Jackson v. W.
| Decision Date | 05 May 1992 |
| Docket Number | No. 0369-91-3,0369-91-3 |
| Citation | 419 S.E.2d 385,14 Va.App. 391 |
| Parties | Larry D. JACKSON, Commissioner v. W. Record |
| Court | Virginia Court of Appeals |
Thomas J. Czelusta, Sr. Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., Roger L. Chaffe, Sr. Asst. Atty. Gen., Cheryl A. Wilkerson, Asst. Atty. Gen., on briefs), for appellant.
W. Bradford Stallard (Daniel H. Caldwell; Penn, Stuart, Eskridge & Jones, on brief), for appellee.
Present: KOONTZ, C.J., and COLEMAN and ELDER, JJ.
The Commissioner of the Virginia Department of Social Services, Larry D. Jackson, appeals the circuit court's decision holding that the Department of Social Services's guidelines are unconstitutional. 1 The circuit court found that (1) the Commissioner did not have statutory authority to adopt the guidelines, (2) the guidelines are inconsistent with the statute, (3) the guidelines are unconstitutionally vague, and (4) W. was denied due process. We reverse.
This matter stems from a complaint lodged with the Washington County Department of Social Services (department) concerning the possible abuse of W.'s seven-year-old son. On December 20, 1988, Carol Anne Williams, a case worker with the department's protective services unit, contacted W. and advised him that he had been accused of child abuse. The following day, W. met with Williams and denied the charges. The department then conducted an investigation, which included an interview with W. By letter dated February 2, 1989, Williams notified W. that the complaint was determined to be "founded emotional abuse." 2 The letter also informed W. that he was the identified abuser, and that "[b]ased on the above disposition, your name and the names of your children will be placed in the Central Registry in Richmond and will remain there for ten (10) years past the child['s] eighteenth birthday...." The letter advised W. of his right to appeal to the local director within thirty days of receipt of the notification.
W. exercised his right to appeal and requested an amendment of the record from "founded" to "unfounded." An informal conference was held on February 24, 1989. By written decision dated March 21, 1989, the local director sustained the department's disposition of "founded" and refused to amend the record.
On appeal to the Commissioner, a hearing was held on April 27, 1989. W. appeared personally and by counsel; Williams appeared on behalf of the department. The record submitted to the hearing officer, acting on behalf of the Commissioner, included the following: the agency's investigative findings; a written report of Dr. Dennis Jurs; notes from an interview with Dr. Ralph Ramsdem, child psychologist and a report by Thomas E. Schacht, PsyD., ABPP (Clinical). Dr. Jurs' report identified as inappropriate and embarrassing actions: forcing the child to take a bottle, vigorous scrubbing of the child's penile and anal areas during mutual showers, placing vaseline on the child's anal area, and cleaning the child's anal area after defecation. Dr. Jurs concluded that the continuation of this behavior "constitutes emotional abuse." Dr. Schacht, addressing this behavior by W., concluded that the child had a "significant emotional disturbance." Specifically, he found that "the caretaking practices targeted by the department's investigation are abnormal, humiliating, and psychologically harmful" to the child. Testimony was received from W. and Williams. W. admitted these parenting practices but maintained they were for "proper hygiene" or harmless "fantasy play." He testified that he had in fact taken showers with his son, checked his son's anus after defecation, helped dress his son, and permitted his son to have a bottle. W. denied that he forced the bottle upon his son. He admitted putting powder and vaseline on the child's rectum, but only when he was "chaffed." W.'s father was present but was not permitted to testify. However, W.'s counsel was allowed to proffer this testimony for the record.
On July 14, 1989, the hearing officer rendered his decision upholding the finding of the department:
UPON considering all relevant evidence and testimony,
and based on applicable policy, it is apparent that appellant's behavior did in fact "inflict injury to the mental functioning of the child." The information as presented [provides] sufficient evidence based on the referenced policy to sustain the agency's "founded disposition of emotional abuse." It is determined that requiring a six-year-old child to use a bottle in spite of [protest], requiring that the six-year-old-child shower with appellant and the insistence of wiping and cleaning the six-year-old-child after he uses the bathroom, are clear and convincing [evidence] of "behaviors which are considered intimidating, humiliating ... or excessively guilt-producing ..." as specified in policy.
W. appealed the decision to the Circuit Court of Washington County. The circuit court ruled that (1) the Commissioner did not have statutory authority to adopt the guidelines, (2) the guidelines are inconsistent with the statute, (3) the guidelines are unconstitutionally vague, and (4) W.'s right to due process had been violated.
Code § 63.1-248.2(A) defines an abused or neglected child as any child less than eighteen years of age:
Whose parents or other person responsible for his care creates or inflicts, threatens to create or inflict, or allows to be created or inflicted upon such child a physical or mental injury by other than accidental means, or creates a substantial risk of death, disfigurement, or impairment of bodily or mental functions; ....
The Commissioner established the following definition and guidelines for mental or emotional abuse:
Mental Abuse
(This type is often referred to as emotional abuse.)
Mental refers to emotional, intellectual, or psychological functioning. The parent or caretaker inflicts or threatens to inflict injury to the mental functioning of the child. The child may or does demonstrate significant mental difficulty which is caused or perpetuated by a pattern of identifiable behavior by the caretaker. In the absence of such evidence in a young child, it must be clear that the caregiver clearly exhibits an identifiable pattern of harmful behavior.
(1) A child's mental difficulty can only be considered to be the result of mental abuse when there is a described or a demonstrated relationship between caretaker behavior and the child's difficulty.
(2) Mental abuse may include, but is not limited to caretaker behavior, or threat of behavior, which is rejecting, intimidating, humiliating, ridiculing, chaotic,
bizarre, violent, hostile, or excessively guilt-producing....
(3) These caretaker behaviors may be obvious or subtle, explicit, stated, or implied.
(4) Evidence of mental difficulties, after organic causes have been ruled out, include, but are not limited to: poor school performance, poor peer relationships, feeding and sleeping problems, lethargy, enuresis, stuttering, runaway behavior, depression, and suicide threats.
Virginia Department of Social Services, Protective Services, Vol. VII, Section III, Chapter A at 7-8 (Protective Services Manual).
We first address the issue whether the Commissioner had the statutory authority to adopt these guidelines. The circuit court initially concluded that the guidelines were, in effect, regulations. 3 Based on this conclusion, the court then found that the guidelines were invalid because there is no statutory authority for the Commissioner to promulgate regulations. Indeed, under Code § 63.1-25, rule-making authority is vested in the State Board. 4 The Commissioner is charged with the responsibility of supervising the administration of the statute, Code § 63.1-4, and "enforc[ing] the rules and regulations adopted by the State Board." Code § 63.1-31. Under this statutory scheme, the General Assembly has granted the State Board, and not the Commissioner, the power to promulgate regulations. The Commissioner contends, however, that the guidelines are not regulations and were adopted pursuant to the Commissioner's responsibility to administer the statute. We agree.
Bader v. Norfolk Redev. & Hous. Auth., 10 Va.App. 697, 701, 396 S.E.2d 141, 143 (1990). DSS's Protective Services Manual provides that "[t]he guidelines are intended to be used as tools for the worker in investigating situations of abuse or neglect." In other words, the guidelines merely assist the case worker in interpreting the statute. Used in conjunction with the statute, the guidelines help the case worker identify abusive conduct. The guidelines do not purport to be a substitute for the statute. Because they are designed merely to provide assistance to local departments in the administration of the statute, they do not have the force of law. Moreover, the guidelines do not affect any right of W. He is not subject to criminal or civil penalty as a result of having a complaint against him deemed "founded." 5 Thus, the guidelines are not regulations.
The Commissioner's adoption of guidelines interpreting the statute was within his statutory authority. Although the General Assembly did not grant the Commissioner the authority to enact regulations, it did authorize him to "supervise the administration of the provisions of this title and ... [to] see that all laws pertaining to the [DSS] are carried out to their true intent and spirit." Code § 63.1-4. The Commissioner has exercised his authority under § 63.1-4 by establishing guidelines to be applied by the local departments of social services throughout the Commonwealth in interpreting the definitions of abuse and neglect provided by statute....
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