COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Annunziata and Lemons 

Argued at Alexandria, Virginia 

CHARLES SCHULTZ 

 MEMORANDUM OPINION* BY 

v. Record No. 0031-99-4 JUDGE LARRY G. ELDER 

 DECEMBER 7, 1999 

CLARENCE H. CARTER, COMMISSIONER, 

VIRGINIA DEPARTMENT OF SOCIAL SERVICES 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Jonathan C. Thacher, Judge 

 Robert D. Weiss for appellant. 

 Gaye Lynn Taxey, 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.

 Charles Schultz (appellant) appeals the decision of the 

circuit court affirming the administrative finding of the 

Virginia Department of Social Services (DSS) that Schultz 

physically abused his daughter. Schultz contends on appeal that 

the trial court erroneously (A) required him to prove that he 

did not abuse his daughter; (B) found that substantial evidence 

supported DSS's finding that he physically abused his daughter; 

(C) deferred to the experience and competence of DSS; and (D) 

failed to consider the whole evidential record. We hold that 
the trial court applied the proper standard of review and that 

substantial evidence supported the founded complaint of Level 3 

physical abuse. Therefore, we affirm the decision of the trial 

court. 

 In reviewing this matter, we note that 

"[t]he scope of court review of a litigated 

issue under the APA is limited to 

determination [of] whether there was 

substantial evidence in the agency record to 

support the decision." State Board of 

Health v. Godfrey, 223 Va. 423, 433, 290 

S.E.2d 875, 880 (1982); see Code 

§ 9-6.14:17. The substantial evidence 

standard is "designed to give great 

stability and finality to the fact-findings 

of an administrative agency." Virginia Real 

Estate Comm'n v. Bias, 226 Va. 264, 269, 308 

S.E.2d 123, 125 (1983). A trial court may 

reject the findings of fact "only if, 

considering the record as a whole, a 

reasonable mind would necessarily come to a 

different conclusion." Id. (citing B. 

Mezines, Administrative Law § 51.01 (1981)). 

The burden of proof rests upon the party 

challenging the agency determination to show 

that there was not substantial evidence in 

the record to support it. See Code 

§ 9-6.14:17. 

Smith v. Department of Mines, Minerals and Energy, 28 Va. App. 

677, 684-85, 508 S.E.2d 342, 346 (1998); see also Code 

§ 63.1-248.6:1(B). "[T]he reviewing court '"may not exercise 

anew the jurisdiction of the administrative agency and merely 

substitute its own independent judgment for that of the body 

entrusted by the Legislature with the administrative 

function."'" Turner v. Jackson, 14 Va. App. 423, 430-31, 417 

S.E.2d 881, 887 (1992) (citations omitted).

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 A. 

STANDARD OF REVIEW 

 We find no merit in appellant's contention that the trial 

court applied an erroneous standard when it stated that "this 

Court may reverse the agency's decision only if, considering the 

evidence on the record, a reasonable mind would necessarily 

conclude that [appellant] did not abuse [his daughter]." The 

trial court set out the proper standard of review in its 

detailed opinion letter. It reviewed DSS's factual findings and 

listed five "undeniable" facts which it found dispositive. It 

determined that the evidence was not such as to necessarily lead 

a reasonable mind to a different conclusion, and found that 

DSS's disposition of Level 3 physical abuse was "a plausible 

explanation based on the record in the case."1

 We do not agree with Schultz's argument that the standard 

to be applied by the trial court was whether, considering the 

record as a whole, a reasonable mind would necessarily conclude 

that there was not clear and convincing evidence to support the 

agency's findings. "Review of agency factual decisions is 

 1

 DSS's Child Protective Services Manual defines physical 

abuse as a "physical injury . . . , regardless of intent, 

[which] is inflicted . . . by non-accidental means" and includes 

bruising, which it defines as "an injury which results in 

bleeding within the skin, where the skin is discolored but not 

broken." 7 Child Protective Services Manual § III, ch. A, at 

3-5. A founded complaint of Level 3 abuse requires clear and 

convincing evidence of an injury "that result[s] in minimal harm 

to a child" and may include one which "[r]equire[s] no medical 

attention to remediate." Id. at 22-23. 

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governed by the 'substantial evidence' test. Under this 

standard, the scope of review is limited to ascertaining whether 

there was substantial evidence in the agency record to support 

the decision." Turner, 14 Va. App. at 429-30, 417 S.E.2d at 886 

(citations omitted).2 Therefore, nothing in the trial court's 

analysis indicates that it required Schultz to bear an erroneous 

burden of proof in his appeal from the agency's decision. 

B. 

EVIDENCE OF ABUSE 

 Schultz contends that the evidence in the record does not 

support DSS's findings. He did not deny spanking his daughter 

with a belt, but denied spanking her anywhere but on the 

buttocks and denied that the spanking caused bruises. He argued 

that the bruises on the child's hip and leg were caused by an 

incident when the child was tangled in a dog leash. 

 The court noted five specific facts that supported DSS's 

conclusions, including the nature of the child's bruises as well 

as her statements to the investigator and clinical social 

worker. While Schultz contends that his daughter's statements 

were unreliable, the record as a whole supports the conclusion 

that the child's report was truthful. Schultz admitted spanking 

the child with a belt, and the child admitted to the DSS 

 2

 Of course, the record must include substantial evidence to 

support the agency's finding by clear and convincing evidence 

that Level 3 abuse occurred. See Turner, 14 Va. App. at 428-29, 

417 S.E.2d at 885-86. 

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investigator that her initial report concerning other actions by 

Schultz had not been truthful. In addition, while the doctor 

who viewed the photographs of the child's injuries indicated it 

was possible they were caused by the incident with the dog 

leash, he noted that the nature of the bruises and their 

orientation were not consistent with the description of the dog 

leash incident he received. He also noted that the color of the 

bruises indicated that they occurred at different times. Father 

admitted that he was aware of only one occasion contemporaneous 

with the bruising on which R.S. became entangled in the dog 

leash. Mother noted that she saw the bruises the day after the 

child was spanked, although she testified that she did not 

believe the spanking caused the bruises. 

 We cannot say that the trial court erred in finding that 

substantial evidence in the record supported DSS's conclusions. 

C. 

DEFERENCE TO DSS DETERMINATION 

 We find no merit in Schultz's argument that DSS's factual 

finding was not entitled to any deference in this case. Schultz 

admitted spanking his daughter with a belt as reported by his 

daughter. The question before the agency was not one of law, 

but of fact: whether the spanking Schultz admitted 

administering caused his daughter's bruises. On appeal, an 

agency's resolution of "factual issues [is] accorded greater 

deference in order to give stability and finality to the fact 

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finding of the agency." Johnston-Willis, Ltd. v. Kenley, 6 Va. 

App. 231, 243, 369 S.E.2d 1, 7 (1988). 

 We also find no merit in Schultz's contention that the 

agency waived any right to deference by using an outside medical 

expert. The DSS fact finder who heard and saw the witnesses 

testify determined their credibility and the weight to be 

afforded their testimony. The trial court on review ascertained 

whether substantial evidence supported DSS's decision. It was 

not the role of the trial court to either reweigh the evidence 

or re-evaluate the witness' credibility. Therefore, the circuit 

court properly deferred to the findings of fact rendered by the 

DSS decision maker. 

D. 

CONSIDERATION OF ENTIRE RECORD 

 We find no support for Schultz's contention that the trial 

court failed to consider the record as a whole. Schultz bases 

this contention on the fact that there was other evidence in the 

record which the DSS fact finder rejected. 

 The trial court's decision indicated that it relied upon 

the record of the proceedings before DSS. See generally Townes 

v. Commonwealth, 234 Va. 307, 323 n.3, 362 S.E.2d 650, 659 n.3 

(1987). Because it was not the fact finder, the trial court was 

not free to disregard the factual findings, based upon 

credibility determinations, made by DSS. See Turner, 14 Va. 

App. at 430-31, 417 S.E.2d at 887. Therefore, as long as the 

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trial court evaluated the DSS decision based upon whether there 

was substantial supporting evidence, the fact that there was 

other evidence in the record rejected by the DSS hearing officer 

did not indicate that the trial court failed to review the 

record as a whole. 

 For these reasons, we affirm the decision of the trial 

court. 

Affirmed.

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