                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges Kelsey, Beales and Senior Judge Clements
UNPUBLISHED



              RENE CHAVEZ
                                                                                    MEMORANDUM OPINION*
              v.      Record No. 2127-13-4                                              PER CURIAM
                                                                                        MAY 20, 2014
              ARLINGTON COUNTY DEPARTMENT
               OF HUMAN SERVICES


                                   FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                                               William T. Newman, Judge

                                (Mark S. Thrash, on brief), for appellant. Appellant submitting on
                                brief.

                                (Jason L. McCandless, Assistant County Attorney; Julia Ovando,
                                Guardian ad litem for the minor child, on brief), for appellee.
                                Appellee and Guardian ad litem submitting on brief.


                      Rene Chavez appeals an order finding that he sexually abused a minor child. Chavez argues

              that the circuit court abused its discretion in finding that he abused, sexually or otherwise, his

              girlfriend’s child. Upon reviewing the record and briefs of the parties, we conclude that the circuit

              court did not err. Accordingly, we affirm the decision of the circuit court.

                                                         BACKGROUND

                      We view the evidence in the light most favorable to the prevailing party below and grant

              to it all reasonable inferences fairly deducible therefrom. See Logan v. Fairfax Cnty. Dep’t of

              Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 462 (1991).




                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       In November 2012, Dora del Carmen Hernandez lived in a three-floor duplex. Chavez

and Jenny Miranda-Lopez rented the basement from Hernandez, but Hernandez still used the

clothes washer and dryer located in the basement.

       One day during the first week of November 2012, Hernandez went to the basement to

take clothes out of the dryer. She saw Chavez with Miranda-Lopez’s one-year-old son, who was

not wearing a diaper. Hernandez saw Chavez put his mouth on the child’s “private parts.”

Chavez’s pants zipper was down, but he was fully clothed. She then saw Chavez turn the child

around and “slowly” rub the child against his “private parts” and down his body as he placed the

child on the floor. Upon seeing Chavez’s interaction with the child, Hernandez initially thought,

“what a strange way to play with him.” Then, she went upstairs to see if Miranda-Lopez was

home and later told the child’s mother to “protect her child more.”

       Hernandez testified that she had sufficient light to see Chavez and the child because the

lights on the stairs and in the kitchen were lit. She does not wear glasses.

       On November 26, 2012, the Arlington County Department of Human Services (the

Department) filed a petition requesting a preliminary protective order and alleged that Chavez

abused or neglected the child. On December 20, 2012, the Arlington County Juvenile and

Domestic Relations District Court (the JDR court) found that Chavez abused the child and

ordered him to have no contact with the child. Chavez appealed to the circuit court.

       After hearing all of the evidence and argument, the circuit court held that the Department

met its burden of proof, by a preponderance of the evidence, that Chavez sexually abused the

child. It ordered that the protective order remain in place and remanded the matter to the JDR

court. The circuit court entered an order reflecting its rulings on September 30, 2013. This

appeal followed.




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                                               ANALYSIS

         Chavez argues that the evidence was insufficient to support the circuit court’s finding of

abuse. He contends Hernandez’s testimony was not credible. He questions how well she could

have seen him because the lighting was poor.

         “It is well established that the trier of fact ascertains a witness’ credibility, determines the

weight to be given to their testimony, and has the discretion to accept or reject any of the

witness’ testimony.” Street v. Street, 25 Va. App. 380, 387, 488 S.E.2d 665, 668 (1997) (en

banc).

         The circuit court had an opportunity to see and hear the witnesses and found Hernandez

to be a credible witness. She testified that she could clearly see Chavez and described in detail

what he was doing.

         Chavez further argues that the Department did not meet its burden of proving that he

sexually abused the child. He notes that Hernandez initially thought he was playing with the

child. He was fully clothed during the incident. He also asserts that when a person is holding a

child and placing a child on the floor, he or she “always moves the child down his or her body in

order to get it to the floor.” (Emphasis in original). Chavez contends the evidence was

insufficient to prove that he abused the child.

         An “abused or neglected child” is one “[w]hose parents or other person responsible for

his care commits or allows to be committed any sexual act upon a child in violation of the law.”

Code § 16.1-228(4).

         “If a petition alleging abuse or neglect of a child has been filed, . . . the court shall

determine whether the allegations of abuse or neglect have been proven by a preponderance of

the evidence.” Code § 16.1-253(F). “[T]he preponderance of the evidence standard is an

appropriate standard for an abuse and neglect proceeding.” Wright v. Arlington Cnty. Dep’t of Soc.

                                                   -3-
Servs., 9 Va. App. 411, 414, 388 S.E.2d 477, 479 (1990); see also Cumbo v. Dickenson Cnty. Dep’t

of Soc. Servs., 62 Va. App. 124, 130, 742 S.E.2d 885, 888 (2013).

        In order to prove sexual abuse by a preponderance of the evidence, the Department had to

prove both an intentional touching and that Chavez acted with “the intent to sexually molest, arouse,

or gratify.” See Code § 18.2-67.10. “‘Intent is the purpose formed in a person’s mind that may, and

often must, be inferred from the facts and circumstances in a particular case.’” Blaylock v.

Commonwealth, 26 Va. App. 579, 589, 496 S.E.2d 97, 104 (1998) (quoting Ridley v.

Commonwealth, 219 Va. 834, 836, 252 S.E.2d 313, 314 (1979)).

        When it issued its ruling, the circuit court admitted that if the standard of proof was beyond

a reasonable doubt, then the Department might not have met its burden. However, since the

standard of proof was “mere preponderance,” the Department only had to prove “it’s more likely

than not” that Chavez abused the child. Under that standard, the circuit court held that the

Department met its burden of proof. There was sufficient evidence that Chavez put his mouth on

the child’s “private parts” when the child was not wearing a diaper. Although Chavez was fully

clothed, his zipper was down. There also was evidence that Chavez “slowly” rubbed the child down

his body. Considering the totality of the evidence, the circuit court could infer that Chavez had the

intent to sexually abuse the child.

        Accordingly, the circuit court did not err in finding that the evidence was sufficient to find

that Chavez abused the child.

                                           CONCLUSION

        For the foregoing reasons, the circuit court’s ruling is affirmed.

                                                                                               Affirmed.




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