COURT OF APPEALS OF VIRGINIA

Present: Judges Huff, Ortiz and Lorish PUBLISHED

Argued by videoconference

REBECCA BENEDICT-MILLER OPINION BY v. Record No. 0323-21-1 JUDGE LISA M. LORISH NOVEMBER 23, 2021 VIRGINIA DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH James C. Lewis, Judge

Arnold H. Abrons (Abrons, Chiusano & Sceviour, PLLC, on brief), for appellant.

Ellen R. Fulmer-Malenke, Assistant Attorney General (Mark R. Herring, Attorney General; Erin B. Ashwell, Chief Deputy Attorney General; Sylvia C. Jones, Deputy Attorney General; Kim F. Piner, Senior Assistant Attorney General, on brief), for appellee.

When a child is alleged to have been abused or neglected by a teacher, or certain other school employees, there are increased procedural requirements that govern the ensuing investigation as well as a heightened substantive standard of what counts as abuse or neglect.

The Virginia Department of Social Services (“appellee”) determined that former teacher Rebecca

Benedict-Miller (“appellant”) committed level three physical abuse on one of her students. The questions here are whether appellee procedurally complied with applicable statutes and its own internal guidelines in making this determination, and whether the evidence was sufficient to support a finding of willful misconduct.

BACKGROUND1

The Virginia Beach Department of Social Services (“Virginia Beach DSS”) received a complaint stating that appellant, a public school teacher, had dragged her student, J.H., down a

school hallway into an office. J.H. was nine and in a special education class, with diagnoses of autism, ADHD, and an intellectual disability. During its investigation, Virginia Beach DSS reviewed witness statements and available surveillance video recordings, and conducted interviews of J.H., appellant, and all available witnesses. The investigation yielded the following evidence.

In March 2019, while in appellant’s classroom, J.H. kicked another child in the stomach.

Appellant struggled to remove J.H. from the classroom and bring her to the hallway, where appellant called out for assistance until another teacher came to supervise her classroom.

Appellant was then in the hallway with J.H. alone. Appellant tried to lead J.H. to the principal’s office, where there is a sensory room designed for de-escalation of conflict. Surveillance footage shows that, rather than walking with appellant, J.H. picked up her feet, requiring appellant to carry her at certain points. J.H. ultimately went limp, raising her arms, and falling to the floor.

During this difficult episode, another teacher walked by appellant and asked if appellant needed help, but appellant declined. While on the floor, J.H. kicked at appellant, who grabbed J.H.’s foot to stop her from kicking, and then dragged J.H. by the foot down the hallway to the sensory

room. The other teacher followed them down the hall, and a third school employee opened the door to the sensory room. Two witnesses observed J.H. trying to put her hands and arms under herself while she was being dragged, and several witnesses reported that appellant seemed upset and “frazzled.” Once J.H. was in the room and under the supervision of the school’s assistant principal, appellant went back to her classroom. Later, J.H. escaped from the room twice and kicked a different student in the stomach.

J.H. sustained a nickel-sized rug burn to her back, confirmed by photographs. She told

her therapist and others that the injury occurred when she was dragged on the carpet in the principal’s office. J.H. also reported hitting her head during the episode with appellant, and complained of headaches, occipital tenderness, sensitiveness to light, and swelling on the back of her head. During the investigation, appellant reported her understanding that dragging a child is not an acceptable method of restraining a child, but that she believed the action was necessary to keep her other students safe. She stated that she knew she could not pull J.H. by the arms as that could hurt J.H.’s joints. Appellant admitted the policy for such an occurrence is to stay calm and call for help.

Virginia Beach DSS determined that appellant committed Level 2 Physical Abuse for “injuries/conditions . . . that result or were likely to have resulted in moderate harm to a child.”

Virginia Beach DSS reported the result of its investigation to appellant in a two-page letter. This letter stated that the investigation was conducted in a manner consistent with relevant statutory authority and concluded:

Dragging a child is not a form of discipline that is authorized to be used by a Virginia Beach City School Employee. Appropriate behavioral management techniques should be used with the students. Willful misconduct occurred when Ms. Benedict-Miller did not reach out for assistance from her fellow peers or use appropriate behavioral management techniques, when escorting [J.H.] to the office. Surveillance footage shows a staff member that walked by that could have been used as assistance to safely escort [J.H.] or to request for further assistance. When [appellant] was reportedly approached for help, she declined.

Appellant appealed the decision through a local appeal conference. After this conference, Virginia Beach DSS sent appellant a letter detailing the facts determined through its investigation. The letter also notes that appellant’s counsel argued that Virginia Beach DSS had not complied with internal policy standards or Code § 63.2-1511 because the agency’s flow chart and specified inquiry process were not reflected in the agency’s record. Virginia Beach DSS concluded that it had complied with relevant policies and that the case narrative in the record

(more than thirty pages) as well as the dispositional summary reflected consideration of the correct criteria.

Appellant next sought full agency review. Appellee held a hearing where appellant was present, with counsel. The hearing officer considered the evidence already in the record, but both Virginia Beach DSS and appellant also had a chance to present new evidence. Additional

photographic evidence was submitted into the record, as well as testimony from appellant, another teacher at the school who had interacted with J.H. later in the day, and the Virginia

Beach DSS investigator responsible for the investigation. In a forty-page written decision, appellee’s hearing officer detailed all the evidence, the applicable statutory and regulatory provisions, and its analysis for why the disposition was reduced to “Founded, Physical Abuse

(Cuts, Bruises, Welts, Abrasions) Level Three.” As for the willful misconduct finding, the decision explained:

Appellant was conscious of her conduct. There is no evidence or assertion to the contrary. She was aware that this was a situation in which the child could be injured. She testified that she knew she could not grab the child by her arms, because that would hurt her joints. Yet, she chose to drag a struggling child by the foot, with the child’s back and head to the ground for the entirety of the time she was moving the child in this manner. The Appellant did not exercise other options, such as remaining with the child in the hallway, instead of dragging her to the sensory room. She refused help, and continued with her actions.

Finally, appellant appealed to the Virginia Beach Circuit Court, which affirmed the decision of the agency. This appeal follows.

ANALYSIS

I. Standard of review

The Administrative Process Act (APA) governs our review of a founded disposition of child abuse. Jones v. West, 46 Va. App. 309, 322 (2005). The “burden is upon the appealing

party to demonstrate error.” Id. (quoting Carter v. Gordon, 28 Va. App. 133, 141 (1998)). The APA allows appellate review for four types of legal issues:

(i) accordance with constitutional right, power, privilege, or immunity, (ii) compliance with statutory authority, jurisdiction limitations, or right as provided in the basic laws as to subject matter, the stated objectives for which regulations may be made, and the factual showing respecting violations or entitlement in connection with case decisions, (iii) observance of required procedure where any failure therein is not mere harmless error, and (iv) the substantiality of the evidentiary support for findings of fact.

Code § 2.2-4027.

Issues of statutory construction are reviewed de novo. Moore v. Brown, 63 Va. App. 375, 380 (2014); Code § 2.2-4027. At the same time, we accord great deference to an agency’s interpretation of its own regulations. Moore, 63 Va. App. at 380.

As for issues of fact, we are limited to the facts contained in the agency’s record, which we view in a light most favorable to the agency. Carter, 28 Va. App. at 141. “On appeal, we do not

disturb factual findings if credible evidence supports them.” Avante at Lynchburg, Inc. v. Teefey, 28 Va. App. 156, 160 (1998). Thus, we may only reject a factual finding “if, after considering the record as a whole, [we] determine[] that a reasonable mind would necessarily come to a different

conclusion.” Va. Real Estate Comm’n v. Bias, 226 Va. 264, 269 (1983) (quoting B. Mezines, Administrative Law § 51.01 (1981)). Review of an agency’s factual findings “is limited to determining whether substantial evidence in the agency record supports its decision.” Jones, 46

Va. App. at 323 (quoting Avante at Lynchburg, Inc., 28 Va. App. at 160).

II. Overview of relevant statutes and agency guidance

The Virginia legislature entrusts local departments of appellee with the task of “receiving and responding to complaints and reports” of child abuse and neglect. Code § 63.2-1503. An

abused or neglected child is one “[w]hose parents or other person responsible for his care creates or inflicts . . . a physical or mental injury by other than accidental means.” Code § 63.2-100(1). A disposition of physical abuse is founded when a review of the facts gathered during an investigation shows by a preponderance of the evidence that child abuse or neglect has occurred. 22 VAC

40-705-10.

The local department is governed by statutory obligations and internal agency policy. In every case, the local department must collect information necessary to its investigation and transmit a report to both appellee and the subject of the investigation detailing its determination of whether a report of abuse or neglect is founded or unfounded. Code § 63.2-1505. When a school employee is

the subject of the complaint or report, there are heightened statutory requirements—both for the substantive standard for finding that abuse occurred but also for the procedural requirements—to ensure a thorough investigation. Code §§ 63.2-1511, -1516.1.

Heightened standards apply to physical abuse allegations in the school setting for good reason. Teachers, particularly those in public schools, perform an incredibly difficult and essential job. On top of teaching, they must maintain order in a classroom and care for students who may experience a full complement of challenges. The statutory framework prohibits corporal punishment in the school setting but recognizes, for example, that a teacher may need to use reasonable force against a student to protect other students, or to prevent the student from self-harm.

Code § 63.2-1511. Even if a teacher’s actions were not reasonable, the statute requires another step.

The local department must determine whether the actions “were within such employee’s scope of employment and were taken in good faith in the course of supervision, care, or discipline of students.” Code § 63.2-1511(C). If so, a determination of abuse or neglect is founded only if “such acts or omissions constituted gross negligence or willful misconduct.” Id.

Relevant here, the enhanced procedural requirements mandate that “[w]ritten notification of the findings” be submitted to the alleged abuser and that they “shall include a summary of the investigation and an explanation of how the information gathered supports the disposition.” Code

§ 63.2-1516.1(A)(4). Appellee’s Child and Family Services Manual is “intended as a guideline” for investigations “involving school personnel in order to review the requirements of § 63.2-1511 of the Code of Virginia” and affirms that “allegations against public school employees have additional considerations which go beyond the normal procedures and requirements.” This manual also states

that “[d]ispositional documentation must address the unique requirements of § 63.2-1511 of the Code of Virginia related to public school employment, reasonable and necessary force, and gross negligence or willful misconduct.” Finally, the manual provides a flow chart with corresponding discussion questions to address the unique requirements of the statute.

Code § 63.2-1526 sets out the appeal process. After a finding of abuse, the alleged abuser may request reconsideration through an informal conference where the accused is able to

“informally present testimony of witnesses, documents, factual data, arguments or other

submissions of proof.” Code § 63.2-1526. Following this review, the accused may appeal to the Commissioner of the agency. Id. This decision is then subject to judicial review under Code

§ 2.2-4026 of the APA.

Finally, another section of the APA is important here. Applicable to every formal

administrative hearing, “[a]ll decisions or recommended decisions shall be served upon the parties, become a part of the record, and briefly state or recommend the findings, conclusions, reasons, or basis thereof upon the evidence presented by the record and relevant to the basic law under which the agency is operating together with the appropriate order, license, grant of benefits, sanction, relief, or denial thereof.” Code § 2.2-4020.

III. A detailed explanation of an agency’s reasoning is necessary for notice and judicial review, and appellee provided a sufficiently detailed analysis.

Agencies must explain their decisions with sufficient clarity to provide the accused with an adequate understanding of the agency’s determination and to allow for meaningful appellate review.

“It will not do for a court to be compelled to guess at the theory underlying the agency’s action; nor can a court be expected to chisel that which must be precise from what the agency has left vague and indecisive.” SEC v. Chenery Corp., 332 U.S. 194, 196-97 (1947) (quoted with approval in Va.

Ret. Sys. v. Cirillo, 54 Va. App. 193, 203 (2009)). An agency’s decision must, at a minimum, “briefly state . . . the findings, conclusions, reasons, or basis thereof upon the evidence presented by the record and relevant to the basic law.” Code § 2.2-4020; see also Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374, 384 (1987) (holding, under judicial review provisions of the Workers’

Compensation Act, that “[i]n order to sufficiently scrutinize any award, we must have an adequate

‘statement of the findings of fact, rulings of law and other matters pertinent to the questions at issue’ for a proper review” (quoting former Code § 65.1-97)). A failure to make findings of fact to support such a decision “is not harmless error.” Harrison v. Ocean View Fishing Pier, LLC, 50

Va. App. 556, 575 (2007) (remanding for agency to state factual findings, conclusions, reasons, or basis under Code § 2.2-4020). But whether an agency complies with all required procedures is subject to harmless error review. Code § 2.2-4027. Appellant contends here that appellee failed to comply with the governing statute, as well as its own internal procedures from the Child and Family

Services Manual, by not documenting that it had considered all the relevant factors from Code

§ 63.2-1511.

Starting with the local department’s investigation and written disposition, we will assume without deciding that the written disposition insufficiently documented the willful misconduct finding under the agency’s own guidelines and that it failed to meet the statutory requirement to

“include a summary of the investigation and an explanation of how the information gathered

supports the disposition.” Code § 63.2-1516.1(A)(4).2 We must then consider whether the error was harmless. Code § 2.2-4027 (allowing judicial review of agency action for errors of law such as

“observance of required procedure where any failure therein is not mere harmless error”); Johnston-

Willis, Ltd. v. Kenley, 6 Va. App. 231, 242 (1988) (concluding procedural error was harmless).

Any failure to sufficiently document the decision at the local level here was made

harmless by the thorough, de novo, appeal to the agency. Christian v. Va. Dep’t of Soc. Servs., 45 Va. App. 310, 312 (2005) (“Through the use of administrative hearing officers, VDSS reviews de novo any contested determination by a local department.”). Indeed, appellee held a hearing where appellant, represented by counsel, could (and did) present new evidence. After this hearing, appellee documented, in a long report, the local department’s investigative record

(ten pages), the evidence and argument presented at the hearing (twenty-three pages), the applicable statutory and regulatory provisions (four pages), and its analysis for why appellant’s actions were unreasonable (four pages). In providing its analysis, appellee specifically walked

through the different statutory obligations that apply in the public school setting, including the particular requirements of Code § 63.2-1551(A), the heightened standards of “gross negligence” or “willful misconduct,” and the factual basis supporting the finding that appellant’s actions constituted willful misconduct.^[3] For these reasons, the agency’s decision sufficiently stated “the findings, conclusions, reasons, or basis thereof upon the evidence presented by the record and relevant to the basic law under which the agency is operating” as required by Code § 2.2-4020. It also provided enough information for this Court to review the agency’s finding of willful misconduct, which we take up below. Any failure by the local department to properly document its disposition was therefore harmless.^[4]

This is not to say that every procedural defect at the local department level will always be harmless if the final agency report is sufficiently thorough. One can imagine errors not presented

here, such as the failure to advise the alleged abuser of the right to be represented by counsel, or of the rights to appeal, that may require a different result. But the rule requiring sufficient written notification of a decision is meant to ensure adequate future review and provide appellants with an actual understanding of the case against them. Here, the full report following the agency’s hearing satisfies these concerns.

Appellant relies on cases in which this Court found that procedural errors in a final

agency report were not harmless. In an unpublished decision, we reversed a finding by the Virginia Board of Accountancy that an appellant had violated auditing standards because its written disposition failed to specify which standard(s) (in more than 600-pages of text) had been violated and referenced no facts to support its conclusion. Kim v. Va. Bd. of Accountancy, No.

0288-16-4, slip op. at 9 (Va. Ct. App. Nov. 15, 2016). For this reason, the appellant was unable to “intelligently marshal facts in the agency record supportive of his position” on appeal. Id. at

10 (quoting Cirillo, 54 Va. App. at 203). The same is true for our decision to reverse the