J.B. v Carol A. Brunty, Commissioner, DSS

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia

J.B.
OPINION BY
Vv. Record No. 0351-95-4 JUDGE LARRY G. ELDER
NOVEMBER 28, 1995
CAROL A. BRUNTY, COMMISSIONER,
DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
F. Bruce Bach, Judge

John E. Arnett (William B. Reichhardt; Surovell,
Jackson, Colten & Dugan, P.C., on briefs), for
appellant.

Gaye Lynn Taxey, Assistant Attorney General
(James S. Gilmore, III, Attorney General;
William H. Hurd, Deputy Attorney General;

Siran S. Faulders, Senior Assistant Attorney
General, on brief), for appellee.

J.B. (appellant), a minor, appeals a decision of the Fairfax
County Circuit Court that ordered the Department of Social
Services (agency) to enter a finding of "founded" in a sexual
abuse complaint against appellant. Appellant contends (1) the

*“ when it made a

agency violated Code § 63.1-248.6(D) (7)
determination of founded sexual abuse, even though forty-five
days had lapsed from the receipt of the abuse complaint; and

(2) the circuit court erred in requiring appellant to show the

agency's failure to follow Code § 63.1-248.6(D)(7)'s procedure

‘On April 7, 1993, Code § 63.1-248.6(D) was redesignated as
Code § 63.1-248.6(E). However, because both parties and the
trial court refer to the relevant subsection as (D), we also do
so. This subsection was amended again in July 1994, when the
following sentence was added: "However, upon written
justification by the local department, such determination may be
extended, not to exceed a total of sixty days[.]"

2
was not harmless error. 	Because the trial court committed no
error, we affirm its finding of founded sexual abuse.
I.
FACTS
The agency received a complaint on April 19, 1993 that
appellant, the fifteen-year-old male baby sitter for a
four-year-old girl, had sexually abused the girl. 	Code
§ 63.1-248.6(D)(7) provided that upon receiving such a complaint,
"the local department shall . . . [d]etermine within forty-five
days if a report of abuse . . . is founded or unfounded."
(Emphasis added). 	The agency began an initial investigation, but
did not make a determination of founded sexual abuse within
forty-five days; instead, it delayed a decision until receiving
an opinion from a therapist that the girl's account of the abuse
was truthful. 	On September 23, 1993, the agency made a "founded"
determination. 	Before the agency made this determination,
appellant did not complain of any delay.
The investigation of appellant uncovered the fact that
appellant was a fifteen-year-old baby-sitter who watched the
four-year-old girl every night between September 1991 and July
1992. 	The girl was interviewed by the local agency and a
criminal investigator on April 22, 1993, during which she
demonstrated how various abuse occurred with the aid of dolls.
Appellant denied abusing the girl.
Appellant followed the statutory appeal process and received

3
a timely "informal conference" on November 18, 1993, and a
hearing on February 1, 1994. 	Appellant argued at the conference
and hearing that the agency had no authority to make an abuse
determination because the forty-five day period had expired. 	On
March 30, 1994, an agency hearing officer upheld the original
abuse disposition, stating the forty-five day time limit was
directory, not mandatory, because it provided no penalty for the
agency's failure to process the complaint in a timely manner.
Appellant appealed the hearing officer's determination to
the Circuit Court of Fairfax County. 	On November 17, 1994, the
trial court issued a letter opinion affirming the agency
determination of founded sexual abuse. 	The trial court ruled
appellant failed to show, pursuant to Code § 9-6.14:17(iii),2
that the delayed determination prejudiced him in any substantial
way.
II.
"[A]ppellant has the burden to demonstrate an error of law
2 This section states, in pertinent part:
The burden shall be upon the party complaining of
agency action to designate and demonstrate an error of law
subject to review by the court. 	Such issues of law include:
(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 evidential support for findings of
fact.

4
subject to review. 	Code § 9-6.14:17. 	We hold that appellant has
failed in [his] burden[,] and we agree with the trial court's
finding that the" agency did not act unlawfully in determining
there was evidence to support a finding of sexual abuse.
Committee of Concerned Citizens for Property Rights v. Chesapeake
Bay Local Assistance Bd., 15 Va. App. 664, 667, 426 S.E.2d 499,
501 (1993). 	We hold the use of the word "shall" in the
then-existing version of Code § 63.1-248.6(D)(7) was merely
directory, not mandatory, and only affected appellant's
procedural rights. 	Therefore, the trial court did not err in
finding the agency retained jurisdiction to adjudicate the matter
beyond the forty-five day period fixed by statute, in the absence
of prejudice to appellant.
We are guided in our analysis by certain rules governing
judicial review of agency action:
Courts must "construe and determine compliance with the
statutes governing adoption of administrative
regulation irrespective of the agency's construction,"
and not "merely rubber-stamp an agency determination."
Agency action, even when "supported by substantial
evidence," must be set aside if judicial review reveals
a failure "to observe the required procedures or to
comply with statutory authority."
Environmental Defense Fund, Inc. v. Virginia State Water Control
Bd., 15 Va. App. 271, 278, 422 S.E.2d 608, 612 (1992)(citations
omitted). 	We are also guided by certain rules of construction
governing the determination of the meaning of written language.
"'Courts, in endeavoring to arrive at the meaning of written

5
language, whether used in a will, a contract, or a statute, will
construe "may" and "shall" as permissive or mandatory in
accordance with the subject matter and context.'" 	Ross v. Craw,
231 Va. 206, 212, 343 S.E.2d 312, 316 (1986)(quoting Pettus v.
Hendricks, 113 Va. 326, 330, 74 S.E. 191, 193 (1912))(emphases
added); White v. Morano, 249 Va. 27, 32, 452 S.E.2d 856, 859
(1995)(holding use of word "shall" in Supreme Court Rule 5:11(d)
is merely directory and not mandatory).
The Supreme Court's recent decision in Jamborsky v. Baskins,
247 Va. 506, 442 S.E.2d 636 (1994), which applied the above
rules, further directs the outcome of this case. 	Jamborsky leads
us to conclude the requirements of Code § 63.1-248.6 are
procedural in nature. 	See also Jackson, 19 Va. App. at 634, 454
S.E.2d at 26 (describing Code § 63.1-248.6(D)'s "step-by-step
process for the investigation of cases of abuse and neglect").
In Jamborsky, the juvenile court entered an order certifying the
juvenile defendant to the circuit court for trial as an adult.
Code § 16.1-269(E)(repealed in July 1994) stated that the circuit
court shall enter an order either remanding the case or advising
the Commonwealth that it may seek an indictment within twenty-one
days. 	The trial court entered its order twenty-four days later,
authorizing the Commonwealth to seek an indictment. 	The
defendant moved to quash the indictment, arguing the circuit
court lacked jurisdiction to hear the case because it had not
entered its order within the period specified in Code

6
§ 16.1-269(E).
The Supreme Court held the trial court retained jurisdiction
over the case. 	First, the Court reasoned Code § 16.1-269(E)'s
use of the word "shall" imposed only a procedural requirement.
"The procedural nature of this requirement is underscored by this
Court's repeated holding 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."
Jamborsky, 247 Va. at 511, 442 S.E.2d at 638 (emphasis added).
The Court also stated, "'a statute directing the mode of
proceeding by public officers is to be deemed directory, and a
precise compliance is not to be deemed essential to the validity
of the proceedings, unless so declared by statute.'" 	Id.
(citations omitted).
We follow Jamborsky's reasoning in this case and hold the
use of the word "shall" in the version of Code § 63.1-248.6(D)(7)
in force at the time was directory and affected appellant's
procedural, not substantive, rights. 	Thus, we find the harmless
error analysis employed in Jamborsky in finding none of the
defendant's rights was infringed as a result of the delay in the
circuit court's assumption of jurisdiction over the charges is
applicable here. 	See id. at 511, 442 S.E.2d at 638.
Second, the Virginia Administrative Process Act, Code
§ 9-6.14:17(iii), specifically provides a reviewing court with
the appropriate standard of review for matters of procedure.

7
Code § 9-6.14:17(iii) states the party seeking review of required
agency procedure must demonstrate such failure was not mere
harmless error. 	In this case, appellant points to no
infringement of his rights, other than claiming his reputation
was tainted for a needlessly prolonged time period. 	Despite
appellant's assertions, the trial court specifically found the
agency "delayed its action here in order to test the [victim's]
veracity and thus avoid a premature, and possibly erroneous,
finding against the appellant." 	In this case, "[o]ur decision
[to affirm the trial court's ruling] is [guided by] the
uncontroverted fact that [appellant] did not suffer any prejudice
as a result of the delay in the entry of the [agency finding]."
Id. at 511, 442 S.E.2d at 639; see Ford Motor Co. v. Courtesy
Motors, Inc., 237 Va. 187, 190, 375 S.E.2d 362, 364
(1989)(applying Code § 9-6.14:17's harmless error standard to
administrative proceeding); North v. Landmark Communications,
Inc., 17 Va. App. 639, 643, 440 S.E.2d 156, 158 (1994)("When
failure to comply with the rule is harmless, the commission does
not err by refusing to set aside its decision for
noncompliance"); Committee of Concerned Citizens for Property
Rights v. Chesapeake Bay Local Assistance Bd., 15 Va. App. 664,
426 S.E.2d 499 (1993)(holding approval by the governor of certain
emergency regulations after, rather than prior, to adoption was
de minimis, harmless error, and procedural directives were still
substantially complied with).

Accordingly, we affirm the agency's determination of founded
sexual abuse.

Affirmed.