J.P. v. CARTER

FITZPATRICK, Judge.

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, 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 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:

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:

Romer concluded that "[i]ntervention [was] necessary to protect these children and other potential victims," and informed 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:

(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:

Romer further testified that, in reaching the initial disposition of the allegations, he relied on two interviews, "the first 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 administrative record.3 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 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:

... 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 Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972)) (citing Klimko v. Virginia Employment Comm'n, 216 Va. 750, 754, 222 S.E.2d 559, 563, cert. denied, 429 U.S. 849, 97 S.Ct. 136, 50 L.Ed.2d 122 (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, there may be circumstances where contact is impractical or impossible. Rather, appellant is given the right to appeal this first 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 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 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:

Id. at 409, 419 S.E.2d at 395-96 (quoting Hannah v. Larche, 363 U.S. 420, 443, 80 S.Ct. 1502, 1515, 4 L.Ed.2d 1307 (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. 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:

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:

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

(Emphasis added.) See also State Bd. of Health v. Godfrey, 223 Va. 423, 433, 290 S.E.2d 875, 880 (1982).

Further,

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.

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:

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 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."

Morrison v. Bestler, 239 Va. 166, 169-70, 387 S.E.2d 753, 755-56 (1990) (citations omitted). "`While the procedural requirements 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.

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:

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:

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 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 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 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.