Dean Marrison and Ashley Marrison v. Fairfax County Department of Family Services

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Petty, Alston and Senior Judge Coleman
Argued at Alexandria, Virginia
DEAN MARRISON AND ASHLEY MARRISON
OPINION BY
v. 	Record No. 0174-11-4 	JUDGE ROSSIE D. ALSTON, JR.
NOVEMBER 8, 2011
FAIRFAX COUNTY DEPARTMENT
OF FAMILY SERVICES
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Randy I. Bellows, Judge
Matthew W. Greene (Kathleen R. Bell; Greene Law Group, on
brief), for appellants.
Donna R. Banks, Assistant County Attorney (David P. Bobzien,
County Attorney; Peter D. Andreoli, Deputy County Attorney;
Mario A. Bezzini, Guardian ad litem for the minor children, on
brief), for appellee.
Dean and Ashley Marrison appeal an order adjudicating their minor children abused and
neglected. On appeal, the Marrisons argue that the circuit court erred in denying their motions to
dismiss because the Fairfax County Juvenile and Domestic Relations District Court lacked
subject matter jurisdiction after it failed to conduct an initial hearing within five business days of
removal of the children, as required by Code § 16.1-251(B). Assuming without deciding that the
initial hearing was not timely under Code § 16.1-251(B), for the reasons that follow, we
nevertheless hold that the circuit court did not err in denying the Marrisons’ motions to dismiss.
I. BACKGROUND
Ashley Marrison (mother) has four children: A., born in April 2007, C., born in August
2008, and twins D. and M., born in October 2009. Dean Marrison (father) is the father of D. and
M., and all four children lived with the Marrisons prior to their adjudication as abused and

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neglected. In January 2010, M. tragically died as a result of apparent neglect. M. was dirty,
emaciated, and possibly dehydrated upon his death.
The Department of Family Services (DFS) investigated the circumstances of M.’s death
and inspected the Marrisons’ home. Father told DFS that he fed M. several times on the morning
of M.’s death; however, father did not hold M. while feeding him but instead “propped a bottle”
on a blanket or pillow near M. Father later found M. facedown in his crib when father and
mother returned home after leaving to buy videogames in the afternoon. DFS found that the
Marrison home was dirty and cluttered, smelled strongly of urine in some areas, contained no
formula, and contained little food. In addition, DFS found that A., C., and D. were also dirty and
had strong body odors indicating a lack of cleanliness.
On the evening of January 31, 2010, A., C., and D. were seen at the emergency room of a
local hospital. Emergency room personnel asked mother to return with the children for an
appointment with a pediatrician the following morning because the children had not been
provided standard wellness checks. Mother did not return with the children for their pediatric
appointment the following morning.
On February 1, 2010, DFS removed the children from the Marrisons and placed them in
DFS’s custody. On February 3, 2010, DFS filed sworn petitions and affidavits alleging that each
of the children was abused and/or neglected. DFS sought and obtained ex parte emergency
removal orders for all three children. A hearing on the emergency removal orders was set for
February 8, 2010. However, on Thursday, February 4, 2010, a significant amount of snow fell in
Fairfax County and most of the metropolitan Washington, D.C., area. As a result, on Friday,

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February 5, 2010, the Fairfax County courts closed at 2:00 p.m.1 The Fairfax County courts
were also closed because of inclement weather on Monday, February 8, 2010, Tuesday, February
9, 2010, Wednesday, February 10, 2010, and Thursday, February 11, 2010. The Fairfax County
courts reopened on Friday, February 12, 2010. However, they were again closed on Monday,
February 15, 2010, in observance of Presidents’ Day. Despite the fact that the courts were
officially closed on Monday, February 15, 2010, the J&DR court entered an order sua sponte
rescheduling the hearing on the emergency removal orders for February 18, 2010.
The hearing on the emergency removal orders was held on February 18, 2010. The
Marrisons each moved to dismiss the abuse and neglect petitions, arguing that the J&DR court
lacked jurisdiction because there was no hearing within five days of the children’s removal, as
required by Code § 16.1-251(B). The J&DR court concluded that five business days had not
elapsed between the date the hearing was held, February 18, 2010, and the filing of the abuse and
neglect petitions on February 3, 2010, because the J&DR courts were closed for several days as a
result of inclement weather. The J&DR court also opined that Code § 16.1-251 imposes only a
“procedural requirement, not a substantive right” and that the Marrisons had failed to show that
they suffered any prejudice as a result of the hearing being held on February 18, 2010. Thus, the
J&DR court denied the Marrisons’ motions to dismiss. Upon the request of the Marrisons, the
J&DR court continued the hearing until March 8, 2010.
On March 8, 2010, the J&DR court entered preliminary removal orders for the children
and continued the matter for an adjudicatory and dispositional hearing on the petitions alleging
1 Code § 16.1-69.35(5) provides the chief judge or presiding judge of any district court
with the authority to “authorize the clerk’s office to close on any date when the chief judge or
presiding judge determines that operation of the clerk’s office, under prevailing conditions,
would constitute a threat to the health or safety of the clerk’s office personnel or the general
public.”

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abuse and/or neglect. On May 3, 2010, the adjudicatory and dispositional hearings on the
petitions were held. The J&DR court entered orders finding that the children were abused and/or
neglected as well as dispositional orders continuing legal custody of the children with DFS.
The Marrisons appealed the J&DR court order to the circuit court. Appearing before the
circuit court, the Marrisons filed motions to dismiss all three petitions, arguing that the circuit
court lacked continuing jurisdiction. The circuit court denied the Marrisons’ motions to dismiss,
holding that Code § 16.1-251(B) is directory and procedural, rather than mandatory and
jurisdictional. Thereafter, the circuit court entered orders finding that the children were abused
and/or neglected and remanded the cases back to the J&DR court. This appeal followed.
II. ANALYSIS
“On appeal, questions of statutory interpretation are reviewed de novo by this Court.”
Hodges v. Dep’t of Soc. Servs., Div. of Child Support Enforcement, 45 Va. App. 118, 123, 609
S.E.2d 61, 63 (2005).
Code § 16.1-251(B) provides: “Whenever a child is taken into immediate custody
pursuant to an emergency removal order, a hearing shall be held in accordance with [Code]
§ 16.1-252 as soon as practicable, but in no event later than five business days after the removal
of the child.”
The Marrisons allege that the circuit court lacked subject matter jurisdiction over the
instant petitions because the J&DR court lacked subject matter jurisdiction when it failed to
comply with Code § 16.1-251(B). The parties dispute whether the initial hearing was timely
held under Code § 16.1-251(B). The Marrisons allege that the hearing was not timely because
there were six business days between the removal of the children on February 1, 2010, and the
hearing on February 18, 2010: February 2, 3, 4, 12, 16, and 17. To the contrary, DFS alleges
that the hearing was timely because Code § 16.1-252 required that notice of the hearing be given

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to the Marrisons at least 24 hours in advance; thus, DFS argues, it would have been impossible
for the J&DR court to hold the hearing earlier than February 18, 2010, and also comply with
Code § 16.1-252.
We do not decide whether or not the hearing in the instant case was timely under the
requirements of Code §§ 16.1-251(B) and -252. Instead, we assume without deciding that the
hearing was not timely. Nevertheless, for the reasons which follow, we hold that the trial court
did not err in denying the Marrisons’ motions to dismiss for lack of subject matter jurisdiction
because in our view Code § 16.1-251(B) is procedural and directory. Furthermore, the
Marrisons failed to show that they suffered any prejudice as a result of the J&DR court’s alleged
failure to comply with Code § 16.1-251(B).
“Subject matter jurisdiction is the authority granted to a court by constitution or by statute
to adjudicate a class of cases or controversies.” Earley v. Landsidle, 257 Va. 365, 371, 514
S.E.2d 153, 156 (1999) (citing Morrison v. Bestler, 239 Va. 166, 169, 387 S.E.2d 753, 755
(1990)). Code § 16.1-241(A) grants the J&DR court exclusive original jurisdiction over all cases
involving the custody, visitation, support, control or disposition of a child who is alleged to be
abused or neglected. Upon appeal from the J&DR court, the circuit court’s jurisdiction is
derivative, meaning that it “‘is the same as that of the court in which the action was originally
instituted.’” Fairfax Cnty. Dep’t of Family Servs. v. D.N., 29 Va. App. 400, 405-06, 512 S.E.2d
830, 832 (1999) (quoting Addison v. Salyer, 185 Va. 644, 651, 40 S.E.2d 260, 264 (1946)).
Thus, if the J&DR court had subject matter jurisdiction in the instant case, so too did the circuit
court upon appeal from the J&DR court order.
DFS filed petitions with attached affidavits in the J&DR court pursuant to Code
§ 16.1-241(A)(1) alleging that the children were abused and/or neglected. Under Code
§ 16.1-241(A)(1), this action invoked the subject matter jurisdiction of the J&DR court. Upon

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appeal to the circuit court, the circuit court’s jurisdiction was derivative of that of the J&DR
court. Id. Therefore, the circuit court had subject matter jurisdiction in the instant case. This
conclusion, however, does not ipso facto address the precise nature of our inquiry.
The Supreme Court of Virginia has recognized a critical distinction between a lack of
subject matter jurisdiction and “‘the unique statutory framework whereby a juvenile court and in
turn a circuit court acquire the authority to exercise their subject matter jurisdiction.’” Nelson v.
Warden of Keen Mountain Corr. Ctr., 262 Va. 276, 281, 552 S.E.2d 73, 75 (2001) (quoting
David Moore v. Commonwealth, 259 Va. 431, 438, 527 S.E.2d 406, 409 (2000), overruled in
part by Nelson, 262 Va. at 282, 552 S.E.2d at 76); see also Watkins v. Fairfax County Dep’t of
Family Servs., 42 Va. App. 760, 774 n.12, 595 S.E.2d 19, 26 n.12 (2004) (stating that “the term
‘jurisdiction’ has been loosely used by the Commonwealth’s appellate courts to encompass under
one ‘shorthand’ term, the concept of subject matter jurisdiction and the legally distinct but
related concept . . . [of] the ability of a court to exercise its jurisdiction”). Where a statute
contains “prohibitory or limiting language,” the statute is mandatory, and a court cannot exercise
its subject matter jurisdiction if the requirements of the statute have not been met. See
Jamborsky v. Baskins, 247 Va. 506, 511, 442 S.E.2d 636, 638-39 (1994); Harris v.
Commonwealth, 52 Va. App. 735, 744, 667 S.E.2d 809, 814 (2008). In contrast, where a
statutory directive is merely directory and procedural, as opposed to mandatory and
jurisdictional, failure to comply with the statutory requirement does not necessarily divest the
court of the power to exercise its subject matter jurisdiction. See Jamborsky, 247 Va. at 511, 442
S.E.2d at 638-39. Stated more directly, the failure to follow a procedural requirement will not
prevent a court from exercising its subject matter jurisdiction unless a party can show “some
harm or prejudice caused by the failure” to follow the procedural requirement. Carter v. Ancel,
28 Va. App. 76, 79, 502 S.E.2d 149, 151 (1998). Thus, the question in this case is whether the

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J&DR court’s failure to comply with Code § 16.1-251(B) deprived the circuit court of the power
to exercise its subject matter jurisdiction.
Virginia law holds that the plain language of a statute determines whether it is mandatory
and jurisdictional or directory and procedural. The Supreme Court of Virginia has repeatedly
held 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; accord Carter, 28 Va. App. at 79, 502 S.E.2d at 151 (quoting Caccioppo v.
Commonwealth, 20 Va. App. 534, 537, 458 S.E.2d 592, 594 (1995) (citations omitted)). To
determine whether such a statute “manifests a contrary intent,” this Court must determine
whether the statute contains “prohibitory or limiting language.” Jamborsky, 247 Va. at 511, 442
S.E.2d at 638.
We hold that the circuit court had the power to exercise its subject matter jurisdiction
because Code § 16.1-251(B) is by its very construction procedural and directory. First, we note
that Code § 16.1-251(B) directs the acts of public officials, here the judges of the J&DR courts;
thus, absent manifest contrary intent, the use of the word “shall” in Code § 16.1-251(B) does not
suggest that the statute is mandatory and jurisdictional. Carter, 28 Va. App. at 79, 502 S.E.2d at
151 (quoting Caccioppo, 20 Va. App. at 537, 458 S.E.2d at 594 (citations omitted)).
Moreover, we find no such manifest contrary intent in Code § 16.1-251(B). Code
§ 16.1-251(B) governs the timing of court proceedings. The Supreme Court of Virginia and this
Court have held that similar statutes governing the timing of court proceedings and the actions of
courts are likewise directory and procedural. See Jamborsky, 247 Va. at 508, 511, 422 S.E.2d at
637, 638 (holding that Code § 16.1-269(E), which provided that the circuit court “shall” take
certain actions in cases referred to it from the J&DR court within 21 days after receipt of the
case, was directory and procedural); Turner v. Commonwealth, 216 Va. 666, 667, 669, 222

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S.E.2d 517, 518, 520 (1976) (holding that Code § 16.1-176(a)(3), which provided that the J&DR
court “shall” give notice of a hearing on retention of jurisdiction over certain cases to various
parties “at least five days before the hearing,” was directory and procedural); Harris, 52 Va. App.
at 743-44, 667 S.E.2d at 813-14 (holding that Code § 16.1-277.1(B), which provides that, in
certain situations, the J&DR court “shall” conduct an adjudicatory or transfer hearing on matters
charged in a criminal petition against a juvenile within 120 days from the date the petition is
filed, is directory and procedural). In addition, although Code § 16.1-251(B) does provide that
the hearing shall be held “in no event” later than five business days after the removal of the
child, this phrase does not suggest an intent that the statute be deemed mandatory and
jurisdictional. Code § 16.1-251(B) contains no explicit penalty for failure to comply with the
five-day requirement nor explicitly renders a hearing held beyond the five-day period invalid.
See Harris, 52 Va. App. at 744, 667 S.E.2d at 814 (holding that Code § 16.1-277.1(B) is
directory and procedural and noting that there is no language in the statute “that renders invalid
an adjudicatory or transfer hearing held beyond the 120 days” specified by the statute as the time
period in which the hearing “shall” be held).
Because Code § 16.1-251(B) does not expressly prohibit the J&DR court from
conducting a preliminary removal hearing beyond the five-business-day period, is not prohibitive
or limiting, and does not contain any manifestation of a contrary intent, we hold that Code
§ 16.1-251(B) is procedural and directory, rather than mandatory and jurisdictional. Thus, we
find that the circuit court appropriately exercised its derivative subject matter jurisdiction.
Having reached this conclusion, it follows that the Marrisons cannot successfully prevail
in this appeal unless they can show “some harm or prejudice” caused by the failure to follow
Code § 16.1-251(B). Carter, 28 Va. App. at 79, 502 S.E.2d at 151. The Marrisons alleged no
such harm or prejudice before the circuit court or on appeal.

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Therefore, upon de novo review, we find that the circuit court did not err in denying the
Marrisons’ motions to dismiss for lack of subject matter jurisdiction.
Affirmed.