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 
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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 . . .: 

* * * * * * * 
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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). 
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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.