Melody FRYE, Respondent, v. Ronald J. LEVY, Director, State of Missouri, Department of Social Services, Children’s Division, Appellant , 440 S.W.3d 405 ( 2014 )

SUPREME COURT OF MISSOURI
en banc
IN RE THE MATTER OF )
TARYN WILLIAMS, )
)
Respondent, )
)
v. ) No. SC93653
)
STATE OF MISSOURI, )
DEPARTMENT OF SOCIAL SERVICES, )
CHILDREN’S DIVISION, )
CHILD ABUSE AND NEGLECT )
REVIEW BOARD, )
)
Appellant. )
APPEAL FROM CIRCUIT COURT OF JACKSON COUNTY
The Honorable Marco A. Roldan, Judge
Opinion issued July 8, 2014
The Children’s Division of the Missouri Department of Social Services
(“Children’s Division” or “Division”) appeals from the trial court’s judgment ordering
the Division not to include Taryn Williams’ (“Williams”) name on the central registry of
child abuse and neglect perpetrators. The trial court based its ruling solely on the ground
that the Children’s Division failed to comply with the applicable time limitations set forth
in sections 210.145 and 210.152, RSMo Supp. 2010. 1 For the reasons set forth herein
and in this Court’s decision in the companion case of Frye v. Department of Social
Services, ___ S.W.3d ___ (SC93471) (Mo. banc 2014), the trial court’s judgment in favor
of Williams is vacated, and the matter is remanded.
Factual Background
The Children’s Division and Williams stipulated to the underlying facts of this
case. On October 13, 2010, the Children’s Division received a child abuse hotline call
reporting the sexual maltreatment of a minor child (“Child”) by Williams. At the time of
the incident, Williams had the care, custody, and control of Child because she was a
volunteer swim coach for Child’s swimming team. It was alleged that Williams had
sexual intercourse, at least twice, and oral sex, at least once, with Child. Williams sent
Child multiple sexually explicit text messages. Child complied with a request by
Williams to send her a nude picture of himself. Williams admitted to a sexual
relationship with Child.
The Children’s Division began its investigation the day it received the hotline call
against Williams. On November 13, 2010, the 31st day after the investigation was
opened, the Children’s Division updated its information system, stating its investigation
would be delayed beyond the 30-day limit set forth in section 210.145.14. The
Children’s Division cited an ongoing “co-investigation” with police as being “good
1
All statutory citations are to RSMo Supp. 2013, with the exception of citations to
§§ 210.145.14 and 210.152.2. Citations to these statutes are to RSMo Supp. 2010, which was
the version in effect when the Division finished its investigation of Williams.
cause” to extend its investigation. On February 18, 2011, the Children’s Division
prepared its written notice of its determination. On February 22, 2011, approximately
133 days after beginning its investigation, the Children’s Division notified Williams that
it substantiated the report of abuse.
Williams timely contested the Children’s Division’s determination and requested a
review by the Child Abuse and Neglect Review Board (“Board”). The Board upheld the
Children’s Division’s decision.
Williams then filed a timely petition de novo, seeking judicial review of the
Board’s decision. The trial court determined that the Children’s Division had no good
cause to extend its investigation beyond the initial 30-day period. The trial court noted
the Children’s Division did not inform Williams of the outcome of its investigation until
after the 90-day statutory period in section 210.152.2. The trial court’s judgment
determined the statutory time limits contained in sections 210.145 and 210.152 are
mandatory time limits for completing a child abuse and neglect investigation and for
providing written notice to the alleged perpetrator of the investigation’s results. The trial
court’s judgment further stated that failure to comply with these time limits can implicate
an alleged perpetrator’s due process rights as guaranteed by article I, section 10 of the
Missouri Constitution. Finally, the trial court ordered the Division not to include
Williams’ name on the central registry of child abuse and neglect perpetrators.
The Children’s Division seeks appellate review. After opinion by the court of
appeals, this Court granted transfer. Mo. Const. art. V, sec. 10.
3
Standard of Review
The trial court’s judgment will be upheld unless there is no substantial evidence to
support it, it is against the weight of the evidence, or it erroneously declares or applies the
law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). This Court will only
reverse if it is left with the firm belief the judgment was wrong. In re S.M.H., 160
S.W.3d 355, 362 (Mo. banc 2005). This Court will affirm the trial court’s judgment if it
is correct under any reasonable theory supported by the evidence. Martin v. Martin, 334
S.W.3d 741, 744 (Mo. App. 2011); Allen v. Allen, 330 S.W.3d 838, 841 (Mo. App.
2011); Bolt v. Giordano, 310 S.W.3d 237, 242 (Mo. App. 2010).
Analysis
After a full investigation, the Children’s Division determined that the hotline
report concerning Williams’ acts of child abuse, including that she sent the child nude
photographs of herself and had sexual intercourse and oral sex with the child, was
supported by a preponderance of the evidence. Even though this determination was
affirmed by the Board, the trial court never reached the question of whether this
determination was supported by the evidence. Instead, it determined that (regardless of
the facts) the Division cannot list Williams on the central registry because the hotline
report was deemed unsubstantiated when the Division failed to finish its investigation and
notify her of its determination within 90 days.
A similar judgment was vacated in the companion case of Frye v. Department of
Social Services, ___ S.W.3d ___ (SC93471) (Mo. banc 2014), handed down this same
day, and the reasoning of that case controls the disposition of this one. The sanction
4
imposed by the trial court as a consequence of the Division’s failure to comply with the
deadlines in section 210.152.2 and 210.145 never was approved by – and perhaps never
even was envisioned by – the legislature. Accordingly, the trial court’s actions were
contrary to this Court’s precedent and contrary to the legislature’s purposes and
procedures embodied in the Child Abuse Act, §§ 210.109 to 210.188.
This case also presents an issue that was not raised in Frye. Pursuant to section
210.145.14, the Children’s Division must identify in its information the “good cause” that
required it to exceed the 30-day limit on investigations. Here, the trial court found the
Division’s “good cause” was insufficient and, on that basis (as well as the 90-day
deadline at issue in Frye), determined that the Division cannot list Williams on the
central registry because the hotline report concerning her actions must be deemed
unsubstantiated.
The Division noted that it had good cause for continuing the investigation past 30
days because it was waiting for information from the local police department that was
supporting the Division’s investigation pursuant to section 210.145.5.2 The trial court
found this basis was not “good cause” because, in the end, this information was not the
basis for the Division’s determination.
2
Section 210.145.5 provides: “The local office shall contact the appropriate law enforcement
agency immediately upon receipt of a report which division personnel determine merits an
investigation and provide such agency with a detailed description of the report received. In such
cases the local division office shall request the assistance of the local law enforcement agency in
all aspects of the investigation of the complaint. The appropriate law enforcement agency shall
either assist the division in the investigation or provide the division, within twenty-four hours, an
explanation in writing detailing the reasons why it is unable to assist.”
5
As set forth in Frye, even though a statute unambiguously requires that an
administrative agency “shall” meet a particular deadline or similar mandate, courts are
not free to impose a sanction when the agency fails to comply with that obligation unless
the legislature has approved that sanction and its use in such circumstances. See Farmers
& Merchants Bank & Trust Company v. Director of Revenue, 896 S.W.2d 30, 33 (Mo.
banc 1995). Here, the sanction imposed by the trial court – treating the hotline report as
unsubstantiated and barring the Children’s Division from completing its investigation or
making the determination the statutes require it to make – has not been approved by the
legislature. The Division’s obligation is stated in section 210.145.14, which provides in
pertinent part:
The division shall complete all investigations within thirty days, unless
good cause for the failure to complete the investigation is documented in
the information system. If the investigation is not completed within thirty
days, the information system shall be updated at regular intervals and upon
the completion of the investigation. The information in the information
system shall be updated to reflect any subsequent findings, including any
changes to the findings based on an administrative or judicial hearing on
the matter.
§ 210.145.14 (emphasis added). 3
Clearly, nothing in this statute approves the sanction imposed by the trial court for
failing to do what this statute says the Division “shall” do. In fact, the Division did
everything that this statute says the Division “shall” do, i.e., it documented its good cause
for failing to complete the investigation within 30 days in its information system.
3
This section was renumbered in 2012 so what is referred to in this opinion as subsection 14 is
now subsection 15.
6
The trial court imposed its sanction not because the Division failed to do what
section 210.145.14 requires it to do, but because – in the course of the de novo review
authorized by section 210.152.6 – the court determined that the grounds logged into the
information system did not constitute “good cause.” This was error. Nothing in section
210.152.6 allows a trial court to review – de novo or otherwise – the good cause
identified in the Division’s information system pursuant to section 210.145.14.
Section 210.152.6 only authorizes the trial court to review the decision of the Board. It
does not authorize courts to directly review the Division’s determination as to whether
the hotline report was substantiated, and it certainly does not authorize courts to review
the Division’s good cause determinations under section 210.145.14.
Section 210.152.4 authorizes the Board to review the “determination of abuse or
neglect by the division.” In particular, section 210.152.5 provides that the Board “shall
sustain the division’s determination if such determination was … supported by a
preponderance of the evidence … and is not against the weight of such evidence.”
Nowhere in section 210.152.4 or .5 is the Board authorized to review the Division’s good
cause determinations, and nothing in section 210.152.6 authorizes courts to review
anything but “the decision of the child abuse and neglect review board.” Because this
review is de novo, this Court has held that section 210.152.6 allows a trial court to
evaluate evidence that was not presented to the Board. Jamison v. Department of Social
Services, 218 S.W.3d 399, 415 (Mo. banc 2007). But neither Jamison nor the language
7
of section 210.152.6 allows the trial court to review issues, e.g., good cause, that the
Board did not decide and had no statutory authority to decide. 4
Even if the trial court had authority to second-guess the Division’s good cause for
extending the investigation beyond 30 days, it cannot do so merely on the basis of
hindsight. Probable cause to issue a search warrant cannot be evaluated on the basis of
the evidence that warrant produced. The same logic applies here. The Division did not
know on day 30 what the basis for its determination would turn out to be. But the
evidence in this case shows that – at the time the decision to extend the investigation was
made – there was an ample and reasonable basis for the Division to believe that
additional information was needed and that this information was in the possession (or
within the reach) of the law enforcement agency serving as the Division’s co-
investigator.
Accordingly, for the reasons set forth above, and in the Court’s decision in Frye,
decided contemporaneously herewith, the trial court’s judgment in favor of Williams is
vacated, and the matter is remanded.
__________________________
PAUL C. WILSON, JUDGE
Russell, C.J., Breckenridge and Stith, JJ., concur; Draper, J., dissents in separate opinion
filed; Fischer and Teitelman, JJ., concur in opinion of Draper, J.
4
Courts can review constitutional questions on judicial review even though such questions were
not – and could not have been – decided by the Board. But Williams’ claims about good cause
are not constitutional claims, and, to the extent her due process claims relate to the question of
good cause, those claims lack any merit for the reasons set forth in Frye.
8
SUPREME COURT OF MISSOURI
en banc
IN RE THE MATTER OF )
TARYN WILLIAMS, )
)
Respondent, )
)
vs. ) No. SC93653
)
STATE OF MISSOURI, )
DEPARTMENT OF SOCIAL SERVICES, )
CHILDREN’S DIVISION, )
CHILD ABUSE AND NEGLECT )
REVIEW BOARD, )
)
Appellant. )
DISSENTING OPINION
I respectfully dissent from the principal opinion in that I believe the trial court
properly entered judgment in favor of Taryn Williams (hereinafter, “Williams”), ordering
her name not be included on the central registry of child abuse and neglect perpetrators
because the Children’s Division of the Missouri Department of Social Services
(hereinafter, “the Children’s Division”) failed to comply with the applicable time
limitations set forth in sections 210.145 and 210.152, RSMo Supp. 2005. The Children’s
Division failed to comply with the statutory time limits, which I believe divested it of
authority to continue to take action. For the reasons set forth below and in my dissent in
Frye v. Department of Social Services, __ S.W.3d __ (SC93471) (Mo. banc July 8, 2014),
I would affirm the judgment of the trial court.
The Children’s Division is a statutory creation, and its authority is limited to that
granted to it by the legislature. State ex rel. Missouri Pub. Defender Comm’n v. Waters,
370 S.W.3d 592, 598 (Mo. banc 2012); see also In re C.W., 211 S.W.3d 93, 97 (Mo. banc
2007). Accordingly, it is constrained by its articulated statutory authority. Hessel v.
Missouri Dept. of Social Services, Children’s Div., 400 S.W.3d 813, 816 (Mo. App. E.D.
2013) (citing State ex rel. MoGas Pipeline, LLC v. Missouri Pub. Serv. Comm’n, 366
S.W.3d 493, 496 (Mo. banc 2012)). Looking at the entirety of our statutory scheme, I
believe the legislature intended only to provide the Children’s Division ninety days in
which to take action against an alleged perpetrator. Since the Children’s Division failed
to act within that statutorily articulated timeframe, it had no authority to place Williams’
name on the central registry.
Section 210.145.14 provides that after receiving a report of abuse or neglect, the
Children’s Division “shall complete all investigations within thirty days, unless good
cause for the failure to complete the investigation is documented in the information
system. If the investigation is not completed within thirty days, the information system
shall be updated at regular intervals and upon the completion of the investigation.”
Section 210.152.2 provides that “[w]ithin ninety days after receipt of a report of abuse or
neglect that is investigated, the alleged perpetrator …, shall be notified in writing of any
determination made by the [Children’s D]ivision based on the investigation.” This section
then delineates that “the notice shall advise either:
2
(1) That the [Children’s D]ivision has determined … that abuse or neglect
exists and that the division shall retain all identifying information regarding
the abuse or neglect; that such information shall remain confidential and
will not be released except to law enforcement agencies, prosecuting or
circuit attorneys, or as provided by section 210.150; that the alleged
perpetrator has sixty days from the date of the receipt of the notice to seek
reversal of the [Children’s D]ivision’s determination through a review by
the child abuse and neglect review board as provided in subsection 3 of this
section; or
(2) That the [Children’s D]ivision has not made a probable cause finding or
determined by a preponderance of the evidence that abuse or neglect
exists.”
Section 210.152.2 (emphasis added). The legislature did not bestow a provision
for an extension of time for further investigation in this section as it did in section
210.145.14.
The legislature also compels the Children’s Division to notify the alleged
perpetrator with the written description of the investigation process once it opens an
investigation. Section 210.183.1. Section 210.183.1 contains language drafted by the
legislature explaining the process of the investigation to the alleged perpetrator by putting
sections 210.145 and 210.152 into plain words for the public. The Children’s Division’s
notification letter must be drafted in substantially the same form as set forth in section
210.183.1. This section states that the Children’s Division “shall make every reasonable
attempt to complete the investigation within thirty days.” If the investigation is not
completed within thirty days, “within ninety days you will receive a letter from the
[Children’s] Division which will inform you of one of the following:
(1) That the [Children’s] Division has found insufficient evidence of abuse
or neglect; or
3
(2) That there appears to be by a preponderance of the evidence reason to
suspect the existence of child abuse or neglect in the judgment of the
[Children’s] Division and that the [Children’s] Division will contact the
family to offer social services.”
Section 210.183.1 (emphasis added). This notification language tracks the statutory
language, delineating the Children’s Division’s authority, in sections 210.145.14 and
210.152.
Justice Sedgwick concisely sets forth the general rules of interpreting statutes and
determining when a statute should be treated as directory:
The intention of the Legislature should control absolutely the action of the
judiciary; where that intention is clearly ascertained, the courts have no
other duty to perform than to execute the legislative will, without any
regard to their own views as to the wisdom or justice of the particular
enactment.
The means of ascertaining that intention are to be found in the statute itself,
taken as a whole with all its parts,-- in statutes on the same subject,
antecedent jurisprudence and legislation, contemporaneous and more recent
exposition, judicial construction and usage; and to the use of these means,
and these alone, the judiciary is confined. No other extrinsic facts are in
any way to be taken into consideration.
It is not until these means fail, and until the attempt to ascertain the
legislative intent is hopeless, that the judiciary can with propriety assume
any power of construing a statute, strictly or liberally, with reference either
to the particular character of the statute, or to their own ideas of policy or
equity. Where the meaning of the statute, as it stands, is clear, they have no
power to insert qualifications, engraft exceptions, or make modifications,
under the idea of providing for cases in regard to which the Legislature has
omitted any specific provisions.
4
Theodore Sedgwick, A Treatise on the Rules which Govern the Interpretation and
Construction of Statutory and Constitutional Law, at 325-26 (2d ed. 1874) (hereinafter,
“Sedgwick”). 1
Section 210.152.2 provides that “[w]ithin ninety days after receipt of a report of
abuse or neglect that is investigated, the alleged perpetrator …, shall be notified in
writing of any determination made by the division based on the investigation.” This
section then delineates “the notice shall advise either:
(1) That the [Children’s D]ivision has determined … that abuse or neglect
exists and that the division shall retain all identifying information regarding
the abuse or neglect; that such information shall remain confidential and
will not be released except to law enforcement agencies, prosecuting or
circuit attorneys, or as provided by section 210.150; that the alleged
perpetrator has sixty days from the date of the receipt of the notice to seek
reversal of the [Children’s D]ivision’s determination through a review by
the child abuse and neglect review board as provided in subsection 3 of this
section; or
(2) That the [Children’s D]ivision has not made a probable cause finding
or determined by a preponderance of the evidence that abuse or neglect
exists.”
Section 210.152.2 (emphasis added).
The legislature did not bestow a provision for an extension of time for further
investigation in this section as it did in section 210.145.14. The legislature also mandated
that the Children’s Division must inform the alleged perpetrator within ninety days of one
of two possible outcomes.
1
The principles expounded upon in Sedgwick’s treatise, while applicable, are difficult for
citizens to locate; the Missouri’s Supreme Court library does not maintain a copy of any
of his treatises for citizens. However, this Court still recognizes his writing as influential
in our decision-making. See State v. Honeycutt, 421 S.W.3d 410, 419-20 (Mo. banc
2013).
5
In this case, the initial hotline call reporting Williams’ conduct occurred on
October 13, 2010. The Children’s Division informed Williams, outside of the initial
thirty days contemplated by section 210.145.14, that its investigation would be delayed
for “good cause” in that it was involved in a “co-investigation” with police. The
Children’s Division was unable to make a decision and inform Williams until more than
one hundred days later, well beyond the statutory period contemplated by section
210.152.2. Yet, the Children’s Division admitted it made its final determination based
upon the information it gathered during the first thirty days of its investigation. The
Children’s Division failed to comply with the statutory time periods in either section
210.145.14 or section 210.152.2, but it claims that it is entitled to do so to protect
Missouri’s children.
The principal opinion’s reliance on its analysis in Frye curtails the actual analysis
that should be performed by this Court when attempting to determine whether a statute is
mandatory or directory by only noting the lack of a penalty provision within section
210.152.2. “Directory provisions are not intended by the legislature to be disregarded,
but where the consequences of not obeying them in every particular are not prescribed the
courts must judicially determine them.” State ex rel. Ellis v. Brown, 33 S.W.2d 104, 107
(Mo. banc 1930) (quoting 25 Rawle C. L. Sec. 14 pp. 766, 767). 2 Our “courts recognize that
the term [‘shall’] is frequently used carelessly and indiscriminately, and they have not
2
The principal opinion neglects to look at the other statutory provisions within the same
act, covering the same procedures and authority granted to the Children’s Division,
thereby failing to give any meaning to every statutory provision enacted by our
legislature.
6
hesitated to hold that the intent of the legislative enactment will prevail over the literal
sense of its terms.” Howard v. Banks, 544 S.W.2d 601, 604 (Mo. App. St. Louis Dist.
1976). “There is no absolute or universal rule by which statutory provisions may be
distinguished and classified as mandatory or directory.” State ex rel. Hopkins v.
Stemmons, 302 S.W.2d 51, 53 (Mo. App. Spring. Dist. 1957). “In the determination of
this question, as of every other question of statutory construction, the prime object is to
ascertain the legislative intention as disclosed by all the terms and provisions of the act in
relation to the subject of legislation and the general object intended to be accomplished.”
Brown, 33 S.W.2d at 107 (quoting 25 Rawle C. L. Sec. 14 pp. 766, 767); see also Hopkins,
302 S.W.2d at 53; State ex rel. Rogersville Reorganized School Dist. No. R-4, of Webster
Cnty., v. Holmes, 253 S.W.2d 402, 404 (Mo. banc 1952) (“In determining whether either
of the provisions of the schedule with which each relator failed to comply is mandatory
or directory, the prime object is to ascertain the legislative intention as disclosed by all
the terms and provisions of the act in relation to the subject legislation and the general
object intended to be accomplished.”) (internal quotation omitted).
“As with all matters of statutory interpretation, determining if the word ‘shall’ is
mandatory or directory requires courts to review the context of the statute and to ascertain
legislative intent.” State v. Teer, 275 S.W.3d 258, 261 (Mo. banc 2009). When engaging
in statutory construction, the primary purpose is to ascertain the legislature’s intent from
the language used and to give effect to that intent if possible. Beard v. Missouri State
Employees’ Retirement System, 379 S.W.3d 167, 169 (Mo. banc 2012). This Court
presumes the legislature intended every word, clause, sentence, and provision of a statute
7
to have effect and did not insert superfluous language into the statute. City of Shelbina v.
Shelby County, 245 S.W.3d 249, 252 (Mo. App. E.D. 2008). “The construction of
statutes is not to be hyper-technical, but instead is to be reasonable and logical and [to]
give meaning to the statutes.” Lewis v. Gibbons, 80 S.W.3d 461, 465 (Mo. banc 2002)
(internal quotations omitted).
“Provisions of an entire legislative act must be construed together and, if
reasonably possible, all provisions must be harmonized.” Chester Bross Const. Co. v.
Missouri Dept. of Labor and Indus. Relations, Div. of Labor Standards, 111 S.W.3d 425,
427 (Mo. App. E.D. 2003) (quoting St. Louis County v. B.A.P., Inc., 25 S.W.3d 629, 631
(Mo. App. E.D. 2000)). Statutory provisions relating to the same subject matter “must be
considered in context and sections of the statutes in pari materia, as well as cognate
sections, must be considered in order to arrive at the true meaning and scope of the
words.” Harpagon MO, LLC v. Bosch, 370 S.W.3d 579, 584 (Mo. banc 2012) (quoting
South Metro. Fire Prot. Dist. v. City of Lee’s Summit, 278 S.W.3d 659, 666 (Mo. banc
2009)); see also Sedgwick at 209 (“It is well settled, that in construing a doubtful statute,
and for the purpose of arriving at the legislative intent, all acts on the same subject-matter
are to be taken together and examined, in order to arrive at the true result.”) This allows
the legislation to be read consistently and harmoniously. Crawford v. Div. of
Employment Sec., 376 S.W.3d 658, 664 (Mo. banc 2012). “The rule that statutes in pari
materia are to be consulted for the construction of each other, holds good, though some
of the statutes may have expired, or even been repealed, and whether they are referred to
or not.” Sedgwick at 212. Statutes are enforced as they are written, not as they might
8
have been written. Turner v. School Dist. of Clayton, 318 S.W.3d 660, 667 (Mo. banc
2010). Further, this Court presumes the legislature is aware of the existing law. Id.
Our legislature created the statewide child abuse and neglect registry to “promote
the safety of children … by conducting investigations … and providing services in
response to reports of child abuse or neglect.” Section 210.109.2; Jamison v. State, Dept.
of Social Services, Div. of Family Services, 218 S.W.3d 399, 402-03 (Mo. banc 2007).
The central registry is a non-public list of people who committed child abuse or neglect.
Sections 210.110(3) and 210.150.2. The central registry provides “a means to protect
both victims of child abuse and other children with whom a perpetrator of abuse or
neglect might come into contact by ensuring that information about cases of abuse is
available to individuals and entities responsible for caring and protecting children.” Pope
v. Child Abuse and Neglect Review Bd., 309 S.W.3d 362, 366 (Mo. App. E.D. 2010).
There is limited access to the central registry. Hessel, 400 S.W.3d at 817 n.2; see section
210.150.
When a hotline call is received, the Children’s Division is charged with opening a
thirty-day investigation. Section 210.145.14. The legislature clearly recognized that
some investigations may have “good cause” to be extended beyond the initial thirty-day
investigation period because the legislature included the qualifying language of “good
cause.” Id. The legislature promulgated a procedure, requiring the Children’s Division
to update the database with its progress on the investigation after the initial thirty-day
period. Id. The legislature also required that the alleged perpetrator be given written
notice of the investigative procedure, which states that the investigation should be
9
completed within thirty days, but may be extended to ninety days. There is no additional
provision for a lengthier investigation. Section 210.183.1. After the initial investigatory
period, the legislature directs that the Children’s Division within ninety days shall
provide notice to the alleged perpetrator that either the Children’s Division finds by a
preponderance of the evidence that abuse or neglect exists or that the Children’s Division
has not determined by a preponderance of the evidence that abuse or neglect exists.
Section 210.152.2.
Section 210.152.2 does not state what consequence will ensue if the Children’s
Division fails to provide the alleged perpetrator a written determination of its
investigation within ninety days. The principal opinion believes that, because there is no
delineated consequence from failing to inform an alleged perpetrator of its decision
within ninety days, section 210.150.2 should be construed as only a directory statute and
the Children’s Division does not need to comply with the statutory deadline. 3 See and Cf
Farmers & Merchants Bank & Trust Co. v. Dir. of Revenue, State of Mo., 896 S.W.2d 30,
33 (Mo. banc 1995) (construing only one statute and not requiring reference to any other
provision within the same act).
If section 210.152.2 were to be read in isolation, the “shall” without more could be
construed as directory because there is no delineated consequence for failing to meet the
ninety-day deadline. However, by reading section 210.152 in pari materia with sections
3
This Court has found reversible error by the circuit court in a termination of parental
rights hearing when it failed to comply strictly with section 211.455.3, a section that
includes the word “shall” but does not include a penalty provision. In re C.W., 21
S.W.3d at 98 (abrogated on other grounds by In re B.H., 348 S.W.3d 770 (Mo. banc
2011)). See also In re A.H., 169 S.W.3d 152, 158 (Mo. App. S.D. 2005) (same).
10
210.145 and 210.183, looking at the entire legislative act, and harmonizing its provisions,
it is clear the legislature intended the language to be mandatory. See Chester Bross, 111
S.W.3d at 427; Garzee v. Sauro, 639 S.W.2d 830, 832 (Mo. 1982) (finding a genuine
issue of fact remained when reconciling two statutes regarding giving notice for a real
estate sale, and stating, “giving the statute a directory meaning would imply that the
publication of notice of foreclosure in section 141.430 satisfies the notice requirements
for in rem proceedings under the due process clause of the Missouri and United States
constitutions.… [W]e cannot interpret section 141.440 as directory only.”)
The Children’s Division argues this Court should infer it has the authority to
extend the ninety-day limit set forth in section 210.152 for written notification of an
investigation’s outcome, if “good cause” exists. 4 The Children’s Division asserts that
there is “good cause” to continue its investigation because it seeks to protect Missouri’s
children. While this seems a laudable goal, the Children’s Division is a statutory creature
and is vested only with the express authority bestowed to it by our legislature, which
protects all of our citizenry.
Yet, the principal opinion states that to enforce the written statutory timeframe
would serve no one because the Children’s Division would stop its investigation as soon
as allegations are substantiated. The principal opinion’s willingness to allow an
administrative agency to continue any investigation in perpetuity will only be a disservice
to those it is charged to protect. At no time prior to the Children’s Division
4
The Children’s Division raises its “good cause” argument for the first time to this Court.
Rule 83.08(b).
11
substantiating an allegation of abuse are children protected. Until an investigation is
completed and a perpetrator is listed on the central registry, that perpetrator is at liberty to
have continued free access to children. Missouri’s children are not protected from those
who seek to harm them by a lengthy investigation process. Had the legislature wished to
allow the Children’s Division to have an unlimited amount of time to keep investigations
on alleged perpetrators open, as argued by the principal opinion, it could have placed the
same “good cause” language in section 210.152.2. 5
Similarly, section 210.183.1 states that the Children’s Division will make every
reasonable effort to complete the investigation within thirty days, but that “[w]ithin
ninety days you will receive a letter from the [Children’s] Division which will inform you
of” its decision. (Emphasis added). This statutory language supports interpreting “shall”
in section 210.152 as the legislature’s intent to create a mandatory directive and not allow
the Children’s Division to rest on its laurels rather than pursuing every investigation to a
rapid conclusion to protect Missouri’s children. 6
Finally, this Court notes that the legislature modified section 210.145.14, RSMo
Supp. 2007, and section 210.152, RSMo Supp. 2011. Statutory amendments can further
elucidate the legislature’s intent. City of Columbia v. Henderson, 399 S.W.3d 493, 497
5
An alleged perpetrator has no due process rights during the course of the Children’s
Division’s limited investigation. Jamison, 218 S.W.3d at 410. Providing the Children’s
Division with an unlimited amount of time to open files on and investigate alleged
perpetrators is tantamount to authorizing an unlimited investigation with no protection for
Missouri children.
6
The central registry is designed not only to protect children within families but also to
protect children who are entrusted to others for care in a daycare or school setting. A
lengthy delay in adding a perpetrator’s name to the central registry only allows that
perpetrator more access to children, thereby further endangering all children.
12
(Mo. App. W.D. 2013); Anderson ex rel. Anderson v. Ken Kauffman & Sons Excavating,
L.L.C., 248 S.W.3d 101, 109 (Mo. App. W.D. 2008). “When the legislature amends a
statute, it is presumed to have intended the amendment to have some effect.” Wollard v.
City of Kansas City, 831 S.W.2d 200, 203 (Mo. banc 1992).
Section 210.145.14, RSMo Supp. 2007, was amended to provide that in addition
to extending an investigation for more than thirty days for “good cause” that “[i]f a child
involved in a pending investigation dies, the investigation shall remain open until the
[Children’s D]ivision’s investigation surrounding the death is completed.”
The legislature made it clear that the death of a child permits the Children’s
Division’s investigation to continue indefinitely until its conclusion. Were the term
“shall” to be merely directory, there would have been no need to legislate that an
investigation could extend indefinitely in only one circumstance. This amendment to the
statute is further evidence that the legislature intended to treat the death of a child
differently from all other cases of alleged abuse and neglect by extending the
investigatory time indefinitely. The plain language of the statute in this case
demonstrates that the legislature intended to limit the time for which the Children’s
Division could conduct an investigation for abuse or neglect.
Our legislature added subsection 3 to section 210.152 in 2011, allowing the
Children’s Division to reopen a case
for review at the request of the alleged perpetrator, the alleged victim, or
the office of the child advocate if new, specific, and credible evidence is
obtained that the [Children’s D]ivision’s decision was based on fraud or
misrepresentation of material facts relevant to the [Children’s D]ivision’s
decision and there is credible evidence that absent such fraud or
13
misrepresentation the [Children’s D]ivision’s decision would have been
different.
This further clarifies the legislature’s intent to only provide the Children’s Division a
maximum of ninety days to complete its investigation and notify the alleged perpetrator
of its decision. The amendment now demonstrates that the investigation may be
reopened to further protect children should there be new, specific, credible evidence that
the Children’s Division’s decision was based on fraud or a misrepresentation of evidence.
The Children’s Division’s argument, seeking to extend its investigation and
decision making indefinitely, adds “good cause” language to section 210.152 that does
not exist. This Court will not interpret a statute as a party wishes it were written. Turner,
318 S.W.3d at 667. This Court will not add statutory language where it does not exist;
this Court merely interprets the statutory language as written by the legislature. Ryder
Student Transp. Services, Inc. v. Dir. of Revenue, State of Mo., 896 S.W.2d 633, 635
(Mo. banc 1995). It is obvious the legislature knew how to grant the Children’s Division
an extension of the statutory time limitations because it did so in section 210.145 by
inserting the “good cause” language and a procedure to follow when the investigation
was not completed. The legislature reiterated its intent that no investigation should
extend beyond ninety days by promulgating the notice to the alleged perpetrator,
providing he or she will be notified of the Children’s Division’s decision within ninety
days. Section 210.183. Finally, the legislature’s subsequent statutory amendments to
sections 210.145.14, RSMo Supp. 2007, and 210.152.3, RSMo Supp. 2011, further
indicate the legislature’s intent to limit the time of the Children’s Division investigations
14
in the normal course of its business. The legislature fully articulated a statutory scheme
to investigate and protect all Missouri’s children in a prompt and efficient manner. See
Jamison, 218 S.W.3d at 410.
Conclusion
Accordingly, I believe the Children’s Division’s failure to operate within the
enunciated statutory time frames divested it of the authority to take any other action in
this case. 7 I would affirm the trial court’s judgment.
__________________________
GEORGE W. DRAPER III, JUDGE
7
The principal opinion characterizes the outcome of this dissenting opinion as creating a
sanction. Yet, this legally sound and historically approved approach does no such thing.
Merely, the Children’s Division is required to follow the legislative mandates, and its
failure to do so divests it from further action; this is the result of the Children’s Division’s
failure to comply with the statutes, not a court-created sanction. To protect Missouri’s
children, the legislature has required diligence and only authorized the Children’s
Division to act during a statutorily created time period; its authority to act is limited to
that granted to it by the legislature. State ex rel. Missouri Pub. Defender Comm’n, 370
S.W.3d at 598; In re C.W., 211 S.W.3d at 97.
15