COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Clements and Felton
Argued at Alexandria, Virginia
JOHN S.
MEMORANDUM OPINION* BY
v. Record No. 2285-03-4 JUDGE JEAN HARRISON CLEMENTS
OCTOBER 26, 2004
DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
J. Howe Brown, Jr., Judge Designate
David D. Masterman (Andrea C. Weiss; Masterman & Graham,
P.C., on brief), for appellant.
James Van Ingold, Assistant Attorney General (Jerry W. Kilgore,
Attorney General; David E. Johnson, Deputy Attorney General;
Kim F. Piner, Senior Assistant Attorney General, on brief), for
appellee.
John S. (appellant) appeals an order of the circuit court affirming the administrative finding
by the Alexandria Department of Social Services (DSS) that he mentally abused his minor son.
Appellant contends the circuit court erred in affirming the finding of mental abuse because (1) DSS
was not empowered to make the finding because there was no complaint or report made, (2) DSS
exceeded the statutory deadline for making the finding, and (3) DSS improperly used information
from a prior investigation in making the finding. Finding no error, we affirm the circuit court.
As the parties are fully conversant with the record in this case and because this
memorandum opinion carries no precedential value, this opinion recites only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this
appeal.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I. BACKGROUND
On November 11, 2000, appellant had a verbal confrontation with his fifteen-year-old son.
The encounter escalated into fisticuffs, and appellant’s son sustained a welt to his left cheek. The
police reported the incident to DSS, and Melissa Finney, a social worker with the Alexandria
Department of Human Services, began an investigation of possible physical abuse by appellant.
In the course of that investigation, Finney’s supervisor, Margaret Dillon, discussed with
Finney a prior complaint involving appellant and another of his children that had been determined to
be unfounded. A document written by appellant’s former wife relating to that unfounded complaint
was placed in the record of the present investigation.
On November 14, 2000, appellant’s son wrote a suicide note to his mother. As a result, the
mother took the son to the Alexandria Community Services Board on November 15, 2000, where
Tricia Bassing, a social worker and therapist, evaluated him. Conducting a psychosocial
assessment, Bassing wrote:
Client’s father was arrested this weekend for assaulting client at his
mother’s house. This was the latest in a long series o[f] emotionally,
verbally and physically abusive situations. Client reports that he
feels terrible [because] of what his father has said to him over the
years (“You are worthless.” “You are a pansy.” “You will never
amount to anything.” Etc.) and because his father was arrested. He
also stated, “Your father is suppose[]d to care about you, not hit you
in the face.” [Client] reports ongoing severe suicidal ideation since
last May, worsening this past weekend. He has been doing well in
school and [has been] trying to pretend all was well, but is now tired
and wants help.
Based on Bassing’s evaluation, appellant’s son was hospitalized at Dominion Hospital for
depression and suicidal ideation. Dr. James Steg, a psychiatrist, provided treatment, and appellant’s
son was released from the hospital five days later.
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On December 22, 2000, Finney issued a disposition of “founded” physical abuse, level
three. By letter dated January 16, 2001, appellant requested an informal conference to appeal
Finney’s finding of physical abuse.
On February 7, 2001, Finney requested from Bassing and received an addendum to the
November 15, 2000 psychological assessment of appellant’s son. In that addendum, Bassing stated
that appellant son’s
ongoing severe suicidal ideation and depressive [symptoms] related
to physical [and] emotional abuse from father [were] exacerbate[ed]
considerably after . . . [the] assault by father [that occurred on the]
weekend prior to [the psychological assessment]—necessitating [the]
need for [the son’s] evaluation and subsequent hospitalization in
order to [e]nsure [the son’s] safety.
On March 5, 2001, Dr. Steg sent a letter to Finney expressing his opinion that, as a result of
being assaulted by his father, appellant’s son “experienced much anguish.” Appellant’s son,
Dr. Steg wrote further, “felt increasingly depressed, despondent and hopeless[,] culminating in his
becoming acutely suicidal. . . . It seems clear that his acute suicidal ideation was related to the
altercation and assault on 11/11/2000.”
On March 6, 2001, relying on the connection established by Bassing and Dr. Steg between
the November 11, 2000 assault by appellant and the emotional damage sustained by appellant’s son,
Finney issued an additional disposition of “founded” mental abuse, level one.1
By letter dated March 9, 2001, appellant noted his appeal of Finney’s finding of mental
abuse and requested that it be consolidated and heard together with the appeal of Finney’s previous
finding of physical abuse “[s]ince the two findings arose from the same set of facts.”
1
The consequences of a level one finding are more severe than a level three finding, in that,
among other things, a level one finding requires that the abuser be listed in the central registry for
eighteen years, whereas a level three finding results in only a three-year listing. See 22 VAC
40-700-30.
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After being continued from March 30, 2001, an informal conference on the consolidated
findings was conducted on July 25, 2001. The local agency upheld both the physical and mental
abuse findings.
By letter dated August 10, 2001, appellant noted his appeal of the physical and mental abuse
findings and requested an administrative hearing. Prior to the administrative hearing, appellant took
Bassing’s deposition on December 18, 2001, and Dr. Steg’s deposition on December 19, 2001.
After conducting a hearing on April 17, 2002, the administrative hearing officer sustained
both the physical and mental abuse dispositions, finding, inter alia, that the record contained “a
preponderance of evidence that [the appellant] mentally abused [the son], causing serious harm to
him.”
On August 5, 2002, appellant appealed the hearing officer’s decisions to the circuit court.
After conducting a hearing on July 30, 2003, the circuit court affirmed the hearing officer’s
decisions.
This appeal followed.
II. STANDARD OF REVIEW
“We view the evidence in the light most favorable to the agency and limit our review of
issues of fact to the agency record.” Mulvey v. Jones, 41 Va. App. 600, 602, 587 S.E.2d 728, 729
(2003). Pursuant to Code § 2.2-4027:
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 evidentiary
support for findings of fact.
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“[W]here the question involves an interpretation which is within the specialized competence
of the agency and the agency has been entrusted with wide discretion by the General Assembly, the
agency’s decision is entitled to special weight in the courts.” Johnston-Willis, Ltd. v. Kenley, 6
Va. App. 231, 244, 369 S.E.2d 1, 8 (1988). In such an instance, we will reverse only to correct
“‘arbitrary or capricious [agency] action that constitutes a clear abuse of the delegated discretion.’”
Id. (quoting Virginia Alcoholic Beverage Control Comm’n v. York Street Inn, Inc., 220 Va. 310,
315, 257 S.E.2d 851, 855 (1979)). However, “‘[i]f the issue falls outside the area generally
entrusted to the agency, and is one in which the courts have a special competence, . . . there is little
reason for the judiciary to defer to an administrative interpretation.’” Id. at 243-44, 369 S.E.2d at 8
(quoting Hi-Craft Clothing Co. v. NLRB, 660 F.2d 910, 914-15 (3d Cir. 1981)). Thus, “[a]gency
action . . . 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) (quoting
Johnston-Willis, Ltd., 6 Va. App. at 243, 369 S.E.2d at 7).
Moreover, Code § 2.2-4027 further provides that the reviewing “court shall take due
account of the . . . purposes of the basic law under which the agency has acted.”
III. ALLEGED LACK OF COMPLAINT OR REPORT
Appellant argues the finding of mental abuse must be overturned because DSS never
received a report or complaint that appellant had mentally abused his son. Accordingly, he contends
the circuit court erred in upholding that finding. We disagree.
The purpose of the statutes and related regulations pertaining to DSS’s child protective
services are to “protect[] abused children and prevent[] further abuse of those children.” J.P. v.
Carter, 24 Va. App. 707, 726, 485 S.E.2d 162, 172 (1997). Thus, DSS’s “‘primary purpose is to
investigate complaints of child abuse and, when necessary, provide appropriate services for the
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child or family.’” Id. at 727, 485 S.E.2d at 172 (quoting Jackson v. W., 14 Va. App. 391, 408, 419
S.E.2d 385, 395 (1992)). Pursuant to former Code § 63.1-248.6(J),2 DSS was required, “[u]pon
receipt of a report of child abuse or neglect” to “determine the validity of such report” and “make a
determination to conduct an investigation.” Pursuant to former Code § 63.1-248.6:01, DSS was
required, upon initiating an investigation in response to a valid report or complaint of child abuse, to
determine whether the report or complaint was “founded or unfounded.” Thus, as appellant states
in his brief, “[w]ithout a [valid] complaint or report, there [could] be no investigation” and
“[w]ithout an investigation, there [could] be no finding” of child abuse. In other words, a “founded”
disposition of child abuse had to arise from an investigation by DSS, which itself had to arise from
DSS’s receipt of a valid report or complaint of child abuse. However, nothing in former Code
§§ 63.1-248.6(J) and 63.1-248.6:01 expressly required a separate report or complaint where
physical and mental abuse both arose out of the same set of circumstances, and, in light of the
statutes’ purpose, we find no reason to read such a requirement into the law.
Here, there was a report of possible child abuse from the police concerning the November
11, 2000 altercation between appellant and his son. Finding the report to be valid, DSS launched an
investigation and found evidence of both physical and mental abuse. The finding of mental abuse,
although determined later, arose from the same circumstances that gave rise to the finding of
physical abuse. Indeed, in requesting a consolidated hearing before the local agency, appellant
conceded that the findings of physical and mental abuse “arose from the same set of facts.”
2
Code §§ 63.1-248.1 to 63.1-248.19, the former statutes of the Child Abuse and Neglect
Act, were repealed in 2002 and revised and recodified in Code §§ 63.2-1500 to 63.2-1529.
However, since the events referenced in this opinion occurred while the former statutes were in
force, we cite to those sections.
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Thus, we cannot say, as appellant would have us do, that DSS’s finding of mental abuse
must be overturned because DSS never received a separate report or complaint that appellant had
mentally abused his son.
IV. MISSED DEADLINE
Appellant further argues that the finding of mental abuse should be reversed because DSS
missed the sixty-day deadline imposed upon it by former Code § 63.1-248.6:01(5). Accordingly, he
contends the circuit court erred in upholding that finding. Again, we disagree.
Former Code § 63.1-248.6:01(5) provided that DSS “shall” make its determination whether
a report was founded or unfounded “within forty-five days” of its receipt of the report. That
deadline could be extended but could “not exceed a total of sixty days.” Code § 63.1-248.6:01(5).
However, the time limitation set forth in the statute is merely procedural, rather than mandatory,
and, when DSS misses the deadline, its determination will be reversed on that basis only when the
person accused of abuse is prejudiced by the delay. Carter v. Ancel, 28 Va. App. 76, 78-79, 502
S.E.2d 149, 150-51 (1998) (citing J.B. v. Brunty, 21 Va. App. 300, 303, 464 S.E.2d 166, 168
(1995)).
Here, DSS issued its finding of mental abuse on March 6, 2001, more than one hundred
days after the November 11, 2000 report of child abuse. However, appellant can point to no
prejudice that he suffered as a result of DSS’s failure to meet the statutory deadline. Indeed,
after receiving notice of the finding of mental abuse, he had the opportunity to respond, to take
the depositions of Bassing and Dr. Steg, and to present evidence and argument in support of his
position at the informal conference and the administrative hearing.
Thus, we disagree with appellant that DSS’s finding of mental abuse must be overturned
because DSS failed to meet the procedural time limitation of former Code § 63.1-248.6:01(5).
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V. INCLUSION IN RECORD OF DOCUMENT FROM PRIOR INVESTIGATION
Appellant argues that the erroneous inclusion in the present record of a document related to
a prior DSS investigation of abuse invalidates the finding of mental abuse. Accordingly, he
contends the circuit court erred in upholding that finding. We disagree.
A document written by appellant’s former wife relating to a prior unfounded complaint
against appellant was included in DSS’s record of the present investigation. Former Code
§ 63.1-248.5:1(B) provided that, “[i]n no event shall the mere existence of a prior complaint or
report be used to determine that a subsequent complaint or report is founded.” We have held,
however, that “‘the mere fact that an [agency] has looked beyond the [proper contents of the] record
does not invalidate its action unless substantial prejudice is shown to result.’” Johnston-Willis, Ltd.,
6 Va. App. at 258, 369 S.E.2d at 16 (quoting United States v. Pierce Auto Freight Lines, Inc., 327
U.S. 515, 530 (1946)). Indeed, “‘[n]o reversible error will be found . . . unless there is a clear
showing of prejudice arising from the admission of such evidence, or unless it is plain that the
agency’s conclusions were determined by the improper evidence, and that a contrary result would
have been reached in its absence.’” Id. (quoting Virginia Real Estate Comm’n v. Bias, 226 Va. 264,
270, 308 S.E.2d 123, 126 (1983)).
Here, there is no indication in the record before us that DSS relied upon the improper
document or any other information concerning the previous complaint of abuse in determining that
appellant had mentally abused his son. To the contrary, the record reflects that, in making her
finding, Finney relied strictly upon the factual circumstances of the altercation itself, including
appellant’s physical assault and verbal derision of his son, and the assessment by both Bassing and
Dr. Steg that the son’s mental health problems were directly related to the altercation. Likewise,
neither the local agency nor the hearing officer mentioned the document or the unfounded 1995
complaint in upholding Finney’s finding of mental abuse. Moreover, there is no indication in the
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record that DSS would have reached a contrary conclusion had the document not been included in
its record or that appellant suffered any prejudice as a result of the inclusion of the document in
DSS’s record.
Accordingly, we conclude that the improper inclusion in the instant record of information
from a prior investigation does not warrant reversal of the finding of mental abuse.
VI. CONCLUSION
For these reasons, we affirm the circuit court’s affirmance of DSS’s finding that appellant
mentally abused his son.
Affirmed.
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John S. v. Department of Social Services
Combined Opinion