COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Bumgardner and Lemons 

Argued at Salem, Virginia 

BEVERLY P. EGGLESTON, IV 

 MEMORANDUM OPINION* BY 

v. Record No. 0670-98-3 JUDGE SAM W. COLEMAN III 

 MARCH 16, 1999 

VIRGINIA DEPARTMENT OF SOCIAL SERVICES 

FROM THE CIRCUIT COURT OF WASHINGTON COUNTY 

Charles B. Flannagan, II, Judge 

 (Barry L. Proctor, on brief), for appellant. 

 Donald G. Powers, 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. 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication.

 The Virginia Department of Social Services (DSS) received a 

complaint alleging the sexual abuse of M, a four-year-old girl, 

by her father, Beverly P. Eggleston. Eggleston appeals the 

decision of the circuit court affirming a DSS determination of 

"Founded, Sexual Molestation -- Level 1." The issues on appeal 

are whether the evidence is sufficient to support the agency's 

finding that (1) the alleged touching occurred, (2) Eggleston's 

contact with the victim was "for arousal or gratification of 

sexual needs or desires" as required by the DSS definition of 

sexual molestation, and (3) the injury/condition resulted in, or 

was likely to result in, serious harm to the child giving rise to 

"level 1" molestation. On review of the record, we determine 
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that substantial evidence supports the decisions of DSS and 

accordingly, we affirm the circuit court's ruling. 

I. BACKGROUND

 Karen Hardie and Beverly Eggleston, M's parents, were 

separated on the date of the alleged offending contact and were 

pursuing an amicable divorce. Hardie, M's mother, testified that 

one day after M spent the night with Eggleston, she noticed that 

M's vagina was red and irritated. When asked, M attributed the 

condition to poison oak. The following evening, as Hardie bathed 

M, M referred again to the poison oak. M stated that Eggleston 

tried to "suck out the poison oak" and that he "tried to suck out 

the owie from the chicken pox" lesions. M had several healing 

chicken pox lesions, two of which were on her vaginal area and 

two were on her feet. At that point Hardie retrieved a personal 

journal that she maintained and began recording M's exact words: 

 He tries to love it and bite it and kiss it. 

My bahooney. He scratches it with his 

whiskers. No. He tries to bite it and eat 

it. And tries to put his whiskers on it and 

eat it up and get it off. That's not right 

is it Mommy? . . . I told him not to scratch 

my bahooney cause it would make me cry. 

Hardie testified that at that point M became anxious and stated 

that she was experiencing pain on her feet where Eggleston had 

tried to "suck out the chicken pox." After Hardie dried M, M 

began licking Hardie's face; she placed her tongue in Hardie's 

ear, and licked Hardie's tongue. When Hardie asked M if she 

kissed Eggleston that way, M replied, "All the time, when we kiss 

with tongues we do it like grown ups." 
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 Hardie related M's statements to her counselor seven days 

after the alleged sexual abuse, and the counselor notified Child 

Protective Services (CPS). Hardie had M examined by a physician 

ten days after the alleged abuse, and the examination revealed no 

evidence of sexual abuse. CPS worker Wendy Davidson investigated 

the complaint. She testified that M told her "about things that 

her father had done to her including tickling her privates."1

Davidson referred M to Julie Tinsley, a Licensed Clinical Social 

Worker. According to Davidson, "Tinsley reported . . . things 

that [M] had told her which were consistent with touching by her 

father." 

 1

The following is a transcript of part of Davidson's 

interview with M: 

 Q- Do you remember going to the doctor? 

 A- Yep. 

Q- Do you know why you went to the doctor? 

A- Do you know what? (to worker) 

 A- (worker) No. 

A- (M.) My daddy tried to tickle my privates. 

 I told him not to; he did it anyway. He 

 scratched me. 

Q- How did he scratch you? 

 A- With his whiskers. 

 Q- Where did he scratch you? 

 A- You know, don't you. 

 Q- No, tell me. 

 A- On my privates. 

 Q- did it hurt? 

A- No, not at all. I was almost going to cry 

 but I didn't. 

* * * * * * * 

 Q- With what [did he tickle you]? 

 A- His hands. 

 Q- Where? 

 A- Right here (pointed to vagina). 
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 Tinsley testified that M's allegations were "consistent with 

what [M] had told her mother and also what [M] had told Ms. 

Davidson." She testified that based on her interviews with M and 

"due to the consistency of the allegations . . . [in her opinion] 

there had been some sexual abuse by the father." Asked by 

Eggleston's counsel if M's allegations changed or were added to 

as time progressed, Tinsley testified that M alleged her father 

tickled her vagina with a feather and with his hands. Sometimes 

M stated that she had her underwear on, and sometimes she said 

that she did not. Although this allegation was not consistent 

with what M had related to Hardie in the bathroom, according to 

Tinsley, Hardie later recalled that M "had said something about 

[the feather] but it just didn't register with her . . . at the 

time." Tinsley also reported that M repeated her own earlier 

statements that her father's whiskers had hurt her pointing at 

her groin. On the last of her thirteen sessions with Tinsley, M 

stated that Eggleston had told her not to talk to the counselor 

about him anymore. 

 On July 21, 1994, Davidson issued her report of "founded" 

level 1 sexual molestation. On July 28, 1994 Virginia State 

Police administered a polygraph test to Eggleston in which he 

denied sexual abuse of his daughter. The results indicated that 

Eggleston told the truth. 

 On September 6, 1994, Mary Lou Jett, Director of Bristol 

Department of Social Services, sustained Davidson's disposition 

of "founded" on sexual molestation, level 1. After an 
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administrative appeal hearing on November 21, 1994, a state 

hearing officer again sustained the agency's disposition. On 

February 25, 1998, the Circuit Court of Washington County, having 

reviewed the agency record and Eggleston's brief, found that 

substantial evidence supported the agency's decision and 

accordingly denied the petition for an appeal, and affirmed the 

agency's decision. 

II. ANALYSIS

 On review of an agency action, "the duty of the court with 

respect to issues of fact is limited to ascertaining whether 

there was substantial evidence in the agency record upon which 

the agency as the trier of facts could reasonably find them to be 

as it did." Code § 9-6.14:17 (emphasis added). 

 The "substantial evidence" standard, adopted 

by the General Assembly, is designed to give 

great stability and finality to the 

fact-findings of an administrative agency. 

The phrase "substantial evidence" refers to 

"such relevant evidence as a reasonable mind 

might accept as adequate to support a 

conclusion." Under this standard, applicable 

here, the 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." 

Virginia Real Estate Comm'n v. Bias, 226 Va. 264, 269, 308 S.E.2d 

123, 125 (1983) (citations omitted). 

 For the purposes of DSS dispositions "'Founded' means that a 

review of all the facts shows clear and convincing evidence that 

the child abuse or neglect has occurred." 22 VAC 40-7000-10. 

 Clear and convincing is that degree of proof 

that produces in the mind of the trier of 
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facts a firm belief or conviction upon the 

allegations sought to be established. It is 

intermediate proof, more than a mere 

preponderance but less than proof beyond a 

reasonable doubt. It does not mean clear and 

unequivocal. 

Oberbroekling v. Lyle, 234 Va. 373, 379, 362 S.E.2d 682, 685 

(1987) (citation omitted). 

 Eggleston, on appeal, faults the hearing officer for failing 

to resolve inconsistencies in the testimony, and failing to 

appreciate the weaknesses in the evidence that tended to prove 

that Eggleston may have touched his daughter's vagina in other 

than a sexual manner. Eggleston points out in support of his 

argument that the evidence is too weak to meet the clear and 

convincing standard, that the agency based its disposition 

entirely on M's statements; that M's testimony conflicted as to 

whether the event occurred at night or nap time; that some of M's 

statements were whispered to her mother and then relayed to 

Tinsley; that M's recollection should have been more consistent 

given the short period of time between the alleged event and her 

recitation of the facts; that it was unlikely that Eggleston 

would risk abusing M with two other adults in close proximity; 

that it was unlikely that Eggleston would risk the possibility 

that M would divulge an episode of abuse at pre-school; that a 

polygraph test indicated his innocence; and that Eggleston 

adamantly denied the allegations. 

 Although Eggleston makes these observations concerning the 

nature and quality of the evidence against him, the question 
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remains whether credible evidence proves clearly and convincingly 

that Eggleston abused M. The DSS could reasonably have reached 

its conclusion after having fully considered Eggleston’s claims 

of weaknesses, inconsistency, and improbability of the evidence. 

Additionally, the agency was not required to accept the polygraph 

examination results as controlling. DSS policy does not permit 

consideration of polygraph evidence in light of Virginia Supreme 

Court precedent declaring polygraph exams "so thoroughly 

unreliable as to be of no proper evidentiary use." Robinson v. 

Commonwealth, 231 Va. 142, 156, 341 S.E.2d 159, 167 (1986); see

Virginia Department of Social Services, Child Protective 

Services, Vol. VII, § III, Ch. A, 1.5 (internal guidelines). 

 Eggleston further argues that even if the alleged event 

occurred, the agency had no basis to make a finding of sexual 

molestation because there was no evidence establishing that the 

contact or touching was for the arousal or gratification of 

Eggleston's sexual needs. DSS regulations define sexual 

molestation such that the offensive touching must be for arousal 

or gratification of sexual needs or desires. Because "intent is 

a state of mind that may be proved by an accused's acts or by his 

statements and that may be shown by circumstantial evidence," 

Wilson v. Commonwealth, 249 Va. 95, 101, 452 S.E.2d 669, 673-74 

(1995) (citations omitted), the DSS was entitled to find sexual 

purpose through evidence of Eggleston's actions. M described 

Eggleston's touching with language from which the examiner and 

the trial court could reasonably conclude that it was for a 
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sexual purpose: "He tries to love it, and bite it and kiss it. 

My bahooney." M consistently stated that Eggleston tickled her 

vagina and that his whiskers scratched her genital area. 

Additionally, in describing Eggleston's kisses, M stated that "we 

kiss with tongues, we do it like grown ups." Moreover, from the 

very nature of the touching under the circumstances described by 

M, the fact finder could conclude that the touching was for 

sexual arousal or gratification. 

 Finally, Eggleston contends that even if the factual 

allegations are true, the absence of evidence of harm precluded a 

finding of "level 1" abuse. Level 1 abuse requires 

"injury/conditions, real or threatened, that resulted in or were 

likely to have resulted in serious harm to the child." 22 VAC 

40-700-20. Here, where the evidence proved genital contact and 

multiple incidents, the agency reasonably could find that the 

abuse presented serious harm to the child and thus, the evidence 

entitled the agency to find level 1 sexual molestation. 

 We are mindful of the grave consequences that a DSS finding 

of level 1, sexual molestation has for Eggleston. However, 

unless DSS could not reasonably have found as it did, we are 

required to let its finding stand. Because M's evidence, if 

believed, is clear and convincing, DSS reasonably found level 1, 

sexual molestation. Accordingly, we affirm the circuit court's 

decision. 

 Affirmed.