COURT OF APPEAL S OF VIRGINIA
Present: Judges Clements, Kels ey and Senior Judge Annunziata Argued at Alexandria, Virginia

C. G. MEMORANDUM OPINION * BY v. Record No. 2605-07-4 JUDGE JEAN HARRISON CLEMENTS AUGUST 5, 2008 VIRGINIA DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Dennis J. Smith, Judge Allen H. Sachsel (Ste phen A. Armstrong, on briefs), for appellant. Noëlle L. Shaw-Bell, Assist ant Attorney General (Robert F. McDonnell, Attorney General; Davi d E. Johnson, Deputy Attorney General; Kim F. Piner, Senior Assistant Attorney General, on brief), for appellee.
C.G. (appellant) appeals from a decision of the trial court sustaining the administrative finding by the Virginia Department of Social Services (VDSS) that he sexually abused his minor granddaughter. On appeal, he contends that VD SS had no subject matter jurisdiction to decide the matter and that the trial court erred in finding substantial evidence supported VDSS’s determination. Finding no error, we affirm the trial court’s decision. As the parties are fully conversant with th e record in this case, and because this memorandum opinion carries no precedential value, this opinion recites only those facts and incidents of the proceedings as are necessary to the parties’ understandin g of the disposition of this appeal.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - I. BACKGROUND Fairfax County Department of Family Serv ices (FCDFS) received a complaint alleging that appellant sexually abused A.G., his nine-yea r-old granddaughter, during a family beach trip in North Carolina in July 2002. Following an investigation, FCDFS made a “Founded” determination of “Level Two” sexual abuse agai nst appellant. The cons equence of a level two finding requires that the abuser’s name be retained by the central registry for seven years. See 22
VAC 40-700-30. Subsequently, appellant petitioned VDSS for a hearing on the matter. A VDSS hearing officer conducted an evidentiary hearing and su stained FCDFS’s disposition. Appellant sought judicial review in the trial court. Finding th e agency record contained substantial evidence in support of the VDSS decision, the trial court dismissed the appeal. This appeal followed.
II. SUBJECT MATTER JURISDICTION As a preliminary matter, we have recognized th at “to administer child protective services in the Commonwealth, the General Assembly de legates authority to VDSS, a state agency governed by a state board, Code § 63.2-215, and al so requires that th ere ‘shall be a local department of social services for each county or city under the supervisio n and management of a local director.’” Christian v. Virginia Dep’t of Soc. Servs. , 45 Va. App. 310, 312, 610 S.E.2d 870, 871 (2005) (quoting Code § 63.2-324). Pursuant to Code § 63.2-1503, the local department is “the public agency responsible for receiving and responding to complaints and reports” of child abuse. In addition, the “lo cal department of juri sdiction” is “the local department in the city or county in Virginia where the alleged victim child resides . . . .” See 22 VAC 40-705-10. In this case, FCDFS is the “local department of jurisdiction,” and thus, it had the responsibility to- 3 - investigate and make a dispositi on in response to the complaint that appellant sexually abused A.G., a child victim who resided in Fairfax County. Appellant asserts, however, that VDSS “lacked subject matter jurisd iction to decide a matter and impose penalties” for acts that occurr ed in North Carolina. In support of that contention, appellant argues that VDSS conducted a quasi-criminal proceeding and that inclusion of his name on a list of sex offe nders is punitive. We disagree. Appellant concedes, on brief and in oral argument, that if the proceeding is civil, his contention has no merit. In J.P. v. Carter , 24 Va. App. 707, 727, 485 S.E.2d 162, 172 (1997), we stated that the “administrative proceedings under the [Child Abuse and Neglect Act (Act) 1 ] are not criminal in nature and are not intended to punish or rehabilita te the abuser.” In making that determination, we noted that VDSS’s primary purpose is “to investigate complaints of child abuse and, when necessary, provide appropriate services for the child or family.” Notably, the purpose of the Act is not one of punishment and correction of the alleged abuser. Rather, under this statute, the policy of protecting abused children and preventing further abuse of those children is key. Id. at 726, 485 S.E.2d at 172 (quoting Jackson v. W. , 14 Va. App. 391, 408, 419 S.E.2d 385, 395 (1992)). We further concluded that inclusion of appellant’s name in the central registry is “an administrative remedy to combat the danger identified by the General Assembly in the Act.” Id. at 727, 485 S.E.2d at 172. We also noted that VDSS has “no authority to bring additional criminal charges.” Id. In accord with the principles set forth in Carter , we conclude that the proceeding before VDSS in this case was not quasi-criminal and the inclusion of appellant’s name in the central

1 The Child Abuse and Neglect Act was re pealed in 2002 and recodified as Code §§ 63.2-1500 through 63.2-1529.- 4 - registry is not punitive. Thus, because the proc eeding was civil in nature, we find appellant’s challenge to VDSS’s subject matte r jurisdiction without merit.
III. SUBSTANTIAL EVIDENCE Appellant also claims the trial court erred in finding substantia l evidence supported the VDSS disposition. We disagree with appellant. “We view the evidence in the light most favor able to the agency a nd 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). On appeal of an agency decision, “the sole determination as to factual issues is whether substantial evidence exists in the agency record to support the ag ency’s decision. The reviewing court may reject the agency’s findi ngs of fact only if, considering the record as a whole, a reasona ble mind necessarily would come to a different conclusion.” In making this determination, “the reviewing court shall take due account of the presumption of official regularity, the experien ce and specialized competence of the agency, and the purposes of the basic law under which the agency has acted.” Chippenham & Johnston-Willis Hosps., Inc. v. Peterson , 36 Va. App. 469, 475, 553 S.E.2d 133, 136 (2001) (quoting Johnston-Willis, Ltd. v. Kenley , 6 Va. App. 231, 242, 369 S.E.2d 1, 7 (1988)). Here, the agency record showed that on f our separate occasions, A.G. disclosed a consistent account of appellant’s abuse on a family beach trip in North Carolina in July 2002. Specifically, she relayed that the day before her grandparents’ anni versary, she and appellant lay on the couch on the basement level of the beach ho me. A.G., who pretended she was asleep, felt appellant place his hand inside her clothing and t ouch her vagina. Appellant also took A.G.’s hand and placed it in his pants. A.G. felt sweat y, hairy skin and believed she touched the skin on appellant’s penis. Appellant stopped the behavior when A.G. pretended to wake up.- 5 - Nevertheless, appellant claims that A. G.’s allegations are incredible and “self-contradictory.” To support that contention, he asserts that during a vi deotaped interview of A.G. conducted by a FCDFS investigator, A.G. held her hand to her stomach when the investigator asked her to point to the area where appellant touche d her. Appellant also claims that VDSS failed to consider that A.G.’s disclosure of the abuse to her out- of-state cousin was in response to her cousin having first told her a bout another person who ha d been sexually abused and that there was “no evidence as to what deta ils [A.G.] was told a bout that other person’s situation.” Appellant claims th at “in its incomplete investiga tion,” VDSS never interviewed the out-of-state cousin. Furthermore, appellant cont ends that VDSS discounted the significance of the “triggering television program” that caused A.G. to tell her mother about the abuse. Appellant also discredits A.G. because he conten ds she vacillated in her definiteness by telling her aunt that she “might have dreamed” the abus e and also prefaced some of her statements to the FCDFS investigator during th e videotaped interview with “I think.” We find appellant’s assertions to be without merit. We are mindful that within the context of ad ministrative hearings, “‘the determination of a witness’ credibility is within the fact finder’s exclusive pur view because [the fact finder] has the best opportunity to observe the appear ance and demeanor of the witness.’” Virginia Real Estate Bd. v. Kline , 17 Va. App. 173, 175, 435 S.E.2d 596, 598 (1993) (quoting Goodyear Tire & Rubber Co. v. Pierce , 5 Va. App. 374, 381, 363 S.E.2d 433, 437 (1987)). “It is within the province of the trier of fact to resolve conflicts in the testim ony, to weigh the evidence, and to draw reasonable inferences from the facts presented.” Sanchez v. Commonwealth , 41 Va. App. 319, 335, 585 S.E.2d 327, 335 (2003), rev’d on other grounds , 268 Va. 161, 167, 597 S.E.2d 197, 200 (2004). Witness credibility determinations shall not be disturbed on appeal unless the- 6 - testimony is “inherently incredible, or so contra ry to human experience as to render it unworthy of belief.” Fisher v. Commonwealth , 228 Va. 296, 299-300, 321 S.E.2d 202, 204 (1984). We have also noted in a case involving a young victim of sexual abuse whose rendition of the abuse was not en tirely consistent, that “[t]he fact that a witness makes inconsistent statements in regard to the subject matter under investigation does not render his testimony nugatory or unworthy of be lief. It is the province of the trier of the facts . . . to pass upon such inconsistent statements and give or withhold their assent to the truthfulness of the particular statement.” Lockhart v. Commonwealth , 34 Va. App. 329, 342, 542 S.E.2d 1, 7 (2001) (quoting Swanson v. Commonwealth , 8 Va. App. 376, 378-79, 382 S.E.2d 258, 259 (1989)). Applying these principles to the circumstances of this cas e, we conclude that the discrepancies presented by appell ant’s contentions do not render A.G.’s account of the incident inherently incredible as a matter of law. The fact that A.G. poi nted to her abdomen in describing where appellant touched her does not discount her multiple consistent statements that appellant touched her vagina. A.G.’s statements are not unbelievable because she told an out-of-state cousin of the abuse after being told of another story of abuse. VDSS’s failure to further investigate the circumstances of A.G.’s disclosure to the cousin does not discredit A.G. A.G.’s disclosure to her mother immedi ately after having viewed a “t riggering television program” does not render her account of the incident implausible. Furthermore, A.G.’s statement that she may have dreamt the incident and her prefacing some statements with “I think” does not discount A.G.’s consistent disclosures of the abuse to four people at different times. Indeed, the trial court found, as do we, that despite minor inconsistenc ies, the VDSS hearing officer rejected any discrepancies and found the basic allegation believable. We also reject appellant’s additional chal lenges to the hearing officer’s evidentiary determinations. In accord with the fact findi ng function, the VDSS hearing officer resolved the- 7 - conflicts, weighed the evidence, a nd drew inferences from the fact s presented. In so doing, the hearing officer found that A.G.’s basic account of the abuse, relayed to the FCDFS investigator during the videotaped interview, was not in resp onse to leading or suggestive questions. The hearing officer also made a determination within his purview that appe llant’s expert was not persuasive and found appellant and his wife incredib le. In addition, the hearing officer implicitly did not attach significance to the effect of A.G. ’s parents’ divorce on A.G., to A.G.’s father’s criminal history, or to A.G.’s showering with her father and father’s girlfriend. Based on our review of the agency record, we cannot say a reasonable mind necessarily would come to a different conclusion on these evidentiary determinations. The evidence was neither inherently incredible nor so contrary to human experience as to render it unworthy of belief as a matter of law. See Simpson v. Commonwealth , 199 Va. 549, 558, 100 S.E.2d 701, 707 (1957). We find, therefore, th at the trial court did not err in finding substantial evidence supported the VDSS determination.
IV. CONCLUSION Accordingly, we affirm the trial court’s decision. Affirmed. A Copy,
Teste: Cynthia L. McCoy, Clerk By: Deputy Clerk