COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Annunziata and Senior Judge Duff 

Argued at Alexandria, Virginia 

J.B. 

 OPINION BY 

v. Record No. 0351-95-4 JUDGE LARRY G. ELDER 

 NOVEMBER 28, 1995 

CAROL A. BRUNTY, COMMISSIONER, 

 DEPARTMENT OF SOCIAL SERVICES 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

F. Bruce Bach, Judge 

 John E. Arnett (William B. Reichhardt; Surovell, 

 Jackson, Colten & Dugan, P.C., on briefs), 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.B. (appellant), a minor, appeals a decision of the Fairfax 

County Circuit Court that ordered the Department of Social 

Services (agency) to enter a finding of "founded" in a sexual 

abuse complaint against appellant. Appellant contends (1) the 

agency violated Code § 63.1-248.6(D)(7)1

 when it made a 

determination of founded sexual abuse, even though forty-five 

days had lapsed from the receipt of the abuse complaint; and 

(2) the circuit court erred in requiring appellant to show the 

agency's failure to follow Code § 63.1-248.6(D)(7)'s procedure 

 

 1On April 7, 1993, Code § 63.1-248.6(D) was redesignated as 

Code § 63.1-248.6(E). However, because both parties and the 

trial court refer to the relevant subsection as (D), we also do 

so. This subsection was amended again in July 1994, when the 

following sentence was added: "However, upon written 

justification by the local department, such determination may be 

extended, not to exceed a total of sixty days[.]" 
 2 

was not harmless error. Because the trial court committed no 

error, we affirm its finding of founded sexual abuse. 

 I. 

 FACTS 

 The agency received a complaint on April 19, 1993 that 

appellant, the fifteen-year-old male baby sitter for a 

four-year-old girl, had sexually abused the girl. Code 

§ 63.1-248.6(D)(7) provided that upon receiving such a complaint, 

"the local department shall . . . [d]etermine within forty-five 

days if a report of abuse . . . is founded or unfounded." 

(Emphasis added). The agency began an initial investigation, but 

did not make a determination of founded sexual abuse within 

forty-five days; instead, it delayed a decision until receiving 

an opinion from a therapist that the girl's account of the abuse 

was truthful. On September 23, 1993, the agency made a "founded" 

determination. Before the agency made this determination, 

appellant did not complain of any delay. 

 The investigation of appellant uncovered the fact that 

appellant was a fifteen-year-old baby-sitter who watched the 

four-year-old girl every night between September 1991 and July 

1992. The girl was interviewed by the local agency and a 

criminal investigator on April 22, 1993, during which she 

demonstrated how various abuse occurred with the aid of dolls. 

Appellant denied abusing the girl. 

 Appellant followed the statutory appeal process and received 
 3 

 

a timely "informal conference" on November 18, 1993, and a 

hearing on February 1, 1994. Appellant argued at the conference 

and hearing that the agency had no authority to make an abuse 

determination because the forty-five day period had expired. On 

March 30, 1994, an agency hearing officer upheld the original 

abuse disposition, stating the forty-five day time limit was 

directory, not mandatory, because it provided no penalty for the 

agency's failure to process the complaint in a timely manner. 

 Appellant appealed the hearing officer's determination to 

the Circuit Court of Fairfax County. On November 17, 1994, the 

trial court issued a letter opinion affirming the agency 

determination of founded sexual abuse. The trial court ruled 

appellant failed to show, pursuant to Code § 9-6.14:17(iii),2

that the delayed determination prejudiced him in any substantial 

way. 

 II. 

 "[A]ppellant has the burden to demonstrate an error of law 

 2 This section states, in pertinent part: 

 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 evidential support for findings of 

fact. 
 4 

subject to review. Code § 9-6.14:17. We hold that appellant has 

failed in [his] burden[,] and we agree with the trial court's 

finding that the" agency did not act unlawfully in determining 

there was evidence to support a finding of sexual abuse. 

Committee of Concerned Citizens for Property Rights v. Chesapeake 

Bay Local Assistance Bd., 15 Va. App. 664, 667, 426 S.E.2d 499, 

501 (1993). We hold the use of the word "shall" in the 

then-existing version of Code § 63.1-248.6(D)(7) was merely 

directory, not mandatory, and only affected appellant's 

procedural rights. Therefore, the trial court did not err in 

finding the agency retained jurisdiction to adjudicate the matter 

beyond the forty-five day period fixed by statute, in the absence 

of prejudice to appellant. 

 We are guided in our analysis by certain rules governing 

judicial review of agency action: 

Courts must "construe and determine compliance with the 

statutes governing adoption of administrative 

regulation irrespective of the agency's construction," 

and not "merely rubber-stamp an agency determination." 

 Agency action, even when "supported by substantial 

evidence," 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)(citations 

omitted). We are also guided by certain rules of construction 

governing the determination of the meaning of written language. 

"'Courts, in endeavoring to arrive at the meaning of written 
 5 

language, whether used in a will, a contract, or a statute, will 

construe "may" and "shall" as permissive or mandatory in 

accordance with the subject matter and context.'" Ross v. Craw, 

231 Va. 206, 212, 343 S.E.2d 312, 316 (1986)(quoting Pettus v. 

Hendricks, 113 Va. 326, 330, 74 S.E. 191, 193 (1912))(emphases 

added); White v. Morano, 249 Va. 27, 32, 452 S.E.2d 856, 859 

(1995)(holding use of word "shall" in Supreme Court Rule 5:11(d) 

is merely directory and not mandatory). 

 The Supreme Court's recent decision in Jamborsky v. Baskins, 

247 Va. 506, 442 S.E.2d 636 (1994), which applied the above 

rules, further directs the outcome of this case. Jamborsky leads 

us to conclude the requirements of Code § 63.1-248.6 are 

procedural in nature. See also Jackson, 19 Va. App. at 634, 454 

S.E.2d at 26 (describing Code § 63.1-248.6(D)'s "step-by-step 

process for the investigation of cases of abuse and neglect"). 

In Jamborsky, the juvenile court entered an order certifying the 

juvenile defendant to the circuit court for trial as an adult. 

Code § 16.1-269(E)(repealed in July 1994) stated that the circuit 

court shall enter an order either remanding the case or advising 

the Commonwealth that it may seek an indictment within twenty-one 

days. The trial court entered its order twenty-four days later, 

authorizing the Commonwealth to seek an indictment. The 

defendant moved to quash the indictment, arguing the circuit 

court lacked jurisdiction to hear the case because it had not 

entered its order within the period specified in Code 
 6 

§ 16.1-269(E). 

 The Supreme Court held the trial court retained jurisdiction 

over the case. First, the Court reasoned Code § 16.1-269(E)'s 

use of the word "shall" imposed only a procedural requirement. 

"The procedural nature of this requirement is underscored by this 

Court's repeated holding 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." 

Jamborsky, 247 Va. at 511, 442 S.E.2d at 638 (emphasis added). 

The Court also stated, "'a statute directing the mode of 

proceeding by public officers is to be deemed directory, and a 

precise compliance is not to be deemed essential to the validity 

of the proceedings, unless so declared by statute.'" Id.

(citations omitted). 

 We follow Jamborsky's reasoning in this case and hold the 

use of the word "shall" in the version of Code § 63.1-248.6(D)(7) 

in force at the time was directory and affected appellant's 

procedural, not substantive, rights. Thus, we find the harmless 

error analysis employed in Jamborsky in finding none of the 

defendant's rights was infringed as a result of the delay in the 

circuit court's assumption of jurisdiction over the charges is 

applicable here. See id. at 511, 442 S.E.2d at 638. 

 Second, the Virginia Administrative Process Act, Code 

§ 9-6.14:17(iii), specifically provides a reviewing court with 

the appropriate standard of review for matters of procedure. 
 7 

Code § 9-6.14:17(iii) states the party seeking review of required 

agency procedure must demonstrate such failure was not mere 

harmless error. In this case, appellant points to no 

infringement of his rights, other than claiming his reputation 

was tainted for a needlessly prolonged time period. Despite 

appellant's assertions, the trial court specifically found the 

agency "delayed its action here in order to test the [victim's] 

veracity and thus avoid a premature, and possibly erroneous, 

finding against the appellant." In this case, "[o]ur decision 

[to affirm the trial court's ruling] is [guided by] the 

uncontroverted fact that [appellant] did not suffer any prejudice 

as a result of the delay in the entry of the [agency finding]." 

Id. at 511, 442 S.E.2d at 639; see Ford Motor Co. v. Courtesy 

Motors, Inc., 237 Va. 187, 190, 375 S.E.2d 362, 364 

(1989)(applying Code § 9-6.14:17's harmless error standard to 

administrative proceeding); North v. Landmark Communications, 

Inc., 17 Va. App. 639, 643, 440 S.E.2d 156, 158 (1994)("When 

failure to comply with the rule is harmless, the commission does 

not err by refusing to set aside its decision for 

noncompliance"); Committee of Concerned Citizens for Property 

Rights v. Chesapeake Bay Local Assistance Bd., 15 Va. App. 664, 

426 S.E.2d 499 (1993)(holding approval by the governor of certain 

emergency regulations after, rather than prior, to adoption was 

de minimis, harmless error, and procedural directives were still 

substantially complied with). 
 8 

 Accordingly, we affirm the agency's determination of founded 

sexual abuse. 

Affirmed.