VIRGINIA:

       In the Court of Appeals of Virginia on         Tuesday         the    8th      day of June, 2010.


Rod Freeman Hobbs,                                                                               Appellant,

against             Record No. 0821-09-1
                    Circuit Court No. CL08-3345

Anthony Conyers, Commissioner,
 Virginia Department of Social Services,                                                         Appellee.


                                        Upon a Rehearing En Banc

           Before Chief Judge Felton, Judges Elder, Frank, Humphreys, Kelsey, McClanahan,
                               Haley, Petty, Beales, Powell and Alston

               James O. Broccoletti (Zoby & Broccoletti, P. C., on brief), for
               appellant.

               Cheryl A. Wilkerson, Senior Assistant Attorney General
               (Kenneth T. Cuccinelli, II, Attorney General; David E. Johnson, Deputy
               Attorney General; Kim F. Piner, Senior Assistant Attorney General, on
               brief), for appellee.


       In an unpublished memorandum opinion issued January 26, 2010, a majority of a panel of this

Court reversed the judgment of the Circuit Court of the City of Virginia Beach, in which the trial court

affirmed the administrative finding of the Virginia Department of Social Services that appellant sexually

abused his stepdaughter. The Department’s specific disposition was “Founded-Sexual Abuse-Level 1.”

On the Department’s motion, we stayed the mandate of the panel decision and granted rehearing en

banc. Upon rehearing, the January 26, 2010 majority panel decision is withdrawn, the mandate entered

on that date is vacated, and we affirm the judgment of the trial court for the reasons stated in the panel’s

dissenting opinion. The appellant shall pay to the appellee thirty dollars damages.
       Judges Elder, Frank, and Humphreys would reverse the judgment of the trial court for the

reasons stated in the majority panel decision.

       This order shall be certified to the trial court.

                                           A Copy,

                                                   Teste:

                                                                         Cynthia L. McCoy, Clerk

                                                            original order signed by a deputy clerk of the
                                                   By:      Court of Appeals of Virginia at the direction
                                                            of the Court

                                                                         Deputy Clerk




                                                      -2-
VIRGINIA:
           In the Court of Appeals of Virginia on Tuesday            the 2nd day of March, 2010.


Rod Freeman Hobbs,                                                                                Appellant,

against             Record No. 0821-09-1
                    Circuit Court No. CL08-3345

Anthony Conyers, Commissioner,
 Virginia Department of Social Services,                                                          Appellee.


                                  Upon a Petition for Rehearing En Banc

                                            Before the Full Court


       On February 9, 2010 came the appellee, by the Attorney General of Virginia, and filed a petition

requesting that the Court set aside the judgment rendered herein on January 26, 2010, and grant a

rehearing en banc on the issue(s) raised in the petition.

       On consideration whereof, the petition for rehearing en banc is granted with regard to the

issue(s) raised therein, the mandate entered herein on January 26, 2010 is stayed pending the decision of

the Court en banc, and the appeal is reinstated on the docket of this Court.

       Notwithstanding the provisions of Rule 5A:35, the following briefing schedule hereby is

established: Appellant shall file an opening brief upon rehearing en banc within 21 days of the date of

entry of this order; appellee shall file an appellee’s brief upon rehearing en banc within 14 days of the

date on which the opening brief is filed; and appellant may file a reply brief upon rehearing en banc

within 14 days of the date on which the appellee’s brief is filed. The appellant shall attach as an

addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the

Court in this matter. It is further ordered that the appellee shall file twelve additional copies of the

appendix previously filed in this case. In addition, any party represented by counsel shall file twelve
electronic copies of their brief (and the appendix, if the party filing the appendix is represented by

counsel) with the clerk of this Court. The electronic copies must be filed on twelve separate CDs or

DVDs and must be filed in Adobe Acrobat Portable Document Format (PDF). 1



                                          A Copy,

                                                  Teste:

                                                                        Cynthia L. McCoy, Clerk

                                                           original order signed by a deputy clerk of the
                                                  By:      Court of Appeals of Virginia at the direction
                                                           of the Court

                                                                        Deputy Clerk




       1
      The guidelines for the creation and submission of a digital brief package can be found at
www.courts.state.va.us, in the Court of Appeals section under “Resources and Reference Materials.”


                                                     -2-
                                COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, McClanahan and Senior Judge Willis
Argued at Chesapeake, Virginia


ROD FREEMAN HOBBS
                                                                MEMORANDUM OPINION * BY
v.      Record No. 0821-09-1                                    JUDGE JERE M.H. WILLIS, JR.
                                                                    JANUARY 26, 2010
ANTHONY CONYERS, COMMISSIONER
 VIRGINIA DEPARTMENT OF SOCIAL SERVICES


                FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                                 Frederick B. Lowe, Judge

                  James O. Broccoletti (Zoby & Broccoletti, P.C., on brief), for
                  appellant.

                  Cheryl A. Wilkerson, Senior Assistant Attorney General (William C.
                  Mims, Attorney General; David E. Johnson, Deputy Attorney
                  General; Kim F. Piner, Senior Assistant Attorney General, on brief),
                  for appellee.


        Rod Freeman Hobbs (Hobbs) appeals the judgment of the trial court affirming a disposition

of Founded-Sexual Abuse-Level 1 lodged against him by the Virginia Department of Social

Services. He argues that the trial court erred in holding that the failure of the local agency

investigator to tape record two interviews with the alleged victim, in violation of the requirements of

22 VAC 40-705-80(B)(1), was harmless error. Finding the failure not to be harmless, we reverse

the judgment of the trial court and order the sexual abuse finding set aside and vacated.

                                            BACKGROUND

        On November 27, 2006, the Virginia Beach Department of Human Services received a

Child Protective Services (CPS) complaint against Hobbs, alleging that he had sexually abused his


        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
stepdaughter (the child). On November 28, 2006, a CPS worker and a Virginia Beach Police

Department detective jointly interviewed the child at school. This interview was not recorded. The

CPS worker and the detective conducted a follow-up interview on November 30, 2006. Again, the

interview was not recorded. On December 8, 2006, the child was interviewed at the Child Abuse

Center of the Children’s Hospital of the King’s Daughters. This interview was recorded.

        The CPS worker’s report stated that the first two interviews were not recorded “due to the

presence of law enforcement. Tape recording may compromise the criminal investigation.”

        On January 30, 2007, the CPS worker entered a founded disposition of abuse. She based

this determination, in part, on the two unrecorded interviews.

        Based on the same allegations, criminal charges were brought against Hobbs. On March 21,

2007, he was acquitted of those charges.

        On January 8, 2008, following a local conference, a hearing officer for the City of Virginia

Beach Department of Human Services upheld the founded disposition of Sexual Abuse-Level 1.

Hobbs appealed. On March 19, 2008, an administrative hearing was held before Nicholas R.

Foster, a hearing officer for the Commissioner of the Virginia Department of Social Services.

Foster held that the CPS worker’s failure to record the child’s first two interviews violated the

Virginia Administrative Code, but that this failure did not prejudice Hobbs. Foster stated, “As to

the assertion that the worker may have led or otherwise influenced [the child’s] statements, [the

child] is clear in her forensic interview that the substance of the statements were her own, making

that assertion pure conjecture.” On May 2, 2008, Foster entered an order sustaining the disposition

of Sexual Abuse-Level 1. Hobbs appealed to the trial court.

        On April 1, 2009, the trial court affirmed the disposition and dismissed Hobbs’ appeal. It

held that the failure to record the child’s first two interviews was harmless error and that

“substantial evidence in the record [supports] the May 2, 2008 decision of the Commissioner.”

                                                  -2-
                                             ANALYSIS

       Hobbs contends the trial court erred in dismissing his appeal and finding that the failure to

record the first two interviews with the child was harmless error.

       “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.

See Code § 63.2-1526(B). Accordingly, ‘the burden is upon the appealing party to demonstrate

error.’” Jones v. West, 46 Va. App. 309, 322-23, 616 S.E.2d 790, 797 (2005) (quoting Carter v.

Gordon, 28 Va. App. 133, 141, 502 S.E.2d 697, 700-01 (1998)).

       22 VAC 40-705-80(B)(1) provides:

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

               a. The child’s safety may be endangered by electronically
               recording his statement;

               b. The age and/or developmental capacity of the child makes
               electronic recording impractical;

               c. A child refuses to participate in the interview if electronic
               recording 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.

               e. The victim provided new information as part of a family
               assessment and it would be detrimental to reinterview the victim
               and the child protective services worker provides a detailed
               narrative of the interview in the investigation record.

The CPS worker failed to record the child’s first two interviews, in violation of this requirement.

Furthermore, a “child protective services worker shall document in detail in the record and

discuss with supervisory personnel the basis for a decision not to electronically record an


                                                 -3-
interview with the alleged victim child.” Id. The CPS worker did not “document in detail” why

the first two interviews were not recorded and did not obtain supervisory approval.

        Both the Commissioner and the trial court held that the failure to record the first two

interviews was error. Neither party contests this holding. Hobbs contends the trial court erred in

holding that the CPS worker’s failure to record the interviews was harmless.

        “[A] party seeking relief from a founded disposition of abuse on grounds that the local

department failed to comply with required procedure ‘must demonstrate such failure was not

mere harmless error.’” West, 46 Va. App. at 326-27, 616 S.E.2d at 799 (quoting J.B. v. Brunty,

21 Va. App. 300, 305, 464 S.E.2d 166, 169 (1995)). “If the party seeking relief satisfies that

burden, the reviewing court ‘shall suspend or set [the case decision] aside.’” Id. at 327, 616

S.E.2d at 799 (quoting Code § 2.2-4029).

        “[P]rocedural violations that ‘could have had a significant impact on the ultimate decision

so as to undermine the “substantiality of the evidential support” for the factual findings’ are not

mere harmless error.” Id. (quoting Virginia Board of Medicine v. Fetta, 244 Va. 276, 283, 421

S.E.2d 410, 414 (1992)). See Virginia Retirement System v. Cirillo, 54 Va. App. 193, 202, 676

S.E.2d 368, 373 (2009) (“under the doctrine of harmless error, we will affirm the circuit court’s

judgment when we can conclude that the error at issue could not have affected the court’s

result”) (citations omitted).

        The Commissioner argues that the recorded interview renders harmless any procedural

error resulting from the failure to tape the first two interviews. He notes that, unlike in West, the

hearing officer was able to consider the child’s recorded interview and her sworn testimony in

the criminal proceedings. The hearing officer noted inconsistencies in the child’s recorded

accounts and between her recorded accounts and some details of the CPS worker’s report of

what she initially said. However, the hearing officer stated, “Having read the interview

                                                -4-
summaries and transcripts and having viewed the forensic interview tape, I cannot find that these

perceived inconsistencies substantially impair [the child’s] credibility.” On this basis, the

hearing officer found the recorded interview credible and reliable.

       Had the first two interviews been recorded, Hobbs and the hearing officer would have

heard the questions asked and the child’s responses. The hearing officer would have had before

him direct evidence of the inconsistencies in the child’s versions of events, of the conflicts in her

accounts of the details, such as when and where the alleged incidents occurred, and the variation

in terms she used, suggesting influence or coaching. The CPS worker’s report of where the child

said some of the events occurred varied from the child’s recorded account and testimony. As in

West, the hearing officer was limited to the CPS worker’s “indirect evidence, based on her recall

and interpretation, of what was said at the interview.” West, 46 Va. App. at 330, 616 S.E.2d at

801.

       The purpose of the regulation is to provide direct evidence of the child’s account, not a

secondhand report from the interviewer. If the child’s first statements differed significantly from

her recorded interview, they “could have had a significant impact on the ultimate decision.” Id.

at 327, 616 S.E.2d at 799. The hearing officer and the Commissioner depended on the CPS

worker’s reports of the child’s statements. The regulation is designed to prevent that

dependency.

       Accordingly, we hold that the failure to record the two interviews was not mere harmless

error. The founded disposition of sexual abuse must be set aside. See Code § 2.2-4029.

                                          CONCLUSION

       We reverse the judgment of the trial court and remand this case to the trial court for

remand to the Commissioner with instructions to set aside and vacate the finding of sexual abuse.

                                                                           Reversed and remanded.

                                                -5-
McClanahan, J., dissenting.

       The majority acknowledges that Hobbs, as the “party seeking relief from a founded

disposition of abuse on grounds that the local department failed to comply with required

procedure[,] ‘must demonstrate such failure was not mere harmless error.’” Jones v. West, 46

Va. App. 309, 326-27, 616 S.E.2d 790, 799 (2005) (quoting J.B. v. Brunty, 21 Va. App. 300,

305, 464 S.E.2d 166, 169 (1995)). I do not believe Hobbs has carried this burden. Accordingly,

I would affirm the circuit court in its determination that the failure of the Virginia Beach

Department of Social Services (DSS) to record the first two interviews with the victim, K.D., in

violation of 22 VAC 40-705-80(B)(1), was harmless error. 2

       The majority bases its decision on West, where this Court held that the local department’s

decision not to tape record its interview with the alleged fourteen-year-old victim of sexual

abuse, in violation of the regulation, “was not mere harmless error,” and thus set aside the

founded disposition of sexual abuse. West, 46 Va. App. at 331, 616 S.E.2d at 802. The West

Court reached that decision upon concluding that the failure to tape record the interview “could

have had a significant impact on the ultimate decision so as to undermine the substantiality of the

evidential support for the factual findings.” Id. (citation and internal quotation marks omitted).

The facts in the instant case, however, are materially distinguishable from those in West.

       In West, the local social worker and police detective, who jointly investigated the

complaint against the suspect, West, conducted only the one interview with the purported victim,

S.J. Because the interview was unrecorded, the hearing officer, who presided over West’s appeal




       2
          More specifically, the circuit court, upon reviewing “the agency record and the
arguments asserted by counsel,” ruled in its final order that “the absence of a recording of the
initial two interviews of the child was harmless error, and, further, . . . there is substantial
evidence in the agency record to support the May 2, 2008 decision of [the DSS hearing officer].”
The court thus affirmed the May 2, 2008 decision and dismissed Hobbs’ petition for appeal.
                                                 -6-
of the department’s “founded” disposition of sexual abuse, was limited to the department’s

presentation of the social worker’s testimony and written account of the interview with S.J.

       Here, by contrast, the hearing officer had the benefit of not only the investigating social

worker’s testimony and written account of the two initial interviews with K.D., but also a

videotape recording of a third, extensive forensic interview of K.D. conducted at the Child

Abuse Center of the Children’s Hospital of the King’s Daughters. In light of this videotaped

evidence, the hearing officer found that “[a]s to [Hobbs’] assertion that the [social] worker may

have led or otherwise influenced [K.D.’s] statements, [K.D.] is clear in her forensic interview

that the substance of her statements were her own, making that assertion pure conjecture.” The

hearing officer then further explained, “The crux of the agency’s case is clearly the credibility

and consistency of [K.D.’s] statements. The Appellant [Hobbs] contends that [K.D.’s]

statements are inconsistent over time and that her statements to the worker, the forensic

interview, and at trial, vary in substantial ways.” “Having read the interview summaries and

transcripts and having viewed the forensic interview tape,” the hearing officer concluded, “I

cannot find that these perceived inconsistencies substantially impair [K.D.’s] credibility. The

variations in the words used to describe the incidents are de minimis. [K.D.] clearly recounted

the actual acts of fondling and oral sodomy and the salient details remained consistent

throughout.”

       The instant case is also distinguishable from West in another significant way. In West,

West disputed very little of S.J.’s claims regarding his touching of her at various times. Rather,

he asserted in his defense that, when he did touch her as she alleged, he lacked the requisite

“‘intent to sexually molest, arouse or gratify’” because the touching was in a “‘playful and

friendly’ manner.” Id. at 314, 616 S.E.2d at 793. Thus, the West Court reasoned:

               The absence of a tape recording of S.J.’s interview [was]
               particularly critical in [that] case because, given the close,
                                                -7-
               grandfather-granddaughter-type relationship West and S.J. had, the
               meaning and import of S.J.’s statements about West touching her
               genitals, breasts, and buttocks were susceptible to more than one
               plausible interpretation and necessarily turned on the subtle
               nuances of those statements and the conduct they described.
               Indeed, slight nuances in the inflection or context of the words
               spoken by S.J. could substantially change the meaning of
               statements that directly impacted the question of whether West had
               the requisite intent. . . . It was essential, therefore, for the hearing
               officer to have access to the precise substance of S.J.’s statements.

Id. at 329-30, 616 S.E.2d at 801.

       In this case, unlike West, the only dispute is whether Hobbs fondled and performed oral

sodomy on K.D.—not a question of intent purportedly surrounding an innocent, affectionate

familial relationship. As such, there are no relevant “nuances” in K.D.’s and Hobbs’ respective

accounts of what occurred between them. In his interview with the social worker and the police

investigator, and in his testimony at the agency hearing, Hobbs denied that he engaged in any of

the acts of fondling and oral sodomy that K.D. described in her interviews. Therefore, it was not

“essential” for the hearing officer in this case to have access to K.D.’s precise statements in her

two interviews preceding her videotaped interview, as the import of those statements did not turn

on “subtle nuances.” Id.

       We have authority to “reject agency factfinding ‘only if, considering the record as a

whole, a reasonable mind would necessarily come to a different conclusion.’” Citland, Ltd. v.

Commonwealth, 45 Va. App. 268, 274-75, 610 S.E.2d 321, 324 (2005) (quoting Mattaponi

Indian Tribe v. Commonwealth, 43 Va. App. 690, 706, 601 S.E.2d 667, 675 (2004)) (emphasis in

original). “This standard is designed ‘to give great stability and finality to the fact-finding

process of the administrative agency.’” Atkinson v. Virginia ABC Comm’n, 1 Va. App. 172,

176, 336 S.E.2d 527, 530 (1985) (quoting Virginia Real Estate Comm’n v. Bias, 226 Va. 264,

269, 308 S.E.2d 123, 125 (1983)). Based on this standard of review, I do not believe this Court

can hold, on the record here presented, that a reasonable hearing officer would necessarily have
                                                 -8-
concluded that DSS’s procedural failure to record K.D.’s first two interviews was not harmless

error.

         For these reasons, I respectfully dissent.




                                                  -9-
