COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Clements Argued at Alexandria, Virginia

MIGUEL VELASQUEZ MEMORANDUM OPINION * BY v. Record No. 0033-03-4 J UDGE JAMES W. BENTON, JR. AUGUST 10, 2004 RAY GOODWIN, ACTING COMMISSIONER, COMMONWEALTH OF VIRGINIA, DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA Donald M. Haddock, Judge Dorothy M. Isaacs (Surovell Mark le Isaacs & Levy PLC, on brief), for appellant. Allen T. Wilson, A ssistant Attorney General (Jerry W. Kilgore, Attorney General; David E. John son, Deputy Attorney General; Siran S. Faulders, Senior Assistant Attorney General, on brief), for appellee.
Miguel Velasquez appeals the trial judge’s decision, which affirmed the administrative decision of the Virginia Departme nt of Social Services (Departm ent) that Velasquez physically abused his child. Velasquez contends the trial ju dge erred in finding substa ntial evidence in the record to support the Department ’s decision and in ruling that the Department’s findings fall within its specialized competence. For the reasons thatfollow, we reverse the decision.
I. The Administrative Process Act limits the review of factual issues to a determination whether there is “substantial evidence in the agen cy record upon which the agency as the trier of the facts could reasonably find them to be as it did.” Code § 2.2-4027. It is well settled that

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - “[t]he phrase ‘substantial evidence’ refers to ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Virginia Real Estate Comm’n v. Bias , 226 Va. 264, 269, 308 S.E.2d 123, 125 (1983) (quoting Consol. Edison Co. v. NLRB , 305 U.S. 197, 229 (1938)). Under this standard, how ever, an appellate court “may re ject the agency’s findings of fact . . . ‘if, considering the record as a whole, a reasonable mind would necessarily come to a different conclusion.’” Bias , 226 Va. at 269, 308 S.E.2d at 125 (citation omitted). Under equally well-settled standards, we view the evidence in the light most favorable to the Department and limit our review of issues of f act to the agency record. State Bd. of Health v. Godfrey , 223 Va. 423, 432, 290 S.E.2d 875, 880 (1982); Feve r’s, Inc. v. Virginia Alcoholic Beverage Control Bd. , 24 Va. App. 213, 218, 481 S.E.2d 476, 478 (1997). So viewed, the evidence established that on February 3, 2000 Mi guel Velasquez and his wife, who was in the United States Army, took their four-month-old daughter to Bethesda Naval Hospital for a well-baby checkup. When Dr. Paul Reed was ex amining the child, who had had a low birth weight and was petite, the mother informed hi m of lumps on the child’ s chest that she had noticed several days earlier whil e bathing the child. X-rays rev ealed that the child had suffered eight rib fractures that were in various stages of healing. During the examination, Dr. Reed concluded that the rib fractures were caused by excessive force fr om the front and the back and were consistent with non-accidental trauma. Dr. Reed notified the social services agency of the City of Alexandria that Velas quez, who was the child’s primary caretaker, may have abused his daughter. When social workers first interviewed Vela squez, he said he sometimes hugged the child too tight because “he loved her so much.” He al so said that he plays rough with the child and that his wife told him to be careful. In a late r interview, Velasquez desc ribed squeezing the child with his hands around her midsection to assist he r in having a bowel movement because she was- 3 - constipated. He also described lying in bed and lifting the chil d from her crib with one hand wrapped around her midsection and passing her to hi s wife for breast feeding. When the child’s mother was interviewed and asked about her fa mily history, she disclosed that both her grandparents had a history of broken bones. She al so said she had “broken a lot of bones” but attributed those events to being “a real tom-boy.” Within two weeks of Dr. Reed’s examina tion, Dr. Barbara Craig, the Director of the Armed Forces Center for Child Protection, reviewedthe medical reports and examined the child. She reported that the child’s injuries could onl y have been caused by pushing both the front and back of the chest at the same time. Dr. Crai g also concluded that e ither of the activities Velasquez described could have caused the child’s rib fractures. As succinctly contained in the Department’s findings of fact, the following are additional circumstances of this case: 12. In the fall of 2000, [the child ] underwent a skin biopsy which was submitted for analysis to Dr. Peter Byers, professor of medicine in the Department of Pathology at the University of Washington, Seattle, and director of the University of Washington Collagen Diagnostic Laboratory. Based on the skin biopsy, [the child] was diagnosed as suffering from Osteogenesis Imperfecta, Type I. [The child’s] sample was one of only eleven which was positive for OI out of a total of 262 samples analyzed from children who were suspected vict ims of non-acciden tal trauma, for the years 1998-2000. 13. Dr. Byers testified that it can be difficult to discriminate between fractures caused by non-ac cidental trauma and those caused by OI on the basis of a clinical examination alone. Radiographs do not always reflect the presence of OI because there must be a 30% reduction in bone de nsity before osteopenia can be detected on a plain x-ray. OI can exist where the only clinical finding is unexplained fractures, a nd a collagen study such as the one performed on [the child] is a va luable tool in the differential diagnosis of OI. 14. Dr. Kenneth Rosenbaum, founder and former chairman of the Department of Medical Genetics at Children’s National Medical Center, examined [the child] on October 16, 2000, and confirmed- 4 - her diagnosis as Osteogenesis Impe rfecta, Type I. Dr. Rosenbaum observed that [the child] was a ve ry petite child, below the fifth percentile for both weight and leng th, and that the sclerae of her eyes were “mildly blue.” Dr. Ro senbaum found [the child’s] joints to be mildly hyperextensive. Dr. Rosenbaum also noted that [the mother’s] medical history, was rema rkable for her notations that she was five feet, one-half inch tall and that she had “had a number of fractures in childhood associated with some degree of trauma.” These included a fractured toe, a fractured ankle, fractured coccyx and some stress fractures of the f eet. [The mother] also indicated that she felt that she had some degree of hearing loss. Dr. Rosenbaum concluded that based onall the available information, he concluded that [the child] had Type I Osteogenesis Imperfecta, a hereditary metabolic disorder wh ich affects bone structure with a wide variety of physical manifestations. Dr. Rosenbaum noted that the most common clinical finding is an increased risk of fractures. Dr. Rosenbaum described [the child’s] OI, Type I as “mild.” 15. Dr. Rosenbaum concluded that even a child with OI would have been exposed to “some initi ating trauma,” even though very minimal, in order to sustain a rib fracture. It is possible for children with OI to sustain fract ures by being removed from car seats or by walking, but he stated th at, “even in situations like that, there is some mechanical reason for the fracture.” Dr. Rosenbaum declined to give an opinion as to the causes of [the child’s] rib fractures. 16. Subsequent to [the child’s] di agnosis of OI, Type I, Dr. Craig spoke to Dr. Rosenbaum about [the child’s] diagnosis, and read his report of his examination of [the child]. Dr. Craig concluded, in a report written on November 20, 2000 , that, “[the child] sustained multiple rib fractures on different occasions while she was at such a young age that she could not ha ve generated enough movement or anterior-posterior chest compressive force to cause them herself. The location and characteristics of these fractures is consistent with the stated history of inappropriate handling practices by her father. She may well have a mild form of Osteogenesis Imperfecta, a disease that causes bones to break more easily.” * * * * * * * 19. On more than one occasion, [the father] encircled [the child’s] chest with his hand, grasped her and lifted her from her crib adjacent to his bed, and handed her to her mother for breast feeding. 20. On one occasion, [the father] encircled [the child’s] chest with both of his hands, and squeezed her w ith some force, to assist her to have a bowel movement.- 5 - 21. The compression exerted by [the father] in lifting [the child] with one hand and squeezing [the child] with both hands, was the cause of [the child] suffering anterior and posterior rib fractures, of differing ages. 22. The record contains a preponde rance of the evidence that [the father] caused injury by non-accid ental means to [the child], resulting in serious harm to her. 23. The record contains a preponde rance of the evidence that [the father] physically abused [the child ], causing serious harm to her. II. As relevant to this appeal, Code § 63.2-100( 1) defines an abused child as one “[w]hose parents or other person responsible for his care creat es or inflicts . . . upon such child a physical . . . injury by other than accidental means.” Consistent with the statute, the Department’s regulations provide that “[p]hysi cal abuse occurs when a caretakercreates or inflicts . . . upon a child a physical injury other than by accidental means.” 22 VAC 40-705-30. The Supreme Court long ago noted that “[t]he word ‘accidental’ is not easy to define in specific legal terms applicable to every case.” Aetna Ins. Co. v. Carpenter , 170 Va. 312, 324, 196 S.E. 641, 646 (1938). The Court further noted, however, that “[i]f we construe it in its popular and most common meaning, it may be desc ribed as an unintended or unexpected event occurring without known or assignable cause.” Id. Indeed, the Court ha s often cited to the following dictionary definitions: “Accident: n. An event that takes place without one’s foresight or expectation; an undesigned, sudden and unexpected event; chance; contingency, often; an undesigned and unforeseen occurrence of an afflicted or unf ortunate character; casualty, mishap; as, to die by accident.[”] “Accidental: adj. Taking place not according to the usual course of things. Synonyms: undesigned; unintended; chance; unforeseen; unexpected; unpremeditated; dependent; conditional; accidental applies to that which happens without design or wholly outside the regular course of th ings. ‘Incidental’ (see event) implies a real and, it may be, even a designed relation, but one- 6 - which is secondary and nonessentia l; as, an incidental result, benefit, incidental expense.” Ocean Accident & Guarantee Corp. v. Glover , 165 Va. 283, 285, 182 S.E. 221, 222 (1935) (quoting Webster’s New International Dictionary (1933)). See also Harris v. Bankers Life &
Cas. Co. , 222 Va. 45, 46, 278 S.E.2d 809, 810 (1981).
III. These principles were ignored by the Depa rtment when, as concisely expressed by its decision, it concluded as follows: I conclude that the only real fact in dispute, the actual cause of [the child’s] rib fractures, was the rough handling by the [father], her primary caretaker. These actions fitting the applicable policy definition of “creat[ing] or inf lict[ing] . . . upon such child a physical . . . injury by other than accidental means” the disposition will be sustained. Simply put, the facts do not support the conc lusion drawn by the Department. It is undisputed that the child has “Osteogenesis Imperfecta,” also known as brittle bone disease, which is an inherited disorder that made the ch ild more susceptible than the average child to bone fractures. The record established that ne ither parent was aware of the child’s genetic disorder when Dr. Reed detected the fractures . Likewise, Dr. Reed and Dr. Craig, whom he consulted, were not aware of the disorder. Af ter Dr. Craig learned th at the child had been diagnosed with Osteogenesis Imperfecta, which she described as “a disease that causes bones to break more easily,” Dr. Craig ta citly acknowledged that her earl ier dismissal of an accidental cause may have been an error. She wrote: “I cannot deny that if indeed she does have [Osteogenesis Imperfecta], her bones would have b een somewhat easier to fracture than a normal infant’s under similar circumstances.” Dr. Craig further acknowledged that she “cannot determine how much force the father would have to have applied to her chest to cause these fractures based on her presumptive diagnosis of [Osteogenesis Imperfecta].” However,- 7 - Dr. Rosenbaum, the pediatric and genetic speci alist who began treating the child for this condition, testified that “you can be taking a child [with Osteogene sis Imperfecta] out of a car seat just like you would any other child and produce a very significan t fracture.” He elaborated as follows: [T]here is a limit, as a parent, I would say as to what can be done many times to prevent fractures in kids with [Osteogenesis Imperfecta] or know how they occu rred or why they occurred. I -- I think I gave the example befo re, it was actually a physician’s child, they were just taking th eir child out of the car seat, something they had done plenty of times, put him in plenty of times. And all of the sudden he fractured his femur, and that was the very first time they knew he had [Osteogenesis Imperfecta]. He had had plenty of tumb les and plenty of normal childhood things, but it was just that right combination of events then that produced a femoral fracture. And he’s actually had very significant problems since. And so I think that’s wh at I meant by uncontrollable events, things that are every-day events th at -- that happen all the time, but all of a sudden lead to a fracture. In other words, he testified that “fractures ca n occur with minimal trauma in children with [Osteogenesis Imperfecta] and frequently do.” As his example demonstrates, this minimal trauma includes events occurring in no rmal everyday activit ies of parenting. Dr. Rosenbaum also explained that the term “mild” when used to describe Type I Osteogenesis Imperfecta does not describe the fragility of the child’s bones. Q. Focusing on OI Type I indi viduals and young children at the age of [the child] during the times at issue here and the apparent lack of fractures other than the fr actures of the rib, do you have an opinion to a reasonable degree of medical certainty about how fragile the OI you have diagnosed in [the child] has made her? * * * * * * * A. My opinion would be that [the child’s] OI has made her more susceptible to fractures. I lost th e first part of the question. There may have been a part of that -- Q. How much more susceptible than . . . [the average].- 8 - * * * * * * * A. That is very hard to quantif y based on what I said before in terms of all of these kind of unknown and sometimes uncontrollable factors that -- that go into producing fractures. Q. You use the word “mild” when you . . . diagnosed the form. Is that a proper or an improper descript or of the degree of fragility of her bones? A. I used the word “mild” for a few reasons. One is that of the four classic types of OI, Type I generally is the “mildest.” It doesn’t mean there aren’t patients with Type I who have very severe OI. But of the four types, it’s the mildest form. And within Type I, ther e is -- is a tremendous range of variability as I said; with people that don’t know they have OI until they come in for something else. And also I use the word “mild ” to suggest that she doesn’t have a lot of physical manifestations. You discussed before the radiologic manifestations, that she’s mildly affected in terms of the things we see. You can’t quantify that base d on the biochemistry. It says she has Type I OI or not; it doesn’t say anything else about it. It . . . has no way of doing that. Dr. Rosenbaum further testified that physicians who treat this condition “gener ally . . . expect to see some degree of fractures” in children who ha ve Osteogenesis Imperfecta and that “the most universal characteristic of a ch ild with Osteogenesis Imperfecta would be an increased risk for fractures.” The evidence demonstrates that this child, unknown to her parents, was more susceptible than the average child to bone fr actures. Velasquez’s parenting acts, while deemed to be “rough handling,” were not shown to be the type of conduct that would have caused injury to the ordinary child who did not have Osteogenesis Imperfecta. These injuries were not shown to be the natural and probable consequence of lifting a normal child or employing a squeeze to induce a child’s bowel movement. Simply put, Velasqu ez’s handling of the child while attempting to discharge parental care was accompanied by the unforeseen and unexpected circumstance of the- 9 - child having the genetic disorder of Os teogenesis Imperfecta, making her bones highly susceptible of fracturing.
III. “We recognize that the substantial eviden ce standard accords great deference to the findings of the agency, but even under this stan dard the evidence must be relevant to the conclusion reached.” Atkinson v. Virgin ia Alcohol Beverage Control Comm’n , 1 Va. App. 172, 178, 336 S.E.2d 527, 531 (1985). In this case it was not. For these reasons, we hold that when considering this record as a whole, a reasonable mind would n ecessarily come to a different conclusion than that reached by the Department. In short, the record fails to establish that the child’s injuries were caused “by other than accidental means.” Code § 63.2-100(1). In view of this holding, we need not decide whether the trial judge erred in ruling that the Department’s findings fall within its speciali zed competence. Accordingly, we reverse the judgment which upholds the Department’s decision. Reversed and dismissed

.- 10 - Clements, J., dissenting. Velasquez contends, on appeal, that the ci rcuit court erred (1) in finding there was substantial evidence in the recordto support the finding of the Vi rginia Department of Social Services (Department) that he physically a bused his daughter and (2 ) in deferring to the specialized competence of the Department. For the reasons that follow, I would affirm the judgment of the circuit court. Accordingly, I respectfully dissent from the majority’s opinion.
I. BACKGROUND On appeal, this Court views the evidence “in th e light most favorable to the agency and limit our review of issues of fact to th e agency record.” Mulvey v. Jones , 41 Va. App. 600, 602, 587 S.E.2d 728, 729 (2003). So viewed, the evidence established th at, on February 3, 2000, Velasquez and his wife, Alice Velasquez, who was in the Un ited States Army, took their four-month-old daughter to Bethesda Naval Hospital for a rout ine well-baby checkup. Alice Velasquez brought some lumps on her daughter’s ch est that she had earlier observed while bathing the child to the attention of the attending pediatrician, Dr. Paul R eed. X-rays revealed that the child had suffered eight rib fractures that were in va rious stages of healing. Some of the fractures were located in the front portion of the child’s rib cage and some were located in the rear porti on. Dr. Reed concluded that the rib fractures were caused by the simultaneous application of an “excessive am ount of force” to the front and back of the child ’s chest, such as a “squeeze with the hands aroundthe thorax.” Observing that infants who receive CPR do not normally su stain rib fractures and that the ribs of a child are much more difficult to fr acture than those of an adult, Dr . Reed further concluded that the rib fractures were “consistent with nonaccidental tr auma.” Dr. Reed did not take steps to rule out Osteogenesis Imperfec ta (OI), a hereditary meta bolic bone disorder resultin g from a collagen defect that commonly increases the risk of fractures, because there were no physical indications that the child suffered from such a disorder.- 11 - When Dr. Reed informed the pa rents about the rib fractures, Alice Velasquez became “quite emotional” and physically distanced herself from her husband, who admitt ed that he had been “rough” with the child and had s queezed her “on one occasion.” Dr. Reed notified the City of Alexandria Department of Human Services (local agency) that Velasqu ez, who was the child’s primary caretaker while his wife worked during the day, may have abused hi s daughter. The child was transported to Walter Reed Army Medical Center for further examination and referred to the Armed Forces Center for Child Protection. That same day, Jacquelyn Lusk, a social work er with the local agen cy, conducted separate interviews with Velasquez and his wife at Walter Reed. Alice Velasquez reported that, although her husband was “very patient” and wo uld never intentionally hurt their child, he did “squeeze[] her too tight sometimes.” In his intervie w, Velasquez admitted that he hu gged and squeezed the child “too tight because he love[d] he r so much.” He also reported that he played “rough with her” and that his wife told him “to be careful with the baby.” Pursuant to an emergency removal order, the child was placed in fost er care on February 4, 2000, after which time she suffe red no additional fractures. On February 8, 2000, Lusk conducted a home visit with Velasquez and his wife. During that visit, Velasquez to ld Lusk that, when the baby was approximately one month old, he squeezed her around her midsection with his hands “to help her have a bowel move ment,” which caused the baby to cry. Velasquez also told Lusk that, when the baby woke up in th e middle of the night, he would reach over to the child without getting out of bed, pick her up out of the crib by grabbing her around her midsection with one han d, and pass her over to his wife on the other side of the bed. Alice Velasquez confirmed that these things did occu r and told Lusk that sh e warned Velasquez that “he should not handle the ba by in that manner and be so rough with her.”- 12 - On February 15, 2000 , Dr. Barbara Craig, the Director of the Armed Forces Center for Child Protection and an expert in pediatrics w ith extensive experience in child abuse cases, examined the child. Af ter reviewing the child’s x-rays w ith Dr. Fleming, a bone radiology specialist, Dr. Craig concluded that the child’s fractured ribs could only have been caused by compression of both the front and back of the child’s chest at th e same time. In reviewing the x-rays and examin ing the child, Dr. Craig atte mpted to rule out the possibility that the child suffered from OI. Finding no physical manifestations of OI, Dr. Craig observed that the child “in every way . . . appeared to be a beautiful, healthy, normal child.” When Dr. Craig discussed the rib fractures w ith Velasquez and his wi fe and asked them if they knew how such injuries might have occurred, Velasquez stated that, when the child woke up at night, he would, while lying in bed, reach over into the ba ssinet beside the bed, grab the child around her chest with one hand, lift her out of the bassinet, and hand her to his wife to be breast fed. He also stated that, when the ch ild was constipated, he grabbed her around the ch est and abdomen and squeezed her to assist her to have a bowel movement. Dr. Craig concluded that either of these “mechanisms” could have caused the child’s rib fr actures. Dr. Craig explained that “you would have to use a very significant, a very excessive amoun t of force to be able to pick a child up in that manner” and “you’d have to squeeze very hard against the ribs so that you could maintain your grip on the child while you were doing that.” Dr. Craig also concluded that Velasquez’s squeezing the child’s midsection to help her have a bowel move ment was “the most likely mechanism for causing the rib fractures.” On April 3, 2000, Lusk issued a “Founded - Level 1” dispositio n of “Physical Abuse” against Velasquez. Velasquez timely requested that the local agency conduct an informal conference to review that disposition.- 13 - On September 5, 2000, Dr. Peter Byers, a Pr ofessor of Medicine at the University of Washington and the Director of the University of Wa shington Collagen Diagnostic Laboratory, completed a collagen analys is of a skin biopsy taken from Ve lasquez’s daughter. Based on that analysis, Dr. Byers diagnosed the child as suffering from OI, type I. Dr. Byers opined that “it can be difficult to discriminate between fractures cau sed by [a nonaccidental injury] and those due to OI, on the basis of a clinical examination alone,” because there must be a thirty-perce nt reduction in bone density before OI can be dete cted on a plain x-ray. Dr. Byer s offered no opinion as to the cause of the child’s rib fractures. On October 16, 2000, Dr. Kenneth Rosenbaum, an expert in pediatric genetics, examined the child and confirmed, based onDr. Byers’s collagen analysis, that, although th e child’s bone density “look[ed] okay” on x-ray and she did not have “a lot of physical manifestations” normally associated with the disorder, the child had OI, type I. Dr. Rose nbaum explained that, while some patients with OI “have no fractures ,” the “most common clinical finding in an individual with OI would be an increased risk for fractures.” He further explained, however, that even a child with OI would have to be exposed to “som e initiating trauma” to sustain a fracture. “[I]t takes the right combination of events to produce the fractures,” he explained. Dr . Rosenbaum also explained that, although some childre n with OI may have a “very minimal trau ma and have a very severe fracture,” other children with OI may have “very significant trauma and not fracture bone.” Dr. Rosenbaum concluded that, while the ch ild’s OI made her “more susceptible” to fractures, she had the “mildest form” of OI. He observed that some people with the mild form of OI are unaware they suffer from the disorder until they see a do ctor “for something else.” He further observed that, because “extremities are more likely to come under certain forces than . . . the axial skelet on,” extremity fractures are “more likely” than other fractures in child ren with OI. Dr. Ro senbaum declined to offer an opinion as to how much mo re susceptible to fractures the ch ild was than a ch ild without OI.- 14 - He further declined to offer an opinion as to the force necessary to produce the child’s rib fractures or as to the cause of those fractures. He obse rved, however, that grabbing a baby around her midsection with one hand and lifting her could poten tially cause rib fractures. He further observed that a person’s collagen is genetic ally determined and remains constant throughout the person’s life. Dr. Rosenbaum also ob served that, during his visit with the child, she, like most “early walker[s],” fell down possibly more than ten times while walking in his office without suffering any adverse effects. After reviewing the child’s diagnosis of OI, type I and speaking with Dr. Rosenbaum, researchers at Dr. Byers’s labora tory, and an OI specialist, Dr. Craig opined in a November 20, 2000 report that the child sustained multiple rib fractures on different occasions while she was at such a young age that she co uld not have generated enough movement or anterior-posterior chest compressive force to cause them herself. The location and char acteristics of these fractures is consistent with the stated history of inappropriate handling practices by her father. She may well have a mi ld form of [OI], a disease that causes bones to break more easily . I cannot determine how much force the father would have to ha ve applied to her chest to cause these fractures based on her presumpt ive diagnosis of OI. . . . [H]er father’s admissions of picking this young infant up like a football and “squeezing her chest” like a tube of toothpaste “to help her have a bowel movement” are un acceptable and danger ous forms of child care, demonstrating a lack of parenting skills. . . . I cannot deny that if indeed she does have OI, her bones would have been somewhat easier to fracture than a normal infant’s under simila r circumstances. After conducting an informal conference onMarch 5, 2001, the lo cal agency upheld the finding of physical abuse, level 1 against Velasque z, on March 28, 2001. Velasquez timely noted an appeal of the local ag ency’s decision to the De partment’s Commissioner. On October 22, 2001, Dr. Craig further opin ed regarding the child’s rib fractures that children with [OI] do not just suddenly for no reason with no mechanism whatsoever fract ure[] their ribs in this fashion, and that the OI did not cause the rib fractures, there had to have been some- 15 - force applied to the child that resulted in those fractures. And that these rib fractures do appear to be an inflicted type of trauma. Dr. Craig explained that the fact that the child had no further broken bones after being placed in foster care was a significant factor in determining that the child’s OIdid not cause her rib fractures: [I]f someone has bones that are so easily broken that any day to day activity, any normal parenting would cause their bones to break, then you would think that continued normal parenting, being in a somewhat rough environment in fo ster care with lots of other children around, and becoming a t oddler where she’s running around and climbing on things and jumpin g and falling, and not sustaining new fractures, it te lls me her bones ar en’t particularly brittle, because she’s obviously done quite well since then. Thus, Dr. Craig concluded that, notw ithstanding the child’s diagnosis of OI, the child’s rib fractures were caused by Velasquez’s appli cation of “an inappropriate amount of force” to the child’s body. On October 23, 2001, an admini strative hearing was held before a hearing officer designated by the Department’s Acting Commissioner. In her decision dated January 15, 2002, the hearing officer found that the child “was diagnosed as suff ering” from OI, type I, a “mild” form of the disorder. The hearing officer also specifically found as follows: 18. [The child] was removed from her home and placed in foster care immediately subsequent to her hospitalization on February 4, 2000. When . . . Velasquez ceased to be her primary caretaker, [the child] sustained no further fr actured bones of any sort. 19. On more than one occasion, . . . Velasquez encircled [the child’s] chest with his hand, gras ped her and lifted her from her crib adjacent to his bed, and hand ed her to her mother for breast feeding. 20. On one occasion, . . . Velasquez encircle d [the child’s] chest with both of his hands, and squeezed her with so me force, to assist her to have a bowel movement. 21. The compression exer ted by . . . Velasquez in lifting [the child] with one hand and squeezing [the child] with both hands, was the cause of [the child] suffering anterior and posterior rib fractures, of differing ages.- 16 - Based on these findings, the hearing officer further found that Velasquez “caused injury by non-accidental means” to the child and, thus, “physically abused [the child], ca using serious harm to her.” 1 Accordingly, the hearing office r sustained the local agency’s fi nding of physical abuse, level 1 against Velasquez. Velasquez filed a timely reque st for judicial review of the hearing officer’s decision. By order entered December 16, 2002, the ci rcuit court affirmed the hearing officer’s decision, concluding that there was substantial evidence in the record to support the hearing officer’s finding that Vela squez abused his daughter.
II. EVIDENCE OF ABUSE Velasquez argues, on appeal, that the evidenceadduced before the hearing officer, showing, as it did, that the child’s rib fractures were caus ed by the child’s OI, “didnot contain substantial factual evidence that [the child’s] injuries were other than acci dental” or that he “caused the injuries by abusive behavior.” Thus, he contends the circuit co urt erred in finding the record contained substantial evidence to support a finding that he physically abus ed his daughter. I disagree. “The burden of proof re sts upon the party challe nging the agency determ ination to show that there was not substantial ev idence in the record to support it.” Smith v. Dep’t of Mines, Minerals and Energy , 28 Va. App. 677, 685, 508 S.E.2d 342, 346 (1 998); Code § 2.2-4027. Under the Administrative Process Act, the [reviewing] court’s duty is “limited to ascertaining whether ther e was substantial evidence in the agency record” to support its deci sion. Code § 2.2-4027. “The phrase ‘substantial evidence’ refers to ‘such relevant evidence as a reasonable mind might accept as ade quate to support a conclusion.’” Virginia Real Estate Comm’n v. Bias , 226 Va. 264, 26 9, 308 S.E.2d 123, 125 (1983) ([q uoting Consolidated Edison Co. v. NLRB , 305

1 Velasquez did not challenge the hearing offi cer’s finding that the child’s rib fractures resulted in “serious harm” to the child, which, pu rsuant to the Department ’s regulations, placed the founded disposition at level 1. See 22 VAC 40-700-20(1) (“Leve l 1 . . . includes those injuries/conditions, real or threat ened, that result in or were like ly to have resulted in serious harm to a child.”).- 17 - U.S. 197, 229 (1938)]). A court “may reject the agency’s findings of fact, ‘only if, considering the reco rd as a whole, a reasonable mind would necessarilycome to a different conclusion.’” Id. (quoting B. Mezines, Administrative Law § 51.01 (1981)). Mulvey , 41 Va. App. at 603, 587 S.E.2dat 729. The substantial evidence standard is “designed to give great stab ility and finality to the fa ct-findings of an admini strative agency.” Bias , 226 Va. at 269, 308 S.E.2d at 125. In reviewing factual is sues, the reviewing court “shall take due account of the presumption of official regula rity, the experience and specialized competence of the agency and the purposes of the basic law u nder which the agency has acted.” Code § 2.2-4027. “[T]he reviewing court ‘“may not exercise anew the jurisd iction of the administrati ve agency and merely substitute its own independent judgme nt for that of the bo dy entrusted by the Legislature with the administrative function.””’ Turner v. Jackson , 14 Va. App. 423, 430-3 1, 417 S.E.2d 881, 887 (1992) (quoting Johnston-Willis, Ltd. v. Kenley , 6 Va. App. 231, 244, 36 9 S.E.2d 1, 8 (1988) (quoting Virginia Alcoholic Beverage Control Comm’n v. York Street Inn, Inc. , 220 Va. 310, 315, 257 S.E.2d 851, 855 (1979))). The purpose of the statutes and related regulations pertaining to the Department’s child protective services are to “protect[] abused childre n and prevent[] further abuse of those children.”
J.P. v. Carter , 24 Va. App. 707, 726, 485 S.E.2d 162, 172 (1997). “‘Ph ysical abuse occurs when a caretaker . . . inflicts . . . upon a child a physical injury by other than accidental means . . . .’” Mulvey , 41 Va. App. at 603, 587 S.E .2d at 730 (quoting 22 VAC 40- 705-30(A)). The caretaker’s lack of intent to injure the ch ild does not preclude a finding that the child’s phys ical injury was inflicted “by other than accidental means.” Seeid. at 604, 587 S.E.2d at 730. “‘[A] person is presumed to intend the immediate, direct, and n ecessary consequences of his voluntary act.’” Id. (quoting Nobles v. Commonwealth , 218 Va. 548, 55 1, 238 S.E.2d 80 8, 810 (1977)). Applying these principles to th e instant case, I findthat substantial evidence supports the hearing officer’s factual finding that “[t]he compre ssion exerted by . . . Ve lasquez in lifting [his- 18 - daughter] with one hand and squeezing [her] with bot h hands, was the cause of [the child] suffering anterior and posterior rib fractures, of differ ing ages.” Velasquez admitted that, with out getting out of bed, he would grab his daughter around her chest with one hand, lift her out of her crib, and pass her over to his wife. He further admitted that, wh en his daughter was constipated, he encircled the child’s midsection with both of his hands and, inan attempt to make he r have a bowel movement, compressed the child’s chest with enough force to make her cry. Dr. Craig conclu ded that both “mechanisms” were consiste nt with the child’s rib fractures and “unacceptable and dangerous forms of child care.” Dr. Craig explained that liftin g a baby by grabbing her ar ound the chest with one hand requires a “very si gnificant,” “very excessiveamount of force.” Dr. Craig further concluded that Velasquez’s squeezing the child’s midsection to he lp her have a bowel movement was “the most likely mechanism for causing the rib fractures.” Upon l earning the child had been diagnosed with a mild form of OI, Dr. Craig remained steadfas t in her belief that the child’s rib fractures were caused by Velasquez’s simu ltaneous application of “an inappropriate amount of force” to the front and back of the child’s chest. Dr. Craig’s opinion was uncontradi cted, as neither Dr. Byers nor Dr. Rosenbaum offered an opinion regarding the cause of the child ’s rib fractures. Moreover, I find that substantial evidence sup ports the hearing officer’s factual finding that Velasquez caused the child’s injuries by nonaccide ntal means. The record makes it clear that, regardless of Velasquez’s obvious lack of intent to hurt or injure his dau ghter, in (1) lifting the infant by grabbing her chest with one hand and (2) squeezing his child around the chest with both hands to make her have a bowel movement, he intentionally performed acts the immediate, direct, necessary, and reasonably fores eeable consequences of which were the chil d’s sustainment of several broken ribs. He is presumed, therefore, to have intended the consequences of those voluntary acts. Seeid.- 19 - Nonetheless, Velasquez contends that his cond uct did not constitute child abuse because the child’s OI diagnosis precludes a finding that he, rath er than the OI, was the cause of the child’s rib fractures. He argues that, “[u] pon reviewing the record as a whole, a reasonable mind would necessarily come to the c onclusion that [the chil d’s] medical condition, whic h made her bones more fragile than those of a normal in fant, was the cause of her rib fractures and not the abusive acts of her father.” It is undisputed that, as Velasquez claims, his daughter has OI and that the OI made her more susceptible than an average child to bone fra ctures. However, Velasquez’s argument that his child’s OI diagnosis precludes a finding that he caus ed her injuries is unpersuasive because it does not take into account the fact that a child with OI may also be the victim of a fracture caused by abusive, nonaccidental trauma inflicted by the caretaker. B ecause OI and abuse may occur concomitantly, the two diagnoses are not, as Vela squez appears to claim, necessarily mutually exclusive. Here, substantial evidence supports the hearin g officer’s finding that, notwithstanding the child’s OI, Velasquez’s ac tions constituted physical abuse. Not only did Dr. Craig, in assigning blame for the child’s injuries to Velasquez before she knew of the OI diagnosi s, conclude that Velasquez’s actions were severe enough to cause the ribs of a child with out O.I. to fracture, Dr. Rosenbaum observed that children, like Velasquez’s daughter, who have the “mildest” form of OI may not even know they suffer from the disorder until they see a doctor “for something else.” Dr. Rosenbaum further observed that children with OI are “more likely” to suffer extremity fractures than other fractures and that lifting a baby by grabbing her midsection with one hand could potentially cause rib fractures in a child without OI. Most importantly, the child had no further fractures after being removed from Velasquez’s care. As Dr. Craig conc luded, it is clear from such evidence, that, in light of the child’s activ ities and the fact that a person’s collagen remains- 20 - constant throughout her life, the child’s “bones [w ere not] particularly br ittle” at the time she suffered the rib fractures. No ev idence refuted that conclusion. I would hold, therefore, that, considering the record as a whole, a reasonable mind would

not necessarily come to a different conclusion than that reached by the hearing officer. Hence, in my view, the circuit court correctly found that th ere was substantial evid ence in the record to support the hearing officer’s finding that Velasquez physically abused his daughter.
III. DEFERENCE TO THE DEPARTMENT Velasquez also contends on appeal that the ci rcuit court erred in deferring, in its review of the hearing officer’s decision, to the agency ’s specialized competen ce because his daughter’s rare metabolic bone disorder was outside the De partment’s specialized competence. Moreover, he argues, unlike his experts, “the experts reli ed on by the Department did not have sufficient expertise regarding this medical condition” to as sist the hearing officer in her understanding and appreciation of the “devas tating effect” of the disorder. Thus, he concludes, the hearing officer’s finding of child abuse was not entitled to any deference by the circuit court in this case. Velasquez, however, made no such argument before the circui t court. Pursuant to Rule 5A:18, this Court “will not cons ider an argument on appeal [tha t] was not presented to the [circuit] court.” Ohree v. Commonwealth , 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998). “The purpose of [this] rule is to ensure that the [circuit] c ourt and opposing party are given the opportunity to intelligently address, examine, a nd resolve issues in the [circuit] court, thus avoiding unnecessary appeals.” Andrews v. Commonwealth , 37 Va. App. 479, 493, 559 S.E.2d 401, 408 (2002). I would hold, therefore, that, having failed to give the circuit court an opportunity to consider the matter and, if necessary, take steps to correct it, Velasquez is procedurally barred by Rule 5A:18 from raising the issue for the firs t time on appeal. Moreover, my review of the- 21 - record in this case does not re veal any reason to invoke the “ good cause” or “ends of justice” exceptions to Rule 5A:18.
IV. CONCLUSION For these reasons, I would affirm the judgment of the circuit court upholding the Department’s decision.