M. H. v. Virginia Department of Social Services

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Powell and Senior Judge Clements
M. H.
MEMORANDUM OPINION*
v. 	Record No. 0116-10-4 	PER CURIAM
AUGUST 3, 2010
VIRGINIA DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
James H. Chamblin, Judge
(William B. Reichhardt; Amanda DeFede; William B. Reichhardt &
Associates, on briefs), for appellant.
(Kenneth T. Cuccinelli, II, Attorney General; David E. Johnson,
Deputy Attorney General; Kim F. Piner, Senior Assistant Attorney
General; Noelle L. Shaw-Bell, Assistant Attorney General III, on
brief), for appellee.
M.H. appeals the trial court’s ruling affirming the administrative hearing officer’s founded
disposition of Physical Neglect – Inadequate Supervision – Level Three. M.H. argues that the trial
court erred by (1) finding that the scope of a caretaker’s responsibility to a child does not permit the
caretaker to make reasonable assumptions regarding the care of a child in their absence;
(2) determining that a caretaker physically neglected a child, pursuant to 22 VAC 40-705-30(B),
when the threat of injury was not directly caused by the action or inaction of that caretaker; and
(3) holding the disposition finding against M.H. was supported by the substantiality of the evidence.
Upon reviewing the record and briefs of the parties, we summarily affirm the decision of the trial
court. Rule 5A:27.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication.

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progr 	p.m.,
K
Ja 	g
asked M.H. if he could take his lunch b 	Monroe to do so. She assumed that
Monroe arranged for another teacher to be present in the gymnasium with Boehner and the
children. M.H. returned to the gymnasium with A. approximately fifteen minutes after she left,
and found that Boehner was alone with the children.
At some point between the time when K.S. stopped participating in the Fit Kids activity
and when M.H. returned to the gymnasium, K.S. left the gym via a door which did not have an
alarm on it. K.S. could not re-enter the gymnasium because the door locked behind him. K.S.
walked to a nearby highway, and a well-intentioned stranger found him and took K.S. home.
K.S.’s mother waited for the center to call her to tell her that K.S. was missing, but the center did
not call her.
M.H. did not notice that K.S. was gone, even though he had a distinctive appearance, he
wore a turban, and there were only eight children in the gymnasium when she returned from the
office. M.H. did not perform a head count of the children in the gymnasium. When M.H.
noticed that K.S. was missing, she assumed that he was in another class at the center, but she did
not check to see where he was.
BACKGROUND
In June 2008, M.H. was an assistant director for a children’s summer program at King
Solomon’s Christian Academy. On June 26, 2008, a four-year-old boy, K.S., attended the
am, and M.H. and Austin Monroe were his teachers that day. At approximately 12:30
.S. was in the gymnasium with other children, while an independent contractor from Fit Kids,
red Boehner, led the children in a physical fitness activity. M.H. and Monroe were supervisin
the children during the activity. K.S. did not want to participate in the activity. Another child,
A., hurt his finger, and M.H. took A. to the office for first aid. While M.H. was with A., Monroe
reak. M.H. allowed

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At approximately 2:00 p.m., K.S 	the center to ask where their son was.
009,
r incorporating its letter opinion on
ecem
rror.” Carter v. Gordon
.’s parents went to
No one in the center knew where he was. K.S.’s parents then told the center employees that he
left the building and was brought home.
On September 15, 2008, the Loudoun County Department of Social Services made a
finding against M.H. of Physical Neglect – Inadequate Supervision – Level Two. On November
6, 2008, the local conference appeal hearing officer sustained the disposition. M.H. appealed
this finding, leading to an administrative appeal hearing. On February 26, 2009, the
administrative hearing officer upheld the finding, but amended it to Physical Neglect –
Inadequate Supervision – Level Three. M.H. appealed to the trial court. The Department filed a
motion to dismiss, and the trial court held a hearing on October 1, 2009. On November 5, 2
the trial court issued a letter opinion granting the motion to dismiss and affirming the
administrative finding. The trial court entered an orde
D 	ber 31, 2009. M.H. timely noted her appeal.
ANALYSIS
The Administrative Process Act (APA), codified at Code §§ 2.2-4000 to 2.2-4033,
governs the judicial review of a founded disposition of child abuse or neglect. “In an appeal to
the circuit court from a decision by an agency, the burden is upon the appealing party to
demonstrate e 	, 28 Va. App. 133, 141, 502 S.E.2d 697, 700-01 (1998).
“‘The reviewing court may reject the agency’s findings of fact only if, considering the record as
a whole, a reasonable mind would necessarily come to a different conclusion.’” Id. at 141, 502
S.E.2d at 701 (quoting Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231, 242, 369 S.E.2d 1,
(1988));
7
see also Turner v. Jackson, 14 Va. App. 423, 429-30, 417 S.E.2d 881, 887 (1992).
However, where the question involves an interpretation which is
within the specialized competence of the agency and the agency
has been entrusted with wide discretion by the General Assembly,
the agency’s decision is entitled to special weight in the courts. . . .

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jurisdiction of the administrative agency and merely substitute its
Legislature with the administrative function.” Virginia Alcoholic
“The reviewing judicial authority may not exercise anew the
own independent judgment for that of the body entrusted by the
Beverage Control Commission v. York Street Inn, Inc., 220 Va.
310, 315, 257 S.E.2d 851, 855 (1979) (quoting Schmidt v. Board
of Adjustment of the City of Newark, 9 N.J. 405, 423, 88 A.2d
607, 615-16 (1952)).
Johnston-Willis, Ltd., 6 Va. App. at 244, 369 S.E.2d at 8.
Issue 1 – The caretaker’s responsibility
M.H. argues that the trial court erred by finding that the scope of a caretaker’s
responsibility to a child does not permit the caretaker to make reasonable assumptions regarding
the care of a child in their absence. M.H. contends the trial court’s determination created a
heightened level of responsibility for a caretaker.
Physical neglect occurs when there is the failure to provide food,
child’s health or safety is endangered. This also includes
parent or caretaker’s own
incapacitating behavior or absence prevents or severely limits the
performing of child caring 	to Code § 63.2-100 of
the Code of Virginia. . . .
level of maturity, physical condition, and/or mental abilities would
1
clothing, shelter, or supervision for a child to the extent that the
abandonment and situations where the
tasks pursuant
22 VAC 40-705-30(B).
Inadequate supervision is a category of physical neglect, and it is defined as follows:
The child has been left in the care of an inadequate caretaker or in
a situation requiring judgment or actions greater than the child’s
reasonably dictate. Inadequate supervision includes minimal care
or supervision by the caretaker resulting in placing the child in
jeopardy of sexual or other exploitation, physical injury, or results
At the trial court level, M.H. conceded that she was a “caretaker” as defined by the
Virginia Administrative Code and the Child Protective Services manual. In her reply brief o
1
n
appeal, M.H. s 	e of elopement,
M.H. was not K 	el that she was a
“caretaker,” w 	t she was not
the caretaker fo
tates, “at the time of the ‘threatened injury,’ which arose at the tim
.S.’s caretaker.” Since she already conceded at the trial court lev
e will not consider M.H.’s argument in her reply brief on appeal tha
r K.S. when he left the building.

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g
Virginia Depar 	ection III,
Chapter A, Par
The ad 	ficer found that M.H. made several assumptions, which
hild in jeopardy of injury. For
example, when Monroe aske 	that there was a teacher
nasium,
M.H. a 	“minimal care
or supervision. 	the building. However,
there was evid 	did not want to
participate in t
the necessary steps to ensure that all of the children were accounted for
The trial court concluded that the hearing officer did not “impermissively” expand the definition
of “inadequate supervision” and properly interpreted Physical Neglect – Inadequate Supervision.
in status offenses, criminal acts by the child, or alcohol or dru
abuse.
tment of Social Services, Child Protective Services, Volume VII, S
t II(C)(2.2), March 2009.
ministrative hearing of
constituted “minimal care or supervision” and placed the c
d to leave to go on break, M.H. assumed
with the children in the gymnasium, but there was not. When M.H. returned to the gym
she assumed that all of the children were in the gymnasium, but K.S. was not. When M.H.
noticed that K.S. was not with the other children in her class, M.H. assumed that he was in
another class in the center, but he was not.
rgues that her assumptions were reasonable and did not qualify as
” She contends she had no reason to believe that K.S. left
ence that K.S. was having a hard time adjusting to the program and
he group’s activities. 2
M.H. did not take
and supervised. The trial court held,
The neglect occurred by her acts and omissions after she returned
to the gym and failed to either recognize that the child was not
there, or if she did, failed to do anything about it except assume
that some other person at the day care center was taking care of the
child.
2 There was conflicting evidence as to whether M.H. was ever told that K.S. had a
tendency to “dart and run,” meaning that he would not sit in his assigned place and try to leave
his group.

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We agree. M.H 	ensure that all of
the children for which she was responsible were present and safe.
Issue 2 – Causal connection
. did not provide the “minimal care or supervision” necessary to
M.H. argues that the trial court erred in determining that a caretaker physically neglected
a child, pursuant to 22 VAC 40-705-30(B), when the threat of injury was not directly caused by
the action or inaction of that caretaker.
“The complaint or report must allege a link between the actions or inaction of the
caretaker, regardless of the caretaker’s intent, and the injury to the child or the threat of injury to
the child.” Virginia Department of Social Services, Child Protective Services, Volume VII,
Section III, Chapter A, Part III(D)(2.3.3), July 2010.
M.H. asserts that she was not in the gymnasium when K.S. left. Since K.S. was safely
with his mother when M.H. returned to the gymnasium, M.H. contends she could not have
neglected the child because there was no threat of injury when she could have, or should have,
discovered K.S.’s disappearance.
The trial court stated, “I do not accept [M.H.’s] argument that she cannot have neglected
the child because, by the time she realized the child had left the gym, the child was safely home
(by the good fortune of a very caring stranger).”
The tria
must cause actual physical harm or the threat of physical
causes a threat to a child, then physical neglect has occurred.
Lastly, the trial court stated, “The Hearing Officer’s determination was based upon what
[M.H.] did and did not do after she returned to the gym after the child had left unnoticed.”
l court further explained:
The causation factor in child neglect or physical neglect is that the
neglect
harm. If a person responsible for a child – the caretaker, as [M.H.]
admits she was to the child – through his or her actions or inactions

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pointed out:
No one could fault 	gym with an
injured child; it was clearly part of her responsibility. Yet, as
Monroe, was leaving the premises and was aware, too, that she was
children in her care.
M.H. was responsible for K.S., and when she returned to the gymnasium, she failed to
notice that he was missing. When she finally noticed that K.S. was not in the gym, she
incorrectly assumed that he was in another class. The fact that he was safely at home with his
mother did not change M.H.’s responsibilities to find the boy and ensure that he was safe.
The trial court did not err in finding that she physically neglected the child even if she
was not in the gymnasium when he left.
Issue 3 – Substantiality of the evidence
M.H. contends she was not the direct supervisor of K.S. because she was in the office
with another child when K.S. left. However, as the hearing officer
the Appellant for leaving the
director of the day camp program, she also knew that her aide, Mr.
then the sole adult responsible for providing supervision to the
M.H. argues that the trial court erred in holding that the disposition finding against her
was supported by the substantiality of the evidence.
When the decision on review is to be made on the agency record,
to ascertaining whether there was substantial evidence in the
ncy as the trier of the facts could
reasonably find them to be as it did.
Code § 2.2-4027.
Substan 	ot ensure that
a teacher was w 	gymnasium,
she did not notice that K.S., w
the program, was not present. M.H. later assumed that K.S. was in another class, but she did not
verify that assumption. M.H.’s assumptions led to the finding of her providing inadequate
the duty of the court with respect to issues of fact shall be limited
agency record upon which the age
tial evidence in the agency record supports the finding. M.H. did n
atching the children when Monroe left. When M.H. returned to the
ho had a distinct appearance and was having trouble adjusting to

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M.H. c 	f she had looked
for him immed 	exposed to a
threat of physi 	e fact remained
that M.H. was supposed to be supervising K.S., and he left the building without her noticing that
he was gone until approximately one hour later. While K.S. was in M.H.’s class, he escaped the
gymnasium, walked to a busy highway, and was picked up by a stranger. His safety was
endangered.
The trial court found that M.H.’s “failure to provide adequate supervision as supported by
the evidence is fully explained in” the administrative hearing officer’s findings of facts. We
agree. The trial court did not err in affirming the disposition.
CONCLUSION
For the foregoing reasons, the trial court’s ruling is summarily affirmed. Rule 5A:27.
Affirmed.
supervision. M.H. had a responsibility as K.S.’s caretaker to ensure his safety. However, she
did not know where he was, much less whether he was safe.
ontends she was not present when K.S. left the gym, and even i
iately upon her return to the gymnasium, K.S. would not have been
cal injury. However, this contention constitutes speculation. Th