Abuse Victim’s Blog Entry Outside Record
Published: September 30, 2011
Stepfather is not entitled to supplement the record with evidence of his 17-year-old stepdaughter’s blog entry; the Court of Appeals affirms a founded sexual abuse disposition initiated by a local department of social services and sustained by the Commissioner of Social Services and circuit court below.
The local department of social services investigated a complaint that stepdaughter, age 17, had been abused by stepfather when she was between four and ten years old. She detailed sexual contacts and her mother described her daughter’s physical and behavioral symptoms during this time. Her therapist confirmed that stepdaughter provided a consistent account of events while in therapy. The local department found Level 1 sexual abuse, a finding upheld in informal conference and on stepfather’s appeal to the Commissioner of Social Services and circuit court.
On appeal stepfather argues the circuit should have allowed him to present evidence of stepdaughter’s blog entry and should have discounted her testimony as inherently incredible. We disagree, applying our deferential standard of review to agency determinations under the Administrative Process Act applicable under § 63.2-1526 (B). Our interpanel accord doctrine requires that we follow our decisions in School Board v. Nicely, 12 Va.
App. 1051 (1991), and J.P. v. Carter, 24 Va. App. 707 (1997), interpreting §2.2-4027 to limit judicial review to the agency record. Stepfather failed to present his due process argument to the circuit court and Rule 5A:18 bars considering it. The hearing officer properly found stepdaughter’s testimony more credible; the record provides the requisite preponderance of evidence for a finding of child abuse under DSS regulations, 22 VAC 40-705-10.
Spurrier v. Conyers (per curiam), No. 0772-11-1, September 27, 2011, Virginia Beach Cir. Ct. (Padrick) Brian A. Thomas