Christian v. VA. DEPT. OF SOCIAL SERVICES, Record No. 0918-04-2.

• Decision Date: 29 March 2005
• Docket Number: Record No. 0918-04-2.
• Citation: 45 Va. App. 310,610 S.E.2d 870
• Court: Virginia Court of Appeals
• Parties: E. Dean CHRISTIAN v. VIRGINIA DEPARTMENT OF SOCIAL SERVICES.

610 S.E.2d 870

45 Va. App. 310

E. Dean CHRISTIAN v. VIRGINIA DEPARTMENT OF SOCIAL SERVICES.

Record No. 0918-04-2.

Court of Appeals of Virginia, Richmond.

March 29, 2005.

Monica J. Chernin (The Law Offices of Monica J. Chernin, on brief), Culpeper, for appellant.

Allen T. Wilson, Special Counsel (Jerry W. Kilgore, Attorney General; David E. Johnson, Deputy Attorney General; Kim F. Piner, Senior Assistant Attorney General, on brief), for appellee.

Present: HUMPHREYS, FELTON and KELSEY, JJ.

D. ARTHUR KELSEY, Judge.

The circuit court dismissed an administrative appeal filed by E. Dean Christian on the ground that he failed to name the Virginia Department of Social Services (VDSS) as a party in his petition for appeal. We hold that the petition sufficiently identified VDSS as a party. For this reason, we reverse the circuit court's dismissal order and remand this matter for further proceedings on the merits.

I.

To administer child protective services in the Commonwealth, the General Assembly delegates authority to VDSS, a state agency governed by a state board, Code § 63.2-215, and also requires that there "shall be a local department of social services for each county or city under the supervision and management of a local director." Code § 63.2-324; see also 22 Va. Admin. Code § 40-705-10 (defining "Department" and "local department"). The responsibility to investigate complaints of child abuse and neglect rests primarily with the local departments. See Code § 63.2-1503; 22 Va. Admin. Code § 40-705-50(B). Through the use of administrative hearing officers, VDSS reviews de novo any contested determination by a local department. See Code 63.2-1526(B); 22 Va. Admin. Code § 40-705-190(H).

In this case, the Fluvanna County Department of Social Services made an administrative finding that Christian physically abused his child. Christian requested and received an "informal conference" to dispute the finding. See Code § 63.2-1526(A); 22 Va. Admin. Code § 40-705-120(E). The local department reaffirmed its earlier decision. Christian then filed a petition with VDSS for a "formal hearing" by an administrative hearing officer. See Code 63.2-1526(B). The VDSS hearing officer affirmed the local department's findings in a decision entered on July 30, 2003. His written opinion used the caption "In the matter of E. Dean Christian."

Christian filed a timely appeal to the circuit court seeking judicial review pursuant to the Virginia Administrative Process Act (VAPA), Code § 2.2-4000, et seq. See Code 63.2-1526(B) (authorizing VAPA appeals of decisions of VDSS hearing officers). The caption of the petition for appeal tracked the one used in the VDSS administrative process. Styled "In the matter of E. Dean Christian, appellant," the caption identified the case number of the VDSS administrative proceeding and requested service on the "Commissioner" of the "Virginia Department of Social Services."

The text of the petition specifically identified the VDSS hearing officer by name and stated the order being appealed was the hearing officer's July 30, 2003 final order. The petition also named the "Fluvanna County Department of Social Services" as a "party to this suit." The petition complained about the final ruling of "the agency" and requested that it be set aside. The petition concluded with a certificate of service stating that a copy had been mailed both to the "Commissioner of the Virginia Department of Social Services" and the "Department of Social Services of Fluvanna County."

After being served with process, VDSS filed a plea in bar seeking to dismiss the VAPA appeal. VDSS argued that Christian's petition for appeal identified the local department, but failed to make clear VDSS was likewise a party to the VAPA appeal. Because Rule 2A:4's mandatory thirty-day period following the notice of appeal had passed, VDSS reasoned, it could not be added to the petition by amendment.

In response, Christian argued that the petition identified VDSS as a party by specifically naming the VDSS hearing officer by name, using the VDSS caption of the case, requesting service on VDSS, and appealing the very decision (identified by complaint number and date of entry) issued by VDSS. If that were not enough, Christian argued in the alternative, he would still be entitled to amend the petition under Rule 1:8 to clarify any perceived ambiguities about whether VDSS was a party to the VAPA appeal. Finding neither of Christian's arguments persuasive, the circuit court dismissed the appeal.

Christian appeals to us, arguing that his petition for appeal was sufficient because VDSS lacks any real basis for claiming it had not been made a party to the VAPA appeal.

II.

When the VAPA authorizes judicial review, it must be conducted "in the manner provided by the rules of the Supreme Court of Virginia." Code § 2.2-4026. Within thirty days of filing a notice of appeal, an appellant must file a petition for appeal in the circuit court. "Such filing shall include all steps provided in Rules 2:2 and 2:3 to cause a copy of the petition to be served (as in the case of a bill of complaint in equity) on the agency secretary and on every other party." Rule 2A:4(a).¹ In addition, Rule 2A:4(b) requires the petition to "designate the regulation or case decision appealed from, specify the errors assigned, state the reasons why the regulation or case decision is deemed to be unlawful and conclude with a specific statement of the relief requested." The thirty-day deadline implicates the circuit court's "jurisdiction over the subject of the appeal." State Water Control Bd. v. Crutchfield, 265 Va. 416, 423, 578 S.E.2d 762, 766 (2003); Va. Ret. Sys. v. Avery, 262 Va. 538, 542, 551 S.E.2d 612, 614 (2001); Sours v. Va. Bd. for Architects, 30 Va.App. 313, 318, 516 S.E.2d 712, 715 (1999) (holding that "the timely filing of a petition for appeal of an agency decision is jurisdictional").

In this case, VDSS does not contend Christian filed his petition out of time — but that it was fatally insufficient because it failed to identify, in so many words, VDSS as a party. We disagree. A fair reading of the petition alerted VDSS that it was being called upon, however obliquely, to respond to the appeal. This should have been reasonably apparent because the petition specifically:

[] identified the decision of the VDSS hearing officer — a designee of the VDSS Commissioner² — as the agency ruling being appealed;

[] requested, in the caption of the case, service on the VDSS Commissioner, a task only required to be done under Rule 2A:4(a) for parties;

[] used the same style as the VDSS administrative caption of the case; and

[] certified that it was being mailed to the Commissioner of the VDSS.

Given the unique statutory distribution of initial decisionmaking power to the local department and final authority to VDSS, the only administrative decision that could be appealed to the circuit court was the decision by the VDSS hearing officer. It takes little more effort to read the petition for appeal as necessarily identifying VDSS as the real party in interest. See generally Williams Steel Erection Co. v. Dept. of Labor & Indus., 42 Va.App. 814, 822, 595 S.E.2d 45, 49 (2004) (noting in parenthetical that "where an existing deficiency is one of form rather than...