Clarence H. Carter, Commission, VA DSS v Ancel

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Coleman, Bray and Bumgardner
Argued at Norfolk, Virginia
CLARENCE H. CARTER, COMMISSIONER,
VIRGINIA DEPARTMENT OF SOCIAL SERVICES OPINION BY
v. 	Record No. 2804-97-1 	JUDGE RUDOLPH BUMGARDNER, III
JULY 21, 1998
PATRICK J. ANCEL
FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
Leonard B. Sachs, Judge Designate
Daniel J. Poynor, Assistant Attorney General
(Mark L. Earley, Attorney General; Ashley L.
Taylor, Jr., Deputy Attorney General;
Siran S. Faulders, Senior Assistant Attorney
General, on briefs), for appellant.
Michael T. Hurd (Dusewicz & Soberick, P.C.,
on brief), for appellee.
Clarence H. Carter, Commissioner of the Virginia Department
of Social Services (DSS), appeals a decision by the circuit court
that DSS lacked jurisdiction to decide that a complaint of sexual
abuse against Patrick J. Ancel was "founded." 	The Commissioner
contends that the circuit court erred when it ruled that DSS
lacked authority to act upon a complaint after forty-five days
without having written justification to extend the time as
required by Code § 63.1-248.6(E)(7). 	Finding that the trial
court erred in its ruling, we reverse the decision.
The Gloucester County DSS received a complaint on August 16,
1996 that Ancel had sexually abused his three children. 	The
department investigated the allegations, and on October 15, 1996,
sixty days after receiving the complaint, issued a determination

- 2 -
of "founded" in one case. 	During the investigation, Ancel made
no complaint about the delay, but he appealed the "founded"
determination to the circuit court. 	He assigned as error the
failure of DSS to issue the report within forty-five days of the
complaint. 	The trial court found that the agency did not submit
a written justification for a fifteen-day extension as authorized
by Code § 63.1-248.6(E)(7). 	The court held that the wording of
Code § 63.1-248.6(E)(7) requiring written justification to extend
the time was mandatory and DSS's failure to comply terminated its
jurisdiction to act. 	The court ordered DSS to amend its records
to a finding of "unfounded."
J.B. v. Brunty, 21 Va. App. 300, 464 S.E.2d 166 (1995),
controls our decision. 	In that case, this Court held that the
word "shall" in former Code § 63.1-248.6(E)(7) was procedural,
not jurisdictional. 	The forty-five-day limitation for making a
determination was "merely directory, not mandatory, and only
affected appellant's procedural rights." 	Id. at 303, 464 S.E.2d
at 168. 	Therefore, DSS had jurisdiction to act after the
forty-five-day limit had passed and did not exceed its authority
by issuing its report more than forty-five days after receiving
the complaint, absent a showing of prejudice.
The statute was amended before Brunty was decided and has
been amended once after that decision. 	The revised statute1
1The current statute states that
[t]he local department shall . . .:
* 	* 	* 	* 	* 	* 	*

- 3 -
enables DSS to obtain a fifteen-day extension to file the report
upon submitting a written justification. 	The revision extends
the maximum period for an investigation to sixty days. 	See id.
This amendment was not enacted in response to Brunty because the
amendment was adopted before we decided that case. 	The second
amendment, which tolls the period for filing the report when the
child cannot be located, does not address or modify the holding
in Brunty that the time limit is procedural. 	Neither the timing
nor the wording of either amendment suggests the General Assembly
intended that DSS's compliance with the forty-five-day filing
requirement become a jurisdictional mandate. 	The Supreme Court
has repeatedly held that "the use of `shall,' in a statute
requiring action by a public official, is directory and not
mandatory unless the statute manifests a contrary intent."
Determine within forty-five days if a
report of abuse or neglect is founded or
unfounded and transmit a report to such
effect to the central registry and to the
person who is the subject of the
investigation. 	However, upon written
justification by the local department, such
determination may be extended, not to exceed
a total of sixty days. 	If through the
exercise of reasonable diligence the
department is unable to find the child who is
the subject of the report, the time the child
cannot be found shall not be computed as part
of the forty-five-day or sixty-day period and
documentation of such reasonable diligence
shall be placed in the record.
Code § 63.1-248.6(E)(7) (underlining added; bold section added by
the legislature, 1994 Acts of Assembly c. 675; section in italics
added by the legislature, 1996 Acts of Assembly c. 863).

- 4 -
Caccioppo v. Commonwealth, 20 Va. App. 534, 537, 458 S.E.2d 592,
594 (1995) (citations omitted). 	See Jamborsky v. Baskins, 247
Va. 506, 511, 442 S.E.2d 636, 638 (1994).
The statute does not expressly provide for a sanction or
remedy against DSS for noncompliance with the written
justification requirement. 	However, because the time limitation
is procedural, Ancel must show some harm or prejudice caused by
the failure to file written justification to extend the time for
filing before the circuit court may reverse the DSS
determination. 	In this case, the department acted within sixty
days from the complaint which is within the maximum period
allowed. 	Ancel did not complain of the lack of written
justification for the fifteen-day delay and has alleged no
prejudice because of it. 	Accordingly, we reverse the decision
and remand the case for further proceedings consistent with this
opinion.
Reversed and remanded.