Jamison v. STATE, DIV. OF FAMILY SERVICES, No. SC 87360.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtLAURA DENVIR STITH
Citation218 S.W.3d 399
PartiesMildred JAMISON, et al., Respondents, v. STATE of Missouri, DEPARTMENT OF SOCIAL SERVICES, DIVISION OF FAMILY SERVICES, Appellant.
Docket NumberNo. SC 87360.
Decision Date13 March 2007

218 S.W.3d 399

Mildred JAMISON, et al., Respondents,
v.
STATE of Missouri, DEPARTMENT OF SOCIAL SERVICES, DIVISION OF FAMILY SERVICES, Appellant.

No. SC 87360.

Supreme Court of Missouri, En Banc.

March 13, 2007.


218 S.W.3d 400

COPYRIGHT MATERIAL OMITTED

218 S.W.3d 401

Jeremiah W. (Jay) Nixon, Atty. Gen., Joel E. Anderson, Asst. Atty. Gen., William R. Kennedy, Asst. Atty. Gen., Scotty L. Allen, Jefferson City, for Appellant.

Timothy Belz, St. Louis, for respondents.

LAURA DENVIR STITH, Judge.

218 S.W.3d 402

The Division of Family Services1 of Missouri's Department of Social Services ("division") appeals the trial court's order granting summary judgment to Ms. Mildred Jamison and Ms. Betty Dotson in their declaratory judgment action seeking to have the Missouri Child Abuse Act, section 210.110 et seq., RSMo 2000,2 ("the Act") held unconstitutional, facially and as applied, under the due process clauses of the United States and Missouri constitutions. The trial court found that the Act violates "the due process rights of all persons. . . whose names are included in the Central Registry prior to their opportunity for a due process hearing."

This Court agrees that Ms. Jamison and Ms. Dotson have shown they have a protected liberty interest in not having their names included in the Central Registry and subject to dissemination to current and prospective employers before they receive notice and an opportunity to be heard. For these reasons, to the extent that the Act permits the division to list the names of persons in the Central Registry based on the findings of an investigator and local director, it is invalid because it does not provide alleged perpetrators with the necessary notice and opportunity to be heard. Similarly, to the extent that the Act permits listing persons in the Central Registry merely based on a finding by an investigator, a local director, or the CANRB of probable cause to believe abuse or neglect occurred, it is invalid. Unless and until the CANRB determines that the allegations are proven by a preponderance of the evidence, the division cannot constitutionally include the alleged perpetrators in the Central Registry.

The trial court held that to pass constitutional muster the alleged perpetrator must also be guaranteed the right to subpoena and cross-examine sworn witnesses and the rules of evidence must apply in the CANRB hearing. It therefore held the Act unconstitutional in its entirety. Were the alleged perpetrator granted no further right to review, this Court would agree. But the CANRB hearing is a pre-deprivation hearing, from which an aggrieved alleged perpetrator has an immediate right to de novo judicial review. This subsequent review renders these additional procedural safeguards unnecessary to satisfy due process. Therefore, the procedural protections provided at the CANRB hearing are adequate if a preponderance of the evidence standard is applied.

I. FACTUAL AND PROCEDURAL BACKGROUND

Ms. Jamison is a registered nurse and the founder and chief executive officer of Faith House, a licensed child care center and residential child care agency in St. Louis. Ms. Dotson is a licensed practical nurse employed at Faith House. On January 2, 2003, an anonymous call made to the division's child abuse and neglect hotline alleged that Ms. Jamison and Ms. Dotson negligently failed to supervise the children in their care.

At that time, the Act provided that if a division investigator "found probable cause to believe . . . that the individual has committed child abuse or neglect," sec. 210.110(2), then the individual should be listed in the Central Registry. The Central Registry is a statewide child abuse and neglect registry maintained by the division as part of Missouri's efforts "to promote the safety of children . . . by providing services in response to reports

218 S.W.3d 403
of child abuse or neglect," sec. 210.109.2, RSMo Supp.2006. Although the legislature recently amended the Act to require that an allegation of child abuse or neglect by proved by a preponderance of the evidence before an alleged perpetrator's name is included in the Central Registry, when Ms. Dotson and Ms. Jamison were listed and when they administratively appealed that listing, the Act required only a showing of probable cause to believe they had committed abuse or neglect

Beginning the day the hotline call was made, a division investigator reviewed documents and interviewed the victims, Ms. Jamison and Ms. Dotson, and several witnesses. On January 29, 2003, the investigator issued her report, finding probable cause to believe Ms. Jamison and Ms. Dotson neglected children under their care. Based solely on the investigation, before any formal notice or a hearing was provided to Ms. Jamison or Ms. Dotson, the division entered the two women's names in the Central Registry as persons there was probable cause to believe were guilty of child abuse or neglect. As a result, the Department of Health and Senior Services ("DHSS") decreed that Ms. Jamison was not allowed to be present during Faith House's hours of operation.3 The investigator also sent both women letters on January 30, 2003, telling them they were now listed in the Central Registry and informing them of their right to administrative review before the county director of the local division office under 13 CSR 40-31.025(2).

According to these regulations, the director must review "all appropriate material" and independently determine whether to uphold the investigator's decision. 13 CSR 40-31.025(2)(B). Although "all appropriate material" is not defined and no provision entitles a person to submit a written explanation of the alleged abuse or neglect, in this instance, the director permitted Ms. Jamison and Ms. Dotson to provide affidavits setting forth their versions of the events. In a letter sent on April 3, 2003—64 days after the women were first listed in the Central Registry — the director informed Ms. Jamison and Ms. Dotson that he was upholding the investigator's finding of probable cause and, as required by 13 CSR 40-31.025(2)(C), informed them how to seek further review. During this entire period, Ms. Jamison and Ms. Dotson's names were included in the Central Registry and, therefore, available to inquiring employers. See sec. 210.150.

Still believing that the findings against them were incorrect and that their names should not be listed in the Central Registry, Ms. Jamison and Ms. Dotson made a timely, written request for review by the CANRB.4 See sec. 210.152.3; 13 CSR 40-31.025(8)(A).

218 S.W.3d 404
Pending that review, their names remained in the Central Registry

Under section 210.153.4(2), Ms. Jamison and Ms. Dotson were entitled to appear before the CANRB, with or without counsel, to testify in person or to submit a written statement.5 Both Ms. Jamison and Ms. Dotson and the division were permitted to present witnesses at the hearing. Sec. 210.153.4(3); 13 CSR 40-31.025(8)(F). Witnesses providing information on behalf of the child were also allowed to attend. Sec. 210.153.4(3). Testimony is not given under oath nor does the law provide for compulsory attendance or cross-examination of witnesses. See sec. 210.153; 13 CSR 40-31.025(8). Accordingly, Ms. Jamison and Ms. Dotson did not receive these procedural protections. Additionally, the rules of evidence do not apply to a CANRB hearing, and, thus, hearsay can be considered. See sec. 210.153; 13 CSR 40-31.025(8).

The CANRB did not schedule a hearing until July 22, 2003, some three and one-half months after Ms. Jamison and Ms. Dotson received the local director's decision to uphold the probable cause finding. The version of the statute then in effect provided that the CANRB "shall sustain the division's determination if it is supported by evidence of probable cause and is not against the weight of such evidence." Sec. 210.152.4. Twenty days later, on August 11, 2003, Ms. Jamison and Ms. Dotson received notice that the CANRB upheld the probable cause finding. This meant Ms. Jamison's and Ms. Dotson's names remained in the Central Registry, just as they had for more than six months.

The statutory scheme permits an alleged perpetrator aggrieved by the CANRB's decision to seek de novo judicial review within 60 days, see sec. 210.152.5, and Ms. Jamison and Ms. Dotson did so on October 9, 2003. "In reviewing such decisions, the circuit court shall provide the alleged perpetrator the opportunity to appear and present testimony. The alleged perpetrator may subpoena any witnesses except the alleged victim or the reporter." Id. Ms. Jamison's and Ms. Dotson's names remained in the registry for the 25 months during which the case was pending in the circuit court. On November 3, 2005, the court ruled that the Act violated the women's due process rights.6 It found that the statute infringed on their liberty interest in their reputation, nurses' licenses, and ability to seek employment in their chosen profession, without first giving them "a meaningful hearing at a meaningful time." Based on these findings, the court declared the entire Act unconstitutional under both the United States and Missouri constitutions. It stayed its ruling pending appeal.

II. STANDARD OF REVIEW

The case below was tried to the court pursuant to section 210.152. The judgment in a court-tried case will be sustained on appeal unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declared or applied the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

Whether a statute is unconstitutional is a question of law, the review of which is de novo. Doe I v. Phillips, 194 S.W.3d 833, 841 (Mo. banc 2006). Because

218 S.W.3d 405
a statute is cloaked in a presumption of constitutionality, an appellate court may find the statute unconstitutional only if it clearly contravenes a specific constitutional provision. State v. Kinder, 89 S.W.3d 454, 459 (Mo. banc 2002)....

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46 practice notes
  • Abundant Life Baptist Church of Lee's Summit v. Jackson Cnty., Case No. 4:20-00367-CV-RK
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • 17 mai 2021
    ...Coeur v. Nottebrok , 356 S.W.3d 252, 257 (Mo. Ct. App. 2011) (quoting Jamison v. State, Dept. of Social Servs, Div. of Family Servs , 218 S.W.3d 399, 405 (Mo. banc 2007) ), overruled on other grounds by Edwards v. City of Ellisville , 426 S.W.3d 644 (Mo. Ct. App. 2013). "To determine what p......
  • Ga. Dep't of Human Servs. v. Steiner, S18A0281
    • United States
    • Supreme Court of Georgia
    • 18 juin 2018
    ...as a school paraprofessional and intended to apply for childcare positions); Jamison v. Mo. Dep’t of Soc. Servs., Div. of Family Servs. , 218 S.W.3d 399, 402 (Mo. 2007) (nurses who operated or were employed by residential childcare center had implicated liberty interests where mandatory reg......
  • Office of the Prosecuting Attorney v. Precythe, 19-2910
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 17 septembre 2021
    ...and unusual punishment" as the Eighth Amendment of the U.S. Constitution); Jamison v. Mo. Dep't of Soc. Servs., Div. of Fam. Servs., 218 S.W.3d 399, 405 n.7 (Mo. banc 2007) (noting that "Missouri's due process provision parallels its federal counterpart").5 Under Teague, courts must give re......
  • Martin v. State, WD 79460.
    • United States
    • Court of Appeal of Missouri (US)
    • 9 mai 2017
    ...have been interpreted "consistently" and "as equivalent." Doe v. Phillips, 194 S.W.3d 833, 841 (Mo. banc 2006) ; Jamison v. State, 218 S.W.3d 399, 405 n. 7 (Mo. banc 2007) ; State ex rel. Houska v. Dickhaner, 323 S.W.3d 29, 33 n. 4 (Mo. banc 2010). And, "[e]ach time our courts have compared......
  • Request a trial to view additional results
46 cases
  • Abundant Life Baptist Church of Lee's Summit v. Jackson Cnty., Case No. 4:20-00367-CV-RK
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • 17 mai 2021
    ...Coeur v. Nottebrok , 356 S.W.3d 252, 257 (Mo. Ct. App. 2011) (quoting Jamison v. State, Dept. of Social Servs, Div. of Family Servs , 218 S.W.3d 399, 405 (Mo. banc 2007) ), overruled on other grounds by Edwards v. City of Ellisville , 426 S.W.3d 644 (Mo. Ct. App. 2013). "To determine what p......
  • Ga. Dep't of Human Servs. v. Steiner, S18A0281
    • United States
    • Supreme Court of Georgia
    • 18 juin 2018
    ...as a school paraprofessional and intended to apply for childcare positions); Jamison v. Mo. Dep’t of Soc. Servs., Div. of Family Servs. , 218 S.W.3d 399, 402 (Mo. 2007) (nurses who operated or were employed by residential childcare center had implicated liberty interests where mandatory reg......
  • Office of the Prosecuting Attorney v. Precythe, 19-2910
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 17 septembre 2021
    ...and unusual punishment" as the Eighth Amendment of the U.S. Constitution); Jamison v. Mo. Dep't of Soc. Servs., Div. of Fam. Servs., 218 S.W.3d 399, 405 n.7 (Mo. banc 2007) (noting that "Missouri's due process provision parallels its federal counterpart").5 Under Teague, courts must give re......
  • Martin v. State, WD 79460.
    • United States
    • Court of Appeal of Missouri (US)
    • 9 mai 2017
    ...have been interpreted "consistently" and "as equivalent." Doe v. Phillips, 194 S.W.3d 833, 841 (Mo. banc 2006) ; Jamison v. State, 218 S.W.3d 399, 405 n. 7 (Mo. banc 2007) ; State ex rel. Houska v. Dickhaner, 323 S.W.3d 29, 33 n. 4 (Mo. banc 2010). And, "[e]ach time our courts have compared......
  • Request a trial to view additional results
1 books & journal articles
  • CONFRONTING INDETERMINACY AND BIAS IN CHILD PROTECTION LAW.
    • United States
    • Stanford Law & Policy Review Vol. 33 Nbr. 2, June 2022
    • 22 juin 2022
    ...Part R [section] 1 (N.Y. 2020); N.Y. SOC. SERV. LAW [section] 422(5)(a) (McKinney 2022). (363.) Jamison v. State Dep't of Soc. Servs., 218 S.W.3d 399, 411 (Mo. 2007) (en (364.) New York raised its standard of proof, effective Jan. 1, 2022. See supra note 362. Previously, several other state......

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