C.D.J., Jr., By and Through His Next Friend C.D.J., Sr., and C.D.J., Sr., Individually v. Missouri Department of Social Services, Children's Division , 507 S.W.3d 605 ( 2016 )

In the Missouri Court of Appeals
Eastern District
DIVISION FIVE
C.D.J., JR., BY AND THROUGH HIS NEXT ) No. ED103969
FRIEND C.D.J., SR. AND C.D.J., SR., )
INDIVIDUALLY, )
)
Respondents, ) Appeal from the Circuit Court of
) St. Louis County
vs. )
) Honorable Ellen H. Ribaudo
MISSOURI DEPARTMENT OF SOCIAL )
SERVICES, CHILDREN’S DIVISION, )
)
Appellant. ) Filed: November 8, 2016
Introduction
The Children’s Division of the Missouri Department of Social Services (the “Division”)
appeals the order and judgment of the circuit court of St. Louis County in favor of C.D.J. Jr.
(“Son”) and C.D.J. Sr. (“Father”) (collectively “Respondents”). The circuit court reversed the
Division’s administrative determination that Son was abused by an unknown perpetrator, finding
that the Division’s determination was not supported by competent and substantial evidence, and
was arbitrary, capricious, unreasonable, and an abuse of discretion. The court ordered the
Division to remove its determination from the Central Registry. On appeal, the Division argues
(1) Respondents did not have standing to seek judicial review of its determination because they
were not “aggrieved” and (2) the court should not have conducted contested case review, but
should have instead conducted de novo judicial review pursuant to § 536.100.1 We affirm the
circuit court’s judgment on the basis that the Children’s Division does not have the statutory
authority to substantiate a report that an “unknown perpetrator” committed child abuse.
Factual Background
On June 30, 2014, Son was taken to Downtown Urgent Care in St. Louis, Missouri after
he broke his arm. At the time of the incident, Son was a ten year old child with a history of self-
injurious behavior and had been diagnosed with Autism, ADHD, and Reactive Attachment
Disorder. While at Downtown Urgent Care, Son told staff that his injuries occurred because he
fell while he was standing on the seat of a riding lawn mower in his family’s tool shed. Son’s
nine-year-old sister, who was present at the time of Son’s injury, gave an account that was
consistent with Son’s explanation. Dr. Sagger, Son’s treating physician while at Downtown
Urgent Care, did not suspect that Son’s injuries had been the result of abuse. Son was then
taken to the Cardinal Glennon Hospital Emergency Room, where he was seen by Dr. Goldberg,
an emergency room resident. Dr. Goldberg also did not suspect that Son had been abused.
However, Dr. Yang, an attending physician at Cardinal Glennon Hospital, noted that aside from
his broken arm, Son had a black eye, linear bruising on his back, and bruising on his inner thighs
that appeared to have occurred at different times. Dr. Yang suspected there may have been some
other cause for Son’s injuries aside from the explanation given by Son. As a result, Dr. Yang
called the Division and signed an affidavit stating that he had probable cause to believe that Son
had been abused or neglected.
The Division investigated Son’s injuries. While the investigation was still ongoing, the
Juvenile Officer filed a petition in the St. Louis County Family Court, alleging that Son’s father
and step-mother neglected Son by failing to provide necessary supervision for Son’s well-being.
1
Unless otherwise indicated, all statutory citations are to RSMo 2000.
2
Son was taken from his parents and placed in protective custody. On July 31, August 1, and
August 7, 2012, the family court held an evidentiary hearing to determine whether Son had been
abused or neglected by his parents. On August 7, 2012, the family court entered its findings,
order, and judgment, holding that the allegations of the Juvenile Officer’s petition had not been
proven and were dismissed. The family court’s judgment was not appealed.
On September 13, 2012, the Division sent Father notice that it had completed its
investigation and had determined by a preponderance of the evidence that Son had been the
victim of physical abuse. The notice stated that the alleged perpetrator of the abuse was
“unknown.” The notice stated that “[i]f you are named as an alleged perpetrator and you
disagree with the Division’s preliminary finding you . . . [may] seek reversal of the Division’s
determination through a review by the Child Abuse and Neglect Review Board [CANRB]” or
waive independent review by the CANRB and file a petition in the circuit court for de novo
review. The notice stated that requesting direct judicial review would result in the alleged
perpetrator’s name being entered into the Central Registry.
Son filed a petition for judicial review of the September 13, 2012 decision, alleging that
he was aggrieved by the Division’s determination that Son was abused. Son further alleged that
the Division’s determination was made in excess of its statutory authority. Father filed a petition
to be appointed Son’s next friend, as well as a motion for permission to file an amended petition
for judicial review. The amended petition added Father as a party, and added that “Petitioner is
aggrieved by the decision of [the Division], in that there is now an administrative finding that the
minor child was a victim of physical abuse when he was not.” The Division filed an amended
motion to dismiss. In March 2014, the circuit court denied the Division’s motion and set the
case for an evidentiary hearing. In April 2014, the circuit court removed the case from its setting
3
and asked the parties to brief whether “an evidentiary hearing is the next step or an appellate
review.”
The Division argued that de novo judicial review was appropriate pursuant to § 536.100
RSMo, and further argued that Father was not aggrieved by the Division’s determination that
Son had been abused. Respondents argued that they were aggrieved and were seeking direct
judicial review of the Division’s determination. Respondents asserted, however, that the court
was precluded from conducting a new evidentiary hearing because of the family court’s August
7, 2012 determination.
The circuit court agreed with Respondents and, in a December 2014 order, held that it
would proceed with “judicial review of a contested case under the scope of review provided in
Section 536.140 RSMo.” The circuit court requested the parties to provide the transcripts and
exhibits from the prior administrative investigation and family court case for it to review in order
to enter its decision.
In December 2015, the circuit court entered its order and judgment finding that, based on
the transcript from the family court adjudication and the Division’s investigation records, the
Division’s September 2012 determination was not supported by substantial evidence. The court
found that the Division abused its discretion in determining that Son was physically abused by an
unknown perpetrator. The court ordered the Division to remove the incident report relating to its
determination from the Central Registry. In January 2016, the Division filed its notice of Appeal
of the court’s December 2015 judgment. On appeal, the Division argues that: (1) the circuit
court lacked subject matter jurisdiction to review the Division’s determination because
Respondents were not aggrieved by the determination, and (2) the circuit court lacked the
authority to conduct contested case review and instead should have conducted de novo review.
4
Discussion
Before addressing the merits of this appeal, the measures Missouri uses to protect abused
and neglected children need explanation. The Missouri Child Abuse Act is codified in
§§ 210.108-210.188. In § 210.145.1, the legislature established four priorities for the Division
and other state agencies to follow when dealing with a report of abuse or neglect of a child.
These priorities are: 1) ensuring the wellbeing and safety of the child; 2) promoting the
preservation of the family unit; 3) providing due process to those accused of child abuse or
neglect; and 4) maintaining an information system capable of receiving and maintaining reports
of child abuse and the subsequent investigations. See Pitts v. Williams, 315 S.W.3d 755, 759
(Mo. App. W.D. 2010).
In order to balance the four priorities, the legislature set forth procedures to be
implemented by the Division. First, when an allegation of abuse or neglect is reported, the
Division must determine whether it believes the report merits investigation. § 210.145.3. If the
Division determines that an investigation is warranted, then it must contact the appropriate law
enforcement authority to inform it of the allegations and request assistance with the
investigation. § 210.145.5. When the Division investigates a report of abuse or neglect it must,
within ninety days, notify the alleged perpetrator and the victim’s parents in writing of its
finding. § 210.152.2. A finding by the Division that abuse or neglect occurred is appealable to
the Child Abuse and Neglect Review Board as well as to a circuit court in Cole County or the
county in which the individual appealing the determination resides. § 210.152.6.
A person who has been determined to be an alleged perpetrator of abuse or neglect by the
Division will have their name listed on the Central Registry. The names and investigation
records listed on the Central Registry are not accessible by the general public. § 210.150. They
5
are, however, accessible to persons or organizations listed in § 210.150.2, which include, inter
alia: 1) physicians who reasonably believe that a child they are examining may be abused or
neglected, 2) law enforcement personnel, 3) the Division’s personnel, and 4) public or private
schools and child-care facilities that request background checks on employees or volunteers.
Point I: Standing
The Division argues that Respondents do not have standing to challenge its determination
that Son was abused by an unknown perpetrator because Respondents were not aggrieved by the
determination. The Division asserts that Respondents do not have a legally cognizable interest
or right in the subject matter of the proceeding that is adversely and directly affected by the
decision. Respondents contend that they are aggrieved because the Division’s determination
“will be noted in any subsequent Family Court proceedings.” Respondents, citing In the Interest
of D.D.H. v. Glenda P., 875 S.W.2d 184, 188 (Mo. App. S.D. 1994), argue that prior allegations
of abuse can be prima facie evidence of imminent danger sufficient to remove a child from his or
her environment.
Relevant Law
“Standing is a question of law, which is reviewed de novo.” Manzara v. State, 343
S.W.3d 656, 659 (Mo. banc 2011). Parties seeking relief “bear the burden of establishing that
they have standing.” Id. “Reduced to its essence, standing roughly means that the parties seeking
relief must have some personal interest at stake in the dispute, even if that interest is attenuated,
slight or remote.” Ste. Genevieve Sch. Dist. R–II v. Bd. of Alderman of the City of Ste. Genevieve,
66 S.W.3d 6, 10 (Mo. banc 2002). To successfully assert standing, a plaintiff must have a legally
protectable interest. Comm. for Educ. Equality v. State, 294 S.W.3d 477, 484 (Mo. banc 2009). A
legally protectable interest exists only if the plaintiff is directly and adversely affected by the
6
challenged action or if the plaintiff's interest is statutorily conferred. St. Louis Ass'n of Realtors
v. City of Ferguson, 354 S.W.3d 620, 622–23 (Mo. 2011).
For a plaintiff to be entitled to review of an administrative decision, they must be an
aggrieved person under § 536.100. To qualify as “aggrieved,” the plaintiff must demonstrate a
specific and legally cognizable interest in the subject matter of the administrative decision and
that the decision will have a direct and substantial impact on that interest. City of Eureka v. Litz,
658 S.W.2d 519, 522 (Mo. App. E.D. 1983). “The decision must operate prejudicially and
directly upon the plaintiff’s personal or property rights or interests, and the effect must be
immediate and not merely a possible remote consequence.” Id.
Whether the party opposing an administrative action has a protectable interest “is a
matter for ad hoc determination by the courts under the given circumstances.” Horseshoe Bend
Prop. Owners Ass'n v. Camden County Commn., 748 S.W.2d 848, 853 (Mo. App. S.D. 1988)
(quoting Eureka 658 S.W.2d at 522). The determination is one of law and depends upon a
variety of considerations, “including the nature and extent of the interest of the person who
asserts status to contest the administrative action, the character of the administrative action, and
the terms of the statute which enable the agency action.” Eureka, 658 S.W.2d at 519. The
determination rests on policy as well as law, and a reviewing court must weigh the
considerations pursuant to the discerned legislative values. Id.
Analysis
In the present matter, both Respondents have standing to challenge the Division’s
determination that Son was the victim of abuse by an unknown perpetrator. The interest that Son
has in not being removed from his Father’s care, and the interest that Father has in not having his
Son removed from his care by the State, are interests of great importance. See Troxel v.
7
Granville, 530 U.S. 57, 65 (2000) (“The liberty interest at issue in this case−the interest of
parents in the care, custody, and control of their children−is perhaps the oldest of the
fundamental liberty interests recognized by this Court”). The Division’s determination that Son
was abused by an unknown perpetrator was included in the Central Registry. The determination
is accessible by the Division in the event any future report is made involving son, and will also
be accessible by Son’s physicians should one of them have “reasonable belief” son has been
abused.
The legislature acknowledged the significance of the Respondents’ interests when it
created § 210.145.1. That statute lists “the preservation and reunification of children and
families” as a priority in the development of child abuse reporting and investigation procedures.
Given the importance of the Respondents’ interests at stake in the present matter, and the
negative impact the Division’s determination will have on these interests, we conclude that
Respondents are aggrieved and have standing to challenge the Division’s determination that Son
was the victim of abuse by an unknown perpetrator.
Moreover, if Respondents did not have standing, that would render the Division’s
determination of abuse of Son completely unreviewable. There is a presumption of reviewability
of administrative action, and the Division has not rebutted this presumption. See Smith v.
Missouri State Bd. of Probation & Parole, 743 S.W.2d 123, 125 (Mo. App. W.D. 1988).
Point II: Division’s Authority to Determine Abuse by an “Unknown Perpetrator”
In its second point, the Division argues that the circuit court erred by failing to conduct
de novo review of Respondents’ claims. However, before we consider the merits of the
Division’s argument, we must determine whether the Division had authority to render its
determination that Son was abused by an unknown perpetrator. When an agency’s actions
8
exceed and violate its statutory authority, “its acts are void ab initio.” Cantrell v. State Bd. of
Registration for Healing Arts, 26 S.W.3d 824, 827 (Mo. App. W.D. 2000). Thus, if the Division
was without authority to determine that Son was abused by an unknown perpetrator, we need not
consider the Division’s argument because its underlying determination is void and the record of
its determination must be removed from the Central Registry.
In supplemental briefing by the parties, the Division argued that its authority to determine
that an unknown perpetrator committed child abuse or neglect is necessarily implied from its
statutory authority pursuant to §§ 210.109, 210.145, and 210.152. Respondents contended that
express language of §§ 210.109-210.183.1 contradicts the Division’s argument and that the
authority to determine that an unknown perpetrator committed abuse cannot be implied as it is
not necessary to maintaining the Central Registry.
Relevant Law
We will affirm the trial court’s judgment in a court-tried case if it reaches the correct
result, even though for an incorrect reason. Teague v. Missouri Gaming Commn., 127 S.W.3d
679, 688 (Mo. App. W.D. 2003). We may review whether an agency has exceeded its statutory
sua sponte. See Cantrell v. State Bd. of Registration for Healing Arts, 26 S.W.3d 824, 827 (Mo.
App. W.D. 2000). Agencies are products of the legislature, and they “possess only those powers
expressly conferred or necessarily implied by statute.” Saxony Lutheran High Sch., Inc. v.
Missouri Dept. of Nat. Resources, 404 S.W.3d 902, 906 (Mo. App. E.D. 2013). An agency’s
power may be implied only “if it necessarily follows from the language of the statute.” Id.
“This Court’s primary rule of statutory interpretation is to give effect to the legislative
intent as reflected in the plain language of the statute at issue.” Ivie v. Smith, 439 S.W.3d 189,
202 (Mo. banc 2014). Whenever possible, “we will not interpret one section in a way that brings
9
it into contradiction or conflict with another section.” Saxony Lutheran High Sch., Inc. v.
Missouri Dept. of Nat. Resources, 404 S.W.3d 902, 909 (Mo. App. E.D. 2013). Furthermore,
“provisions not plainly written in the law, or necessarily implied from what is written, should not
be added by a court under the guise of construction to accomplish an end the court deems
beneficial.” Massey v. Normandy Schools Collaborative, 492 S.W.3d 189, 197 (Mo. App. E.D.
2016) (quoting Harrison v. MFA Mut. Ins. Co., 607 S.W.2d 137, 143 (Mo. banc 1980)).
The whole of the Child Abuse Act as set forth in Chapter 210 is remedial, and remedial
statutes should “be construed so they provide the public protection intended by the legislature.”
Frye v. Levy, 440 S.W.3d 405, 412 (Mo. banc 2014). The Missouri Supreme Court has
recognized that “the legislative purpose behind the Child Abuse Act is to protect the victims of
child abuse or neglect and any other children with whom the perpetrator may come into contact.”
Id. Moreover, § 210.109.2 RSMo states that the “[t]he child protection system shall promote the
safety of children and the integrity and preservation of their families . . .”
Analysis
Respondents contend that the Division exceeded its statutory authority when it
determined that Son was abused by an “unknown perpetrator” for three reasons:
1) The express language of statutes §§ 210.109-210.183.1 limits the Division to making
only two determinations after it receives a report of abuse or neglect; 1) that an “alleged
perpetrator” committed the reported abuse or neglect, or 2) that there is insufficient
evidence of abuse or neglect;
2) The Central Registry is defined by § 210.110.3 as a registry of “persons”;
3) The authority to determine and report that an “unknown perpetrator” committed abuse or
neglect cannot be implied as such authority is not necessary or essential to maintaining
10
the Central Registry and it conflicts with the administrative and judicial review
provisions set forth in §§ 210.152, 210.153, and 210.183.1.
The Division concedes that it does not have express statutory authority to determine that
a child was abused by an unknown perpetrator. However, the Division argues that its authority
to determine an unknown perpetrator committed child abuse or neglect is implied for four
reasons:
1) The Division is authorized to retain identifying information regarding unsubstantiated
reports of suspected abuse or neglect;
2) The Division would be deprived of relevant dispositional information if it were not
authorized to determine that an unknown perpetrator committed abuse or neglect;
3) Section 210.152.2(1), (2) does not require the Division to determine that abuse or
neglect was committed by a “known” perpetrator, and instead only requires that the
Division determine whether abuse or neglect exists.
4) Granting the Division the authority to make a determination that a child was abused by
an unknown perpetrator enables the Division to further the purposes of the Missouri
Child Abuse Act.
The Division’s first two arguments fail because they confuse the issue in this case.
Regarding the Division’s first argument, the issue before us is not whether the Division is
authorized to retain records of substantiated abuse by an unknown perpetrator, the issue is
whether the Division may make a determination that a child was abused by an unknown
perpetrator in the first place. With regard to the Division’s second argument, in order for the
Division to be deprived of relevant dispositional information, it would need to have the authority
to make a dispositional determination that an unknown perpetrator committed abuse or neglect.
11
In the Division’s third argument, it asserts that it has implicit authority to determine that
an “unknown” perpetrator committed abuse because it has implicit authority to determine that a
“known” perpetrator committed abuse. The Division argues that § 210.152 expressly requires
“only that the Division determine whether abuse or neglect exists,” and not whether the
perpetrator is known or unknown. The Division argues that its authority to determine whether
abuse or neglect was committed by a “known” perpetrator is necessarily implied by
§ 210.109.3(1), along with its other statutory obligations as set forth in Chapter 210. The
Division contends that the legislature must have also implicitly authorized the Division to be able
to determine that an “unknown” perpetrator committed abuse, because “[a]buse and neglect
affects its victims and calls for redress to the same extent whether its perpetrator can be
identified or not.”
The Division’s argument that it only has implied authority, rather than express authority,
to determine that a known perpetrator committed abuse or neglect is meritless. Section
210.109.3(1) authorizes the Division to maintain the Central Registry. Section 210.110.3 defines
the “Central Registry” as a “registry of persons where the Division has found . . . by a
preponderance of the evidence . . . that the individual has committed child abuse or neglect.”
(emphasis added). Accordingly, the Division has express statutory authority to determine that a
known perpetrator committed child abuse or neglect. Its argument to the contrary is therefore
meritless.
We also reject the Division’s fourth argument that authorizing the Division to determine
that an unknown perpetrator committed child abuse or neglect promotes the purposes of the
Missouri Child Abuse Act. The Division asserts that if it receives another report of abuse
involving Son, then having a prior record of substantiated abuse, even by an unknown
12
perpetrator, will provide the Division with “a more knowledgeable investigation” into Son’s
“current circumstances.” However, the Division does not explain how such a record would
create a more knowledgeable investigation. The Division argues that it will “perhaps increase
the likelihood” that the unknown abuser will be identified in a future investigation, but does not
offer any support for why this is the case.
Moreover, the Division is mandated pursuant to § 210.152 to retain “all identifying
information” in its records of unsubstantiated reports of abuse for a period of (1) five years in
instances where the initial report of abuse was made by a mandatory reporter as set forth in
§ 210.115, or (2) two years in all other instances. In the present case, because the initial report of
abuse was made by a mandatory reporter,2 the Division would have access to all the identifying
information in its investigation report for a period of five years regardless of whether it
determined that the abuse reported against Son was substantiated. The Legislature’s mandate in
§ 210.152 addresses the Division’s concerns and needs with regard to maintaining investigation
information for the future.
Registering an unknown perpetrator does not further the purposes of the Missouri Child
Abuse Act. Simply stated, registering an unknown perpetrator is registering no one. Registering
no one does not further the legislative purpose of the law, which is to protect the victim of abuse
or neglect or other children who may come into contact with the perpetrator. See Frye, 440
S.W.3d at 412; § 210.109.2.
Having rejected the Division’s arguments, we agree with Respondents that the plain
statutory language of Chapter 210 demonstrates that the Division does not have the implied
authority to determine that an unknown perpetrator committed child abuse. As Respondents
2
The report was made by a physician. Physicians are listed in § 210.115.1 as being required to report to the
Division when they have reasonable cause to believe that a child has been abused or neglected.
13
point out in their supplemental brief, § 210.152.2 mandates that “within ninety days . . . after
receipt of a report of abuse or neglect that is investigated, the alleged perpetrator named in the
report . . . shall be notified in writing of any determination by the division based on the
investigation.” (emphasis added). By determining that an alleged perpetrator is “unknown,” the
Division is unable to comply with § 210.152.2’s requirement that it notify the alleged perpetrator
of the result of its investigation. The Division is also unable to comply with § 210.183.1’s
requirement that the Division provide the alleged perpetrator with a written description of the
investigation process. Furthermore, § 210.110 (3) defines the “Central Registry” as a “registry of
persons where the Division has found . . . by a preponderance of the evidence . . . that the
individual has committed child abuse or neglect.” (emphasis added). The Division’s argument
that it has implied statutory authority to make a determination that an unknown perpetrator
committed child abuse or neglect conflicts with §§ 210.152.2, 210.183.1, and 210.110.3.
Moreover, as Respondents argue, § 210.152 establishes a system for administrative and
judicial review of the Division’s determinations of abuse. Section 210.152.4 states “that any
person named in an investigation as a perpetrator who is aggrieved by a determination of abuse
or neglect . . . may seek an administrative review by the [CANRB].” Section 210.152.6 further
provides that “if the alleged perpetrator is aggrieved by the decision of the [CANRB], the alleged
perpetrator may seek de novo judicial review in the circuit court . . .” By determining that an
“unknown perpetrator” committed child abuse and neglect, the Division effectively nullifies the
due process provisions set forth in § 210.152.
As previously stated, whenever possible, “we will not interpret one section in a way that
brings it into contradiction or conflict with another section.” Saxony Lutheran High Sch., Inc. v.
Missouri Dept. of Nat. Resources, 404 S.W.3d 902, 909 (Mo. App. E.D. 2013). The Division’s
14
argued interpretation of Chapter 210 conflicts with §§ 210.152.2, 210.183.1, and 210.110.3. It
circumvents the review provisions set forth in § 210.152, and it is does not necessarily follow
from any of the statutory language of Chapter 210. For the foregoing reasons, we conclude that
the Division does not have the implied authority to determine that an unknown perpetrator
committed child abuse or neglect. Accordingly, we need not determine the merits of the
Division’s Point II because the Division’s underlying determination of abuse is void.
Conclusion
We believe that the goals of the Division−protecting children from abuse and neglect−are
noble. Here, its pursuit of those goals was overzealous. We cannot add an unknown perpetrator
provision to Chapter 210 merely because it achieves an end the Division feels would be
beneficial. See Massey, 492 S.W.3d at 197. We conclude that Respondents have standing to
challenge the Division’s determination that an unknown perpetrator abused Son. Furthermore,
we hold the Division has no statutory authority to substantiate a report that an unknown
perpetrator committed child abuse or neglect. On that basis, the circuit court’s judgment
ordering the Division to remove the incident report that Son was abused by an unknown
perpetrator from the Central Registry is affirmed.
_______________________________
Philip M. Hess, Chief Judge
Lawrence E. Mooney, J. and
Kurt S. Odenwald, J. concur.
15