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Birdsong v. Children's Division

Court of Appeals of Missouri, Western District, Third Division

May 19, 2015


Page 455

[Copyrighted Material Omitted]

Page 456

Appeal from the Circuit Court of Cole County, Missouri. The Honorable Daniel R. Green, Judge.

David J. Moen, Jefferson City, MO, for respondent.

Daniel W. Follett, Jefferson City, MO, for appellant.

Before Division Three: Mark D. Pfeiffer, Presiding Judge, Gary D. Witt, Judge and Anthony Rex Gabbert, Judge. All concur.


Gary D. Witt, Judge.

Page 457

The State, on behalf of the Missouri Department of Social Services Children's Division (the " Division" ), brings this appeal challenging the trial court's award of attorney's fees following its grant of summary judgment to Aaron Birdsong (" Birdsong" ). The State argues that the award of attorney's fees has no statutory basis and that Birdsong's case does not fall within any exception to the American Rule.[1] For reasons explained below, we reverse and vacate the award of attorney's fees.


The Division brought an administrative action that Birdsong had used his position as a teacher and track coach in a public school to sexually abuse a seventeen-year-old student. The Division alleged, based on its investigation, that Birdsong had committed the following acts:

In the fall of 2010, Birdsong was a teacher and a track coach at Eldon High School. The child victim was a seventeen-year-old female student who was on the track team. Birdsong began an inappropriate relationship with her, which included an exchange of hundreds of " romantic" text messages (including more than 200 over the course of 24 hours). One text message included a photograph in which the victim was wearing only her underwear. Birdsong also made comments in the text messages about trying to see her breasts as she picked up books while at school. Birdsong told the girl he was having difficulty in his marriage and also instructed the girl not to tell anyone about their relationship because he would get in trouble. Birdsong invited the victim to his home on the pretense of babysitting for him and his wife, but then he began kissing the victim on the lips and touching her breasts and thigh. The victim became scared and left the house.

On January 10, 2011, the Division received a hotline call reporting child sexual abuse by Birdsong against the victim.[3] Birdsong was arrested the next day and two separate administrative actions were instigated against him. The first was a child protection services investigation by the Division to either substantiate or refute the alleged actions against the victim. The second was a disciplinary action filed months later by the Missouri Department of Elementary and Secondary Education (" DESE" ). The disciplinary action was filed pursuant to section 168.071.1, which authorizes the Board of Education to request that Birdsong's teaching certificate be " disciplined" for a violation of 5 CSR 80-800.300(1)(C)[4] where there is " evidence of the certificate holder's incompetence, immorality, or neglect of duty." Birdsong was placed on administrative leave and later voluntarily resigned from his teaching

Page 458


Three months after the hotline call, the Division's Out of Home Investigation Unit (" OHI" ) completed its investigation and concluded that Birdsong had committed " sexual maltreatment" of the student victim.[6] Birdsong appealed the Division's finding. Two months later, the OHI upheld the Division's finding and referred it to the Child Abuse/Neglect Review Board (" CANRB" )[7] for an administrative review. In Birdsong's written request for review, he admitted to kissing the student, making comments about looking down her shirt while she was in the school, and receiving a picture of her topless. Following a hearing, the CANRB affirmed the finding of sexual abuse and ordered that Birdsong's name be placed on the " central registry." [8]

Birdsong filed a Petition for De Novo Review in the Circuit Court of Cole County, alleging that the Division improperly used definitions of child sexual abuse that did not comport with statutory definitions, thereby making its determination and subsequent placement of his name on the central registry, erroneous. He then filed a motion for summary judgment. The Division did not file a response to the motion for summary judgment, but did appear and argue against the grant of the motion before the trial court. The trial court granted Birdsong's motion for summary judgment and reversed the Division's determination, finding that it erroneously employed a non-statutory definition of sexual child abuse and that Birdsong's conduct did not fall within the definitions of " sexual abuse of a child" in the statutes or regulations.[9]

After being granted judgment in the Division's action but before the judgment was final, Birdsong filed a motion to recover attorney's fees. Birdsong agrees that, under existing case law interpreting section 536.087,[10] the CANRB review is not a contested case, ...

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