 51.01 (1981)).
          The burden of proof rests upon the party
          challenging the agency determination to show
          that there was not substantial evidence in
          the record to support it. See Code
          § 9-6.14:17.

Smith v. Department of Mines, Minerals and Energy, 28 Va. App.

677, 684-85, 508 S.E.2d 342, 346 (1998); see also Code

§ 63.1-248.6:1(B).   "[T]he reviewing court '"may not exercise

anew the jurisdiction of the administrative agency and merely

substitute its own independent judgment for that of the body

entrusted by the Legislature with the administrative

function."'"   Turner v. Jackson, 14 Va. App. 423, 430-31, 417

S.E.2d 881, 887 (1992) (citations omitted).

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                                 A.

                        STANDARD OF REVIEW

     We find no merit in appellant's contention that the trial

court applied an erroneous standard when it stated that "this

Court may reverse the agency's decision only if, considering the

evidence on the record, a reasonable mind would necessarily

conclude that [appellant] did not abuse [his daughter]."   The

trial court set out the proper standard of review in its

detailed opinion letter.   It reviewed DSS's factual findings and

listed five "undeniable" facts which it found dispositive.    It

determined that the evidence was not such as to necessarily lead

a reasonable mind to a different conclusion, and found that

DSS's disposition of Level 3 physical abuse was "a plausible

explanation based on the record in the case." 1

     We do not agree with Schultz's argument that the standard

to be applied by the trial court was whether, considering the

record as a whole, a reasonable mind would necessarily conclude

that there was not clear and convincing evidence to support the

agency's findings.   "Review of agency factual decisions is


     1
       DSS's Child Protective Services Manual defines physical
abuse as a "physical injury . . . , regardless of intent,
[which] is inflicted . . . by non-accidental means" and includes
bruising, which it defines as "an injury which results in
bleeding within the skin, where the skin is discolored but not
broken." 7 Child Protective Services Manual § III, ch. A, at
3-5. A founded complaint of Level 3 abuse requires clear and
convincing evidence of an injury "that result[s] in minimal harm
to a child" and may include one which "[r]equire[s] no medical
attention to remediate." Id. at 22-23.

                               - 3 -
governed by the 'substantial evidence' test.    Under this

standard, the scope of review is limited to ascertaining whether

there was substantial evidence in the agency record to support

the decision."   Turner, 14 Va. App. at 429-30, 417 S.E.2d at 886

(citations omitted). 2   Therefore, nothing in the trial court's

analysis indicates that it required Schultz to bear an erroneous

burden of proof in his appeal from the agency's decision.

                                 B.

                          EVIDENCE OF ABUSE

     Schultz contends that the evidence in the record does not

support DSS's findings.    He did not deny spanking his daughter

with a belt, but denied spanking her anywhere but on the

buttocks and denied that the spanking caused bruises.    He argued

that the bruises on the child's hip and leg were caused by an

incident when the child was tangled in a dog leash.

     The court noted five specific facts that supported DSS's

conclusions, including the nature of the child's bruises as well

as her statements to the investigator and clinical social

worker.   While Schultz contends that his daughter's statements

were unreliable, the record as a whole supports the conclusion

that the child's report was truthful.    Schultz admitted spanking

the child with a belt, and the child admitted to the DSS


     2
       Of course, the record must include substantial evidence to
support the agency's finding by clear and convincing evidence
that Level 3 abuse occurred. See Turner, 14 Va. App. at 428-29,
417 S.E.2d at 885-86.

                                - 4 -
investigator that her initial report concerning other actions by

Schultz had not been truthful.    In addition, while the doctor

who viewed the photographs of the child's injuries indicated it

was possible they were caused by the incident with the dog

leash, he noted that the nature of the bruises and their

orientation were not consistent with the description of the dog

leash incident he received.   He also noted that the color of the

bruises indicated that they occurred at different times.   Father

admitted that he was aware of only one occasion contemporaneous

with the bruising on which R.S. became entangled in the dog

leash.   Mother noted that she saw the bruises the day after the

child was spanked, although she testified that she did not

believe the spanking caused the bruises.

     We cannot say that the trial court erred in finding that

substantial evidence in the record supported DSS's conclusions.

                                  C.

                  DEFERENCE TO DSS DETERMINATION

     We find no merit in Schultz's argument that DSS's factual

finding was not entitled to any deference in this case.    Schultz

admitted spanking his daughter with a belt as reported by his

daughter.   The question before the agency was not one of law,

but of fact:   whether the spanking Schultz admitted

administering caused his daughter's bruises.   On appeal, an

agency's resolution of "factual issues [is] accorded greater

deference in order to give stability and finality to the fact

                                 - 5 -
finding of the agency."     Johnston-Willis, Ltd. v. Kenley, 6 Va.

App. 231, 243, 369 S.E.2d 1, 7 (1988).

     We also find no merit in Schultz's contention that the

agency waived any right to deference by using an outside medical

expert.   The DSS fact finder who heard and saw the witnesses

testify determined their credibility and the weight to be

afforded their testimony.    The trial court on review ascertained

whether substantial evidence supported DSS's decision.      It was

not the role of the trial court to either reweigh the evidence

or re-evaluate the witness' credibility.      Therefore, the circuit

court properly deferred to the findings of fact rendered by the

DSS decision maker.

                                  D.

                  CONSIDERATION OF ENTIRE RECORD

     We find no support for Schultz's contention that the trial

court failed to consider the record as a whole.      Schultz bases

this contention on the fact that there was other evidence in the

record which the DSS fact finder rejected.

     The trial court's decision indicated that it relied upon

the record of the proceedings before DSS.       See generally Townes

v. Commonwealth, 234 Va. 307, 323 n.3, 362 S.E.2d 650, 659 n.3

(1987).   Because it was not the fact finder, the trial court was

not free to disregard the factual findings, based upon

credibility determinations, made by DSS.       See Turner, 14 Va.

App. at 430-31, 417 S.E.2d at 887.       Therefore, as long as the

                                 - 6 -
trial court evaluated the DSS decision based upon whether there

was substantial supporting evidence, the fact that there was

other evidence in the record rejected by the DSS hearing officer

did not indicate that the trial court failed to review the

record as a whole.

     For these reasons, we affirm the decision of the trial

court.

                                                        Affirmed.




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