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 co urt erred in affirming the finding of mental abuse because (1) DSS was not empowered to make the finding because th ere was no complaint or report made, (2) DSS exceeded the statutory deadline fo r making the finding, and (3) DS S improperly used information from a prior investigation in maki ng the finding. Findin g no error, we affirm the circuit court. As the parties are fully co nversant with the record in this case and because this memorandum opinion carries no precedential value, th is opinion recites only those facts and incidents of the proceedings as ar e necessary to the parties’ unders tanding of the disposition of this appeal.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - I. BACKGROUND On November 11, 2000, appellant had a verbal confrontation with his fifteen-year-old son. The encounter escalated into fistic uffs, 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, be gan 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 anot her 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 Alex andria Community Serv ices Board on Novemb er 15, 2000, where Tricia Bassing, a social worker and therapist, evaluated him. Conducting a psychosocial assessment, Bassing wrote: Client’s father was arre sted this weekend for a ssaulting client at his mother’s house. This was the latest in a long series o[f] emotionally, verbally and physically abusive situ ations. 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.” “Y ou will never amount to anything.” Etc.) and b ecause his father wa s arrested. He also stated, “Your father is suppose[]d to care about you, not hit you in the face.” [Client] reports ongo ing severe suicidal ideation since last May, worsenin g this past weekend. He has been doing well in school and [has been] tr ying to pretend all was well, but is now tired and wants help. Based on Bassing’s evaluatio n, 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.- 3 - On December 22, 2000, Finney issued a disposition of “f ounded” physical abuse, level three. By letter date d January 16, 2001, appellant requested an informal conference to appeal Finney’s finding of physical abuse. On February 7, 2001, Finn ey 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 fr om 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 “e xperienced much anguish.” Appellant’s son, Dr. Steg wrote further, “felt incr easingly depressed, despondent an d hopeless[,] culminating in his becoming acutely suicidal. . . . It seems clear th at his acute suicidal id eation was related to the altercation and assa ult on 11/11/2000.” On March 6, 2001, relying on the connection established by Bassing and Dr. Steg between the November 11, 2000 a ssault by appellant and th e emotional damage sustai ned by appellant’s son, Finney issued an additional disposition of “founded” mental abuse, level one. 1 By letter dated March 9, 200 1, appellant noted his appeal of Finney’s finding of mental abuse and requested that it be consolidated and hear d together with the appeal of Finney’s previous finding of physical abuse “[s]ince the two fi ndings arose from the same set of facts.”

1 The consequences of a level on e finding are more severe than a level three finding, in that, among other things, a level one find ing requires that the abuser be lis ted in the central registry for eighteen years, whereas a level three finding results in only a thr ee-year listing. See 22 VAC 40-700-30.- 4 - After being continued from Marc h 30, 2001, an informal conf erence on the consolidated findings was conducted on July 25, 2001. The lo cal agency upheld both the physical and mental abuse findings. By letter dated August 10, 20 01, appellant noted his appeal of the physical and mental abuse findings and requested an administrative hearing. Prior to the admi nistrative 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 ad ministrative hearin g officer sustained both the physical and mental abuse dispos itions, finding, inter alia , that the record contained “a preponderance of evid ence that [the appellant] mentally abused [the son] , causing serious harm to him.” On August 5, 2002, ap pellant appealed the hearing officer’s decisions to the circuit court. After conducting a hearing on Ju ly 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 ag ency and limit our review of issues of fact to the agencyrecord.” Mulvey v. Jones , 41 Va. App. 600, 60 2, 587 S.E.2d 728, 729 (2003). Pursuant to Code § 2.2-4027: The burden shall be upon the party comp laining of agency action to designate and demonstrate an error of law subject to review by the court. Such issues of la w include: (i) a ccordance with constitutional right, power, privileg e, or immunity, (ii) compliance with statutory authority, jurisdictio n limitations, or ri ght as provided in the basic laws as to subject matte r, the stated obje ctives 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.- 5 - “[W]here the question involves an interpretation wh ich is within the sp ecialized competence of the agency and the agency has been entrusted wi th wide discretion by the General Assembly, the agency’s decision is en titled to special weight in the courts.” Johnst on-Willis, Ltd. v. Kenley , 6 Va. App. 231, 244, 369 S.E. 2d 1, 8 (1988). In suchan instance, we will reverse only to correct “‘arbitrary or capricious [agency] action that cons titutes a clear ab use of the delegated discretion.’” Id. (quoting Virginia Alcoholic Beverage C ontrol Comm’n v. York Street Inn, Inc. , 220 Va. 310, 315, 257 S.E.2d 851, 855 (1979)). However, “‘[i]f the issu e falls outside th e area generally entrusted to the agen cy, and is one in which the courts have a speci al 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 re view reveals a failure ‘to observe the required procedures or to comply with statutory au thority.’” 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 th at the reviewing “c ourt shall take due account of the . . . purposes of the basi c law under which the agency has acted.”
III. ALLEGED LACK OF COMPLAINT OR REPORT Appellant argues the finding of mental ab use must be overturned because DSS never received a report or complaint that appellant had ment ally abused his son. A ccordingly, 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 abus e 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- 6 - 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 valid ity of such report” and “make a determination to conduct an investigation.” Purs uant to former Code § 63.1-248.6:01, DSS was required, upon initiating an investig ation in response to a valid report or complain t of child abuse, to determine whether the report or complaint was “fo unded or unfounded. ” Thus, as appellant states in his brief, “[w]ithout a [va lid] complaint or report , there [could] be no investigation” and “[w]ithout an investigation, there [could] be no finding” of child abus e. In other words, a “founded” disposition of child abuse had to arise from an investig ation by DSS, which its elf 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 ar ose out of the same se t 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 ab use from the police concerning the November 11, 2000 altercation between appella nt and his son. Findin g the report to be va lid, DSS launched an investigation and found evid ence of both physical an d mental abuse. The fi nding of mental abuse, although determined later, arose from the same circumstances that gave rise to the finding of physical abuse. Indeed, in requ esting a consolidated hearing be fore the local agency, appellant conceded that the findings of p hysical 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 a nd recodified in Code §§ 63.2-1500 to 63.2-1529. However, since the events referenced in this opin ion occurred while the former statutes were in force, we cite to those sections.- 7 - Thus, we cannot say, as appellant would have us do, that DSS’s fi nding of mental abuse must be overturned beca use 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 upho lding that finding. Again, we disagree. Former Code § 63.1-2 48.6:01(5) provided that DSS “sha ll” make its dete rmination whether a report was founded or unfounded “within forty-fi ve 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 li mitation set forth in the st atute 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 prejud iced 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 re port 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 pr esent evidence and argument in support of his position at the informal conference and the administrative hearing. Thus, we disagree with appell ant that DSS’s findin g of mental abuse mu st be overturned because DSS failed to meet the procedural time limitation of form er Code § 63.1- 248.6:01(5).- 8 - 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 abus e invalidates the finding of me ntal abuse. Accordingly, he contends the circuit court erred in up holding that finding. We disagree. A document writte n by appellant’s former wife relating to a pr ior 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 mereexistence of a pr ior complaint or report be used to determine that a subsequent co mplaint or report is founded.” We have held, however, that “‘the mere fa ct that an [agency] has looked beyond the [proper contents of the] record does not invalidate its action unless substantial prej udice is shown to result .’” Johnston-Willis, Ltd. , 6 Va. App. at 258, 369 S.E.2d at 16 (quoting Un ited States v. Pierce Au to Freight Lines, Inc. , 327 U.S. 515, 530 (1946)). Indeed, “‘[n]o reversible error will be found . . . unle ss 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 im proper 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 12 3, 126 (1983)). Here, there is no indication in the record be fore us that DSS reli ed upon the improper document or any other information concerning the pr evious complaint of abus e in determining that appellant had mentally abused hi s son. To the contrary, the reco rd reflects that, in making her finding, Finney relied strictly up on the factual circumstances of the altercation its elf, including appellant’s physical assault and verbal derision of his son, and the assessm ent 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- 9 - record that DSS would have reached a contrary co nclusion 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 inclusio n in the instant reco rd 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 cour t’s affirmance of DSS’s finding that appellant mentally abused his son. Affirmed.