J.P. v. Carter

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Willis and Fitzpatrick
Argued at Alexandria, Virginia

J. P.
OPINION BY
v. Record No. 1168-96-4 JUDGE JOHANNA L. FITZPATRICK
MAY 13, 1997
CLARENCE CARTER, COMMISSIONER OF THE
VIRGINIA DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N. A. Kendrick, Judge
Kenneth H. Rosenau (Rosenau & Rosenau, on
brief), 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. P. (appellant) appeals the trial court's decision

affirming the Department of Social Services' (DSS) determination

of "founded sexual abuse." On appeal, she contends that the

trial court erred in: (1) failing to find that her

constitutional due process rights were violated by the procedures

used by DSS in the submission of her name to the central registry

as a "founded" sexual abuser; (2) failing to subpoena additional

witnesses and documents to reconstruct and supplement the

administrative record as she requested; (3) preventing appellant

from raising additional errors not designated in her petition for

appeal; and (4) finding that the "Juvenile and Domestic Relations

Courts law" does not conflict with or supersede the Child Abuse

and Neglect Act. For the following reasons, we affirm the
decision of the trial court.

BACKGROUND

On Saturday, May 8, 1993, the Arlington County Police

Department received a report that two children had been sexually

molested by appellant, their thirteen-year-old baby-sitter.

Arlington Police Officer McLeran responded, interviewed the

children and their parents, and filed a police report. The

report included claims that appellant conducted satanic rituals,

used a "magic" crystal and a "magic" ring, as well as allegations

of statutory rape, sodomy, and aggravated sexual battery.
Detective Kyle, also of the Arlington County Police,

received the report on May 10, 1993, and referred this

information to DSS. David Romer (Romer), the DSS social worker

assigned to the case, conducted the investigation on behalf of

DSS. 1 On May 11, 1993, as part of the criminal investigation,
1
There are three steps in the administrative process of
investigating claims of child abuse: (1) the "initial
determination," (2) the "local conference," and (3) the appeal
before the Commissioner.

(1) The "initial determination"
First, after a complaint is filed, a
representative of the department investigates
the complaint and makes an initial
determination of whether there is clear and
convincing proof of abuse. If a complaint is
deemed "founded" or "reason to suspect," the
alleged abuser may appeal the determination
to the local director of the department.

(2) The "local conference"
In this first appeal proceeding, called
the "local conference," the local director
must determine whether the record [shall] be
amended. Finally, in the last stage of the

- 2 -
Detective Kyle contacted appellant's mother (Ms. P.) to arrange

for an interview with her and appellant. Later that day,

Detective Kyle left a message with Romer informing him that Ms.

P. chose to consult with an attorney prior to allowing appellant

to be interviewed. The record reflects that Romer did not

contact appellant prior to making the initial disposition because

he had been informed by Detective Kyle that "there [were]

criminal proceedings of the charges made at that point and time.

The decision had already been made by [appellant's] mom to

retain an attorney for [appellant], [and] not to meet with Det.

Kyle." 2 Romer assumed that because appellant's attorney would

not allow appellant to be interviewed by the police in the

criminal investigation, neither would the attorney allow her to

be interviewed by him in the parallel DSS investigation. It is

appeal process, the alleged abuser may
request a hearing before the Commissioner.

(3) Appeal before the Commissioner (or hearing officer)
Here the alleged abuser must prove by a
preponderance of the evidence that the record
should be amended because it contains
information which is irrelevant or
inaccurate.
See Turner v. Jackson, 14 Va. App. 423, 428 n.4, 417 S.E.2d 881,
885 n.4 (1992) (citing Protective Services Manual, Vol. VII, Sec.
III, Chap. A at 56-60).
2
On May 17, 1993, appellant was criminally charged with two
counts of aggravated sexual assault. On July 15, 1993, a hearing
was held in the Arlington County Juvenile and Domestic Relations
District Court on the criminal charges, and appellant entered an
Alford plea to one charge of sexual battery. This conviction is
not at issue in the instant case.

- 3 -
undisputed that Romer made no attempt to contact appellant

directly during his initial investigation, and that the only

contact he had with appellant was at the "local appeal hearing."

On May 20, 1993, Romer mailed a letter to appellant that

included the following information:
On 5-10-93, Child Protective Services
received a report of alleged child abuse
and/or neglect regarding the above-named
child(ren).

As a result of that report the following
allegations are being investigated: sexual
abuse of children.
If you have any questions concerning
this investigation, please call me at (703)
358-5100.

Romer's initial investigation consisted of a review of the

police reports of the incidents and the taped interviews with the

children, their mother, and Detective Kyle. In a letter dated

June 1, 1993, Romer issued the initial disposition of the

allegations implicating appellant:
Following an investigation of the complaint,
it has been determined that this case will be
submitted to the State Central Registry as
Founded, Level 1: Sexual Molestation, with a
"high" risk assessment noted.

Your name will be registered as the
abuser with the Commonwealth of Virginia,
Department of Social Services, Child Abuse
and Neglect Central Registry, where it will
remain for eighteen (18) years past the date
of the above-noted complaint.

Romer concluded that "[i]ntervention [was] necessary to protect

these children and other potential victims," and informed

- 4 -
appellant of her appeal rights. With this letter, Romer enclosed

a child protective services pamphlet that explained the

definitions of abuse and neglect and the appeal process.

Following Romer's initial disposition, a local conference

was held pursuant to appellant's request. The conference took

place on July 21, 1993 with Barbara Glaser (Glaser), the Chief of

DSS, presiding. Appellant, her mother, and Romer were present at

the conference. Appellant was given the opportunity to present

evidence regarding the allegations and chose to do so. She

denied committing the alleged sexual abuse, being involved in

satanic rituals, making any statements referencing Satan, or

playing any of the "games" with the exception of the "bat game."

Ms. P. expressed the concern that perhaps another baby-sitter

had committed the abuse.
By letter dated July 21, 1993, Glaser informed Ms. P. that

"[d]uring our conference, nothing was said that would lead me to

alter Mr. Romer's finding of Sexual Molestation by your daughter,

[appellant], of [the children]. The disposition, therefore,

remains Founded, Level I: Sexual Molestation." Ms. P., on

behalf of appellant, appealed Glaser's decision to the

Commissioner pursuant to Code § 63.1-248.6:1(C).

Jody E. Holyst (Holyst), a State Hearing Officer, informed

Ms. P. by letter of the purpose of the final administrative

hearing:
[You may] appeal information in the record
which is inaccurate or irrelevant. You may
also appeal the disposition(s) of the

- 5 -
 allegation of abuse or neglect.

* * * * * * *

You have the right to present additional
information and witnesses at the hearing in
order to support your request for an
amendment to your record.

(Emphasis added.)

The final administrative appeal before the designated

hearing officer was conducted on December 10, 1993, was recorded,

and appellant was represented by counsel. Appellant and her

mother testified regarding the abuse allegations. Appellant

denied abusing or touching the children inappropriately or

engaging in satanic rituals. Appellant argued that the initial

agency finding dated June 1, 1993 deprived her of her right to

due process of law, and that the "punishment" under the "Child

Abuse and Neglect Act" was inconsistent with the "letter and

intent of the 'Juvenile Justice Act.'"
Romer testified, in part, that the children:
[R]eported to their parents that [appellant]
had undressed and fondled [one child] on
these two different occasions, performed oral
sodomy, had [him] touch her breast and sat on
top of [him] and quote "hurt his penis."
[Appellant] allegedly had [the other child]
draw a pentagram and circle and told [him]
this is where to love Satan while she fondled
his penis. . . . [The children's mother] said
the boys reported that [appellant] talked of
Satan's power and that she would kill them
and their parents if they told anyone what
happened.

Romer further testified that, in reaching the initial disposition

of the allegations, he relied on two interviews, "the first

- 6 -
completed by Det. Kyle on the 10th of May and then another joint

interview with Det. Kyle, myself with the [children] on the 20th

of May."

By letter dated January 31, 1994, Holyst sustained the

previous disposition and found "that the record contains clear

and convincing evidence that the abuse occurred and that it was

committed by the Appellant." (Emphasis added.) Moreover, Holyst

found that appellant "failed to meet her burden of proving by a

preponderance of the evidence that information contained in the

agency record is either irrelevant or inaccurate," thus requiring

a change in the disposition. Accordingly, Holyst affirmed

Romer's conclusion of "founded Sexual Abuse Level One" of the two

children.
Appellant filed a notice and petition for appeal in the

Circuit Court of Arlington County on February 28, 1994 and March

28, 1994, respectively. Appellant also filed two requests for

subpoenas duces tecum in order to supplement the DSS
3
administrative record. In response, DSS filed a motion to quash

the subpoenas and a motion to preclude the taking of additional

evidence. The trial court granted DSS' motion to quash and made

the following findings:
The Court, having reviewed Appellee's
motion, Appellant's response and the
3
The subpoenas required Romer and Holyst to attend the
September 20, 1995 hearing, required Holyst to bring her original
tape of the December 10, 1993 hearing, and required Romer to
bring all records relating to appellant, including all
correspondence to her.

- 7 -
 authorities cited, concludes that Pursuant to
Va. Code § 9-6.14:15 et seq. and Rule 2A of
the Rules of the Supreme Court of Virginia,
subpoenas may not be issued in an appeal
under Va. Code § 9-6.14:15 et seq. Moreover,
the Court's review is confined to the Record
of Proceedings filed by the Appellee and the
Court cannot hear new evidence. Therefore,
Appellant may not call witnesses nor present
additional evidence at the hearing on the
merits scheduled for September 20, 1995.
Further, the Court concludes that pursuant to
Va. Code § 9-6.14:15 et seq. and Rule 2A of
the Rules of the Supreme Court of Virginia,
the Appellant must designate the errors
assigned in the Petition for Appeal, and
having done so, shall be precluded from
raising additional errors not so designated.

The trial court heard the appeal on the merits on September

20, 1995. By order dated April 18, 1996, the court found that

appellant had not been denied due process and had failed to meet

her burden of proof under Code § 9-6.14:17 to demonstrate an

error of law as described in her petition for appeal.

Additionally, the court affirmed the DSS' finding of "founded

sexual abuse." Specifically, the court ruled as follows:
[A] remand is not necessary because the
record is complete and contains a statement
by David Romer that he did not interview
[appellant] prior to making the initial
determination because he was informed that
[she] would not speak with the police about a
companion criminal case and he assumed that
she would not speak with him as well because
of the risk of self incrimination.

. . . [Appellant] had two opportunities
to appear at the local conference and the
hearing conducted by the Virginia Department
of Social Services ("DSS") and that she did
in fact appear at the local conference and at
the DSS hearing and was represented by
counsel; that David Romer's failure to
contact [appellant] before making the initial

- 8 -
 determination of "founded sexual abuse" did
not deny [appellant] due process, but rather
was a failure to follow procedure which was
harmless error under Va. Code 9-6.14:17, and

. . . appellant has failed to meet her
burden under Va. Code 9-6.14:17, to
demonstrate an error of law, as described in
her petition for appeal, it is hereby

. . . ORDERED . . . that the finding of
"founded sexual abuse" regarding [J. P.]
. . . in the Virginia Department of Social
Services is AFFIRMED. . . .

I. DUE PROCESS
Appellant contends that by entering a "founded" disposition

at the initial determination without first allowing her to

confront her accusers and defend herself, DSS deprived her of her

constitutional due process rights. She argues that Romer was

required to speak with her prior to making his initial evaluation

of the complaint. Additionally, appellant claims that the danger

of future disclosure and the possible dissemination of her status

as a "founded" abuser may have a negative impact on her

reputation and adult livelihood.

"The Fourteenth Amendment to the United States Constitution

provides that no person shall be deprived of life, liberty or

property without due process of law." Jackson v. W., 14 Va. App.

391, 405, 419 S.E.2d 385, 393 (1992). A due process analysis

involves a two-part inquiry. First, a deprivation of a liberty

or property interest must be shown. "Then, '"[o]nce it is

determined that due process applies, the question remains what

process is due."'" Id. at 406, 419 S.E.2d at 393-94 (quoting

- 9 -
Morrissey v. Brewer, 408 U.S. 471, 481 (1972)) (citing Klimko v.

Virginia Employment Comm'n, 216 Va. 750, 754, 222 S.E.2d 559,

563, cert. denied, 429 U.S. 849 (1976)); see also Turner v.

Jackson, 14 Va. App. 423, 436, 417 S.E.2d 881, 890 (1992).

In a similar case, we determined that the DSS procedure and

the nature of the agency's determination of "founded" require

this due process analysis. See Jackson, 14 Va. App. 391, 419

S.E.2d 385. In that case, we held that "[DSS'] primary purpose

is to investigate complaints of child abuse and, when necessary,

provide appropriate services for the child or family. However,

to perform its function, the department issues a binding

determination that a party did abuse a child." Id. at 408, 419

S.E.2d at 395. Thus, we concluded that the purpose of DSS was

not purely investigative; rather, the purpose may also be

construed as adjudicative. Accordingly, we held that both parts

of the due process test must be evaluated.

A. The Nature of the Process

Appellant's first contention, that she was deprived of due

process because Romer failed to contact her prior to entering the

initial determination of "founded," is without merit. Nothing in

Code §§ 63.1-248.6 or 63.1-248.6:1 requires notice or an

opportunity to be heard prior to the initial determination.
While it is clearly preferable for an investigating official to

contact the accused and any interested party, it is not a

prerequisite to a valid determination. As in the instant case,

- 10 -
there may be circumstances where contact is impractical or

impossible. Rather, appellant is given the right to appeal this

first determination.
A person who is suspected of or is found to
have committed abuse or neglect may, within
thirty days of being notified of that
determination, request the local department
rendering such determination to amend the
determination and the local department's
related records. . . . The local department
shall hold an informal conference or
consultation where such person, who may be
represented by counsel, shall be entitled to
informally present testimony of witnesses,
documents, factual data, arguments or other
submissions of proof to the local department.
. . . If the local department refuses the
request for amendment or fails to act within
forty-five days after receiving such request,
the person may, within thirty days
thereafter, petition the Commissioner, who
shall grant a hearing to determine whether it
appears, by a preponderance of the evidence,
that the determination or record contains
information which is irrelevant or inaccurate
regarding the commission of abuse or neglect
by the person who is the subject of the
determination or record and therefore shall
be amended. Rather, the Code allows the
appellant the right to appeal the initial
determination.

Code § 63.1-248.6:1(A).

In the instant case, Romer was advised by the detective who

was investigating the related criminal charges that appellant's

attorney would not allow her to be interviewed. Appellant

received written notification of the investigation on May 20,

1993. Although Romer did not contact her directly, neither did

appellant attempt to contact him after notification. Romer

advised appellant of the initial disposition by letter dated June

- 11 -
1, 1993. Appellant appealed that disposition to the local

director and then to the Commissioner. Because appellant

received a timely notice of the initial determination, exercised

the two opportunities granted by Code § 63.1-248.6:1 to appeal,

was represented by counsel, and presented evidence at the

hearings, she was allowed an adequate opportunity to present

evidence. See Jackson, 14 Va. App. at 412, 419 S.E.2d at 397.

Accordingly, we hold that appellant was given adequate notice and

opportunity to be heard.
B. Future Harm

Next, appellant argues that the danger of future disclosure

and dissemination of her status may impact negatively on her

adult livelihood as well as on her good name, reputation, honor,

and integrity. However, appellant points to no actual harm

caused to her by the DSS procedure nor does she identify any

specific deprivation of a right protected by the Due Process

Clause.

In the case at bar, appellant contends that she has property

interests in future employment, her reputation, the right to own

and operate a nursing home, the right to own, operate, and/or

work at a child care center, the right to be an adoptive and/or

foster parent, and that these rights are entitled to protection

under the Due Process Clause. Thus, appellant argues that

"[g]iven the imminent, indeed inevitable, likelihood of

disclosure and dissemination, [she] suffers a stigma and loss of

- 12 -
tangible interests of constitutional proportion."

In Jackson v. W., W.'s allegations of future deprivation

closely resembled those of appellant's in the instant case. In

Jackson, appellant argued that DSS' disposition would expose him

to criminal prosecution, prevent him from being a foster or

adoptive parent, prevent him from owning, operating or working in

a nursing home or child care center, damage his reputation, and

claimed that the danger of future disclosure would impact his

career and livelihood negatively. See Jackson, 14 Va. App. at

409, 419 S.E.2d at 395. However, we held that W. suffered no

deprivation of any right protected by the Due Process Clause.

Rather, we found W.'s contentions to be "speculative" at best:

"That any of these consequences will result
is purely conjectural. There is nothing in
the record to indicate that such will be the
case . . . . However, even if such collateral
consequences were to flow from the [agency's]
investigations, they would not be the result
of any affirmative determinations made by the
[agency], and they would not affect the
legitimacy of the [agency's] investigative
function."

Id. at 409, 419 S.E.2d at 395-96 (quoting Hannah v. Larche, 363

U.S. 420, 443 (1960)).

This rationale applies equally to the instant case.

"Because [appellant] has not identified any actual loss, and

merely speculates that these adverse consequences could possibly

result at some later date, [s]he has failed to claim a

deprivation under the Fourteenth Amendment." Turner, 14 Va. App.

- 13 -
at 438, 417 S.E.2d at 891.

II. THE RECORD ON APPEAL

Appellant next argues that the trial court erred in denying

her the opportunity to reconstruct and to supplement the record

to be considered at her appeal to the circuit court. She

contends: (1) that the transcript of the December 10, 1994

administrative appeal hearing was incomplete and that she should

have been allowed to reconstruct the "missing portion," and (2)

because she obtained relevant evidence after the agency

proceedings were concluded, she should have been allowed to add

this information to the record.
In response to DSS' motion to quash and to preclude the

taking of evidence before the trial court, appellant argued that

the transcript required reconstruction because it "[was] replete

with omissions which were found by the Court Reporter to be

inaudible," and that the missing evidence included testimony by

Romer conceding that he did not feel the notice was adequate.

Additionally, she attempted to supplement the record with new

testimony of a psychologist indicating that appellant was

incapable of committing the alleged abuse. Lastly, appellant

desired to present evidence to challenge the legality of DSS'

review, including the hearing officer's qualifications.

The trial court found, regarding appellant's request to

supplement and reconstruct the record, that:
[P]ursuant to Va. Code § 9-6.14:15 et seq.
and Rule 2A of the Rules of the Supreme Court
of Virginia, subpoenas may not be issued in

- 14 -
 an appeal under Va. Code § 9-6.14:15 et seq.
Moreover, the Court's review is confined to
the Record of Proceedings filed by the
Appellee and the Court cannot hear new
evidence.

We agree. The agency decision is reviewable pursuant to Rule

2A:4 and Code § 9-6.14:17. Rule 2A:4(b) of the Rules of the

Supreme Court of Virginia provides that:
The petition for appeal shall designate the
regulation or case decision appealed from,
specify the errors assigned, state the
reasons why the regulation or case decision
is deemed to be unlawful and conclude with a
specific statement of the relief requested.

(Emphasis added.) Moreover, Code § 9-6.14:17 states, in

pertinent part, as follows:
The burden shall be on the party complaining
of agency action to designate and demonstrate
an error of law subject to review by the
court. . . . When the decision on review is
[] to be made on [the] agency record, the
duty of the court with respect to issues of
fact is limited to ascertaining whether there
was substantial evidence in the agency record
upon which the agency as the trier of facts
could reasonably find them to be as it did.
. . . Whether such fact issues are reviewed
on the agency record or one made in the
4
review action, the court shall take due
account of the presumption of official
regularity, the experience and specialized
competence of the agency, and the purposes of
the basic law under which the agency has
acted. 5
4
Because an agency record exists in the instant case, the
trial court was not required to construct a record in its review.
5
The Revisers' Note to this section clarifies the court's
scope of review:

The reference to the evidential record
confines the court to the agency record as to
the facts where constitutional or statutory

- 15 -
(Emphasis added.) See also State Bd. of Health v. Godfrey, 223

Va. 423, 433, 290 S.E.2d 875, 880 (1982).

Further,
"[t]he sole determination as to factual
issues is whether substantial evidence exists
in the agency record to support the agency's
decision. The reviewing court may reject the
agency's findings of fact only if,
considering the record as a whole, a
reasonable mind would necessarily come to a
different conclusion." When reviewing
factual issues, the court must take into
account "the presumption of official
regularity, the experience and specialized
competence of the agency, and the purposes of
the basic law under which the agency has
acted." "In this context, Code § 9-6.14:17
provisions in effect make the agency the
trier of fact . . . . In those cases,
moreover, the court is further limited by the
next sentence and the last sentence of this
section.

The reference to the agency record, where the
agency is the trier of the facts, merely puts
in statutory form the "substantial evidence"
rule long adhered to by courts in reviewing
agency action.

(Emphasis added.)

In an earlier case, we explained the rationale underlying
this code section:

The trial court reviews the facts of the case
as determined by the [agency] because it is
required to determine as a matter of law
whether there is substantial evidence to
support the Commissioner's decision. The
substantial evidence rule gives stability and
finality to the fact-finding of the
administrative agency.

Roanoke Memorial Hospitals v. Kenley, 3 Va. App. 599, 610, 352
S.E.2d 525, 531 (1987) (emphasis added).

- 16 -
 clearly mandates that agency findings of fact
are to be accorded great deference under the
substantial evidence standard of review."

A case subject to the standard of review
outlined in Code § 9-6.14:17 [and] . . . the
factual issues on appeal [therein] are
controlled solely by the agency record. The
reviewing court is not free to take
additional evidence, even at the request of
one of the parties. Therefore, under the
VAPA, the circuit court's role in an appeal
from an agency decision is equivalent to an
appellate court's role in an appeal from a
trial court. In this sense, the General
Assembly has provided that a circuit court
acts as an appellate tribunal.

School Board v. Nicely, 12 Va. App. 1051, 1061-62, 408 S.E.2d

545, 551 (1991) (citations and footnote omitted) (emphasis

added). Thus, in an agency appeal, the circuit court is not free

to take additional evidence at the request of one of the parties,

but is obliged to defer to the trier of fact. See Jackson, 14

Va. App. at 400-01, 419 S.E.2d at 390; Turner, 14 Va. App. at

430-31, 417 S.E.2d at 886.

In the instant case, substantial evidence supports the

factual findings of DSS. The record contains the written

decision of the hearing officer, the transcript of the hearing,

all documents relied upon by Romer in making the initial

determination, the notices from DSS to appellant regarding

appellant's agency appeals, and the certification of authenticity

of the record. Accordingly, we hold that the trial court

properly disallowed appellant's addition of evidence not

presented at the agency level pursuant to Code § 9-6.14:17.

- 17 -
 III. SUBJECT MATTER JURISDICTION

Next, appellant contends that the trial court erred in

failing to rule that Holyst, the designated hearing officer, was

unqualified to act and therefore her decision was void. Although

appellant failed to raise this issue in her petition for appeal

to the circuit court, she argues that the issue is one of subject

matter jurisdiction and thus can be raised at any time. We

disagree.
"[O]bjections to subject matter jurisdiction may be raised

at any time and are not waivable." Owusu v. Commonwealth, 11 Va.

App. 671, 672, 401 S.E.2d 431, 431 (1991). Additionally, "a

judgment is void ab initio [] if it 'has been . . . entered by a

court that did not have jurisdiction over the subject matter or

the parties.'" Parrish v. Jessee, 250 Va. 514, 521, 464 S.E.2d

141, 145 (1995) (quoting Rook v. Rook, 233 Va. 92, 95, 353 S.E.2d

756, 758 (1987)).

DSS was required to make a determination of "founded" or

"unfounded" pursuant to Code § 63.1-248.6, which provides in

pertinent part as follows:
The local department shall be the public
agency responsible for receiving and
investigating complaints and reports . . . .

* * * * * * *

(E) The local department shall upon
receipt of a report or complaint:

1. Make immediate investigation;

2. When investigation of a complaint
reveals cause to suspect abuse or neglect,

- 18 -
 complete a report and transmit it forthwith
to the central registry;

* * * * * * *

6. Send a follow-up report based on the
investigation to the central registry within
fourteen days and at subsequent intervals to
be determined by Board regulations;

7. 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. . . .

Thus, DSS had original jurisdiction to make the determination of

"founded" in the instant case. Once appellant exhausted her

administrative appeals under Code § 63.1-248.6:1, she appealed

the agency's determination to the circuit court.

The circuit court unquestionably had appellate jurisdiction

over this appeal of the agency's determination of "founded"

pursuant to Code § 63.1-248.6:1(B) ("If aggrieved by the decision

of the hearing officer, such person may obtain further review of

the decision in accordance with Article 4 (§ 9-6.14:15 et seq.)

of the Administrative Process Act.") and Code § 9-6.14:16(A)

("Any person affected by and claiming the unlawfulness of a case

decision, . . . shall have a right to the direct review thereof

by an appropriate and timely court action . . . ."). Both DSS

and the circuit court properly exercised subject matter

jurisdiction, and appellant's argument is without merit.

Moreover, any possible defect in Holyst's qualifications as

a DSS hearing officer is procedural in nature. The Virginia

- 19 -
Supreme Court has distinguished subject matter jurisdiction from

other procedural defects as follows:
The term jurisdiction embraces several
concepts including subject matter
jurisdiction, which is the authority granted
through constitution or statute to adjudicate
a class of cases or controversies; . . . and
"the other conditions of fact must exist
which are demanded by the unwritten or
statute law as the prerequisites of the
authority of the court to proceed to judgment
or decree."

While these elements are necessary to
enable a court to proceed to a valid
judgment, there is a significant difference
between subject matter jurisdiction and the
other "jurisdictional" elements. Subject
matter jurisdiction alone cannot be waived or
conferred on the court by agreement of the
parties. A defect in subject matter
jurisdiction cannot be cured by reissuance of
process, passage of time, or pleading
amendment. . . .
Even more significant, the lack of
subject matter jurisdiction can be raised at
any time in the proceedings, even for the
first time on appeal by the court sua sponte.
In contrast, defects in the other
["]jurisdictional["] elements will be
considered waived unless raised in the
pleadings filed with the trial court and
properly preserved on appeal.

One consequence of the non-waivable
nature of the requirement of subject matter
jurisdiction is that attempts are sometimes
made to mischaracterize other serious
procedural errors as defects in subject
matter jurisdiction to gain an opportunity
for review of matters not otherwise
preserved.

Morrison v. Bestler, 239 Va. 166, 169-70, 387 S.E.2d 753, 755-56

(1990) (citations omitted). "'While the procedural requirements

- 20 -
of the statute and the charters in this regard [may be] mandatory

and compliance with them is necessary, they should not be

regarded as jurisdictional.'" Id. at 173, 387 S.E.2d at 755-56

(quoting City of South Norfolk v. Dail, 187 Va. 495, 503, 47

S.E.2d 405, 408-09 (1948) (discussing notice requirements for

medical malpractice claims). Failure to comply with the

procedure at issue in the instant case did not divest either the

agency or the circuit court of subject matter jurisdiction.

Accordingly, appellant's failure to raise at the agency level the

procedural issue of Holyst's competence and her failure to

designate this argument in her petition for appeal preclude her

from raising the issue on appeal.

- 21 -
 IV. THE JUVENILE AND DOMESTIC RELATIONS COURTS LAW and

THE CHILD ABUSE AND NEGLECT ACT

Lastly, appellant contends that the "additional punishment"

of the "possibility that a child will be listed in the registry

and thus endure a stigma that will outlast their criminal record

. . . is excessive and conflicts with the Juvenile Justice Act."

Thus, she argues, the purpose of Code § 16.1-226 et seq. (the

juvenile law) conflicts with and supersedes those contained in

Code § 63.1-248.1 et seq. (the Child Abuse and Neglect Act, or

the Act). However, we find no such conflict.
The General Assembly clearly stated the purpose of the

juvenile and domestic relations court law as follows:
This law shall be construed liberally
and as remedial in character, and the powers
hereby conferred are intended to be general
to effect the beneficial purposes herein set
forth. It is the intention of this law that
in all proceedings the welfare of the child
and the family, the safety of the community
and the protection of the rights of victims
are the paramount concerns of the
Commonwealth . . . .

* * * * * * *

2. To provide judicial procedures
through which the provisions of this law are
executed and enforced and in which the
parties are assured a fair hearing and their
constitutional and other rights are
recognized and enforced;

* * * * * * *

4. To protect the community against
those acts of its citizens, both juveniles
and adults, which are harmful to others and
to reduce the incidence of delinquent
behavior and to hold offenders accountable
for their behavior.

- 22 -
Code § 16.1-227. This language manifests the legislature's

intent to balance the interests of the juvenile offender with

those of the community. Thus, the statute provides for a

juvenile charged with a criminal offense to be, inter alia, tried

for such offense and to be punished accordingly, as well as

providing services to the child and family.

The statutory mandate of the Child Abuse and Neglect Act is

markedly different. Code § 63.1-248.1 sets forth the policy of

the Act as follows:
The General Assembly declares that it is the
policy of this Commonwealth to require
reports of suspected child abuse and neglect
for the purpose of identifying children who
are being abused or neglected, of assuring
that protective services will be made
available to an abused or neglected child in
order to protect such a child and his
siblings and to prevent further abuse or
neglect, and of preserving the family life of
the parents and children, where possible, by
enhancing parental capacity for adequate
child care.

See Jackson v. Marshall, 19 Va. App. 628, 631, 454 S.E.2d 23, 25

(1995) (quoting Jackson v. W., 14 Va. App. 391, 400, 419 S.E.2d
385, 390 (1992)).

DSS' primary purpose is "to investigate complaints of child

abuse and, when necessary, provide appropriate services for the

child or family." Jackson, 14 Va. App. at 408, 419 S.E.2d at

395. Notably, the purpose of the Act is not one of punishment

and correction of the alleged abuser. Rather, under this

statute, the policy of protecting abused children and preventing

- 23 -
further abuse of those children is key. Id. at 402, 419 S.E.2d

at 391. Although appellant interprets her inclusion in the

registry as punitive, we disagree. Any possible aspect of

punishment is merely ancillary to the primary purpose the

registry serves, which is to protect the abused child and the

community from offenders.

Appellant expresses particular concern about the

confidentiality aspect of the central registry. She correctly

states that, regarding the confidentiality of the records of

juvenile offenders, the policy in Virginia is to restrict the use

of juvenile court records and to "preserv[e] a juvenile

offender's anonymity as expressed in Virginia's juvenile law."
Lavinder v. Commonwealth, 12 Va. App. 1003, 1007, 407 S.E.2d 910,

912 (1991). However, we do not find this policy to be at odds

with the policy of maintaining the central registry under the

Child Abuse and Neglect Act.

Included in the duty of "maintain[ing] a central registry of

all cases of child abuse and neglect within the Commonwealth" is

the requirement "[t]o provide for methods to preserve the
confidentiality of all records in order to protect the rights of

the child, his parents or guardians." Code § 63.1-248.7(K) and

(L) (emphasis added). To further the ends of protecting

confidentiality, the General Assembly provided that "[t]he

information contained in the central registry shall not be open

to inspection by the public." Code § 63.1-248.8. Thus, "no

- 24 -
reasonable likelihood exists that this information would become

available to [the public]." Jackson, 14 Va. App. at 409, 419

S.E.2d at 396. Because "the statute expressly provides for the

confidentiality of all records or files compiled during the

investigation, and the data stored in the Computerized Central

Registry, . . . information concerning [a defendant's] abusive

conduct is not generally available to the public." Id. at

409-10 n.14, 419 S.E.2d at 396 n.14. Accordingly, we do not find

confidentiality to be an irreconcilable issue between the

juvenile law and the Act.
The administrative proceedings under the Act are not

criminal in nature and are not intended to punish or rehabilitate

the abuser. The inclusion of appellant's name in the central

registry is an administrative remedy to combat the danger

identified by the General Assembly in the Act. The department

has no authority to bring additional criminal charges, and "[t]he

Commissioner cannot find [appellant] guilty of criminal child

abuse. If [she] is to be found guilty of criminal child abuse, a

court must make that finding beyond a reasonable doubt." Turner,

14 Va. App. at 438, 417 S.E.2d at 891.

The two statutory enactments are not mutually exclusive.

Clearly, both statutes may apply to the same juvenile. Although

the purposes and policies of the statutory enactments may be

different, they are not disharmonious. The listing of a juvenile

in the central registry once he or she is found to be an abuser

- 25 -
serves the mandated statutory purpose of protecting all children.

Accordingly, these two legislative enactments appropriately

balance the interests of the accused juvenile, the abused

children, and the community. Confidentiality is reasonably

maintained under both enactments. We can find no legitimate

rationale for appellant's contention that the mandates of the

Child Abuse and Neglect Act are superseded by those outlined in

the juvenile law. For the foregoing reasons, we affirm the

judgment of the trial court.

Affirmed.

- 26 -