# SUPREME COURT OF MISSOURI en banc

MELODY FRYE, ) ) Respondent, ) ) v. ) No. SC93471 ) RONALD J. LEVY, DIRECTOR, ) STATE OF MISSOURI, ) DEPARTMENT OF SOCIAL SERVICES, ) CHILDREN’S DIVISION, ) ) Appellant. )
APPEAL FROM CIRCUIT C OURT OF HOWELL COUNTY The Honorable Michael Ligons, Judge Opinion issued July 8, 2014 The Children’s Division of the Missouri Depa rtment of Social Services (“Children’s Division” or “Division”) appeal s from the trial court’s grant of summary judgment in favor of Melody Frye (“Mother”). Th e trial court ordered the Divisi on not to include Mother’s name in the child abuse and neglect central re gistry because the Division failed to comply with the 90-day deadlin e for investigations and determin ations under section 210.152.2, RSMo Supp. 2005. 1 Because this judgme nt imposes a sanction

1 All statutory citations are to RSMo Supp. 2013, with the exception of citations to §§ 210.145.14 and 210.152.2. Citations to these statutes are to RS Mo Supp. 2005, which is the version in effect on May 17, 2006, when the Division received the hotline report of child neglect by Mother.for the Division’s noncompliance that the le gislature neither created nor approved, the judgment is vacated and the matte r remanded for further proceedings. Background Mother was married to Joseph Frye (“Frye”) . Mother and Frye resided together with Mother’s three biological childre n. 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 compla int against Mother, alleging she committed neglect because she knew Frye was abusive to ward 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 co mpleted 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 Neglec t Review Board (“Review Board”), Frye’s name was added to the central registry. The state al so brought criminal charges against Frye for the death of J.H. but later dismissed them. On June 8, 2006, the Children’s Division not ed that its investig ation 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. Th e 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 we re made. On August 25, 2006, the Children’sDivision concluded its inves tigation and determined that a preponderance of the evidence substantiated the hotline compla int that Mother failed to s upervise adequately Frye’s interaction with J.H. But the Division also dete rmined that the evidence did not substantiate the complaint that Mo ther failed to supervise Frye around her other two children. On August 28, 2006, the Children’s Division sent a lette r 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 not ice of the Division’s de termination and timely sought a hearing before the Review Board. After considering Mother’s arguments, the Review Board upheld the Divisi on’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 re ached the question of wh ether the evidence did – or did not – subs tantiate allegations of Mother’s negl ect. Instead, it determined that the Children’s Division “lost jurisd iction” 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 fort h in section 210.152.2. On that basis, the trial court entered judgment in Mother’s favor and ordered the Divisi on not to include her name on the central registry. The Children’s Divi sion appeals and, after transfer, this Court has jurisdiction. Mo. Co nst. art. V, sec. 10. Standard of Review “The criteria on appeal for testing th e propriety of summary judgment are no different from those employed by the trial court to determine the propriety of sustaining the

3motion 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 th e hotline complaint alle ging 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 de termination was upheld by the Review Board. When Mother petitioned the ci rcuit court to review the Review Board’s decision, the trial court never reached the ques tion 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 investiga tion or to make a determination regarding the hotline complaint agai nst mother after the 90 th day. The trial court determined that the moment this 90-day deadline passed, the ho tline complaint concerning Mother’s neglect must be deemed unsubstantiated no matter wh at the evidence gathered to date by the Division showed or did not show. Accordingly, the trial court entere d 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

4The 90-day deadline for hotlin e investigations in secti on 210.152.2 was imposed by the General Assembly. A ccordingly, it is for that body – not the courts – to decide what sanction (if any) is appropriate when the Childre n’s Division fails to m eet that deadline in a particular case. Here, the trial court erred by imposing a sanction th at barred the Division from taking any action on this hotline complaint after the 90 th day because the legislature did not create or approve the use of su ch a sanction in these circumstances. Mother insists that th e central issue in this case is wh at 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” me ans “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 Divi sion to perform that duty. Instead, she contends that, because the Division failed to comply with th e 90-day deadline in her case, the Division lost all authority to complete its investigatio n of the hotline complaint about her, and it lost all authority to make the variou s determinations regarding the complaint that

5the Division is required to make under chapter 210. Accordingly, the central issue in this case is not whether “shall” means “shall” but wh at sanction (if any) the legislature intended to apply when the Division fails to do wh at 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 determin ation regarding a hotline complaint after the 90 th day, then section 210. 152.2 is a “mandatory statute” and this intent ion will be enforced. But, if the legislature has not approved this sa nction or otherwise indicat ed that this is the intended consequence of the Division’s non-complia nce 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 th e 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 legi slature fails to include a sanction for failure to do that which ‘shall’ be done,” courts are not free to impose one). 2

2 See also State v. Tisius , 92 S.W.3d 751, 770 (Mo. banc 2002) (“wh ere a statute or rule does not state what results will follow in the event of a failur e to comply with its terms, the rule or statute is directory and not mandatory”); State ex rel. Rogersville Reorganized Sch. Dist. No. R-4, of Webster Cnty. v. Holmes , 253 S.W.2d 402, 404 (Mo. banc 1952) (“... if nothing is stated regarding the consequence or effect of non-compliance, the i ndication is all the stronge r that it should not be considered mandatory.”); State ex Inf. Mitchell ex rel. Goodman v. Heath , 132 S.W.2d 1001, 1003 (Mo. 1939) (“If a statute merely requ ires certain things to be done and nowhere prescribes the result that shall follow if such things are not done, then the statute should be held to be directory.”); State ex Inf. McAllister ex rel. Lincoln v. Bird , 244 S.W. 938, 939 (Mo. 1922) (same).

6Farmers is merely one of the most recent and most relevant in a long line of decisions that categorize laws as either “man datory statutes” or “directory statutes.” Under a general classification, statutes are either mandatory or directory; a determination of their charact er 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. , 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 offici al act regarding the rights and duties of others, is directory merely, unless the natu re 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. 230. Id . at 121-22 (emphasis added). 3 In deciding whether a stat ute is “mandatory” or “direc tory,” however, the relevant statutory construction ques tion is not whether the statute actu ally imposes an obligation (i.e., whether “shall” means “shall”). If the statute does not impose an obligation, the question never arises. Instead, when (b ut only when) a statute imposes an obligation, the statutory construction question embodied in the distin ction between “mandatory statutes” and

3 This quote and the citations to the New York a nd Massachusetts decisions that follow it are taken from Justice Theodore Sedgwick’s treatise about the interpretation and constr uction of statutes and constitutional provisions. See Theodore Sedgwick, A Treatise on the Rules which Govern the Interpretation and Construction of Statutory and Constitutional Law , at 320-21 (2d ed. 1874) (with notes by John Pomeroy) (referred to herein as “Sedgwick”). Justice Sedgwick was a member of the Continental Congress in 1780, United Stat es Senator in 1798, Speaker of the House of Representatives in 1800, and a member of the Massac husetts Supreme Judicial Court. His treatise, which was one of the touchstones of this Court’s ea rly jurisprudence, remain s available – and useful – today. See State v. Honeycutt, 421 S.W.3d 410, 419 (Mo. banc 2013).

7“directory statutes” is whether th e legislature intended to make a ll actions that fail to comply with that obligation void or ineffective. This was explai ned 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 th e 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 cons truction 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 “ma ndatory” are: (a) if the statute explicitly provides what the conse quence of non-compliance will be (e.g., that any act performed after the stated deadline or in a manner differe nt 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 dead line or can be performed only in the stated manner. See, e.g., Ross , 53 Mo. at 354 (“the legislature has not on ly 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) (“Ne gative words are imperative.”) ( citing Sedgwick, at 316, 320, and 325). On the other hand, if a statut e 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

8hotline complaint. But this st atute does not explicitly provide that the Division may only investigate or determine hotlin e complaints before the 90 th day, nor does it explicitly provide that the Division lacks authority to in vestigate or determine such complaints after the 90 th 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 sanc tion in the event of non-compliance with a statutory obligation, or the lack of any lang uage permitting only acts that are in compliance with that obligation, is an important fact or in drawing the important “mandatory” or “directory” distinction. In Farmer and the other cases cited above, this factor was dispositive. But this Court has not ed that it is not the only factor that may be considered. In Bauer v. Transitional Sch. Di st. 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 co mply with its terms, th e 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, 4 46 (Mo. banc 1989), which stated that the “absence of a penalty provision does not au tomatically override other considerations.” 4

4 The example the Court cited in Mahn was Garzee v. Sauro , 639 S.W.2d 830, (Mo. banc 1982), in which the due process principles in Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950) justified the conclusion that a notice statute was mandatory ra ther than directory despite the legislature’s failure to include any express sanctions for non-compliance. Mahn , 766 S.W.2d at 446 (citing Garzee , 639 S.W.2d at 832). Finally, relying on this language in Mahn , a plurality of this Court in State v. Teer , 275 S.W.3d 258, 261 (Mo. banc 2009), held that a criminal conviction resulting from a violation of th e statutory requirement that prior offender status be pleaded and
9Ultimately, 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 else where in chapter 210, states that the Children’s Division may only investigate or determine hotline comp laints before the 90 th day or that the Division loses its authority to continue an inve stigation or make a determination regarding a hotlin e complaint when th e 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,[ 5 ] the alleged perpetrator named in the report ... shall be notified in writing of any determination made by the division based on the investigation. § 210.152.2 (emphasis added). Unable to identify any language in secti on 210.152.2 that creates or approves the sanction imposed by the trial court in this ca se, Mother relies on section 210.145.14, which

states: The division shall complete all in vestigations within thirty days, unless good cause for the failure to complete the investigati on is documented in the information system
. If the investigation is not co mpleted within thirty days , the information system shall be upda ted at regular intervals and upon the completion of the investigation. The information in the information system shall be updated to reflect any subseq uent findings, including any changes to the findings based on an administrative or judicial hearing on the matter.

proved before the case is submitted to the jury coul d not be affirmed merely because the statute did not expressly state the proper sanction for non-compliance.

5 The phrase limiting the statute’s app lication to each report “that is investigated” is a reference to the fact that, when each report is received, the Division must deci de whether to investigate or conduct a family assessment. See §§ 210.109.2 and 210.115.4.

10§ 210.145.14 (emphasis added). By its plain language, this statute says nothing about the 90-day deadline in section 210.152.2. More im portantly, section 210.145.14 does not even approve a sanction for cases in which the Di vision fails to comply with the statutory obligation to note “good cause ” when it exceeds th e 30-day deadline in that statute. Accordingly, section 210.145. 14 does not support the trial court’s conclusion that the legislature intended for the Child ren’s Division to lose all aut hority to investigate or make determinations regarding a hotline complaint after the 90 th day. Not only is the trial cour t’s decision not supported by any express language in sections 210.145.14 or 210.152.2 (or elsewhere in chapter 210), it is contrary to the obvious intent of the legislature expressed through out the Child Abuse Act. The trial court’s decision was based on its conclusion that the Children’s Division lo ses all authority to continue an investigation or ma ke a determination after the 90 th day. But the scope of the Children’s Division’s authority to do these things is not the subject of section 210.152.2. Instead, that authority is esta blished in section 210.109.2: The child protection system shall prom ote the safety of children and the integrity and preservation of their families by conducting investigations or family assessments an d providing services in response to reports of child abuse or neglect

. § 210.109.2 (emphasis added). Nothing in this statute pur ports to limit the Division’s au thority to a 90-day window, and nothing suggests that such a limitation is imposed (or reasonably may be inferred) elsewhere in chapter 210. If the legislature in tended for the grant of investigative authority in section 210.109.2 to be contingent on compliance with the deadlines in sections 210.152.2 and 210.145.14, it w ould have said so. It did not. The absence of such a

11limitation weighs strongly against the trial cour t’s conclusion that the legislature intended for the Division to be stripped of its authority the moment it fail s to comply with the 90-day deadline in section 210.152.2. The trial court’s decision also fails to credit the importance that the legislature attaches to the Children’s Divi sion’s investigative role. The “determination” referred to in section 210.152.2 is a “determination made by the division based on the investigation,” not a default determination that a court says must be deemed to occur be cause the Division loses all authority to act after the 90 th day. In addition, under section 210.145.14 (which is the legislature’s only explicit statement about the permi ssible length of the Division’s investigations), the Division is explicitly permitted to extend an investigation for “good cause.” 6 Not only is there no restriction on the length of such extensions, the statute explicitly provides that all extende d investigations should be pursued to “completion.” § 210.145.14. This provision woul d make no sense if, as the trial court held, the Division loses all authority to investigat e or make a determination regarding a hotline complaint after the 90 th day and all unresolved complaints must be deemed unsubstantiated at that time. 7

6 Mother does not challenge the sufficiency of the good cause identified by the Division and recorded in its information system. Nor would such a claim have succeeded, for the reasons set forth in the companion case Williams v. Department of Social Services , ___ S.W.3d ___ (Case No. 93653) (Mo. banc 2014). The judicial review au thorized by section 210.1 52.6 extends only to the decision made by the Board and, under section 210.152.4 and .5, the Board is authorized only to decide whether the Division’s determination is supported by a preponderance of the evidence and whether it is against the weight of the evidence.

7 Not only does it appear that the Child Abus e Act values complete investigations and well-informed determinations over arbitrary deadlin es, but there also is no reason to conclude that these deadlines were included for th e benefit of alleged perpetrators. It seems far more likely that the deadlines were intended to protect the present (and potential future) victims of child abuse or
12Section 210.152.2, and the whole of the Child Abuse Act in chapter 210, is a remedial statute, and such statutes are to be “ construed so they provide the public protection intended by the legislature .” Ross v. Dir. of Revenue , 311 S.W.3d 732, 735 (Mo. banc 2010) (emphasis added). In Jamison v. Dep’t. of Social Services, 218 S.W.3d 399, 410 (Mo. banc 2007), this Court recognized that the legislative purpose behind the Child Abuse Act is to protect the victims of child abuse or neglect and any other children with whom the perpetrator may come into contact. See § 210.109.2 (purpose of the Act is to “promote the safety of children ... by conducting investigati ons ... and providing serv ices in response to reports of child abuse or neglect”). Accordingl y, the question of what sanctions (if any) the legislature has created or approved for use in the event the Childre n’s Division fails to comply with the 90 -day deadline in section 210.152.2 must be answered in the context of – and in a way that is faithful to – this reme dial purpose. The trial court’s decision in this case fails to do so. By imposing a sanction that deprives the Children’s Division of its authority to investigate or determine ho tline complaints after the 90 th day, the trial court’s decision subordinates the Act’s purpose of protecting victims of child abuse and neglect to the interests of alleged perpetrators. The legislatur e, of course, is free to make that choice and impose such a sanction when the Division fails to comply with the 90-day deadline. But that choice belongs to the legislature, not th e courts, and nothing in section 210.152.2 (or else where in the Act) indicates that the legislature intended to make that choice or impose neglect by requiring prompt action and resolution of each hotline complaint. This makes the trial court’s imposition of a sanction that sacrifices that purpose to the interests of a perpetrator about whom the allegations already have been substantia ted even more out of st ep with the legislative intent behind the Act as a whole.

13that sanction. Instead, by requiring every de termination that the Division makes to be “based on the investigation,” s ection 210.152.2 demonstrates th e legislature’s intention that the best way to protect the victims of child abuse and neglect is to value complete investigations over arbitrary deadlines. The basic premise of Mother’s argument is that the legislat ure’s intention to strip the Children’s Division of all authority to inves tigate or determine hotlin e complaints after the 90 th day is implicit in the legislature’s use of the word “shall” in se ction 210.152.2 when it imposed the 90-day deadline. In other word s, because the legislature imposed this mandatory deadline, Moth er contends that the Court should infer that the legislature meant to rescind the Division’s otherwise unlimited au thority to investigat e and determine hotline complaints the moment the d eadline passes. This is prec isely the argument this Court rejected in Farmers

. In Farmers , the director of revenue denied a taxpayer’s request for a refund. Conceding that the director ha s authority to decide whether to refund claims generally, the taxpayer claimed the Director lost that aut hority by failing to comp ly with a statutory requirement that the determination must be ma de within 120 days of the refund request.
Farmers , 896 S.W.2d at 32-33. The taxpayer argue d that because the statute said the Director “shall” give such a notice, the legisl ature must have intended for the Director to lose all authority to refuse refund requests af ter 120 days. As a result, the taxpayer argued that any request still pending after that deadline must be de emed approved. Id. at 32. The Court not only rejected that argument as in consistent with prior cases holding that the legislature’s failure to include an express sanction for non-compliance precludes courts from

14creating one, it also pointed out the absurd consequences that such a result would likely produce: [W]e presume that taxpayers are bette r served by well-considered, though tardy responses to their claims for re fund by the Director. Given time to contemplate, the Director may decide in the taxpayer’s favor, avoiding the necessity and expense of further litigation. If Farmers’ reading of the statute were correct, we imagine the Director would be forced to issue blanket denials of all claims for refu nd that reach the 120–day stage in order to avoid the automatic refunds Farm ers claims the statute demands. Id. at 33 (emphasis added). See also Sparks , 10 Mo. at 122 (noting: “I t would be strange if a statute specifying an early day at which an ac t must be done with a view to its speedy execution, should be c onstrued that the act could not be done at all after the day when the necessity for its performance is as great, if not greater, afterwards than before.”) (emphasis added). Using this same logic, it is not difficult to foresee the effects if the Court were to affirm the trial court’s ruling in this case. Faced with a 90-d ay deadline and no authority to investigate or determine hotline complaints af ter that date, the Division will have a great incentive to stop each investigation as soon as the allegations of abuse or neglect are substantiated (even minimally). This would a llow the Division to co mmunicate its decision to the alleged perpetrator prior to the deadline and ke ep looking for eviden ce to support the Division’s determination in the hopes that it c ould be used to supplement the record before the Board and/or during judicial review. As in Farmers , such a result serves no one. The rationale for the “mandatory” vs. “dir ectory” dichotomy, and the purpose served by that analysis, is to ensure that decisions re garding what sanctions (i f any) are appropriate when a party fails to comp ly with a statutory deadline or other obligation are legislative

15decisions – no more or less than the decision wh ether to impose such an obligation at all. Here, the choice of what sanction (if any) to apply when the Children’s Division fails to comply with the 90 -day deadline in section 210.152.2 do es not belong to the courts any more than it is up to the courts to decide wh ether to impose a deadline to begin with. Both choices belong exclusively to the legislature. Here, the trial court’s decision runs afoul of this rule because nothing in section 210.152 (or in section 210.145 or elsewhere in the Child Abuse Act) suggests that the legislature intend ed to strip the Division of all authority to investigate and determine hotli ne complaints after the 90 th day, or to require that all pending complaints be deemed unsubstantiated at that time regardless of the ev idence in hand or in prospect. Accordingly, the judgment is vacated and the case remanded for further proceedings on Mother’s petition. 8 II. A Sanction Requiring Reports to be Deemed Unsubstantiated after 90 Days is Not Required to Prot ect Mother’s Due Process Rights Mother claims that the Ch ildren’s Division’s failure to comply w ith the 90-day deadline in section 210.152.2 vi olated her constitutional rights to due process and that this violation justifies the trial court’s decision to impose the sanction it did even though it was not approved by the legislatur e. This claim lacks merit.

8 During the 2014 legislative session, the Gene ral Assembly passed bills amending sections 210.145 and 210.152. As of the date of this opinion, how ever, the fate of these bills is uncertain because the Governor has not vetoed or approve d these bills and the time for doing so has not expired. Because the Court’s decision is based on the law in effect at the time of the events at issue, these amendments would not have been controlling in this case even if these bills had been in effect at the time of this decision. But it is worth noting that these amendments do not address what sanction (if any) the legislature in tends to be imposed when the Children’s Division fails to comply with the deadlines in these statutes and, therefor e, these amendments would not have changed the analysis in this case even if they had been applicable.

16In Jamison , this Court held that constitutional rights to due process protect against deprivation, not investigation, and that due process is satisf ied for purposes of the Child Abuse Act and the central registry when an alleged perpetrator is given notice and an opportunity to be heard before his or he r name can be listed in that registry. Jamison , 218 S.W.3d at 410. Here, despite the Division’s determination that some of the allegations of child neglect by Mother were subs tantiated, her name never has been included in the central registry. She has suffered no depr ivation of a property or liberty interest to date, and, as a result, her hearing before the Board and the de novo judicial review of the Board’s decision are exactly the sort of pre-deprivation protections that Jamison holds fully satisfy the demands of due process. Whether an individual has a due process ri ght to control the length or breadth of an administrative investigation is no longer an open question: The opinion of the Court in Hannah v. Larche , 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960), leaves no doubt that neither the Due Process Clause of the Fifth Amendment nor the Confrontatio n Clause of the Sixth Amendment is offended when a federa l administrative agency, without notifying a person under investigation, uses its subpoena power to gather evidence adverse to him. The Due Process Clause is not impl icated under such circumstances because an administrative investi gation adjudicates no legal rights

.... S.E.C. v. Jerry T. O’Brien, Inc. , 467 U.S. 735, 742 (1984) (e mphasis added, citations omitted).
In Artman v. State Bd. of Re gistration for Healing Arts , 918 S.W.2d 247, 251 (Mo. banc 1996), this Court relied on O’Brien to hold that due process protections are not necessary during a state admini strative agency’s investigation because no legal rights are being adjudicated. Under Artman and O’Brien , therefore, Mother has no due process right

17to be free from the Division’s investigation of the hotline report rega rding her and no due process right to have such an investigation start or stop at any particular time. In fact, even if section 210.152.2 imposes a 90-day deadline on such investigations, a “violation of state procedures does not automatically equate to a violation of due process rights.” Mann v. Vogel , 707 F.3d 872, 881-82 (7 th Cir. 2013). Here, Mother does not (and cannot) claim she suffered any actual prejudice by the 13-day delay between the 90-day deadline th at she claims terminates the Division’s authority to determine the hotli ne complaint against her and th e date she received notice of the Division’s determination that some, but not a ll, of the allegations in that complaint were substantiated by the evidence ga thered in its investigation. For example, she does not claim that her ability to defend against these allegati ons was compromised by this delay, or that the Division made the wrong determination in her case as a result of this delay, or that the Division’s delay was motivated by animus or a desire to torment her. Though it may be conceivable that an investiga tion could continue so long that such prejudice could occur, that is not the case here. This lack of prejudice not only dooms Mo ther’s constitutional claim, it underscores the weakness of the claim re jected in the preceding sec tion of this opinion. In State ex rel. State v. Parkinson , 280 S.W.3d 70, 76 (Mo. banc 2009 ), this Court refused to apply a sanction for an administrative agency’s failure to do that which a statute said it “shall” do. In so holding, the Court noted the absence of prejudice to the individual seeking that sanction. Id. at 77. See also Garzee , 639 S.W.2d at 832 (statute requiring that notice of foreclosure sale “shall” be mailed voided the sale of homeowner’s property that occurred

18without such notice – ev en though such a sanction was not explicitly approved in the statute – because the lack of actual notice was so pr ejudicial to homeowner that it violated due process); Schlafly v. Baumann , 108 S.W.2d 363, 366 (Mo. 19 37) (statute stating that tax sales of land “shall” occur on a particular day precluded sales on other days even though such a sanction was not explicitly provided because “[d]ue diligence on such date should avail land owners of information concerning any proceedings against their real estate for the collection of delinquent taxes”). The lack of prejudice to the alleged perpetrators when the Children’s Division extends its investigation beyond 90 days befo re it decides whether a preponderance of the available evidence does (or does not) substantia te the allegations in the hotline complaint may explain why the legislature chose not to approve the sanction impos ed by the trial court here. Until the Division completes its investig ation of a hotline report of child abuse or neglect, the Child Abuse Act recognizes that a ll interests – those of the child, the alleged perpetrator, the parents, and society as a whole – are the same . At that point, what matters most is that the Division make s a fully informed and accurate determination as to whether abuse or neglect was committed and, if so, by whom. Mother may claim an interest in truncating that investig ation now, but that is only because she knows what the Division’s determin ation was in the end. If the Division had discovered evidence on day 99 that had exon erated her completely, every interest – including Mother’s – would have been served by that delay. It does not matter that the Division did not find that sort of evidence he re; the legislature make s its decisions without the benefit of such hindsight.

19It is only after the Division completes its investigation and notifies the relevant parties of its determination that the various interests can diverge. If the allegations are substantiated, the alleged perpetrator has an interest in challenging the Division’s determination before he or sh e suffers the loss of liberty or property that may result from being listed in the central registry. Jamison and sections 210.152. 4 and 210.152.6 protect that interest with pre-depriva tion administrative review and de novo judicial review, and the legislature provides such proce dures to ensure that no one is listed in the central registry unless a preponderance of the evidence substan tiates their acts of child abuse or neglect and that everyone whose acts are substan tiated will be listed in the registry. The trial court’s ruling, if affirmed, would allow an alleged perpetrator to avoid being listed in the central registry on a basis that th e legislature did not au thorize and never could have envisioned. By imposing such a sanction, this ruling destroys the separation between the distinct pre- and post-determination phases that the legislature intended and the Child Abuse Act provides. Because such a rule w ould force the Division to decide some cases sooner and with less informati on than it should, it fails to pr otect the interests of those current and future victims of child abuse or ne glect as well as the interests of those falsely accused of such acts. Conclusion For the reasons stated above, the Court va cates the judgment in favor of Mother and remands this case.

____________ _____________ P AUL C. W ILSON , J UDGE

2021 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.

# SUPREME COURT OF MISSOURI en banc MELODY FRYE, ) ) Respondent, ) ) vs. ) No. SC93471 ) RONALD J. LEVY, DIRECTOR, ) STATE OF MISSOURI, ) DEPARTMENT OF SOCIAL SERVICES, ) CHILDREN’S DIVISION, ) ) Appellant. ) DISSENTING OPINION I respectfully dissent from the principal opi nion in that I believe the trial court properly entered judgment in favor of Me lody Frye (hereinafter, “Mother”), ordering Mother’s name to be removed from the cent ral registry of child abuse and neglect perpetrators because the Ch ildren’s Division of the Miss ouri Department of Social Services (hereinafter, “the Ch ildren’s Division”) failed to comply with th e applicable time limitations set forth in sections 210.145 and 210. 152, RSMo Supp . 2005. The Children’s Division failed to comply with the statutory time limits, which I believe divested it of authority to continue to take action. The Children’s Division is a statutory creati on, and its authority is limited to that granted to it by the legislature. State ex rel. Missouri Pub. Defender Comm’n v. Waters ,370 S.W.3d 592, 598 (Mo. banc 2012); see also In re C.W., 211 S.W.3d 93, 97 (Mo. banc 2007). Accordingly, it is constrained by its articulated statutory authority. Hessel v. Missouri Dept. of Social Services, Children’s Div. , 400 S.W.3d 813, 816 (Mo. App. E.D. 2013) ( citing State ex rel. MoGas Pipeline, LLC v. Missouri Pub. Serv. Comm’n , 366 S.W.3d 493, 496 (Mo. banc 2012)). Looking at the entirety of our statutory scheme, I believe the legislature intended only to provide the Children ’s Division ninety days in which to take action against an alleged perp etrator. Since the Children’s Division failed to act within that statutorily articulated tim eframe, it had no author ity to place Mother’s name on the central registry. Section 210.145.14 provides th at after receiving a report of abuse or neglect, the Children’s Division “shall complete all inves tigations within thirty days, unless good cause for the failure to complete the investigation is documented in the information system. If the investigation is not completed within thirty days, the information system shall be updated at regular intervals and up on the completion of the investigation.” Section 210.152.2 provides that “[w]ithin ninety days after re ceipt of a report of abuse or neglect that is investigated, th e alleged perpetrator ..., shall be notified in writing of any determination made by the [Children’s D]iv ision based on the i nvestigation.” This section then delineates that “t he notice shall advise either: (1) That the [Children’s D]ivision has determined ... that abuse or neglect exists and that the division shall retain all identifying information regarding the abuse or neglect; that such info rmation shall remain confidential and will not be released except to law enforcement agencies, prosecuting or circuit attorneys, or as provided by section 210 .150; that the alleged perpetrator has sixty days from the date of the receipt of the notice to seek reversal of the [Children’s D]ivisi on’s determination through a review by
2the child abuse and neglect review board as provided in subsection 3 of this section; or (2) That the [Ch ildren’s D]ivision has not made a probable cause finding or determined by a preponderance of the evidence that abuse or neglect exists.” Section 210.152.2 (emphasis added). The legislature did not bestow a provision for an extension of time for further investig ation in this section as it did in section
210.145.14. The legislature also compels the Children’s Division to notify the alleged perpetrator with the written description of the investigation proc ess once it opens an investigation. Section 210.183.1. Secti on 210.183.1 contains la nguage drafted by the legislature explaining the proce ss of the investigation to the alleged perpetrator by putting sections 210.145 and 210.152 in to plain words for the public . The Children’s Division’s notification letter must be drafted in substan tially the same form as set forth in section 210.183.1. This section stat es that the Children’s Division “shall make every reasonable attempt to complete the inves tigation within thirty days.” If the investig ation is not completed within thirty da ys, “within ninety days you will receive a letter from the [Children’s] Division wh ich will inform you of one of the following: (1) That the [Children’s] Division ha s found insufficient evidence of abuse or neglect; or (2) That there appears to be by a pr eponderance of the evidence reason to suspect the existence of child abuse or neglect in the judgment of the [Children’s] Division and that the [C hildren’s] Division will contact the family to offer social services.”

3Section 210.183.1 (emphasis added). This notification language tracks the statutory language, delineating the Children’s Divisi on’s authority, in sections 210.145.14 and
210.152. Justice Sedgwick concisely sets forth the general rules of interpreting statutes and determining when a statute should be treated as directory: The intention of the Legislature should control absolutely the action of the judiciary; where that intention is cl early ascertained, the courts have no other duty to perform than to exec ute the legislative will, without any regard to their own views as to the wisdom or ju stice of the particular enactment. The means of ascertaining that intention are to be found in the statute itself, taken as a whole with all its parts,-- in statutes on the same subject, antecedent jurisprudence an d legislation, contemporaneous and more recent exposition, judicial construction and us age; and to the us e of these means, and these alone, the judiciary is confin ed. No other extrinsic facts are in any way to be taken in to consideration. It is not until these means fail, an d until the attempt to ascertain the legislative intent is hopeless, that th e judiciary can with propriety assume any power of construing a st atute, strictly or libera lly, with reference either to the particular character of the statut e, or to their own ideas of policy or equity. Where the meaning of the statute, as it stands, is clear, they have no power to insert qualifications, engraf t exceptions, or make modifications, under the idea of providing for cases in regard to which the Legislature has omitted any specific provisions. Theodore Sedgwick, A Treatise on the Ru les which Govern th e Interpretation and Construction of Statutory and Co nstitutional Law , at 325-26 (2d ed. 1874) (hereinafter,

“ Sedgwick ”). 1

1 The principles expounded upon in Sedgwick’s treatise, while appli cable, are difficult for citizens to locate; the Missouri’s Supreme Cour t library does not maintain a copy of any of his treatises for citizens. However, this C ourt still recognizes his writing as influential 4Section 210.152.2 prov ides that “[w]ithin ninety days after receipt of a report of abuse or neglect that is investigated, the alleged perpetrator ..., shall be notified in writing of any determination ma de by the division based on the investigation.” This section then delineates “the notice shall advise either: (1) That the [Children’s D]ivision has determined ... that abuse or neglect exists and that the division shall retain all identifying information regarding the abuse or neglect; that such info rmation shall remain confidential and will not be released except to law enforcement agencies, prosecuting or circuit attorneys, or as provided by section 210 .150; that the alleged perpetrator has sixty days from the date of the receipt of the notice to seek reversal of the [Children’s D]ivisi on’s determination through a review by the child abuse and neglect review board as provided in subsection 3 of this section; or (2) That the [Ch ildren’s D]ivision has not made a probable cause finding or determined by a preponderance of the evidence that abuse or neglect exists.” Section 210.152.2 (emphasis added). The legislature did not bestow a provisi on for an extension of time for further investigation in this section as it did in section 210.145.14. The legislature also mandated that the Children’s Division must inform the alleged perpetrato r within ninety days of one of two possible outcomes. In this case, the initial ho tline call against Mother occurred on May 17, 2006. The Children’s Division was charge d with conducting an investig ation into the allegations. Section 210.145.14 provides that after recei ving a report of abus e or neglect, the Children’s Division “shall complete all inves tigations within thirty days, unless good

in our decision making. See State v. Honeycutt , 421 S.W.3d 410, 419-20 (Mo. banc 2013). 5cause for the failure to complete the investigation is documented in the information system. If the investigation is not completed within thirty days, the information system shall be updated at regular intervals and up on the completion of the investigation.” Within the initial thirty da ys contemplated by section 210.145.14, the Children’s Division informed Mother on June 8, 2006, that its inves tigation would be delayed for “good cause” because the reports it needed to make its final determination were not available. The Children’s Division continue d to update the informa tion system until June 27, 2006. After the update on June 27, 2006, there were no updates in the information system until August 25, 2006. On August 28, 2006, after the expiration of the ninety-day period delineated in section 210.152.2, the Children’s Division pr ovided Mother with its decision, finding she neglected J.H.. The Children’s Division co ncedes the notification of its decision occurred beyond the nine ty-day time frame. The principal opinion curtails the actual an alysis that should be performed by this Court when attempting to determine whether a statute is mandatory or directory by only noting the lack of a penalty provision within se ction 210.152.2. “Directory provisions are not intended by the legislature to be disr egarded, but where the consequences of not obeying them in every particular are not pres cribed the courts must judicially determine them.” State ex rel. Ellis v. Brown , 33 S.W.2d 104, 107 (Mo. banc 1930) ( quoting 25 R. C. L. Sec. 14 pp. 766, 767). 2 Our “courts recognize that th e term [‘shall’] is frequently

2 The principal opinion neglects to look at the other statutor y provisions within the same act, covering the same procedures and auth ority granted to the Children’s Division, 6used carelessly and indiscriminately, and they have not hesitated to hold that the intent of the legislative enactment will prevail over the literal sense of its terms.” Howard v. Banks , 544 S.W.2d 601, 604 (Mo. App. St. Louis Dist. 1976). “T here is no absolute or universal rule by which stat utory provisions may be dis tinguished and classified as mandatory or directory.” State ex rel. Hopkins v. Stemmons , 302 S.W.2d 51, 53 (Mo. App. Spring. Dist. 1957). “I n the determination of this question, as of every other question of statutory constructi on, the prime object is to asce rtain the legislative intention as disclosed by all the terms and provisions of the act in relation to the subject of legislation and the general object intended to be accomplished.” Brown , 33 S.W.2d at 107 ( quoting 25 R. C. L. Sec. 14 pp. 766, 767); see also Hopkins , 302 S.W.2d at 53; State ex rel. Rogersville Reorganized Schoo l Dist. No. R-4, of Webster Cnty. , v. Holmes, 253 S.W.2d 402, 404 (Mo. banc 1952) (“In determ ining whether either of the provisions of the schedule with which each relator failed to comply is mandatory or directory, the prime object is to ascertain the legislative intention as disclosed by all the terms and provisions of the act in relation to the subj ect legislation and the general object intended to be accomplished.”) (internal quotation omitted). Since the Children’s Division ’s authority is promulgated by statute, this Court must engage in statutory analysis to determin e fully the extent of the authority delegated to the Children’s Division. The principal opinion’s decision to re-cast the statutory construction question to fit its conclusion allows the aut hor seemingly to negate the

thereby failing to give any meaning to every statutory provision enacted by our legislature. 7legitimacy of any opposing argume nt. This is a tactic of ad vocacy that is better employed by trial counsel rather than the judiciary, w hose duty it is to address honestly and fully each issue timely and appropriate ly presented by the parties on appeal. Whether “shall” means “shall” is indeed a major issue in the reso lution of this cause. “As with all matters of stat utory interpretation, determin ing if the word ‘shall’ is mandatory or directory requires courts to review the context of the statute and to ascertain legislative intent .” State v. Teer , 275 S.W.3d 258, 261 (Mo. banc 2009). When engaging in statutory construction, the primary purpose is to ascertain the legislature’s intent from the language used and to give effe ct to that intent if possible. Beard v. Missouri State Employees’ Retirement System , 379 S.W.3d 167, 169 (Mo. banc 2012). This Court presumes the legislature intended every word, clause, sentence, and provision of a statute to have effect and did not insert s uperfluous language into the statute. City of Shelbina v. Shelby County , 245 S.W.3d 249, 252 (Mo. App. E.D. 2008). “The construction of statutes is not to be hyper-tech nical, but instead is to be reasonable and logical and [to] give meaning to the statutes.” Lewis v. Gibbons , 80 S.W.3d 461, 46 5 (Mo. banc 2002) (internal quotations omitted). “Provisions of an entire legislative act must be construed together and, if reasonably possible, all provis ions must be harmonized.” Chester Bross Const. Co. v. Missouri Dept. of Labor and Indus. Relations, Div. of Labor Standards , 111 S.W.3d 425, 427 (Mo. App. E.D. 2003) (quoting St. Louis County v. B.A.P., Inc. , 25 S.W.3d 629, 631 (Mo. App. E.D. 2000)). Statut ory provisions relating to the same subject matter “must be considered in context and sections of the statutes in pari materia , as well as cognate
8sections, must be considered in order to ar rive at the true meaning and scope of the words.” Harpagon MO, LLC v. Bosch , 370 S.W.3d 579, 584 (Mo. banc 2012) (quoting South Metro. Fire Prot. Dist . v. City of Lee’s Summit , 278 S.W.3d 659, 666 (Mo. banc 2009)); see also Sedgwick at 209 (“It is well settled, that in construing a doubtful statute, and for the purpose of arriving at the legislative intent, all ac ts on the same subject-matter are to be taken together and examined, in order to arrive at the true result.”) This allows the legislation to be read co nsistently and harmoniously. Crawford v. Div. of Employment Sec. , 376 S.W.3d 658, 664 (M o. banc 2012). “The rule that statutes in pari
materia are to be consulted for the construction of each other, holds good, though some of the statutes may have expire d, or even been repealed, a nd whether they are referred to
or not.” Sedgwick at 212. Statutes are enforced as they are written, not as they might have been written. Turner v. School Dist. of Clayton , 318 S.W.3d 660, 667 (Mo. banc 2010). Further, this Court pr esumes the legislature is aware of the existing law. Id. Our legislature created the statewide child abuse and neglect registry to “promote the safety of children ... by conducting inve stigations ... and providing services in response to reports of child abuse or neglect.” S ection 210.109.2; Jamison v. State, Dept. of Social Services, Div. of Family Services , 218 S.W.3d 399, 402-03 (Mo. banc 2007). The central registry is a non-public list of people who committed child abuse or neglect. Sections 210.110(3) and 210.150.2. The cent ral registry provides “a means to protect both victims of child abuse and other childr en with whom a perpetrator of abuse or neglect might come into contact by ensuring that information about cases of abuse is available to individuals and entities responsib le for caring and protecting children.” Pope
9v. Child Abuse and Neglect Review Bd. , 309 S.W.3d 362, 366 (M o. App. E.D. 2010). There is limited access to the central registry. Hessel , 400 S.W.3d at 817 n.2; see section
210.150. When a hotline call is received, the Child ren’s Division is ch arged with opening a thirty-day investigation. Se ction 210.145.14. The legislat ure clearly recognized that some investigations may have “good cause” to be extended beyond the initial thirty-day investigation period because the legislatur e included the qualifying language of “good
cause.” Id. The legislature promulgated a proced ure, requiring the Children’s Division to update the database with its progress on th e investigation after the initial thirty-day period. Id. The legislature also required that the alleged perpetrator be given written notice of the investigative procedure, which states that the inve stigation should be completed within thirty days but may be extended out to ninety days. There is no additional provision for a lengthier investiga tion. Section 210.183.1. After the initial investigatory period, the legislature directs that the Children’s Division within ninety days shall provide notice to the alleged perpetrator th at either the Children’s Division finds by a preponderance of the eviden ce that abuse or neglect ex ists or that the Children’s Division has not determined by a prepondera nce of the evidence th at abuse or neglect exists. Section 210.152.2. Section 210.152.2 does not state what consequence will ensu e if the Children’s Division fails to provide the alleged perpetrator a wr itten determination of its investigation within ninety days. The princi pal opinion believes that, because there is no delineated consequence from fail ing to inform an alleged perpetrator of its decision
10within ninety days, section 2 10.150.2 should be construed as only a directory statute and the Children’s Division do es not need to comply w ith the statutory deadline. 3 In support of this proposition, the principal opinion cites Farmers & Merchants Bank & Trust Co. v. Dir. of Revenue, State of Mo. , 896 S.W.2d 30, 33 (Mo. banc 1995), to justify its decision that one may merely lo ok at a statute and dete rmine the presence or absence of a penalty provision to determine whether a statute is mandatory or directory.
In Farmers , this Court recognized “[w]hether the statutory word ‘shall’ is mandatory or directory is a function of context .” Id. at 32 (emphasis added). This Court in Farmers only needed to analyze a single st atute at issue—this is a stark contrast to the issue in this case wherein the provisions at issue are clearly a part of an interlinking act. While the principal opinion r ecognizes the proposition in Farmers that the presence of a penalty provision is not the only dispositive factor in determining whether a statute is mandatory or director y, it fails to engage in any st atutory analysis in this case beyond the limited observation of not ing there is not a penalty pr ovision. (See slip op. at 9). This curtailed and simplistic an alysis is inappropriate. When engaging in statutory analysis, th is Court consistently recognizes the requirement to consider other statutes with related or similar subject matter to illuminate the meaning of the statute at issue. BASF Corp. v. Dir. of Revenue , 392 S.W.3d 438, 444 (Mo. banc 2012). “[W]hen the same or simila r words are used in different places within

3 This Court has found reversible error by the circuit court in a termination of parental rights hearing when it failed to comply strictly with section 211.455.3, a section that includes the word “shall” but does not include a penalty provision. In re C.W. , 21 S.W.3d at 98 (abrogated on other grounds by In re B.H. , 348 S.W.3d 770 (Mo. banc 2011)). See also In re A.H. , 169 S.W.3d 152, 158 (Mo. App. S.D. 2005) (same). 11the same legislative act and relate to the same or similar subject matter, then the statutes

are in pari materia and should be construed to achiev e a harmonious interpretation of the
statutes.” Williams v. State , 386 S.W.3d 750, 754 (Mo. banc 2012) (quoting State v. Knapp , 843 S.W.2d 345, 347 (Mo. banc 1992)); see also BASF Corp. , 392 S.W.3d at 444; Crawford , 376 S.W.3d at 664, and Union Elec. Co. v. Dir. of Revenue , 425 S.W.3d 118, 122 (Mo. banc 2014). Further, the words in a statute “must be considered in context and sections of the statutes in pari materia , as well as cognate sections, must be considered in order to arrive at the true meaning and scope of the words.” Harpagon MO,
LLC , 370 S.W.3d at 584 (quoting So. Metro. Fire Prot. Dist. , 278 S.W.3d at 666); see also Goerlitz v. City of Maryville , 333 S.W.3d 450, 458 (Mo. banc 2011). The principal opinion fails to look to any ot her statute or cognate section to arrive at the true meaning of the statute. The principal opinion simply ignores our basic tenets of determining the true intent of our legislature. If section 210.152.2 were to be read in is olation, the “shall” without more could be construed as directory because there is no delineated consequence for failing to meet the ninety-day deadline. However, by reading section 210.152 in pari materia with sections 210.145 and 210.183, looking at the entire legislative act, a nd harmonizing its provisions, it is clear the legislature intended the language to be mandatory. See Chester Bross , 111 S.W.3d at 427; Garzee v. Sauro , 639 S.W.2d 830, 832 (Mo. 1982) (finding a genuine issue of fact remained when reconciling two statutes regarding giving notice for a real estate sale, and stating, “g iving the statute a directory meaning would imply that the publication of notice of foreclosure in sect ion 141.430 satisfies the notice requirements
12for in rem proceedings under the due process clause of the Missouri and United States constitutions.... [W]e cannot interpret s ection 141.440 as directory only.”) The Children’s Division ar gues this Court should infer it has the authority to extend the ninety-day limit se t forth in section 210.152 fo r written notification of an investigation’s outcome, if “good cause” exists. 4 The Children’s Division asserts that there is “good cause” to continue its inves tigation because it seeks to protect Missouri’s children. While this seems a laudable goal, the Children’s Di vision is a statutory creature and is vested only with the express authority bestowed to it by our legislature, which protects all of our citizenry. Yet, the principal opinion states that to enforce th e written statutory timeframe would serve no one because the Children’s Divisi on would stop its investigation as soon as allegations are substantiated. The principal opinion’s willingness to allow an administrative agency to cont inue any investigati on in perpetuity will only be a disservice to those it is charged to protect. At no time prior to the Children’s Division substantiating an allegation of abuse are ch ildren protected. Until an investigation is completed and a perpetrator is listed on the central registry, that perpetrator is at liberty to have continued free access to children. Mi ssouri’s children are not protected from those who seek to harm them by a lengthy investiga tion process. Had the legislature wished to allow the Children’s Division to have an unlimited amount of time to keep investigations

4 The Children’s Division raises its “good cause” argument for the first ti me to this Court. Rule 83.08(b). 13about alleged perpetrators open, as argued by the principal op inion, it could have placed the same “good cause” language in section 210.152.2. 5 Similarly, Section 210.183.1 states th at the Children’s Division will make every reasonable effort to complete the inves tigation within thir ty days, but that “[w]ithin ninety days you will receive a letter from the [Children’s] Division which will inform you of” its decision . (Emphasis added). This statutory language supports interpreting “shall” in section 210.152 as the legislature’s intent to create a mandatory directive and not allow the Children’s Division to rest on its laurels rather than pursuing ev ery investigation to a rapid conclusion to protect Missouri’s children. 6 Rather than subordinating the Act’s purpose by granting unlimited, unchecked, b oundless inquiries as suggested by the principal opinion, the better in terpretation reinforces the time limitations set forth by our legislature to remove an alleged predator sw iftly and rapidly from the midst of innocent children. Finally, this Court notes th at the legislature modified section 210.145.14, RSMo Supp. 2007, and section 210.1 52, RSMo Supp. 2011. Statut ory amendments can further elucidate the legislature’s intent. City of Columbia v. Henderson , 399 S.W.3d 493, 497 (Mo. App. W.D. 2013); Anderson ex rel. Anderson v. Ke n Kauffman & Son s Excavating,

5 An alleged perpetrator has no due proces s rights during the course of the Children’s Division’s limited investigation. Jamison , 218 S.W.3d at 410. Providing the Children’s Division with an unlimited amount of time to open files about a nd investigate alleged perpetrators is tantamount to authorizing an unlimited inves tigation with no protection for Missouri children. 6 The central registry is desi gned not only to protect children within families but also to protect children who are entrusted to others for care in a daycare or school setting. A lengthy delay in adding a perpetrator’s name to the central registry only allows that perpetrator more access to children, thereby furthe r endangering all children. 14L.L.C. , 248 S.W.3d 101, 109 (Mo. App. W.D. 2 008). “When the legislature amends a statute, it is presumed to have intende d the amendment to have some effect.” Wollard v. City of Kansas City , 831 S.W.2d 200, 203 (Mo. banc 1992). Section 210.145.14, RSMo Supp. 2007, was amended to provide that in addition to extending an investigation fo r more than thirty days for “good cause” that “[i]f a child involved in a pending inves tigation dies, the investigati on shall remain open until the [Children’s D]ivision’s investigation su rrounding the death is completed.” The legislature made it clear that the death of a child permits the Children’s Division’s investigation to c ontinue indefinitely until its conclusion. Were the term “shall” to be merely directory, there would have been no need to legislate that an investigation could extend indefi nitely in only one circumstan ce. This amendment to the statute is further evidence that the legislat ure intended to treat the death of a child differently from all other cases of alle ged abuse and neglect by extending the investigatory time indefinitely. The plain language of the statute in this case demonstrates that the legislature intended to limit the time for which the Children’s Division could conduct an inve stigation for abuse or neglect. Our legislature added subsection 3 to section 210.152 in 2011, allowing the Children’s Division to reopen a case for review at the request of the alle ged perpetrator, the alleged victim, or the office of the child advo cate if new, specific, and credible evidence is obtained that the [Children’s D]ivis ion’s decision was based on fraud or misrepresentation of material facts re levant to the [Children’s D]ivision’s decision and there is cr edible evidence that absent such fraud or misrepresentation the [Children’s D]ivision’s decision would have been different.
15This further clarifies the legislature’s inte nt to only provide th e Children’s Division a maximum of ninety days to complete its i nvestigation and notify th e alleged perpetrator of its decision. The amendment now dem onstrates that the investigation may be reopened to further protect children should ther e be new, specific, credible evidence that the Children’s Division’s decision was based on fraud or a misrepresentation of evidence. The Children’s Division’s argument, s eeking to extend its investigation and decision-making indefinitely, adds “good cau se” language to sec tion 210.152 that does not exist. This Court will not interpret a statute as a party wishes it were written. Turner , 318 S.W.3d at 667. This Court will not add statutory language wh ere it does not exist; this Court merely interprets the statutory language as written by the legislature. Ryder Student Transp. Services, Inc. v. Dir. of Revenue, State of Mo. , 896 S.W.2d 633, 635 (Mo. banc 1995). It is obvious the legislat ure knew how to grant the Children’s Division an extension of the statutor y time limitations because it did so in section 210.145 by inserting the “good cause” language and a pr ocedure to follow when the investigation was not completed. The legislature reiterate d its intent that no investigation should extend beyond ninety days by promulgating the notice to the alleged perpetrator, providing he or she will be no tified of the Children’s Divisi on’s decision within ninety days. Section 210.183. Fina lly, the legislature’s subseque nt statutory amendments to sections 210.145.14, RSMo Supp. 2007, a nd 210.152.3, RSMo Supp. 2011, further indicate the legislature’s intent to limit the ti me of the Children’s Di vision investigations in the normal course of its bus iness. The legislature fully articulated a statutory scheme

1617 to investigate and protect all Missouri’s ch ildren in a prompt and efficient manner. See
Jamison , 218 S.W.3d at 410. Conclusion Accordingly, I believe the Children’s Di vision’s failure to operate within the enunciated statutory time frame s divested it of the authority to take any other action in this case. 7 I would affirm the trial court’s judgment.

_____________ _____________ G EORGE W. D RAPER III, J UDGE

7 The principal opinion characteri zes the outcome of this disse nting opinion as creating a sanction. Yet, this legally sound and historica lly approved approach does no such thing. Merely, the Children’s Division is required to follow the legislativ e mandates, and its failure to do so divests it from further action; th is is the result of the Children’s Division’s failure to comply with the statutes, not a court-created sanction. To pr otect Missouri’s children, the legislature has required dilig ence and only authorized the Children’s Division to act during a statutorily created ti me period; its authority to act is limited to that granted to it by the legislature. State ex rel. Missour i Pub. Defender Comm’n , 370 S.W.3d at 598; In re C.W., 211 S.W.3d at 97.