APPEAL FROM CIRCUIT COURT OF HOWELL COUNTY. The Honorable Michael Ligons, Judge.
The department of social services was represented by Gary L. Gardner of the attorney general's office in Jefferson City.
Frye was represented by George C. Fisher Jr. of Ray & Fisher in West Plains.
PAUL C. WILSON, JUDGE. Russell, C.J., Breckenridge, and Stith, JJ., concur; Draper, J., dissents in separate opinion filed; Fischer and Teitelman, JJ., concur in opinion of Draper, J.
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. 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.
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).
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).
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 (Mo. 1925) (emphasis added). This line of authority is as long as this Court is old. In St. Louis Cnty. Court v. Sparks, 10 Mo. 117 (1846), this Court stated:
It is a rule of construction, that a statute specifying a time within which a public officer is to perform an official act regarding the rights and duties of others, is directory merely, unless the nature of the act to be performed, or the phraseology of the statute is such, that the designation of time must be considered as a limitation of the power of the officer. The People v. Allen, 6 Wend.; Jackson v. Hooker, 5 Cowen, 269; 2 Mass. 228, 230.
Id. at 121-22 (emphasis added).
In deciding whether a statute is " mandatory" or " directory," however, the relevant statutory construction question is not whether the statute actually imposes an obligation (i.e., whether " shall" means " shall" ). If the statute does not impose an obligation, the question never arises. Instead, when (but only when) a statute imposes an obligation, the statutory construction question embodied in the distinction between " mandatory statutes" and " directory statutes" is whether the legislature intended to make all actions that fail to comply with that obligation void or ineffective. This was explained more than a century ago when this Court wrote:
It is said that to ascertain whether a law is intended to be directory or imperative does not depend so much on the construction of the language of the law as of its application. " The statute is sufficiently clear; the only point is, what shall be the consequence of a disobedience of its directions."
W. v. Ross, 53 Mo. 350, 354 (1873) ( quoting Sedgwick, at 369) (emphasis added).
As with any statutory construction question, the answer to whether a statute is " mandatory" or " directory" turns on the language chosen by the legislature. Two examples of when a statute that imposes an obligation will be construed to be " mandatory" are: (a) if the statute explicitly provides what the consequence of non-compliance will be (e.g., that any act performed after the stated deadline or in a manner different than the required method will be void or ineffective); and (b) if the statute explicitly provides that the required action can be taken only before the stated deadline or can be performed only in the stated manner. See, e.g., Ross, 53 Mo. at 354 (" the legislature has not only by the statute directed what shall be done, but has also declared what consequence shall follow disobedience" ); Greene v. Holt, 76 Mo. 677, 680 (1882) (" Negative words are imperative." ) ( citing Sedgwick, at 316, 320, and 325). On the other hand, if a statute imposes an obligation and does not explicitly allow only compliant actions (or explicitly declare non-compliant actions void or ineffective), the statute likely is " directory" and courts are not free to create and impose a sanction that the legislature did not approve.
Here, section 210.152.2 imposes an obligation on the Children's Division to complete its investigation and to make its determination within 90 days of receiving a hotline complaint. But this statute does not explicitly provide that the Division may only investigate or determine hotline complaints before the 90th day, nor does it explicitly provide that the Division lacks authority to investigate or determine such complaints after the 90th day. In the absence of such legislative intent, courts have no authority to impose such a sanction on their own.
The lack of statutory approval for a sanction in the event of non-compliance with a statutory obligation, or the lack of any language permitting only acts that are in compliance with that obligation, is an important factor in drawing the important " mandatory" or " directory" distinction. In Farmer and the other cases cited above, this factor was dispositive. But this Court has noted that it is not the only factor that may be considered. In Bauer v. Transitional Sch. Dist. of City of St. Louis, 111 S.W.3d 405 (Mo. banc 2003), this Court noted cases applying the basic rule 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 statute is directory and not mandatory." Id. at 408. But the Court also noted that " the presence or absence of a penalty provision is 'but one method' for determining whether a statute is directory or mandatory." Id. at 408. The Court's authority for this observation was Sw. Bell Tel. Co., Inc. v. Mahn, 766 S.W.2d 443, 446 (Mo. banc 1989), which stated that the " absence of a penalty provision does not automatically override other considerations."  Ultimately, whether a statute is mandatory or
directory is a " function of context and legislative intent." Bauer, 111 S.W.3d at 408 (citing Farmers, 896 S.W.2d at 32).
Here, nothing in section 210.152.2, or elsewhere in chapter 210, states that the Children's Division may only investigate or determine hotline complaints before the 90th day or that the Division loses its authority to continue an investigation or make a determination regarding a hotline complaint when the 90-day deadline has come and gone. Instead, section 210.152.2 provides only 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 ...