                                  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.




                                                 -2-
        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.
                                                 -3-
        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.

                                                    -4-
        “[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

                                                  -5-
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.

                                                  -6-
       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).




                                                 -7-
         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

                                                  -8-
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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