COURT OF APPEALS OF VIRGINIA 

Present: Judges Humphreys, Kelsey and Senior Judge Willis 

Argued at Chesapeake, Virginia 

ESTEBAN CHABOLLA, SR. 

 OPINION BY 

v. Record No. 0293-09-1 JUDGE ROBERT J. HUMPHREYS 

 JANUARY 12, 2010 

VIRGINIA DEPARTMENT OF SOCIAL SERVICES 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Patricia L. West, Judge 

 Melinda F. Seemar (Stallings & Bischoff, P.C., on briefs), for 

appellant. 

 Cheryl A. Wilkerson, Senior Assistant Attorney General (William C. 

Mims, Attorney General; David E. Johnson, Deputy Attorney 

General; Kim F. Piner, Senior Assistant Attorney General, on brief), 

for appellee. 

Esteban Chabolla, Sr. (“Chabolla”) appeals a decision of the Circuit Court of the City of 

Virginia Beach (“the circuit court”), dated January 6, 2009, which affirmed a finding of 

“Founded - Physical Abuse - Level Two” by the Virginia Department of Social Services (“the 

Agency”). On appeal, Chabolla contends that the Agency’s finding was not supported by 

substantial evidence in the record.1

 In response, the Agency argues that the circuit court erred in 

refusing to dismiss Chabolla’s petition for review due to its noncompliance with Rule 2A:4 of 

the Virginia Supreme Court. For the reasons that follow, we affirm the circuit court. 

 1

 Chabolla’s brief contains a second question presented: “Was appellant’s constitutional 

right to bear arms violated when he was viewed with suspicion and as being uncooperative for 

having a gun in his home?” However, as counsel for Chabolla conceded at oral argument, this 

issue was not raised below and, thus, is not properly before this Court on appeal. See Rule 

5A:18 (“No ruling of the trial court . . . will be considered as a basis for reversal unless the 

objection was stated together with the grounds therefor at the time of the ruling, except for good 

cause shown or to enable the Court of Appeals to attain the ends of justice.”). 
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BACKGROUND 

 On appeal, “[w]e view the evidence in the light most favorable to the agency and 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). So viewed, the evidence was as follows. 

 On March 29, 2006, Chabolla took his fifteen-year-old daughter (“M.C.”) to the dentist.2

 

Upset over an issue she was having with her boyfriend, M.C. misbehaved at the dentist. 

Following her appointment, M.C. insisted that Chabolla return her to school so that she could 

speak with her boyfriend. Chabolla refused and, instead, they went home. Chabolla’s 

four-year-old son was also present at the time. 

 When they got home, M.C. continued to misbehave. She argued with Chabolla and 

demanded that he take her to school. M.C.’s dramatic temper tantrum continued throughout 

lunch. Because M.C. “wouldn’t quit” and because he wanted some “peace and quiet,” Chabolla 

retrieved a loaded handgun that he kept on the top of the china cabinet in the dining room, took 

the gun out of the holster, and displayed it to M.C in the presence of his son. Although Chabolla 

did not point the gun at M.C., his son cried out, “No, daddy, don’t do it.” M.C. stated that she 

never thought Chabolla would shoot at her, but she did believe that he “would shoot the gun that 

day.” 

 The Virginia Beach Child Protective Services received a referral at around 1:48 p.m. on 

March 29, alleging “physical abuse, threat of harm to [M.C.].” The case was assigned to Dawn 

Clift (“Clift”). Clift “arrived at the home in the early afternoon,” but no one was home. At 

approximately 4:30 p.m., Chabolla returned home with his children. 

 2

 M.C. suffers from ADHD and has significant mental health issues for which she is in 

treatment and takes medication. 
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 Clift testified that, “right away, Mr. Chabolla was resistant” and “argumentative.” When 

Clift inquired as to whether “there is a weapon involved,” Chabolla “reached up and grabbed the 

gun in its holster on the top of the china cabinet” and placed it on his hip where he “always keeps 

it.” Chabolla reluctantly allowed Clift to interview his children. M.C. stated that she was afraid 

of her father “when he is angry” because he “had tried to choke her in the past” and he “had 

pushed her into the house” when they got home from the dentist. Chabolla interfered with Clift’s 

interview with his son to such an extent that she could not get any information from the boy. 

 During his interview with Clift, Chabolla admitted that he kept a loaded handgun on the 

china cabinet in the dining room and that M.C. knew where the gun was kept. Chabolla also 

explained that he and his wife regularly asked M.C. to retrieve the gun when they were going out 

because “Mr. Chabolla took the gun with him to family outings, to restaurants and in the car.” 

Chabolla refused to take measures to keep the gun out of the presence of the children, or to 

otherwise make the children safe. 

 During Clift’s visit, the situation between her and Chabolla “escalated quite a bit.” 

Chabolla was increasingly hostile towards Clift, who developed “real concerns” about her safety. 

As a result, Clift went outside and called the police. When the police arrived, “things really 

escalated.” Clift testified that Chabolla “was demanding control of the situation. He was 

refusing to cooperate with the police, with myself. He refused to surrender the gun. The police 

actually had to get physical.” Though Chabolla refused to remove the gun from the home, he 

reluctantly agreed to lock the gun in the bedroom.3

 Pursuant to a preliminary removal order, 

M.C. and her brother were removed from the Chabollas’ custody and placed in foster care. 

3

 Evidence in the record demonstrates that Chabolla sold the gun a few days after the 

incident. 
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 On April 27, 2006, the Agency made a finding of “Founded – Physical Abuse – Other 

Physical Abuse – Level One.” That determination was upheld following a local conference by 

letter dated June 23, 2006. Chabolla made a timely request for a state administrative hearing 

pursuant to Code § 63.2-1526. A hearing was held on August 16, 2006. The hearing officer 

rendered his “Decision on Appeal” on October 13, 2006, in which he stated that “[a]lthough the 

situation was a volatile one, the circumstances as a whole do not justify a level one disposition.” 

Consequently, the hearing officer amended the Agency’s finding to a “Founded – Physical 

Abuse – Level Two.” In his decision, the hearing officer made the following “Findings of Fact”: 

1. The Appellant held a loaded weapon during a heated verbal 

altercation with his fifteen-year-old daughter. His four-year-old 

son was also in the vicinity. The Appellant did not aim the 

weapon, but held and displayed it as a means of expressing his 

frustration with his daughter’s behavior. 

2. The handling of a loaded weapon during a heated verbal 

altercation meets departmental definitions for physical abuse, since 

potential escalation poses a threat of injury. Once a weapon is 

introduced, the level of harm rises exponentially. A level two 

disposition was appropriate, given the fact that the Appellant did 

not threaten either of the children with the weapon and that there 

was no evidence that the weapon’s safety mechanism was 

disengaged. 

3. Access to the weapon in this case, while part of the disposition, 

constitutes neglect rather than abuse. Because a disposition of 

neglect was not made, the question of whether the children had 

potentially dangerous access to the gun is moot. 

 Chabolla timely filed a notice of appeal to the circuit court on November 6, 2006. He 

then filed his “Petition for Appeal” in the circuit court on November 30, 2006; however, because 

the petition was not accompanied by the requisite filing fee, it was not “filed” until December 7, 

2006. The petition also failed to (1) specify any errors assigned, (2) state the reasons why the 

Agency’s decision was unlawful, or (3) include a statement of the relief requested. Because it 

believed Chabolla’s petition was filed late, and because the petition did not state any error or 
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request any relief, the Department of Social Services filed a plea in bar/motion to dismiss. 

Chabolla responded to the motion to dismiss with a request to amend his petition. Chabolla 

explained that he had timely filed his petition, but conceded that the petition did not properly 

state his assignments of error or request appropriate relief. 

 On April 16, 2008, the circuit court entered an order finding that Chabolla’s petition was 

timely filed and allowing Chabolla to amend his petition to reflect the assignments of error and 

prayer for relief. 

 On January 6, 2009, the circuit court entered an order affirming the Agency’s finding of 

Physical Abuse – Level Two. Chabolla now appeals to this Court. 

ANALYSIS 

I. Rule 2A:4

 As an initial matter and in an issue of first impression with respect to administrative 

appeals, the Agency contends that the circuit court erred in refusing to dismiss Chabolla’s 

petition for review for his failure to strictly comply with Rule 2A:4 of the Rules of the Virginia 

Supreme Court. We disagree. 

Rule 2A:4 governs “appeals pursuant to the administrative process act” and provides, 

(a) Within 30 days after the filing of the notice of appeal, the 

appellant shall file his petition for appeal with the clerk of the 

circuit court named in the first notice of appeal to be filed . . . . 

(b) The petition for appeal shall designate the regulation or case 

decision appealed from, specify the errors assigned, state the 

reasons why the regulation or case decision is deemed to be 

unlawful and conclude with a specific statement of the relief 

requested. 

As the Agency correctly notes, “Rule 2A:4(a) requires that a petition for appeal in a 

proceeding for review brought pursuant to the Administrative Process Act be filed within 30 

days after the notice of appeal has been filed with the administrative agency.” Mayo v. 
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Department of Commerce of Com. of Va., 4 Va. App. 520, 522-23, 358 S.E.2d 759, 761 (1987). 

Because the “rules governing appeal procedures are mandatory and ‘compliance with them is 

necessary for the orderly, fair and expeditious administration of justice,’” the failure to file the 

petition for appeal within the prescribed time period “‘is fatal,’” rendering the petition “subject 

to dismissal.” Id. (quoting Condrey v. Childress, 203 Va. 755, 757, 127 S.E.2d 150, 152 

(1962)). This rationale “is equally applicable to appeals to circuit courts from decisions of 

administrative agencies.” Id.

The purpose of the specific time limit is not to penalize the 

appellant but to protect the appellee. If the required papers are not 

[timely] filed, the appellee is entitled to assume that the litigation is 

ended, and to act on that assumption. Litigation is a serious and 

harassing matter, and the right to know when it is ended is a 

valuable right. 

Avery v. County School Board, 192 Va. 329, 333, 64 S.E.2d 767, 770 (1951). Thus, “a person 

aggrieved by a case decision is required to follow the appeal procedure by resorting to an 

appropriate and timely court action in the manner provided by the Rules of the Supreme Court of 

Virginia.” Mayo, 4 Va. App. at 523, 358 S.E.2d at 761 (emphasis in original). In short, “the 

time limit of rule [Rule 2A:4(a)] is mandatory.” Id.

 The Agency does not dispute the fact that Chabolla filed his petition for appeal within the 

thirty-day time period required by Rule 2A:4(a). Rather, the Agency argues that, like Rule 

2A:4(a), Rule 2A:4(b) is mandatory and jurisdictional and, thus, the circuit court should have 

dismissed Chabolla’s petition for its failure to specify the errors assigned to the Agency’s case 

decision and to include a statement of the relief requested. While the Agency concedes that, 
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under normal circumstances, counsel may amend his pleadings by leave of court under Rule 1:84

of the Rules of the Virginia Supreme Court, the Agency nonetheless claims that, “the general 

rules of civil procedure do not apply to judicial review proceedings unless the APA specifically 

provides.” 

While it is true that “civil remedies and procedures contained in Title 8.01 [of the 

Virginia Code]” may not “apply in administrative agency proceedings,” Broomfield v. Jackson, 

18 Va. App. 854, 857-58, 447 S.E.2d 880, 882 (1994), it is equally true that “[t]he APA grants an 

aggrieved party ‘a right to the direct review . . . [of the hearing officer’s decision] by an 

appropriate and timely court action against the agency . . . in the manner provided by the rules of 

the Supreme Court of Virginia.’” Id. at 856, 447 S.E.2d at 881 (quoting Code § 9-6.14:16(A)) 

(emphasis added). Thus, appeals from an agency decision necessarily implicate the Rules of the 

Virginia Supreme Court, even if they do not invoke the civil remedies and procedures addressed 

in Title 8.01. 

 Rule 1.8, which applies to all proceedings, allows a party to amend a pleading “by leave 

of court,” provided the pleading was timely filed in the first place. Here, it is undisputed that 

Chabolla filed his petition for review within the thirty-day time period mandated by Rule 

2A:4(a). Though the contents of his petition for review were not in compliance with the 

 4

 Rule 1:8 provides: 

No amendments shall be made to any pleading after it is filed save 

by leave of court. Leave to amend shall be liberally granted in 

furtherance of the ends of justice. 

In granting leave to amend the court may make such provision for 

notice thereof and opportunity to make response as the court may 

deem reasonable and proper. 

(Emphasis added). 
- 8 - 

requirements of Rule 2A:4(b) at the time of filing, the circuit court had the authority, pursuant to 

Rule 1.8, to grant Chabolla leave to amend his petition to conform to the Rules. 

 In sum, we disagree with the Agency that the Administrative Process Act contemplates a 

different application of the Rules of the Virginia Supreme Court to administrative agency 

decisions than to appeals of other civil matters. Therefore, we hold that while Rule 2A:4(a) is 

jurisdictional, Rule 2A:4(b) is not. Once Chabolla timely filed his petition for review in the 

circuit court, he was entitled to ask for, and the circuit court was entitled to grant, leave to amend 

its contents. Therefore, the circuit court did not err in refusing to dismiss Chabolla’s petition. 

II. Substantial Evidence

 Chabolla argues that the circuit court erred in affirming the hearing officer’s finding of 

“Founded – Physical Abuse – Level Two.” Chabolla maintains that the facts before the hearing 

officer contained insufficient evidence to support such a finding. Specifically, Chabolla 

contends that the hearing officer’s finding that “there is [no] evidence that [Chabolla] intended to 

shoot himself or his children” effectively prohibited the hearing officer from making a finding of 

physical abuse. Chabolla further contends that the evidence failed to prove a substantial risk to 

the children or that the children were placed in fear. We disagree. 

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 agency’s decision. The reviewing court may 

reject the agency’s findings of fact only if, considering the record 

as a whole, a reasonable 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 experience 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)). 
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22 VAC 40-705-30 defines “physical abuse” as: 

occur[ing] when a caretaker creates or inflicts, threatens to create 

or inflict, or allows to be created or inflicted upon a child a 

physical injury by other than accidental means or creates a 

substantial risk of death, disfigurement, or impairment of bodily 

functions.

(Emphasis added). 

 22 VAC 40-705-10 defines “founded” as follows: 

Founded means that a review of the facts shows by a 

preponderance of the evidence that child abuse and/or neglect has 

occurred. 

 Finally, 22 VAC 40-700-20 describes “Level 2” as: 

those injuries/conditions, real or threatened, that result in or were 

likely to have resulted in moderate harm to a child. 

 As we have previously recognized, a showing of actual injury is not required to sustain a 

finding of physical abuse; mere threat of a physical injury will suffice. See Jackson v. W., 14 

Va. App. 391, 402, 419 S.E.2d 385, 391 (1992) (“The Commonwealth’s policy is to protect 

abused children and to prevent further abuse of those children. This policy would be 

meaningless if a child must suffer an actual injury from the behavior of his or her parent before 

receiving the Commonwealth’s protection. Neither the statute nor the guidelines impose such 

trauma upon a child.”). 

 In this case, the hearing officer found that Chabolla “held and displayed” a loaded 

firearm to M.C. “as a means of expressing his frustration” with her behavior. While the hearing 

officer found that Chabolla did not threaten either child with the firearm itself, he found 

nonetheless that “[t]he handling of a loaded weapon during a heated verbal altercation meets the 

departmental definitions for physical abuse, since the potential escalation poses a threat of 

injury.” The circuit court agreed with the hearing officer’s findings, as do we. 
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 Under the circumstances, Chabolla’s conduct created a “substantial risk of death, 

disfigurement or impairment of bodily functions” to his children and, thus, meets the definition 

of physical abuse set forth in 22 VAC 40-705-30. Whether or not Chabolla actually intended to 

harm M.C. with the firearm is irrelevant to this analysis. The purpose of the regulatory scheme 

in this instance is to protect children from harm. Here, Chabolla retrieved a loaded handgun in 

response to his daughter’s temper tantrum. By his own admission, Chabolla was angry that day. 

The dangers inherent in such a situation are as obvious as they are severe. 

 Therefore, given the evidence in the record and our standard of review, we hold that the 

hearing officer’s finding of “Founded – Physical Abuse – Level Two” is supported by substantial 

evidence, and we affirm both the circuit court and the hearing officer. 

CONCLUSION 

 For the foregoing reasons, we hold that, unlike Rule 2A:4(a), Rule 2A:4(b) is not 

jurisdictional. Thus, the circuit court did not err in refusing to dismiss Chabolla’s petition for 

review for its initial failure to comply with the requirements of Rule 2A:4(b). We further hold 

that the circuit court did not err in affirming the Agency’s finding of “Founded – Physical Abuse 

– Level Two” since this finding was supported by substantial evidence in the record. Therefore, 

we affirm the circuit court’s ruling in all respects. 

Affirmed.