COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick,* Judge Annunziata and 

 Senior Judge Baker**

Argued at Alexandria, Virginia 

CLARENCE H. CARTER, COMMISSIONER, 

 VIRGINIA DEPARTMENT OF SOCIAL SERVICES 

 OPINION BY 

v. Record No. 0088-97-4 JUDGE JOSEPH E. BAKER 

 AUGUST 4, 1998 

CRAIG GORDON 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

M. Langhorne Keith, Judge 

 Gaye Lynn Taxey, Assistant Attorney General 

(James S. Gilmore, III, Attorney General; 

William H. Hurd, Deputy Attorney General; 

Siran S. Faulders, Senior Assistant Attorney 

General, on briefs), for appellant. 

 Steven David Stone (Steven David Stone, P.C., 

on brief), for appellee. 

 In this appeal, we review a judgment rendered by the Circuit 

Court of Fairfax County (trial court) which reversed and 

dismissed findings made by the Virginia Department of Social 

Services (DSS) that Craig Gordon (Gordon) had engaged in several 

acts of child sexual abuse involving five students while he was a 

physical education teacher and safety patrol leader at Virginia 

Run Elementary School (the school). The DSS is an agency subject 

to the provisions of the Virginia Administrative Process Act 

 

 *On November 19, 1997, Judge Fitzpatrick succeeded Judge 

Moon as chief judge. 

 **Judge Baker participated in the hearing and decision of 

this case prior to the effective date of his retirement on July 

31, 1998 and thereafter by his designation as senior judge 

pursuant to Code § 17-116.01. 
- 2 - 

(APA), see Code §§ 9-6.14:1 to 9-6.14:25, and this appeal results 

from investigations and findings of the DSS that were made 

pursuant to the APA. 

 The DSS contends the trial court erred in (1) finding that 

the record did not contain substantial evidence to support the 

five "founded" determinations of "level one" sexual abuse against 

Gordon, (2) ruling that the DSS deprived Gordon of due process, 

(3) denying the DSS's motion to reconsider, sever, and remand in 

part, and (4) awarding Gordon attorney fees under Code 

§ 9-6.14:21. For the reasons that follow, we reverse the trial 

court's ruling and remand for entry of an order consistent with 

this opinion. 

 I. 

 Viewed in the light most favorable to the DSS, the agency 

record discloses that in March 1993, two students at the school 

accused Gordon of misconduct which led to an in-school 

investigation. The Superintendent of Schools concluded that 

Gordon had not acted with sexual intent but reprimanded Gordon 

for "inappropriate behavior." Although Gordon previously had 

received several merit recognitions and was a tenured teacher, he 

had received three reprimands for matters involving female 

students.1

 

 1In 1974, Gordon received a written reprimand from the 

principal for driving female students without their parents' 

permission and for permitting female students to enter a darkened 

teachers' lounge. 

 In 1978, Gordon received a written reprimand from the 

principal following repeated cautioning for driving students to 
- 3 - 

 

 Subsequently, in April 1993, a former student reported to 

the Fairfax County Police that Gordon had raped her in 1983 when 

she was a student at the school. As a result of that report, the 

school board suspended Gordon from teaching, effective April 30, 

1993. On May 13, 1993, Gordon was arrested upon the former 

student's complaint. On May 14, 1993, the school's principal 

sent letters to the current students' parents informing them of 

Gordon's suspension and arrest and notifying them that extra 

counseling support would be available for interested students. 

In response, twenty-three students made varying allegations 

against Gordon of "improper touching." The DSS was not involved 

in Gordon's suspension or the related notification of parents. 

However, on May 17, 1993, the police notified the Child 

Protective Services (CPS) division of the Fairfax Department of 

Human Development of allegations of "improper touching" made by 

twenty-three students, and the CPS began an investigation. 

 On July 19, 1993, the CPS notified Gordon it was 

investigating the allegations of the twenty-three students. At 

all times, Gordon denied the charges. After a preliminary 

hearing in the Fairfax County Juvenile and Domestic Relations 

District Court on August 27, 1993, the rape charge made by the 

various activities in the evenings and on weekends, frequenting 

places where students congregated, and showing favoritism toward 

certain students, especially females. 

 In 1984, Gordon received a written reprimand for 

transporting female sixth-graders in his car without parental 

permission. 
- 4 - 

former student was dismissed. The Commonwealth Attorney's office 

also decided not to pursue criminal charges for the allegations 

made by the twenty-three current students, but in accord with 

Code § 63.1-248.6, the CPS continued to investigate the 

complaints. By letters sent in September and October of 1993, 

the CPS notified Gordon of its determinations of "founded, level 

1, sexual abuse" of five of the female students, varying in age 

between ten and twelve years. As required by the DSS's Policy 

Manual, these findings were reported to the Superintendent of 

Schools. The principal continued Gordon's suspension. Pursuant 

to Code § 63.1-248.6:1 and Virginia Regulation 615-45-2, Gordon 

requested an informal conference before the CPS Director. 

Following a conference on November 19, 1993, the Director's 

designee, Supervisor Thomas Hamblen, affirmed the CPS's findings 

in a two-page memorandum. He found the students were "reliable 

and trustworthy" in their statements to the investigators because 

the students had personal knowledge of the alleged incidents, 

were without malice toward Gordon and had no motive to fabricate 

their stories. None of the students were present at the informal 

conference. 

 Upon receipt of Hamblen's memorandum, pursuant to Code 

§ 63.1-248.6:1, Gordon appealed to the DSS. At the DSS hearing, 

Gordon was permitted to introduce evidence, cross-examine the 

investigators, and challenge the reliability and trustworthiness 

of the statements that the five children had given to the CPS 
- 5 - 

 

investigators. The five girls were not present and Gordon was 

not able to cross-examine them.2

 The DSS hearing officer 

affirmed the CPS findings and investigative reports. She 

specifically found that "clear and convincing evidence [showed] 

. . . [the students] were sexually abused by [Gordon], and [that] 

this resulted in or was likely to have resulted in serious harm 

to them." Gordon appealed to the circuit court. 

 In a letter opinion, the trial court concluded that, 

although many errors were alleged, collectively they constituted 

only two, to-wit: (1) insufficiency of the evidence and (2) 

deprivation of due process. The court concluded that the record 

did not contain substantial evidence to support the five 

determinations of Level 1 abuse and, in fact, that it did not 

contain substantial evidence to support a finding of any level of 

sexual abuse against one of the students. It also concluded that 

the DSS's bias, refusal to allow Gordon to cross-examine the 

complainants and notification of the school board violated 

Gordon's due process rights and that this violation could not be 

cured by remand. Finally, it ordered the DSS to pay Gordon's 

attorney fees under Code § 9-6.14:21 because it found that Gordon 

had substantially prevailed on the merits and that the DSS had 

acted unreasonably. 

 The evidence, viewed in the light most favorable to the DSS, 

 2Two of the girls were present at a hearing before the 

school board and were cross-examined by Gordon's counsel at that 

time. 
- 6 - 

included testimony regarding the following conduct: Student No. 

1 was in Gordon's class in the fourth and fifth grades. When she 

was in the fourth grade, Gordon hugged her, and in the fifth 

grade, on more than five or ten occasions, he put his arm around 

her and put his hand on her "butt [to] pat or squeeze it," which 

made her uncomfortable. During her sixth grade year, he put his 

arm around her and touched her very close to her breast. He 

sometimes whistled at her and told her she was pretty or cute. 

On one occasion, he pulled her onto his lap and rocked back and 

forth while saying, "I love you." She was sitting in his crotch 

area while he squeezed her with his legs and arms, and she could 

feel his penis on her buttocks. Student No. 1 reported some of 

Gordon's behavior to the principal prior to the former student's 

April 1993 report to authorities, prompting the in-school 

investigation previously described. 

 Student No. 2 was Gordon's student and a member of the 

safety patrol. On one occasion during her fifth grade year, 

while she was in Gordon's office on safety patrol business, 

Gordon came up very close behind her and rubbed her "butt." She 

turned quickly to find Gordon only a few inches away from her 

with "a weird look on his face." She said he "knew what he had 

done." On another occasion, when she fell during class, Gordon 

picked her up with his hand on her crotch. 

 Student No. 3 was Gordon's student and a member of the 

safety patrol. During her fifth grade year, Gordon often touched 
- 7 - 

her buttocks and hugged her. She was frequently excused from 

certain activities in gym class due to stomach problems, and 

while she waited for the other students to finish class, Gordon 

would approach her to talk about the safety patrol and would put 

his hand on her back, move it down to her buttocks, and rub and 

"cup" her "butt." This behavior occurred during almost every 

class from which she was excused, and it increased during her 

sixth grade year. It also occurred on several occasions when 

Gordon called her into his office to discuss safety patrol 

matters. 

 Student No. 4, Gordon's student and a member of the safety 

patrol, said Gordon "play[ed] around a lot" and rubbed "[her] 

butt a lot," at least five times. He patted her "butt" on other 

occasions. She also told the CPS investigators that she knew 

Gordon assaulted the former student who had complained to the 

police "because he did it to me." 

 Student No. 5, a sixth grader in a different instructor's 

physical education class, reported that Gordon hugged her on 

several occasions, which made her feel uncomfortable. On one 

occasion, he hugged her from behind with his hands "actually 

cupping her breasts," and she pulled away from him. Along with 

Student No. 1, Student No. 5 reported Gordon's behavior to the 

principal before the former student's report to the police. 

 II. 

Sufficiency of the Evidence
- 8 - 

 In an appeal to the circuit court from a decision by an 

agency, the burden is upon the appealing party to demonstrate 

error. See State Bd. of Health v. Godfrey, 223 Va. 423, 432-33, 

290 S.E.2d 875, 879-80 (1982). In a court's review of the 

sufficiency of the evidence to support the agency's decision, the 

determination of issues of fact must be made upon the agency 

record. See Code § 9-6.14:17. Thus, the circuit court's review 

of issues of fact is limited to the agency record. See Godfrey, 

223 Va. at 433, 290 S.E.2d at 880; see also Turner v. Jackson, 14 

Va. App. 423, 430-31, 417 S.E.2d 881, 886 (1992). Although the 

Court views the facts contained in that record most favorably to 

the DSS, that evidence must be substantial. See J.P. v. Carter, 

24 Va. App. 707, 720, 485 S.E.2d 162, 169 (1997) (quoting Code 

§ 9-6.14:17). 

 At an administrative hearing held in accord with the APA, 

hearsay evidence is admissible. See Code § 9-6.14:12. 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. "The reviewing 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." See Johnston-Willis, Ltd. v. Kenley, 6 

Va. App. 231, 242, 369 S.E.2d 1, 7 (1988). Under the facts of 

this case, we hold the trial court improperly rejected the 

agency's findings and substituted its own. 
- 9 - 

 Code § 18.2-67.10 defines "sexual abuse" as 

 an act committed with the intent to sexually 

molest, arouse, or gratify any person, where 

. . . [t]he accused intentionally touches the 

complaining witness's intimate parts or 

material directly covering such intimate 

parts; [or] . . . [t]he accused forces the 

complaining witness to touch the accused's 

. . . intimate parts or material directly 

covering such intimate parts . . . . 

"Intimate parts" include "the genitalia, . . . breast, or 

buttocks of any person." Id.

 The guidelines in the DSS Protective Services Manual, 

promulgated to assist case workers in interpreting the relevant 

statutes, define sexual abuse to be investigated by the DSS as 

including "any act defined in [Code §§ 18.2-61 to -67.10 and 

§§ 18.2-351 to -371] which is committed . . . upon a child by 

. . . [a] person responsible for the child's care." Manual, 

Virginia Department of Social Services: Child Protective 

Services, vol. VII, § III, ch. A, at 8 (July 1992) (hereinafter 

"the Manual"); see also Jackson v. W., 14 Va. App. 391, 399, 419 

S.E.2d 385, 389 (1992). The Manual further defines sexual abuse 

to include "sexual contact (clothed/unclothed) between a 

caretaker and a child when such contact, touching or interaction 

is used for arousal or gratification of sexual needs or desires, 

including . . . [t]ouching . . . the child's genitalia, . . . 

breast or buttocks." Id. at 9. 

 The DSS classifies such abuse by its seriousness. See id.

at 17d-18. Level 1 abuse comprises "those injuries/conditions, 
- 10 - 

real or threatened[,] that result in or were likely to have 

resulted in serious harm to a child." Id. Such abuse includes 

"situation[s] . . . where there was genital contact, or force or 

threat was used, or the abuse had taken place over a period of 

time and there were multiple incidents." Id. at 17e. Level 2 

abuse includes those injuries or conditions "that resulted in or 

were likely to result in moderate harm to a child," including 

"minimal or no physical touching but exposure to masturbation, 

exhibitionism," sexually provocative comments, pornographic 

materials or the like. Id. at 17e-17f. Level 3 abuse includes 

those injuries or conditions "that resulted in or were likely to 

result in minimal harm to a child." Id. at 17f. "On review, 

'the interpretation an administrative agency gives its [law] must 

be accorded great deference.'" Jackson, 14 Va. App. at 400-01, 

419 S.E.2d at 390 (quoting Virginia Real Estate Bd. v. Clay, 9 

Va. App. 152, 159, 384 S.E.2d 622, 626 (1989)). 

 The trial court did not dispute that the evidence disclosed 

sexual abuse of four of the five children. Its decision appears 

to hold only that no substantial evidence proved serious harm to 

the children as required for a Level 1 finding. It also held the 

evidence was insufficient to support a finding of any level of 

abuse against Student No. 5 because it did not show that 

appellant acted with the requisite intent. We disagree and hold 

that the record contains substantial evidence to support the 

findings of the DSS that Gordon committed Level 1 sexual abuse 
- 11 - 

against three of the five students and Level 2 sexual abuse 

against the other two. 

 In its extensive opinion, the trial court stated that the 

"record in this case utterly lacks any evidence of the kind of 

serious harm or the likelihood of serious harm that would justify 

a level one finding." While being critical of the hearing 

officer's finding that the abuse Gordon inflicted on the children 

"is or was likely to have resulted in serious harm to [the 

children]," in its nineteen-page opinion, the trial court did not 

refer at any time to the testimony that Gordon "hugged" Student 

No. 1, put his hand on her "butt," patted or squeezed her "butt," 

and touched her close to her breast. Nor did it mention evidence 

that Gordon pulled her into his lap, held her, said "Oh, I love 

you," and rocked back and forth as she sat on his crotch area, 

while he squeezed her with his legs and became so aroused that 

she could feel his penis on her buttocks. 

 That conduct alone is sufficient to prove Gordon violated 

the DSS guidelines and Code § 18.2-67.10, which proscribe sexual 

abuse, and to permit the fact finder to conclude, as it did, that 

Gordon's acts were "likely to have resulted in serious harm to 

the child." Nothing in the DSS Manual or any of the code 

provisions the trial court cited requires proof that the injury 

to the child be permanent, only that it was "likely" to have 

resulted in serious harm. See Jackson, 14 Va. App. at 401-02, 

419 S.E.2d at 391 (quoting Jenkins v. Winchester Dep't of Soc. 
- 12 - 

Servs., 12 Va. App. 1178, 1183, 409 S.E.2d 16, 19 (1991)) 

(rejecting argument that finding of abuse requires proof of 

actual harm). Therefore, as to Student No. 1, we hold that the 

evidence was sufficient to support the DSS finding of Level 1 

sexual abuse and that the trial court failed to give deference to 

that finding. 

 But this case is not dependent only upon Gordon's abusive 

acts against Student No. 1. Substantial evidence proved that 

Gordon committed repeated acts of sexual abuse, as defined in 

Code § 18.2-67.10 and the guidelines, against Students No. 3 and 

4, which supports the DSS finding that Gordon committed Level 1 

sexual abuse against each of those students, as well. As noted 

earlier, a complaint of Level 1 abuse may be founded when the 

"abuse ha[s] taken place over a period of time and there were 

multiple incidents." The Manual, at 17e. Viewed in the light 

most favorable to the DSS, the evidence shows appellant 

repeatedly touched those students' buttocks or breasts with the 

necessary intent. Again, the trial court failed to give 

appropriate deference to the DSS's findings. 

 As to Students No. 2 and 5, the record contains substantial 

evidence that Gordon acted with the necessary intent toward each 

student on one occasion, thereby supporting a finding that 

appellant sexually abused each student as defined in Code 

§ 18.2-67.10 and the DSS guidelines. As to Student No. 2, the 

evidence shows that Gordon came up very close behind her in his 
- 13 - 

office and rubbed her "butt." When she turned quickly, she found 

him only a few inches away from her with "a weird look on his 

face," and she said he "knew what he had done." As to Student 

No. 5, the evidence shows Gordon "actually cupp[ed] her breasts" 

with his hands, which also provides substantial evidence that he 

acted with the necessary intent. However, because Students No. 2 

and 5 recounted only one incident each of sexual abuse, we 

conclude that the abuse in each case was Level 2 abuse rather 

than Level 1. 

Due Process

 Gordon argues that the procedures followed by the CPS and 

DSS denied him due process under the Fourteenth Amendment to the 

United States Constitution and Article I, Section II, of the 

Virginia Constitution. The state and federal due process clauses 

"have [an] almost exact similarity in language" and, therefore, 

our analysis of the due process issue applies equally to both 

state and federal law. See Morris v. City of Danville, 579 F. 

Supp. 900, 901 n.1 (W.D. Va. 1984), cited with approval in 

Jackson, 14 Va. App. at 405 n.11, 419 S.E.2d at 393 n.11. 

 The Fourteenth Amendment . . . provides that 

no person shall be deprived of life, liberty 

or property without due process of law. 

"Procedural due process rules are meant to 

protect persons not from the deprivation, but 

from the mistaken or unjustified deprivation 

of life, liberty, or property." Due process 

analysis involves a two-part inquiry. First, 

there must be a deprivation of a liberty or 

property interest. Then, "'[o]nce it is 

determined that due process applies, the 

question remains what process is due.'" 
- 14 - 

Jackson, 14 Va. App. at 405-06, 419 S.E.2d at 393-94 (citations 

and footnote omitted); see also J.P., 24 Va. App. at 715-16, 485 

S.E.2d at 167. 

 Due process does not entitle an individual to "the full 

panoply of judicial procedures" when a governmental agency is 

engaged only in a general fact-finding investigation, see Hannah 

v. Larche, 363 U.S. 420, 442 (1960); however, if the process 

takes on a judicial role, the procedure used to arrive at a 

decision must satisfy due process. See Jackson, 14 Va. App. at 

408, 419 S.E.2d at 395. Generally, in a child sexual abuse case 

such as this one, 

 the department has the following duties: to 

investigate complaints; determine whether the 

complaint is "founded," "reason to suspect," 

or "unfounded"; place the name of a person 

with a "founded" complaint in the Central 

Registry; report its findings when required; 

make recommendations and arrange for services 

based on findings; and foster community-based 

outreach and educational programs. Code 

§ 63.1-248.6. The hearing officer lacks the 

power to issue subpoenas or administer an 

oath. The officer has no authority to impose 

civil or criminal penalties or render a 

decision adjudging the party "guilty" or "not 

guilty." D'Alessio v. Lukhard, 5 Va. App. 

404, 408, 363 S.E.2d 715, 717-18 (1988) (the 

administrative proceeding does not "determine 

. . . guilt or innocence"). In fact, if 

civil or criminal rights are to be 

adjudicated, a court must intervene upon 

appropriate process. Code 

§ 63.1-248.6(D)(4), (5). The only direct 

consequence of the proceeding is that a 

party's name is placed in the Central 

Registry. See Lukhard, 5 Va. App. at 408, 

363 S.E.2d at 717; see also Code 

§ 63.1-248.6:1. 
- 15 - 

Id. at 407-08, 419 S.E.2d at 394-95. There is no showing in this 

case that the foregoing procedures were not followed. If Gordon 

was entitled to due process, he received all that he was due. 

 Regardless of the many errors alleged by Gordon, his basic 

complaint is that the agency "deprived" him of his teaching job 

with the Fairfax County school system. The agency finding was 

made by a totally separate entity from the School Board and was 

limited to placing his name in the Central Registry. The DSS had 

no power to and, in fact, did not "deprive" Gordon of his 

teaching position with the Fairfax County school system. His 

separation from that school system was solely the act of the 

School Board. In Paul v. Davis, 424 U.S. 693 (1976), the Court 

described the functions of the Commission on Civil Rights, a 

federal agency, in this language: 

 "It does not adjudicate. It does not 

hold trials or determine anyone's civil or 

criminal liability. It does not issue 

orders. Nor does it indict, punish, or 

impose any legal sanctions. It does not make 

determinations depriving anyone of his life, 

liberty or property. In short, the 

Commission does not and cannot take any 

affirmative action which will affect an 

individual's legal rights. The only purpose 

of its existence is to find facts which may 

subsequently be used as a basis for 

legislative or executive action." 

Paul, 424 U.S. at 706 n.4 (quoting Hannah, 363 U.S. at 441). 

 Even if the School Board's act was a "'collateral 

consequence'" flowing from the investigation and finding of the 

DSS, it would not affect the legitimacy of the DSS investigative 
- 16 - 

function. See id. (quoting Hannah, 363 U.S. at 443). Gordon has 

been deprived of no Fourteenth Amendment guarantee. While Gordon 

had a liberty interest in pursuing his vocation as a teacher, he 

was not deprived of that right by the DSS. Gordon was removed 

from his teaching position by the School Board, not by the DSS, 

which had no authority to force the Board to do anything. See

id.; see also Billing v. City of Norfolk, 848 F. Supp. 630, 635 

(E.D. Va. 1994). Cf. Jackson, 14 Va. App. at 410, 419 S.E.2d at 

396 (rejecting claim that DSS proceeding may serve as predicate 

for criminal prosecution because Commonwealth, not DSS, must 

bring criminal charges). Furthermore, even if the DSS's filing 

of its findings with the Central Registry had the collateral 

consequence of moving the Board to take the action it did, the 

School Board's action would not be because of any affirmative act 

taken by the DSS. See Paul, 424 U.S. at 706 n.4 (citing Hannah, 

363 U.S. at 443). 

 Finally, Gordon's speculation about other possible adverse 

consequences from the determinations is just that--speculation. 

"Although a 'founded' disposition could possibly foreclose 

[Gordon's] chances for engaging in [teaching or other] 

activities," Gordon has pointed to "no rule . . . that a 

'founded' disposition of child abuse automatically disqualifies 

an applicant" from such activity. Jackson, 14 Va. App. at 410, 

419 S.E.2d at 396; see Turner, 14 Va. App. at 437, 417 S.E.2d at 

890-91 ("founded" disposition does not give DSS power to order 
- 17 - 

change in child custody or terminate parental rights). 

Therefore, Gordon has not identified a deprivation cognizable 

under the Due Process Clause. 

 Because Gordon has been given all the process he is due, and 

substantial evidence in the record supports the DSS decision, we 

hold that, considering the record as a whole, a reasonable mind 

would not necessarily come to a different conclusion. See

Kenley, 6 Va. App. at 242, 369 S.E.2d at 7. For these reasons, 

we affirm the finding of the DSS and reverse the judgment of the 

trial court with respect to its finding of no Level 1 sexual 

abuse against Students No. 1, 3 and 4. As to Students No. 2 and 

5, we hold that substantial evidence did not prove Level 1 abuse 

but did prove Level 2 abuse. Further, we hold that Gordon was 

not deprived of any due process right guaranteed by the United 

States or Virginia Constitutions. Finally, because Gordon did 

not "substantially prevail[] on the merits" and we find no 

evidence that the DSS "acted unreasonably," we reverse the award 

of attorney fees under Code § 9-6.14:213

 and remand this case to 

the trial court for entry of an order consistent with this 

opinion. 

 Reversed and remanded.

 

 3We do not decide whether Code § 9-6.14:21 would have 

permitted such an award if Gordon had substantially prevailed and 

the DSS had acted unreasonably.