Peyton v. Department of Social Services, Division of Family Services , 987 S.W.2d 427 ( 1999 )

PAUL M. SPINDEN, Judge.

Terri L. Peyton appeals the circuit court’s judgment affirming the decision of Division of Family Services’ director that Peyton was not entitled to after-school child care benefits for her son from March 21 through October 15, 1996. Peyton asserts that DFS did not give her notice as required by § 208.080.3,¹ concerning expiration of her child care benefits, and by § 208.080.4,² regarding DFS’s closing her case. Because §§ 208.080.3 and 208.080.4 have no application to Peyton’s case, we affirm the circuit court’s judgment.

The evidence established that Peyton had applied for, and received, child care benefits since early 1993. With respect to the benefits at issue here, DFS notified Peyton by letter dated April 13, 1995, that she had been approved for child care benefits for April 13, 1995, through March 21, 1996. DFS sent Peyton a second notice on September 20, 1995, when Peyton changed child care providers for her son. The second notice informed Peyton of her rate change and that she had been approved for child care benefits through March 21, 1996. This second notice also included a provision notifying Peyton of her right to a hearing if she did not agree with DFS’s decision. Peyton did not request a hearing.

The state paid Peyton’s child care benefits directly to her child care provider until March 21, 1996. On March 21, 1996, the benefits expired because Peyton did not reapply. When Peyton learned from her child care provider in October 1996 that DFS had not paid her child care bill since March 21, she immediately reapplied and started receiving benefits again in October 1996.

Peyton, however, appealed her case to DFS’s director claiming that DFS did not give her proper notice regarding the “termination” of her benefits. This lapse, she claimed, entitled her to backpay of the benefits for March 21 through October 15, 1996. The director found that Peyton’s appeal was untimely and affirmed the agency’s action.

Peyton complains in the first point of her appeal that DFS’s notices concerning her eligibility for benefits — sent on April 13, 1995, and on September 20, 1995 — did not comply with § 208.080.3. In her second point, she contends that DFS did not comply with the notice requirements of § 208.080.4 before closing her file.³

Peyton is clear as to what she is appealing: “The Agency action being appealed in the instant case took place on March 21, 1996, when the Agency discontinued Claimant’s benefits[.]”⁴. Peyton’s Reply Brief at 6. She claimed a right to appeal the expiration of her benefits pursuant to §§ 208.080.3 and 208.080.4. Hence, we must determine whether the General Assembly intended for a recipient to be able to appeal the expiration of benefits pursuant to §§ 208.080.3 and 208.080.4.

The General Assembly’s authorization of an applicant’s or recipient’s appealing a decision of a DFS county office is limited. Section 208.080.1 restricts the right to appeal to “the following cases:”

(1) If [an applicant’s] right to make application for any such benefits or services is denied; or

(2) If [an applicant’s] application is disallowed in whole or in part, or is not acted upon within a reasonable time after it is filed; or

(3) If [DFS proposes] to cancel or modify benefits or services; or

(4) If [a recipient] is adversely affected by any determination of a county office of the division of family services in its administration of the programs administered by it; or

(5) If a determination is made pursuant to subsection 2 of section 208.180 that payment of benefits on behalf of a dependent child shall not be made to the relative with whom he lives.

None of these “cases” apply to Peyton’s points on appeal.⁵

The primary rule of statutory construction is to ascertain what the General Assembly intended and to give effect to that intent. Wolff Shoe Company v. Director of Revenue, 762 S.W.2d 29, 31 (Mo. banc 1988). We ascertain that intent primarily by deeming the General Assembly to have intended the plain and ordinary meaning of the words it uses in a statute and by making certain that we comprehend the statute in context. Butler v. Mitchell-Hugeback, Inc., 895 S.W.2d 15, 19 (Mo. banc 1995).

The General Assembly made obvious its intent in §§ 208.080.3 and 208.080.4: to establish basic procedures for the right of appeal it created in § 208.080.1. Its purpose was not to authorize in §§ 208.080.3 and 208.080.4 an independent right to appeal. The reviser of statutes understood this purpose as evidenced by his title, “Appeal to director of the division of family services, when — procedure.” The “when” comes in § 208.080.1 where the General Assembly authorizes appeals “in the following cases.” The “procedure” comes in the remainder of the statute, including §§ 208.080.3 and 208.080.4. Hence, §§ 208.080.3’s and 208.080.4’s obvious purposes are to establish procedures, not substantive rights of appeal.⁶

Peyton contends that § 208.080.3 required DFS to give her notice of her right to appeal DFS’s proposed action to discontinue her benefits because DFS discontinued her benefits in March 1996. Section 208.080.3, however, is not applicable to Peyton’s case. The statute’s application is restricted to cases in which DFS proposes to reduce, modify, or discontinue benefits — see § 208.080.1(3) — and none of this occurred in Peyton’s case.⁷

Peyton complained at oral argument that she was confused by DFS’s procedures, and DFS’s not warning her that her benefits were about to end lulled her to inaction. First, we find no statute or regulation requiring DFS to warn recipients of imminent expiration of benefits. Second, Peyton was not a neophyte to welfare benefits — she had been receiving child care benefits since March 1993 and that at the end of each term she had reapplied for benefits — and she admitted at oral argument that she had never received notice concerning expiration of her benefits. Still, she had managed to reapply for benefits without the notices. She, however, did not reapply for benefits in March 1996; she simply let the benefits expire.⁸ Although Peyton contends that DFS discontinued her benefits without notification, DFS took no affirmative steps to discontinue her benefits. The money stopped at the end of the authorized period, and Peyton did not ask for another. Section 208.080.3 simply does not apply to such situations.

Peyton also asserts a right to appeal pursuant to § 208.080.4. She contends that DFS should have given her notice of her right to appeal before closing her case.

Section 208.080.4 does not give the recipient the right to appeal a closing. As we explained earlier, the General Assembly set out in § 208.080.1 a restrictive list of cases in which it authorizes an appeal. Closing a case is not on this list, and Peyton does not articulate a “case” which is appealable under § 208.080.1.⁹

Even if we were to agree, however, that DFS erred in not giving Peyton proper notice, the error did not prejudice her. The notice would have informed her only of a right to appeal, and Peyton’s complaint that DFS did not notify her that her benefits were about to expire was not an appealable case pursuant to § 208.080.1. So, even had she received notice, it would not have allowed her to obtain the backpayment she seeks.

Moreover, even if Peyton were correct that DFS erred in not giving her notice, the proper remedy would not be back payment; it would be giving her the appeal which the director denied in part because Peyton asked for it beyond the 90-day deadline. Of course, Peyton does not seek the proper remedy because the proper remedy obviously would do her little good. Her complaint that she did not receive notice of the expiration was not a cognizable claim for an appeal.

The dissent accuses us of denying Peyton a right to appeal by predetermining that the merits of any appeal would be unsuccessful. The dissent’s logic fails. We are not assessing Peyton’s chances for success on appeal; we merely are saying that Peyton, based on her own contentions on appeal, did not present a “ease” affording her the right to appeal.¹⁰

While we are sympathetic to Peyton’s plight and are aware of the potential financial hardship this situation places on her, we cannot ignore the law and the General Assembly’s mandates. Peyton was obligated to reapply if she wanted future benefits. Although DFS had an internal procedure to notify recipients a month before their benefits expired,¹¹ nothing in § 208.080 or in DFS’s regulations required this notice.¹² Moreover, just as is the case with numerous other benefactors of the state’s privileges, the duty was on Peyton to remain alert to the deadline of which DFS had given her clear notice initially.

Peyton would have us shift the responsibility to DFS to assume responsibility for making certain that she really did not want to apply for new benefits. Putting this burden on the state is not lawful or even appropriate. DFS did not allow Peyton’s benefits to expire — Peyton did. The obligation to reapply for benefits remained with Peyton.

We affirm the circuit court’s judgment affirming the director’s decision.

ROBERT G. ULRICH, Judge, PATRICIA BRECKENRIDGE, Chief Judge, JAMES M. SMART, Judge, EDWIN H. SMITH, Judge, and VICTOR HOWARD, Judge, concur. LAURA DENVIR STITH, Judge, dissents in separate opinion. HAROLD L. LOWENSTEIN, Judge, JOSEPH M. ELLIS, Judge, ALBERT A. RIEDERER, Judge, and CHARLES SHANGLER, Senior Judge, join in the dissenting opinion. FOREST W. HANNA, Judge, did not participate.

1 . All statutory citations refer to the 1994 Revised Statutes. Section 208.080.3 says, "In the case of a proposed action by the county office of the division of family services to reduce, modify, or discontinue benefits or services to a recipient, the recipient of such benefits or services shall have ten days from the date of the mailing of notice of the proposed action to reduce, modify, or discontinue benefits or services within which to request an appeal to the director of the division of family services. In the notice to the recipient of such proposed action, the county office of the division of family services shall notify the recipient of all his rights of appeal under this section.”

2 .The statute says, "When a case has been closed or modified and no appeal was requested prior to closing or modification, the recipient shall have ninety days from the date of closing or modification to request an appeal to the director of the division of family services. Each recipient who has not requested an appeal prior to the closing or modification of his case shall be notified at the time of such closing or modification of his right to request an appeal during this ninety-day period. Proper blank forms for requesting an appeal to the director of the division of family services shall be furnished by the county office to any aggrieved applicant. Every such request made in any manner for an appeal to the director of the division of family services shall be transmitted by the county office to the director of the division of family services immediately upon the same being filed with the county office. If an appeal is requested in the ninety-day period subsequent to the closing or modification, benefits or services shall not be continued at their prior level during the pendency of the appeal.”

3 . Instead of focusing on these issues, the dissent recasts Peyton's appeal and asserts that she is complaining about DFS’s modification of her benefits in September 1995, about DFS’s failure to give her benefits for an entire year, about not being able to receive benefits for more than a year, about being adversely affected by a determination of a county office of DFS in its administration of programs, and about DFS’s rejecting her benefits. We find no such complaints anywhere in this record.

4 . The dissent agrees that Peyton’s right to appeal did not arise from any action by DFS on March 21, 1996. Instead of confining its probe to Pey-ton’s contentions, however, it fabricates an appeal for her.

5 . The dissent says that § 208.080.1(3) granted Peyton the right to appeal DFS’s modification of her benefits in September 1995, but Peyton is not asserting a right to appeal based on the modification of her benefits pursuant to § 208.080.1(3). The dissent says that, because DFS found Peyton "eligible for benefits ... for approximately three weeks less than one year from the initial determination of benefits, and just 6 months from the date of the September 20, 1995 modification of benefits,” slip op. at-, Peyton had a right to appeal pursuant to § 208.080.1(2) because her application for benefits was disallowed in part. Peyton, however, is not asserting a right to appeal based upon DFS's disallowing her benefits in part pursuant to § 208.080.1(2). Moreover, the record does not indicate that Peyton applied for benefits for a longer period or that DFS disallowed her benefits for a partial period, as the dissent suggests. Peyton's application for benefits was not a part of the record, and, if Peyton wanted this court to consider her application, she — not DFS — bore the responsibility to make sure it was a part of the record. Rule 81.12(c). The dissent also asserts that Peyton had a right to appeal because she was adversely affected by DFS’s determination to allow her benefits only for that period, giving her a right of appeal under § 208.080.1(4). Peyton, however, is not asserting a right to appeal based upon being adversely affected by DFS's determination pursuant to § 208.080.1(4).

6 . The dissent expresses doubt that § 208.080.4 is procedural only and that § 208.080.1 provides the only cases which are appealable. It notes that § 208.080.4 provides for 90 days for appeal from an actual modification of benefits even though a right of appeal from any such actual modification is not expressly mentioned in § 208.080.1. The dissent reasons from this that the right to appeal such a modification is implicitly granted by § 208.080.4 itself, even though not set out expressly in § 208.080.1. This is a misreading of the statute. Section 208.080.4 does not say that a closing or modification is appealable. It says, "When a case has been closed or modified and no appeal was requested prior to closing or modification, the recipient shall have ninety days from the date of closing or modification to request an appeal[.)" This merely sets the deadline for a recipient's appeal: 90 days after a case is closed or modified. It does not give the recipient the right to appeal the closing or modification. If, however, a modification results in DFS’s disallowing benefits in whole or in part — the likely result in most modifications — the recipient would have a right to appeal pursuant to § 208.080.1(2).

7 . Of course, DFS did notify Peyton of her right to appeal when it modified her benefits on September 20, 1995.

8 . Peyton claimed that in the previous years her child care provider reminded her to reapply for benefits. She does not explain, however, why her reliance on her child care provider to give her notice of the expiration of benefits and its failure to do so in a timely matter should make DFS liable for her benefits' expiring.

9 . The dissent also suggests that Peyton could have appealed DFS’s disallowing some of her claim for benefits and the adverse determination of her claim pursuant to § 208.080.5. Peyton, however, did not assert a right to appeal based upon a rejection of benefits and services pursuant to § 208.080.5, assuming for a moment that it would have been proper to do so. Moreover, the dissent recognizes that Peyton did not comply with the procedures for appeal under § 208.080.5. The dissent also says that, because DFS did not submit on the record "Missouri’s plan governing benefits” and the federal statutes or regulations limiting the eligibility for benefits to no greater than one-year intervals, Peyton could have appealed the one-year eligibility determination. Peyton, however, is not contending that DFS did anything illegal or improper by setting a date certain for her benefits to expire. In fact, she acknowledges that DFS had done so previously. Moreover, the dissent's focusing entirely on the Missouri “plan” and federal law limiting eligibility of benefits to one year is inconsequential. DFS determined that Peyton was eligible for benefits from April 13, 1995, to March 21, 1996. Her benefits expired on March 21, 1996.

10 .The dissent also contradicts itself by predetermining that Peyton would have applied for reinstatement of benefits immediately, making no appeal necessary.

11 . DFS said that it sent the notice to Peyton, but Peyton testified that she did not receive it. The director found that Peyton’s testimony that she had not received this notice was credible.

12 . The dissent’s position would, in effect, punish DFS for going a step beyond what is required by the law and would likely discourage DFS from sending reminder notices in the future.