FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE. Marjorie T. Arrington, Judge.
E. Leslie Cox (Carrollyn C. Cox; Cox and Cox Attorneys, on brief), for appellant.
Eric J. Reynolds, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General; Rita W. Beale, Deputy Attorney General; Kim F. Piner, Senior Assistant Attorney General, on brief), for appellee.
Present: Judges Frank, Kelsey and Alston. OPINION BY JUDGE D. ARTHUR KELSEY.
[63 Va.App. 377] D. ARTHUR KELSEY, JUDGE.
The Commissioner of the Virginia Department of Social Services (DSS) made an administrative finding that Anthony Moore committed an act of sexual abuse of a child while he acted as a " person responsible for [the child's] care," pursuant to Code § 63.2-100(4) (defining " Abused or neglected child" ). Moore appealed to the circuit court, which affirmed the DSS finding. We reverse the circuit court's holding and vacate the finding made by DSS.
The parties vigorously disputed most of the underlying facts at every stage of this case. None of these disputes, however, are relevant to our holding, and thus, we recite only those undisputed facts pertinent to our review.
In 2011, DSS investigators accused Moore of committing an act of sexual abuse of a child. The child claimed the abuse occurred when she was three or four years old during the time that she resided temporarily in her grandmother's home. Moore resided in that home for a brief period between March 1998 and February 1999, while the child was only one-and-a-half years old to two-and-a-half years old. No evidence suggested that Moore ever babysat the child, ever asked to care for the child, or ever volunteered to do so.
Acting through its designated hearing officer, the DSS Commissioner found that Moore committed the alleged sexual abuse of the child. The Commissioner recognized that this conclusion required a factual finding that, at the time of the abuse, Moore was either a parent of the child or some " other person responsible for his care." Code § 63.2-100(4). Given that Moore was not a parent, the Commissioner addressed the " preliminary issue" of whether he " qualifie[d] as a 'caretaker.'" App. at 125. Because no evidence suggested Moore was in fact responsible for the child's care -- a point DSS concedes [63 Va.App. 378] on appeal, see Oral Argument Audio at 26:28 to 26:56 -- DSS legally " deemed [him] to be a caretaker" because he was " a relative over the age of 18" and " living in the home with the child" at the time of the abuse, App. at 125.
Alleging thirteen grounds of error, Moore appealed to the circuit court under the Virginia Administrative Process Act, Code § § 2.2-4025 to 2.2-4030. The circuit court affirmed, focusing primarily on the sufficiency of the evidence supporting the allegation of abuse.