COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Huff and Senior Judge Clements

LANCE SPURRIER MEMORANDUM OPINION *
v. Record No. 0772

- 11

- 1 PER CURIAM SEPTEMBER 27, 2011 ANTHONY CONYERS, COMMISSIONER

VIRGINIA DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH H. Thomas Padrick, Jr. , Judge (Brian A. Thomasson, on brief), for appellant. ( Kenneth T. Cuccinelli, II, Attorney General; David E. Johnson, Deputy Attorney General; Kim F. Piner, Senior Assist ant Attorney Gen eral; Cheryl A. Wilkerson, Senior Assistant Attorney General, on brief), for appellee.
Lance Spurrier appeals from a January 21, 2011 final order of the circuit court finding there was “ substantial evidence in the agency record to support the December 11, 2009 decision of the Commisioner, ” and upholding a founded disposition of sexual abuse made by the Virginia Beach Department of Human Se rvices (the local department). On appeal, Spurrier argues the circuit court erred (1) by not allowing new evidence into the record and (2) by finding sufficient evidence in the record to support the finding of sexual abuse. Upon reviewing the record and briefs of the parties, we conclude this appeal is without merit. Accordingly, we summarily affirm the decision of the trial court. See Rule 5A:27.

* Pursuant to Code § 17.1

- 413, this opinion is not designated for publication.- 2

- BACKGROUND

“ To administer child protective services in the Commonwealth, the General Assembly delegates authority to the VDSS, a state agency go verned by a state board, Code § 63.2

- 215, and also requires that there ‘ shall be a local department of social services for each county or city under the supervision and management of a local director. Code § 63.2

- 324. ’” Christian v. Virginia Department of Social Services , 45 Va. App. 310, 312, 610 S.E.2d 870, 871 (20 05).

“ Through the use of administrative hearing officers, VDSS reviews de novo any contested determination by a local department. See Code § 63.2

- 1526(B); 22 Va. Admin. Code § 40

- 705

- 190(H). ” Id. On appeal from a decision of VDSS, “ [t]he reviewing cour t will view

‘ the facts in the light most favorable to sustaining the [agency ’ s] action, ’ and ‘ take due account of the presumption of official regularity, the experience and specialized competence of the agency, and the purposes of the basic law under which the agency has acted. ’” Jones v. West , 46
Va. App. 309, 323, 616 S.E.2d 790, 797 (2005) (quoting Atkinson v. Virginia Alcohol Beverage Control Comm ’ n , 1 Va. App. 172, 176, 336 S.E.2d 527, 530 (1985); Code § 2.2

- 4027). The local department receiv ed a comp laint alleging that D

. R. , seven teen years old at the time of the investigation, may have been sexually abused by Spurrier, her step father, when she was between four and ten years old

. During the ensuing investigation, D.R. described in detail in a recorde d statement various sexual contacts with Spurrier when she lived with him in Virginia.
D.R. ’ s mother also described various physical and behavioral issues the victim exhibited during the time period when D.R. said the abuse occurred. The victim ’ s therapi st provided a statement indicating D.R. was in therapy at the time of the interview and that she had provided a consistent account of th e events during her treatment.
T he local department entered a disposition of founded sexual abuse, L evel 1 on March 12, 2009. Spurrier challenged the finding, which was upheld following an informal conference.- 3

- Spurrier requested further review by the Commissioner of VDSS , and the disposition was again sustained. Spurrier requested judicial review of the decision. On Jan uary 21, 2011, the circuit court entered an order affirming the agency de cision. This appeal followed.
ANALYSIS
I.

“ As outlined in Code § 63.2

- 1526(B), the Administra tive Process Act (APA), Code §§ 2.2

- 4000 to 2.2

- 4033, governs judicial review when DSS ma kes a disposition of founded child abuse. ” Commissioner v. Fulton , 55 Va. App. 69, 79, 683 S.E.2d 837, 842 (2009). As such, the burden is on the appellant “ to designate and demonstrate an error of law subject to review by the court. ” Code § 2.2

- 4027. S uch errors of law include “ observance of required procedure where any failure ther ein is not mere harmless error ” and “ the substantiality of the evidentiary support for findi ngs of fact. ” Code § 2.2

- 4027. Spurrier argues the circuit court erred by not all owing new evidence into the record, specifically, a computer blog entry purportedly made by the victim on November 21, 2009. He concedes that the circuit court was precluded by statute “ from going outside of the record as transmitted to it. ” However, he argues “ the law is manifestly unjust. ” In pertinent part, Code § 2.2

- 4027 provides that upon judicial review of an agency decision, “ [t]he determination of such fact issue shall be made upon the whole evidentiary record provided by the agency. ” Cases subje ct to the standa rd of review outlined in Code § 9

- 6.14:17 [now § 2.2

- 4027] cannot be considered a trial de novo since the factual issues on appeal are controlled solely by the agency record. The reviewing court is not free to take additional evidence, eve n at the request of one of the parties. Therefore, under the VAPA, the circuit cou rt ’ s role in an appeal from an agency decision is e quivalent to an appellate court ’ s role in an appeal from a trial court. In this sense, the General Assembly has provided that a circuit court acts as an appellate tribunal.- 4

- School Board v. Nicely , 12 Va. App. 1051, 1061

- 62, 408 S.E.2d 545, 551 (1991) (fo otnote omitted)

. “ Thus, in an agency appeal, the circuit court is not free to take additional evidence at the request of o ne of the parties, but is obliged to defer to the trier of fact. ” J. P. v. Carter , 24
Va. App. 707, 721, 485 S.E.2d 162 , 169

- 70 (1997)

. Spurrier provides no support for his assertion that it is “ manifestly unjust ” for him not to be able to supplement the agency record with new evidence. Under the interpanel accord doctrine , the “ decision of one panel ‘ becomes a predicate for application of the doctrine of stare decisis ’ and cannot be overruled except by the Court of Appeals sitting en banc or by the Virgi nia Supreme Court. ” Clinchfield Coal Co. v. Reed , 40 Va. App. 69, 73, 577 S.E.2d 538, 540 (2003) (citation omitted); see also Congdon v. Congdon , 40 Va. App. 255, 265, 578 S.E.2d 833, 838 (2003). Established law fully supports the trial court ’ s refusal t o admit the evidence , and we find no error with the court ’ s actions

. To the extent Spurrier asserts his inability to introduce new evidence before the circuit court deprived him of his constitutional due process rights , we note he did not present this
argu ment to the circuit court.

“ The Court of Appeals will not consider an argument on appeal which was not presented to the trial court. ” Ohree v. Commonwealth , 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998).
See Rule 5A:18. Accordingly, Rule 5A:18 bars o ur consideration of this issue on appeal. The requirements of Rule 5A:18 apply equally to constitutional claims. Deal v. Commonwealth , 15
Va. App. 157, 16 1, 421 S.E.2d 897, 900 (1992). Although Rule 5A:18 allows exceptions for good cause or to meet the e nds of justice, appellant does not argue that we should invoke these exceptions. See e.g. , Redman v. Commonwealth , 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997) ( “ In order to avail oneself of the exception, a defendant must affirmatively show that a mi scarriage of justice has occurred, not that a miscarriage might- 5

- have occurred. ” (emphasis added)). We will not consider, sua sponte , a “ miscarriage of justice ” argument under Rule 5A:18. Edwards v. Commonwealth , 41 Va. App. 752, 761, 589 S.E.2d 444, 44 8 (2003) ( en banc ).
II. Spurrier argues the circuit court erred in concluding there was substantial evidence to support the finding of sexual abuse because the victim ’ s account was inherently in credible.

“ We view the evidence in the light most favorable to the agency and limit our review of issues of fact to the agency record. ” Mulvey v. Jones , 41 Va. App. 600, 602, 587 S.E.2d 728, 729 (2003). “ [T] he 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 § 2.2

- 4027.

“ 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. ” Johnston

- Willis v. Kenley , 6 Va. App. 23 1, 242, 369 S.E.2d 1, 7 (1988) (citations omitted). “ It is not the trial court ’ s role to determine the credibility of the witnesses. ” Comm. Dep ’ t of Soc. Ser. v. Fulton , 55 Va. App. 69, 80, 683 S.E.2d 837 , 842 (2009)

. Here, the victim alleged that Spurri er repeatedly sexually abused her over an extended period of time. The hearing officer viewed the taped interview, considered the statement of the child ’ s mother regarding the child ’ s behavior and physical problems at the time of the alleged abuse , and co nsidered the statement by the victim ’ s therapist. The hearing officer conc luded
D .R. had no motive to fabricate the allegations and found Spurrier ’ s statements less credible than the victim ’ s and in conflict with other evidence.
T he agency acting as the f act finder determined that the claim was “ founded, ” meaning that the agency determined that “ a review of the facts [showed] by a preponderance of th e evidence that child abuse .

. . has occurred. ” 22 VAC 40

- 705

- 10. Based on the evidence in the record, it cannot be said that after reviewing the record as a whole a reasonable mind would- 6

- inevitably o r unavoidably determine that D.R

. ’ s allegations are false. Thus, the trial court did
not err in finding that there is substantial evidence to support the agency ’ s actions. Accordingly, we summarily affirm the trial court ’ s decision. See Rule 5A:27.

Affirme d

.