Shawn R. McCarver, Esquire
The word “shall” in § 210.152 is mandatory, not directory. Thus, children’s division had no authority to take further action on hotline where alleged perpetrator was not notified of results of the investigation within 90 days of the initial allegation of neglect. Frye v. Levy, No. 32307 (Mo. App. S.D., May 9, 2013), Lynch, J.
Child died May 10, 2006. The same day, a hotline call was made alleging that mother’s husband was responsible for child’s death. The following week, a second hotline call was received alleging mother committed neglect because mother knew her husband was abusive to her three children and failed to properly supervise.
Twenty-nine days after the hotline call regarding husband and 22 days after the hotline call regarding mother, the children’s division notified mother and her husband that the investigation would be delayed. Mother was interviewed 40 days after the initial hotline call regarding mother. Forty-eight days after the initial hotline call regarding husband, the children’s division found that husband caused child’s death. No additional updates were made to the children’s division records regarding mother’s hotline until August 25, 2006.
On that day, 100 days after the initial hotline call on mother, the children’s division completed its investigation of mother and found that mother failed to properly supervise her child. Three days later, the children’s division sent a letter to mother informing her that the claim of neglect against her had been substantiated. The letter was sent to the wrong address. Mother, however, timely requested a review by the child abuse and neglect review board. The review board upheld the finding on September 24, 2009. Mother timely filed a petition for de novo judicial review on November 23, 2009. Mother’s motion for summary judgment was granted on the grounds that the children’s division lost “jurisdiction” by failing to comply with mandatory time periods related to completion of the investigation.
On appeal, the division alleges that the 90 day time period set forth in § 210.152.2, RSMo, is directory, not mandatory. The clear intent of the legislature is that hotline calls are to be doggedly pursued to their conclusion. The statutory language cannot be read to allow the children’s division to place investigations on the back-burner and to revisit those investigations at its convenience.
Examining the plain language of § 210.152, and comparing the wording therein with the wording in
§ 210.145, and taking into account the specific language expressed by the legislature in the notice required under § 210.183, as well as the subsequent amendment to
§ 210.183, the court holds that the word “shall” as used in § 210.152 is mandatory.
The children’s division had no statutory authority to take any further action on mother’s hotline when it failed to notify mother of the results of the investigation within 90 days of the initial allegation of neglect.
Failure to file motion to amend judgment does not preserve for review father’s claim that the trial court failed to make statutorily required findings. TPR for abuse affirmed because unreformed parent will continue to be a threat for the foreseeable future, father had history of abuse of children, and failure to complete service agreement supports conclusion that at the time of the Termination of Parental Rights (TPR) trial father had not reformed and is likely to put minimal efforts into reunification in the future. In the Interest of J.L.G., T.D.G., A.D.G., and M.A.G.,
No’s. 32090, 32091, 32092 and 32093 (Mo. App. S.D., April 25, 2013), Francis, Jr., J.
In April 2010, four children were removed for severe and recurrent physical abuse. At the hearing, the court found that the two girls had been repeatedly whipped with an extension cord or cable and that one of the girls had several round marks thought to be cigarette burns. Father had knocked the heads of both girls into the wall on more than one occasion, and he committed other beatings and whippings so frequently that the children could not remember many of the reasons. As a result of these events, father was charged with two counts of felony child abuse and two counts of domestic assault. Father entered Alford pleas of guilty to the two counts of felony child abuse. Prior to these events, father had pleaded guilty to two counts of assault in Iowa as a result of abuse of the children.
After father failed to comply with the written service agreement, the juvenile officer filed a TPR petition in November 2011. The trial court found that father did not suffer from chemical dependency or a mental condition, however, the court found that father had committed severe or recurrent abuse and repeated and continuous neglect. The court found that father failed to complete the requirements of his service agreement, that he had a past lengthy history of abusing children and that father had entered pleas of guilty to two counts of felony child abuse. The court also noted that it would have the discretion to decline placing the children back with father under
§ 211.038, RSMo.
Father’s complaint that the trial court failed to make certain statutorily required findings on the failure to rectify ground was not preserved for review because father failed to file a motion to amend the judgment.
Father alleges that there is no evidence of a link between the previous abuse and the likelihood of future danger to the children. When a parent has committed severe and recurrent acts of abuse, there is a presumption that the unreformed parent will continue to be a threat to the welfare of the child for the foreseeable future. The history of abuse, in combination with the current abuse, adequately established that the abuse was recurrent. Father’s failure to comply with the service agreement shows that at the time of the termination hearing, father had not reformed and was likely to put minimal effort into future care of the children. Father failed to complete counseling, would not allow caseworkers to visit in his home, and was unable to confirm that he had suitable housing for the children. The terms he did complete were required by his probation in the criminal case. Both Dr. Nolen, who had conducted father’s psychological evaluation, and the case worker, testified that there were no additional services or medication that would enable father to adjust his circumstances to reduce the risk of abuse thereby enabling the children to return home.
Juvenile court adjudication of same facts which were the subject of the hotline decision precludes review of the hotline decision by the Child Abuse and Neglect Review Board (CANRB). That portion of the trial court’s order ruling that the trial court was not precluded from de novo review of the hotline decision was not challenged on appeal, and is affirmed. Hessel v. Department of Social Services, No. 99340 (Mo. App. E.D., April, 23, 2013), Odenwald, J.
Mother, driving with excessive blood alcohol content and her children in the car, was involved in an accident. The accident prompted a hotline call which was investigated by the Children’s Division. The division found the allegations were true, and mother timely requested a review by the Child Abuse Neglect Review Board. In a separate but parallel action, the juvenile officer filed a neglect petition against mother based upon the same underlying facts. The juvenile court found the allegations of the petition to be true. Thereafter, the board refused to conduct a review of the division’s hotline decision, citing § 210.153.8, RSMo. That section provides that if the hotline findings are substantiated by court adjudication, the division shall not review the hotline decision.
Mother filed a petition against the division requesting that the trial court order the board to review the hotline determination or, in the alternative, that the trial court conduct a de novo review of the decision. The division filed a motion to dismiss. Both parties submitted filings and exhibits, thereby converting the division’s motion to dismiss into a motion for summary judgment. The trial court ruled that mother was entitled to board review because the juvenile proceedings did not provide mother with sufficient procedural due process to justify placing her name on the central registry. The trial court ordered the board to conduct a review. The trial court also ruled that it was not precluded by the juvenile court adjudication from conducting a de novo review.
The division appealed only that portion of the trial court’s judgment ordering the board to review the hotline decision. Alleged procedural due process deficiencies in the juvenile court do not create authority for the board to review the division’s hotline determination because
§ 210.153.8 specifically removes that authority where the allegations were the subject of court adjudication. That portion of the trial court’s order denying the division’s motion to dismiss on the ground that the trial court is precluded from conducting de novo review is affirmed as it was not challenged on appeal.