Frye v. Levy

Decision Date08 July 2014
Docket NumberNo. SC 93471.,SC 93471.
Citation440 S.W.3d 405
PartiesMelody FRYE, Respondent, v. Ronald J. LEVY, Director, State of Missouri, Department of Social Services, Children's Division, Appellant.
CourtMissouri Supreme Court

Gary L. Gardner, Attorney General's Office, Jefferson City, for Appellant.

George C. Fisher Jr., Ray & Fisher, West Plains, for Respondent.

Opinion

PAUL C. WILSON, Judge.

The Children's Division of the Missouri Department of Social Services (“Children's Division” or “Division”) appeals from the trial court's grant of summary judgment in favor of Melody Frye (Mother). The trial court ordered the Division not to include Mother's name in the child abuse and neglect central registry because the Division failed to comply with the 90–day deadline for investigations and determinations under section 210.152.2, RSMo Supp.2005.1 Because this judgment imposes a sanction for the Division's noncompliance that the legislature neither created nor approved, the judgment is vacated and the matter remanded for further proceedings.

Background

Mother was married to Joseph Frye (Frye). Mother and Frye resided together with Mother's three biological children. One of Mother's biological minor children (“J.H.”) died May 10, 2006.

The Children's Division received a hotline complaint on May 10, 2006, alleging Frye physically abused J.H. and this abuse resulted in J.H.'s death. On May 17, 2006, the Children's Division received a hotline complaint against Mother, alleging she committed neglect because she knew Frye was abusive toward the three minor children but failed to supervise his conduct concerning them.

On June 27, 2006 (i.e., more than 45 days after receiving the complaint concerning Frye), the Children's Division completed its investigation of Frye and determined that a preponderance of the evidence substantiated the complaint against him. Once this determination was affirmed by the Child Abuse and Neglect Review Board (“Review Board”), Frye's name was added to the central registry. The state also brought criminal charges against Frye for the death of J.H. but later dismissed them.

On June 8, 2006, the Children's Division noted that its investigation into the hotline complaint regarding Mother would be extended beyond 30 days for “good cause” because the Division needed certain reports it had been unable to obtain. The Division noted in its information system additional reasons for delay between June 8 and June 27 but, between June 27 and August 25, no further updates were made. On August 25, 2006, the Children's Division concluded its investigation and determined that a preponderance of the evidence substantiated the hotline complaint that Mother failed to supervise adequately Frye's interaction with J.H. But the Division also determined that the evidence did not substantiate the complaint that Mother failed to supervise Frye around her other two children.

On August 28, 2006, the Children's Division sent a letter to Mother stating that the hotline complaint had been substantiated in part. Even though the Division sent this letter to the wrong address, Mother received actual notice of the Division's determination and timely sought a hearing before the Review Board. After considering Mother's arguments, the Review Board upheld the Division's decision that the evidence substantiated the allegations about Mother's conduct.

Mother then sought de novo review of the Board's decision in circuit court pursuant to section 210.152.6. The trial court never reached the question of whether the evidence did—or did not—substantiate allegations of Mother's neglect. Instead, it determined that the Children's Division “lost jurisdiction” to investigate or make a determination regarding the hotline complaint alleging Mother's neglect because the Division failed to comply with the 90–day statutory deadline for investigations set forth in section 210.152.2. On that basis, the trial court entered judgment in Mother's favor and ordered the Division not to include her name on the central registry. The Children's Division appeals and, after transfer, this Court has jurisdiction. Mo. Const. art. V, sec. 10.

Standard of Review

“The criteria on appeal for testing the propriety of summary judgment are no different from those employed by the trial court to determine the propriety of sustaining the motion initially.” ITT Commercial Fin. Corp. v. Mid–Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). “Our review is essentially de novo. Id. “Summary judgment is appropriate when the moving party has demonstrated, on the basis of facts as to which there is no genuine dispute, a right to judgment as a matter of law.”Am. Fed'n of Teachers v. Ledbetter, 387 S.W.3d 360, 362–63 (Mo. banc 2012).

Analysis

After completing its investigation of the hotline complaint alleging child neglect by Mother, the Children's Division determined that some—but not all—of those allegations were supported by a preponderance of the evidence. That determination was upheld by the Review Board. When Mother petitioned the circuit court to review the Review Board's decision, the trial court never reached the question of whether the Board erred in upholding the Division's conclusion that the evidence substantiated the allegations of Mother's neglect. Instead, the trial court decided that the consequence of the Division's failure to comply with the 90–day deadline in section 210.152.2 in Mother's case was that the Division lost all authority to continue its investigation or to make a determination regarding the hotline complaint against mother after the 90th day. The trial court determined that the moment this 90–day deadline passed, the hotline complaint concerning Mother's neglect must be deemed unsubstantiated no matter what the evidence gathered to date by the Division showed or did not show. Accordingly, the trial court entered judgment for Mother and ordered the Division not to list Mother's name on the central registry. This Court disagrees.

I. Section 210.152.2 Provides No Sanction for Noncompliance, and Courts are Not Authorized to Create One

The 90–day deadline for hotline investigations in section 210.152.2 was imposed by the General Assembly. Accordingly, it is for that body—not the courts—to decide what sanction (if any) is appropriate when the Children's Division fails to meet that deadline in a particular case. Here, the trial court erred by imposing a sanction that barred the Division from taking any action on this hotline complaint after the 90th day because the legislature did not create or approve the use of such a sanction in these circumstances.

Mother insists that the central issue in this case is what the legislature intended by its use of the term “shall” in the 90–day deadline provision in section 210.152.2. Her approach is understandable, but incorrect. “Shall” means “shall.” It unambiguously indicates a command or mandate. To suggest any other meaning is to ignore the plain language of the statute. More importantly, there is no reason to debate the sufficiency of this tautology in the present case because no one questions it. The Children's Division does not argue—and this Court does not hold—that “shall” means “may” in section 210.152.2 or that the 90–day deadline in that statute is merely a suggestion and not an obligation. Accordingly, because section 210.152.2 requires that the Division “shall” complete its investigation and notify the perpetrator of its determination within 90 days of receiving a hotline report, the Division has a clear and unequivocal duty to do so.

But Mother is not seeking a declaration that the Division has such a duty, nor is she seeking a writ of mandamus to compel the Division to perform that duty. Instead, she contends that, because the Division failed to comply with the 90–day deadline in her case, the Division lost all authority to complete its investigation of the hotline complaint about her, and it lost all authority to make the various determinations regarding the complaint that the Division is required to make under chapter 210. Accordingly, the central issue in this case is not whether “shall” means “shall” but what sanction (if any) the legislature intended to apply when the Division fails to do what section 210.152.2 says it “shall” do.

If, as the trial court held, the legislature intended for the Division to be stripped of all authority to investigate or make a determination regarding a hotline complaint after the 90th day, then section 210.152.2 is a “mandatory statute and this intention will be enforced. But, if the legislature has not approved this sanction or otherwise indicated that this is the intended consequence of the Division's non-compliance in a given case, then the statute is a “directory statute and the trial court was wrong in creating this sanction on its own. This is the statutory construction question before the Court; not whether the word “shall” means “shall.”

When the legislature imposes a deadline or other mandate, this Court has held that courts have no authority to impose a sanction for non-compliance when the legislature has chosen not to do so. See Farmers & Merchants Bank & Trust Co. v. Dir. of Revenue, 896 S.W.2d 30, 33 (Mo. banc 1995) (“where the legislature fails to include a sanction for failure to do that which ‘shall’ be done,” courts are not free to impose one).2

Farmers is merely one of the most recent and most relevant in a long line of decisions that categorize laws as either “mandatory statutes or “directory statutes.”

Under a general classification, statutes are either mandatory or directory; a determination of their character in this respect is of first importance in their interpretation. If mandatory, 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.

Hudgins v. Mooresville Consol. Sch. Dist., 312 Mo. 1, 278 S.W. 769, 770 (1925) (emphasis...

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