Monday, September 29, 2014

Frye v. Levy

Opinion issued
[July 8, 2014]

Link to Missouri Supreme Court Opinion

Melody Frye (“Mother”) was the subject of a hotline tip to the Children’s Division of the Missouri Department of Social Services (“Children’s Division”) alleging that she had neglected to monitor the interactions between her husband, Joseph Frye (“Frye”) and her three biological children.[i]  The Children’s Division conducted an investigation into the allegations against Mother and ultimately determined that the claims against one of the children, J.H. were substantiated and sought to add Mother’s name to the central registry.[ii]  She sought review of the Children’s Division’s decision by the Child Abuse Neglect Review Board, which ultimately affirmed the conclusion.[iii]  Timely, Mother sought judicial review and the trial court reversed the ruling, determining that the Children’s Division did not comply with the statutorily defined deadline in section 210.152.2, thus stripping the authority to make such determinations and ruled for Mother.[iv]  The Children’s Division appealed to the Supreme Court of Missouri, which ultimately vacated and remanded the trial court’s decision.[v]

I. Facts and Holding

A. Majority Opinion

Child abuse and neglect is a problem that the state of Missouri takes very seriously and handles with tremendous care, both for the benefit of the children and for alleged perpetrators.  The Children’s Division, empowered by the Child Abuse Act,[vi] conducts investigations into alleged child abuse and neglect.[vii]  In Frye v. Levy,[viii] the Children’s Division received a hotline complaint on May 10, 2006, alleging that Mother’s husband, Joseph Frye, had physically abused J.H., one of Mother’s biological children, which ultimately resulted in J.H.’s death.[ix]  The Children’s Division later received another hotline complaint on May 17, 2006, alleging that Mother, had committed neglect because she was aware of the physical abuse of her husband toward her three children, but failed to supervise his conduct concerning her children.[x]  On June 27, 2006, the Children’s Division completed its investigation surrounding the allegations against Frye and determined that, by a preponderance of the evidence, the complaint was substantiated.[xi]  The Child Abuse Neglect Review Board affirmed this decision, and Frye’s name was added to the central registry.[xii] 

On June 8, 2006, the Children’s Division noted that its investigation into the hotline complaint alleged against Mother would be extended beyond 30 days for “good cause” because the Division needed certain reports that it was unable to obtain.[xiii]  On August 25, 2006, the Children’s Division completed its investigation into the allegations against Mother, and concluded, by a preponderance of the evidence, that the allegation of her neglect was substantiated as to J.H., but unsubstantiated with respect to her two other children.[xiv]  The Children’s Division gave actual notice to Mother of their determinations and timely, Mother sought a hearing before the Child Abuse Neglect Review Board, which ultimately upheld the Division’s decision that by a preponderance of the evidence, the allegation as to J.H. was substantiated.[xv]  Following the Review Board’s decision to uphold the Division’s determination Mother sought de novo review in circuit court.[xvi]  The trial court, never reached the question of whether the evidence substantiated the allegation, but instead determined that the Children’s Division “lost jurisdiction” to investigate the complaint against Mother because the Children’s Division failed to comply with the 90-day statutory deadline for investigations which is set out in section 210.152.2 of the Child Abuse Act.[xvii]  This determination by the trial court lead to its conclusion and order of judgment in favor of Mother, and ordered the Children’s Division not to include her name in the central registry.[xviii]  The Children’s Division appealed the trial court’s ruling and after transfer to the Supreme Court of Missouri, in an opinion authored by Judge Wilson, the decision is vacated and remanded for further proceedings. [xix]  The standard of review by the Supreme Court in this case is “essentially de novo.”[xx] The Supreme Court determined that the trial court’s decision to rule in favor of Mother the moment the 90-day statutory deadline passed, regardless of what the evidence gathered showed was in error.[xxi] 

The Court begins their opinion by determining that the proper issue to be determined in this case is what sanctions, if any, the legislature intended to impose when the Children’s Division fails to do what section 210.152.2 requires it shall do.[xxii]  This is contrary to Mother’s insistence on the central issue being focused on the legislature’s use of the word “shall” in section 210.152.2.[xxiii]  The Court notes that “shall” is unambiguous, and indicates a command or mandate.[xxiv]  The trial court’s interpretation of the lapse 90-day statutory deadline stripping jurisdiction from the Children’s Division would make section 210.152.2 a “mandatory statute” but the Supreme Court of Missouri, after extensive deliberation and consideration determined that the statute at issue in this case is a “directory statute.”[xxv]  The Court, quoting and citing multiple sources of authority, explains that the difference between a “mandatory” and a “directory” statute rests on whether the legislature intended to make all actions that fail to comply with that obligation void or ineffective.[xxvi] In determining whether a statute is “mandatory” or “directory” the answer lies in the language used by the legislature.  The Court provides two examples of when a statute is “mandatory”: (1) if the statute provides explicitly what the consequences of failing to comply will be; and (2) if the statute specifically states that the required action can only be taken before the stated deadline.[xxvii]  Further, if a statute provides an obligation but does not explicitly allow only compliant actions, the statute is likely a “directory” statute and courts are not free to create and impose a sanction that the legislature did not approve.[xxviii]  When the legislature imposes a deadline, the Supreme Court has held that courts do not possess the authority to impose a sanction for non-compliance when the legislature has chosen not to do so.[xxix]  The Court notes that section 210.152.2 imposes the 90-day obligation for the Children’s Division to complete its investigation and make a determination upon receiving a complaint, but the statute does not explicitly provide that the Division may only investigate or make its determination before the 90th day, nor does the language of the statute provide that determinations made after the 90-day period will be deemed void or invalid.[xxx]  Mother attempts to rectify this conclusion by pointing to another section of the Child Abuse Act,[xxxi] which imposes a different time period, but the Court, using both the plain language of section 210.152.2 and the section Mother attempts to use for support of her proposition, rejects this argument.[xxxii]

After clearly determining that section 210.152.2 is a directory statute and that the trial court was without authority to impose its own sanction when the legislature had not so provided for non-compliance with the deadline within the statute, the Court goes on to discuss the obvious intent of the Child Abuse Act.[xxxiii]  The Children’s Division receives its authority to conduct investigations in section 210.109.2, which says the purpose of the child protection system is to promote safety of children and the integrity and preservation of their families by conducting investigations in response to reports of child abuse or neglect.[xxxiv]  Nothing in this statute purports to limit the Children’s Division to a 90-day investigative window, and if the legislature would have wanted this authority to be contingent on compliance with the deadlines set out in section 210.152.2 it would have expressly provided; failure to do so indicates that the legislative intent was not to strip the Division of jurisdiction and authority to conduct investigations 90 days following the receipt of a complaint.[xxxv]  The legislative purpose behind the entire Child Abuse Act is to protect victims of child abuse or neglect and any other children whom the perpetrator may come into contact,[xxxvi] thus the Supreme Court says, the question of what sanctions, if any, the legislature created or approved for use for failure to comply with the 90-day statutory deadline set out in section 210.152.2, must be answered in the context of, and faithful to, the remedial purpose of the statute.[xxxvii] The trial court’s holding that the Children’s Division loses authority to investigate and make determinations 90 days after receiving the complaint subordinates the Child Abuse Act’s clear purpose of protecting children from abuse and neglect, to the interests of the alleged perpetrators.[xxxviii]  The decision as to what sanctions should be imposed belongs to the legislature, and the lack of such decision is not for the court to fill-in.[xxxix] 

The Supreme Court of Missouri then addresses the future implications if the trial court’s decision were to be affirmed.[xl]  Such an arbitrary deadline, coupled with the stripping of all authority if a determination is not made within the deadline would lead to the Children’s Division having a great incentive to stop each investigation as soon as the allegations of abuse or neglect were minimally substantiated.[xli]  Finally the Court reiterates that the decision as to what sanctions should be imposed, if any, is one that is best left to the legislature – who authored the statute – in the absence of a penalty for non-compliance.[xlii]  After vacating and remanding the trial court’s ruling because of lack of authority to impose such sanctions, the Court moves on to Mother’s violation of due process claim.[xliii] 

In Mother’s due process claim, she asserts that the Children’s Division’s failure to comply with the 90-day statutory deadline of section 210.152.2 violated her constitutional right of due process and that because of this violation, the trial court’s imposition of sanctions – even if not what the legislature intended – were appropriate.[xliv]  To this claim, the Court first notes that in previous cases the Court has held that constitutional rights of due process protect not against investigation, but rather deprivation, and further that due process is satisfied, for the purposes of the Child Abuse Act, when the alleged perpetrator is given notice and an opportunity to be heard before his or her name is added to the central registry.[xlv] The Due Process Clause is not implicated under circumstances of an administrative hearing because a person’s legal rights are not adjudicated.[xlvi] 

Upon clarifying these initial determinations, the Court went on to say that in this claim, Mother neither could nor does assert that she suffered any actual prejudice from Children’s Division’s non-compliance.[xlvii]  Mother does not claim that she was unable to defend against the Division’s determination, that the Division made the wrong determination, nor that the Division’s delay was motivated by a desire to torment her.[xlviii]  Finally, the Court adds that the there very well might be a link between the lack of prejudice and the decision by the legislature not to statutorily impose any sanctions for non-compliance.[xlix]  The fact that an alleged perpetrator suffers no actual prejudice, whether or not the Division is in compliance with the 90-day statutory deadline helps to explain why the legislature chose not to approve the sanction imposed by the trial court in this case.[l]  Until the Children’s Division has completed its investigation, the Child Abuse Act recognizes that the interests of everyone are the same – that the Division make a fully informed and accurate determination as to whether the alleged complaint of abuse or neglect is substantiated.[li]

Ultimately, the Court vacated and remanded the trial court’s decision, finding that section 210.152.2, the statute at issue, is one that is directory, rather than mandatory.  The legislative intent and rationale are paramount when a question of statutory construction is to be determined.  Additionally, the Court finds that Mother’s due process claim is without merit because she suffered no actual prejudice in the matter, she was given time to defend her claim and be heard before her name could be added to the central registry, thus the absence of actual harm is fatal to her claim that her constitutional right of due process had been violated. 

B. Dissent

The dissenting opinion, authored by Judge Draper III, and joined by Judges Fischer and Teitelman, believe that the trial court reached the proper conclusion and the Supreme Court of Missouri should have affirmed the lower court’s ruling.[lii]  The dissenting justices support their opinion by pointing out that the Children’s Division is a product of statutory creation, and thus being so, is limited in authority to what is given to it by the legislature.[liii]  The main focus of the dissent’s opinion focuses on the fact that the entire Child Abuse Act needs to be construed and read as a whole, by doing so, light is shed on the construction of certain phrases which, read independently, could be interpreted differently.[liv] 

The dissenting justices point to the fact that the legislature, when authoring the Child Abuse Act, expressly provided for a “good cause” provision for extended time in section 210.145.14, but did not do so in section 210.152.2.[lv]  Further, section 210.183.1, which was written in simple language to be read by a layperson, 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 Division which will inform you [of the outcome of the investigation].”[lvi]  The dissent illuminates the fact that, in their opinion, the legislature could have easily added a “good cause” provision for an extension beyond the 90 day deadline in section 210.152.2, like they did in other sections of the Child Abuse Act, but chose not to, this clearly shows, the dissent’s opinion, the legislative intent to have a firm ninety day deadline for the Children’s Division to make its determinations.[lvii]  Reading section 210.152.2 in congruence with the rest of the Child Abuse Act leads the dissenters to their conclusion that the statute in question is a mandatory statute and should thus be interpreted as such.[lviii] 

Finally, the dissenters address the majority’s application as to the overall reason behind creating the Child Abuse Act – to protect the interests of children that have been abused or neglected and any other children that may come into contact with the perpetrator – by stating that the majority’s willingness to allow an administrative agency to continue any investigation into perpetuity will only be a disservice to those it is charged to protect.[lix]  Judge Draper III points out that before the Children’s Division has substantiated an allegation of abuse or neglect no child’s interests are protected.[lx]  Children of Missouri are not protected from alleged perpetrators until the completion of an investigation, as the alleged perpetrator will not be added to the central registry until allegations against him are substantiated.[lxi]  The alleged perpetrator is at liberty to have continued free access to children prior to being added to the central registry, and a drawn out and delayed investigation into allegations further supports the legislative intent to impose a strict ninety day statutory deadline to completing investigations into abuse and neglect of children.[lxii]

Accordingly, as evidenced by the above statements and positions taken by the three dissenting Judges, they would have affirmed the trial court’s decision that section 210.152.2 of the Child Abuse Act is a mandatory statute.  Further, that the ruling handed down by the trial court, to strip the Children’s Division of jurisdiction and authority after the ninetieth day, was indeed correct.

II. Legal Background

A. Statutory Construction

The intent of the Child Abuse Act has been held to be to provide public protection.[lxiii]  The Supreme Court of Missouri has previously ruled that the legislative purpose of 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.[lxiv] 

Rules of statutory construction must be subservient to legislative intent.[lxv] When construing statutes, a court should avoid unreasonable or absurd results.[lxvi] Making a determination as to whether a statute is mandatory or directory is of first importance when a court attempts to construe the meaning of language within a statute.[lxvii]  A statute is mandatory if, in addition to requiring the doing of the things specified, they prescribe the result that will follow if they are not done.  If directory, their terms are limited to what is required to be done.[lxviii]  In Bauer v. Transitional Sch. Dist. Of City of St. Louis,[lxix] the court held that where a statute or rule does not state what results will follow in the event of a failure to comply with its terms, the rule or state is directory and not mandatory.[lxx]  Ultimately however, whether a statute is mandatory or directory is a function of context and legislative intent.[lxxi] 

Similarly to the statutory interpretation at issue here, in Farmers & Merchants Bank & Trust Co. v. Dir. Of Revenue,[lxxii] a taxpayer had requested a refund, and the director of revenue denied the request.[lxxiii]  The taxpayer, conceding that the director had the requisite authority to decide whether to refund claims or not, claimed that the director had lost his authority to make such determinations because the director had failed to make his determination in the statutorily allotted time.[lxxiv]  The Court, in ruling on the taxpayer’s argument, determined that stripping the director of all authority would create an absurd result and would cause the director to potentially issue blanket denials when the statutorily imposed deadline approached, to avoid automatically refunding claims to taxpayers.[lxxv] 
B. Due Process Claims

The due process clauses of both the United States and Missouri Constitutions prohibit the taking of life, liberty, or property without due process of law.[lxxvi]  In determining what process is due in a particular case, a court first must determine whether the plaintiff has been deprived of a constitutionally protected liberty or property interest.[lxxvii]  Due Process is flexible and calls for such procedural protections as the particular situation demands.[lxxviii]  Three factors must be considered in determining what procedures are constitutionally sufficient: (1) private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.[lxxix]

The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.[lxxx]  It has been determined that due process protections are not necessary during a state administrative agency’s investigation because no legal rights are being adjudicated.[lxxxi]  The Supreme Court of Missouri has previously held that constitutional rights to due process protect against deprivation, not investigation, and that due process is satisfied for purposes of the Child Abuse Act and the central registry when an alleged perpetrator is given notice and an opportunity to be heard before his or her name can be listed in that registry.[lxxxii] 

III. Comment

The Supreme Court of Missouri ultimately made the right decision in this case.  Although I do believe that the dissent has very strong arguments, the ultimate goal and intent behind enacting the Child Abuse Act was to protect children from neglect and abuse; imposing a hard and fast deadline that must be met in all situations does not appear to be the intent of the legislature. 

The ultimate issue in this case was one of statutory interpretation.  The goal and responsibility of the courts when it comes to statutory interpretation is to determine the intent of the legislature and rule in the way that the authors of the statute would have envisioned.[lxxxiii]  It is hard to imagine that a legislature, authoring a statute to protect children from abuse and neglect, would impose a strict deadline in which such a determination must be made, or the alleged perpetrator is exonerated of all allegations.  Some cases take more time than others to sort through the facts and circumstances to reach a conclusion.  Requiring the Children’s Division to conduct an investigation and reach a determination in 90 days or the alleged abuser or neglector is absolved from all allegations seems absurd.  As has been noted previously, when interpreting statutes, avoidance of an absurd or unreasonable outcome is one factor that goes into the analysis.[lxxxiv]  While the dissent makes an excellent point, and one that should be strongly considered, when it states that no child is being protected while the investigation is ongoing, requiring the Children’s Division to conduct a hasty investigation and issue a determination, which would potentially be incomplete, also does not serve the children’s best interest. 

Further, as a matter of pure statutory interpretation, I see strong support in the majority’s opinion that this statute is a directory statute rather than being a mandatory statute.  Had the legislature wanted the Children’s Division to be stripped of all investigative authority and power to make determinations after 90 days, they would have said so expressly.  To the dissenter’s credit, there are valid points to be made that section 210.145.14 provides a “good cause” provision to extend the time period for investigating child abuse and neglect and such a provision is not present in section 210.152.2.[lxxxv]  However, as the majority opinion points out, section 210.145.14 does not approve a sanction for cases in which the Division fails to comply with the statutory obligation to note “good cause” when it exceeds the 30-day deadline in that statute.[lxxxvi]  With there not being any sanctions expressly provided by the legislature, I believe the correct determination was made that section 210.152.2 is a directory statute.  When a statute is determined to be such, they are to be construed so they provide the public protection intended by the legislature.[lxxxvii]  Ultimately, I believe that this was accurately portrayed in the majority’s opinion. 

While the dissent makes many valid points in regards to statutory construction and interpretation, when a statute does not provide for a sanction for non-compliance, the intent of the legislature should give way.  Here, the intent and purpose of the legislature when drafting and enacting the Child Abuse Act was to protect children who suffer from abuse and neglect, and to prevent perpetrators who commit such acts from having connections with children.  While the dissent points out, validly in my opinion, that children are not being protected by prolonged investigations, nobody’s interests are being served by incomplete and uninformed investigations and determinations.

 The majority’s determination, to not strip the Children’s Division of authority if it does not complete its investigation into an allegation of child abuse or neglect within the 90-day statutory deadline, was correct.  Absent any express sanction for non-compliance of a statute, the intent of the legislature should be rooted in the decision, and I believe that is what transpired in this Court’s ruling.

                                                                                      - Cameron A. Beaver

[i] Frye v. Levy, WL 3107299, *1 (Mo. banc 2014).
[ii] Id.
[iii] Id.
[iv] Id.
[v] Id. at *10.
[vi] Mo. Rev. Stat. § 210.109
[vii] Frye v. Levy, WL 3107299, *10 (Mo. banc 2014).
[viii] WL 3107299 (Mo. banc 2014).
[ix] Id. at *1.
[x] Id.
[xi] Id.
[xii] Id.
[xiii] Id.
[xiv] Id.
[xv] Id.
[xvi] Id. at *2.
[xvii] Id. at *2 (citing Mo. Rev. Stat. 210.152.2)
[xviii] Id. at *2.
[xix] Id. at *10.
[xx] Id. at *2 (quoting ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993).
[xxi] Frye v. Levy, WL 3107299, *1 (Mo. banc 2014).
[xxii] Id. at *3.
[xxiii] Id. at *2.
[xxiv] Id. at *2.
[xxv] Id. at *7.
[xxvi] Id. at *4.
[xxvii] Id. at *4.
[xxviii] Id. at *4.
[xxix] Id. at *3.
[xxx] Id. at *5.
[xxxi] Mo. Rev. Stat. § 210.145.14
[xxxii] Frye v. Levy, WL 3107299, *6 (Mo. banc 2014).
[xxxiv] Mo. Rev. Stat. § 210.109.2.
[xxxv] Frye v. Levy, WL 3107299, *6 (Mo. banc 2014).
[xxxvi] Mo. Rev. Stat. § 210.109.2.
[xxxvii] Frye v. Levy, WL 3107299, *7 (Mo. banc 2014).
[xxxix] Id.
[xl] Id.
[xli] Id. at *8.
[xlii] Id.
[xliii] Id. at *8-9.
[xliv] Id. at *9.
[xlv] Id.
[xlvi] Id.
[xlvii] Id.
[xlix] Id.
[l] Id.
[li] Id. at *10.
[lii] Id. at *11.
[liii] Id.
[liv] Id. at *18.
[lv] Id. at *12.
[lvi] Id. at *12 (quoting Mo. Rev. Stat. § 210.183.1).
[lvii] Id. at *12.
[lviii] Id. at *17.
[lix] Id.
[lx] Id.
[lxi] Id.
[lxii] Id.
[lxiii] Ross v. Dir. Of Revenue, 311 S.W.3d 732 (Mo. banc 2010).
[lxiv] Jamison v. Dep’t. of Social Services, 218 S.W.3d 399 (Mo. banc 2007).
[lxv] Anderson ex rel. Anderson v. Ken Kauffman & Sons Excavating, L.L.C., 248 S.W.3d 101, (Mo. Ct. App. 2008) (internal citations omitted).
[lxvi] Reichert v. Bd. of Educ. Of St. Louis, 217 S.W.3d 101 (Mo. banc 2007).
[lxvii] Hudgins v. Mooresville Consol. Sch. Dist., 278 S.W. 769 (Mo. 1925).
[lxix] 111 S.W.3d 495 (Mo. banc 2003).
[lxx] Id. at 408.
[lxxi] Id.
[lxxii] 896 S.W.2d 30 (Mo. banc 1995).
[lxxiv] Id.
[lxxv] Id. at 33.
[lxxvi] U.S. Const. amend. XIV, sec. 1; Mo. Const. art. I, sec. 10.
[lxxvii] Jamison v. State, Dep’t of Social Services, 218 S.W.3d 399 (Mo. banc 2007) (citing  Ky. Dep’t of Corrections v. Thompson, 490 U.S. 454 (1989)).
[lxxviii] Mathews v. Eldridge, 424 U.S. 319 (1976).
[lxxix] Id.
[lxxx] Armstrong v. Manzo, 380 U.S. 545 (1965).
[lxxxi] Artman v. State Bd. of Registration for Healing Arts, 918 S.W.2d 247 (Mo. banc 1996).
[lxxxii] Jamison v. State Dep’t of Social Services, 218 S.W.3d 399 (Mo. banc 2007).
[lxxxiii] See supra Part II.A.
[lxxxiv] See supra Part II.A.
[lxxxv] Frye v. Levy, WL 3107299, *12 (Mo. banc 2014) (dissenting opinion).
[lxxxvi] Id. at *6.
[lxxxvii] Id. at *7 (citing Ross v. Dir. Of Revenue, 311 S.W.3d 732 (Mo. banc. 2010).