COURT OF APPEALS OF VIRGINIA
Present: Judges Bent on, Clements and Beales Argued at Richmond, Virginia

BENJAMIN H. RICE, JR. MEMORANDUM OPINION * BY v. Record No. 0413-06-2 J UDGE RANDOLPH A. BEALES MARCH 27, 2007 VIRGINIA DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF PRINCE GEORGE COUNTY Ernest P. Gates, Judge Designate Gail H. Miller (Gail Harringt on Miller, P.C., on briefs), for appellant. Usha Koduru, Assistant Attorney General (Robert F. McDonnell, Attorney General; David E. John son, Deputy Attorney General; Kim F. Piner, Senior Assistant A ttorney General, on brief), for appellee.
Dr. Benjamin H. Rice, Jr. (father) app eals from a child protective services founded disposition of sexual abuse. He contends that substantial evid ence does not exist in the agency record to sustain that finding. Father also presents two other a ssignments of error: 1) whether the preponderance of the evidence standard, as contemplated in 22 VAC 40-705-10, violates his due process rights; and 2) whether the agency an d hearing officer inappropriately held father’s decision to remain silent, which he exercised wh ile criminal charges were being investigated, against him during the proceedings. For the reas ons that follow, we hold substantial evidence does not exist to sustain the agency’s findings and, accordingly, reverse the judgment of the circuit court that had affirmed the fo unded disposition of sexual abuse.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - S TANDARD OF R EVIEW On appeal from the decision of an administ rative agency, “The revi ewing court will view ‘the facts in the light most fa vorable to sustaining the [agenc y’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).
B ACKGROUND In late 2003, the Prince Geor ge County Department of Social Services received a complaint that alleged th at the father had sexually abused hi s daughter (the child). The mother explained that after the child was treated for a urinary tract infection in 2001, when she was two years old, and upon mother’s subsequent completion of guardian ad litem training, she became suspicious of sexual abuse. The matter was tr ansferred to the Surry County Department of Social Services (Department) on December 12, 2003 because the child’s mother (and father’s ex-wife) had previously represented the Prince Geor ge DSS in her role as a practicing attorney. Four days later, the mother took the child to the Medical College of Virginia for a forensic examination. The examination report indicates “anogenital exam is normal.” Child protective services worker Miche lle Stivers conducted the Department’s investigation of the complaint. Detective Robe rt Castle handled a conc urrent investigation on behalf of the Prince George County Sheriff’s De partment, though no criminal charges were ever filed. Stivers and Castle interviewed mother and the child at the home of mother’s parents. A transcript of that interview was included in th e agency record. During the interview, the child correctly identified different body parts and spec ifically referred to her private area as her- 3 - “heinie” or “fanny.” 1 She said that her father had put his finger in her heinie and that it made her heinie red and scratchy. Stivers also spoke with mother’s parent s, with Wendy Hall (the child’s therapist), and with Tori Templin (father’s girlfr iend at the time of the proceedings). Angela Dale, a forensic investigator and case manager at the Child ren’s Hospital of the King’s Daughters Child Abuse Program, also interviewed the child. Because criminal charges were being investigated, father refused to discuss the allegations with Stivers. At the conclusion of the inve stigation, the Surry County Depa rtment of Social Services entered a disposition of “founded, level-one sexual abuse” on February 10, 2004. That disposition was upheld after a March 30, 2004 local conference on the matter. Father sought review by administrative hearing, which was held before a hearing officer on September 9, 2004. The hearing was continued until and concluded on October 15, 2004. Stivers’s investigative report was introduced and made a part of the hearing record. During the agency’s presentation of testimonial evidence, the following exchange took place between appellant’s counsel and Stivers: Q: Okay. What do you consider to be lascivious in this case? A: As a basis for? Q: As a basis for your finding? Was there any sexua l gratification noticed or anything lewd or obscene? A: As I said we never talked about the alleged abuser. Q: Just from what you have sa id though, the only thing that you have is the touching? A: Yes. Q: And that is just made by [the child’s] disclosure? A: Yes. Q: In fact the physical evidence from MCV didn’t show any sexual abuse? A: That is correct. The agency rested its case at th e conclusion of Stivers’s testimony.

1 The child used those terms interchangeably and indicated a child has “Fanny in the front. Fanny in the back.”- 4 - Father testified and denied the allegations . He described severa l occasions where he either conducted a medical examination of the child or otherwise touc hed her private area. Father, a medical doctor, explained that he admi nistered one or two supp ositories to treat the child for vomiting, which was being caused by an uppe r intestinal illness, in the spring of 2003. Father introduced an insurance record showi ng that a prescription for Promethazine HCL was filled on April 23, 2003. This record listed the ch ild as the patient but did not indicate whether or not the prescription was filled in suppository form . According to father, he also performed, in September of 2003, a physical examination of the child’s private area, in the presence of his parents, because the child appeared uncomforta ble and was complaining about itching “in her
area.” In October 2003, the child, according to father, told him to stop sticking his finger in her heinie. When he asked the child what she was talking about, the child responded that her maternal grandmother had told her that father was sticking his finger in her heinie. Father testified that another, similar exchange occurred a couple of weeks later. Father also explained that, in December 2003, the child informed him th at she had been to th e doctor and that the doctor had examined her heinie and told her “everything is okay.” The child’s medical records were also introdu ced and made part of the hearing record. As early as February 2, 2002, the records indica te “PROBLEMS: URT.” The child was treated for dryness and swelling in her vaginal ar ea on May 24, 2002, and her urinalysis indicates “Bacteria” and “UTI.” The child was consistently treated over the following year for various bumps and body rashes, including treatment for scar let fever and, on one occasion, a tick bite. Her “G/U” examinations often indicated the presen ce of “rash.” Also, the record from an April 23, 2003 examination shows that the child presented symptoms of nausea, vomiting, and abdominal pain. Those same symptoms were documented on the child’s May 5, 2003 visit, in- 5 - addition to a complaint that the child would not eat during the past two weeks because eating “hurts her stomach.” The administrative hearing officer issued a written opinion on January 28, 2005. The analysis section of that opinion stated the following: Dr. Rice did not provi de his explanation of innocent medical examinations until the investig ation, and particularly the questioning of [the child], had b een completed. Dr. Rice testified that in July 2003 , [the child] told him that she had been to the doctor and he had examined her heinie. Even if Dr. Rice, Sr., and his wife did testify truthfully a bout watching a vaginal examination of [the child] in September or October 2003, such an examination could have been staged by Dr. Rice so as to provide an alibi in the event that he was later accused of abuse. . . . The Anthem prescription printout provided by Dr. Rice does not specify that the Promethazine HCL was prescribed for [the child], nor does it indicate that it was in suppository form. Later, in the findings of fact se ction, the hearing officer wrote: Beginning in November 2003, [the child] reported to her maternal grandmother . . . [and others] that he r father had stuck his finger in her “heinie.” . . . During the fall of 2003, Dr. Rice sexually abused [the child], on one or more occasi ons, by digitally penetrating her vagina with the intention of gaining sexual gratification. Based on those findings, the hear ing officer concluded, “The di sposition of ‘Founded – Sexual Abuse – Level One’ of [the ch ild] by [father] is sustained.” The circuit court reviewed the agency reco rd and hearing office r’s written opinion and determined, under the “substantia l evidence standard,” that “a reasonable mind would not come to a different conclusion than the hearing officer.”
A NALYSIS As this Court recently held in West , “Judicial review of a child protective services founded disposition of child abuse is governed by the Administrative Process Act (APA), codified at Code §§ 2.2-4000 to 2.2-4033. See Code § 63.2-1526(B). Acco rdingly, ‘the burden is upon the appealing party to demonstrate e rror.’” 46 Va. App. at 322-23, 616 S.E.2d at 797- 6 - (quoting Carter v. Gordon , 28 Va. App. 133, 141, 502 S.E.2d 697, 700-01 (1998)). “‘Founded’ means that a review of the facts shows by a pr eponderance of the evid ence that child abuse and/or neglect has occurred.” 22 VAC 40-705-10. “[T]he substantiality of the evidentiary support for fi ndings of fact” is among the “error[s] of law subject to re view by the court.” Code § 2.2- 4027. “Review of agency factual decisions is governed by the ‘substantia l evidence’ test.” Turner v. Jackson , 14 Va. App. 423, 429, 417 S.E.2d 881, 886 (1992) (quoting Johnston-Willis, Ltd. v. Kenley , 6 Va. App. 231, 242, 369 S.E.2d 1, 6 (1988)). “Under this standard, the scope of review is limited to ascertaining whether there was substantial ev idence in the agency record to support the decision.” Id. at 429-30, 417 S.E.2d at 886. “The reviewing court may re ject the agency’s findi ngs of fact only if, considering the record as a whole, a reasonabl e mind would necessarily come to a different conclusion.” Johnston-Willis, Ltd. , 6 Va. App. at 242, 369 S.E.2d at 7. We hold that the evidence in the agency record, taken as a whole, was such that a reasonable mind would necessarily reach a different conclusion than that reached by the hearing officer. Notably, the medical records demonstrate that the child had been treated over the same time period that the alleged abuse occurred for both a urinary tract in fection and various body rashes. The symptoms associated with those conditions – itchi ng and redness – were the same symptoms that the child identified during her interview. The evidence, specifically the medical records, is consistent with father’s explanation and description of occasions when he examined or otherwise had contact with the child’s private area. First, the record reflects that the child presented symptoms of vomiting and abdominal pain during visits with her pediatrician in April and May of 2003. Father testified that “she had a GI bug” and “was throwing up a lot” during that time. He administered a sup pository in the child’s rectum on one or two occasions following the chil d’s April 23, 2003 visit w ith her pediatrician.- 7 - The insurance record provided by father, which listed the child as the patient , confirms that a prescription was filled on that date. 2 In addition, the May 5, 2003 pr ogress note reflects that the child had refused to eat during the two weeks pr ior to that visit due to abdominal pain. Therefore, based on the above, a reasonable mi nd would conclude that the most likely (and perhaps only) means to administer this type of medicine to the child during this period would have been through a suppository. The child’s medical record indicates she ha d a rash “all over” in August 2003. Father explained that in September 2003 he examined the child’s private area, in the presence of his parents, after the child had complained of “itchi ng in her area.” The hearing officer concluded that “such an examination could have been staged” by the father “so as to provide an alibi in the event that he was later accused of abuse.” Howe ver, the hearing officer based this conclusion on his erroneous recollection that father testified that “in July 2003 , [the child] told him that she had been to the doctor and [the doctor] had examin ed her heinie.” (Emphasis added.) The only testimony on this point, however, was father’s stat ement that the above conversation occurred in December 2003 , not July 2003. Father also testified that , in October 2003, the child told him to stop sticking his finger in her hein ie. Both of these statements by the child were, therefore, made after father’s September 2003 medical examination of the child in response to her complaint of itching and discomfort. Therefore, the prem ise upon which the hearing officer based his conclusion that father could have staged this examination of the child was unsupported by the evidence since neither of these alleged conversat ions between father and child had even taken place before father’s examination of the child. Accordingly, any analysis supported by this

2 The hearing officer found that the “Anthem prescription printout provided by Dr. Rice does not specify that the Prometh azine HCL was prescribed for [the child], nor does it indicate that it was in suppository form.” However, wh ile it does not indicate what form in which prescriptions were filled, the insurance record dealing with the prescription, which was included in the record, clearly lists the child’s name next to the heading “patient name.”- 8 - erroneous finding of fact is based on a false pr emise and is without ev identiary support. In addition, the symptoms present at the time of the examination, itching and discomfort, were consistent with the medical evidence recorded during this same time period. The child, in her interviews with both Stiver s and Dale, talked about an occasion where her paternal grandmother (and her paternal grandfather) allegedl y saw her father “touching her hiney.” According to their report of the interv iew, the child said her paternal grandparents became very angry when her father did this. Th e hearing officer had noted this information in his analysis when he stated, “[The child] unequivoca lly stated that her father abused her at his parents’ home and she identified her paternal grandmother, who she called ‘grandmommy,’ as catching her father when he was abusing her.” Grandfather, a retired su rgeon, testified he was present when father examined the child, and he sa w “redness.” Grandmother testified the father examined the child after she had pain when urinating. She was al so present at the time and saw “redness” in the child’s genita l area. She denied expressing any concern about the father’s conduct. Because, as we have noted above, the h earing officer applied incorrect facts to other key portions of his analysis, we hold the hearing officer, in his an alysis of all of the evidence, may have improperly weighed the as pects of this particular eviden ce (noted in this paragraph) against the other evidence presented in the case. The evidence also established that the child engaged in masturba tion type behavior. Although the Commonwealth argues “frequent masturbation is usua lly associated with sexual abuse,” no testimony establishes that fact or relate s the onset of this activity to any source. The evidence leaves unresolved the cause, whether from sexual abuse, stre ss, discovery resulting from irritations or urinary trac t infections, or other childhood be haviors. Indeed, the hearing officer’s analysis and findings of fact make no reference to this matter as a fact supporting the- 9 - decision that he reached. Accordingly, we need not further consider it in our analysis of his decision. Finally, the hearing officer conc luded that “[father] sexually a bused [the child], on one or more occasions, by digitally penetrating her vagina with the intention of gaining sexual gratification .” (Emphasis added.) In Virginia, “Sexual abuse occurs when there is any act of sexual exploitation or any sexual act upon a child in violation of the law . . . .” 22 VAC 40-75-30(E) (emphasis added). The Virginia crim inal code defines sexual abuse as “an act committed with the intent to sexually molest, arouse, or gratify any person.” Code § 18.2-67.10 (emphasis added). Therefore, in order to de monstrate sexual abuse by a preponderance of the evidence, the agency must prove both an intentio nal touching and “the in tent to sexually molest, arouse, or gratify.” Id. As this Court has previo usly held in cases of sexu al abuse, “‘Intent is the purpose formed in a person’s mind that may, and often must, be inferred from the facts and circumstances in a particular case.’” Blaylock v. Commonwealth , 26 Va. App. 579, 589, 496 S.E.2d 97, 104 (1998) (quoting Ridley v. Commonwealth , 219 Va. 834, 836, 252 S.E.2d 313, 314 (1979)). Here, DSS Investigator Michelle Stivers, on cross-examination, admitted that the agency’s evidence consisted solely of a touching, i.e., the act. The only evidence in the record describing the touching, however, in dicated that father touched the child’s genitalia to medically examine her. Moreover, no evidence demonstrat ed father possessed “the intent to sexually molest, arouse, or gratify” as required by Code § 18.2-67.10, th ough we recognize, as discussed above, that intent may be inferred from the facts of a certain case. Howe ver, father’s testimony describing occasions where he medically examin ed the child or administered suppositories, which the hearing officer rejected based on incorrect factual findings, rebuts an inference that he intended to gain sexual gratificat ion by touching the child on t hose occasions. Accordingly, the- 10 - hearing officer’s finding that father intended to gain sexual gratification by touching the child is without adequate ev identiary support.
C ONCLUSION Based on the above, including clear errors of fact upon which the hearing officer based his decision, we hold, after cons idering the record as a whole, that a reasonable mind would indeed have to come to a different conclusion th an that reached by the he aring officer and that, therefore, substantial evidence doe s not exist to sustain a founded disposition of level-one sexual abuse. Our holding renders appellant’s other assignments of error moot. Code § 2.2-4029 provides, in pertinent part, Where a regulation or case decision is found by the court not to be in accordance with law under [Code] § 2.2-4027, the court shall suspend or set it aside and remand the matter to the agency for further proceedings, if any, as th e court may permit or direct in accordance with law. The judgment of the circuit court is, therefore, reversed, and the case is remanded to the circuit court 1) to set aside the dispos ition of founded, level-one sexual abuse and 2) to further remand the matter to the hearing officer for any other pr oceedings necessary and consistent with this opinion. Reversed and remanded.