Case Summary for December 3, 2013

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Case Summary for December 3, 2013

THE FOLLOWING DOCKET SUMMARIES ARE PREPARED BY THE COURT'S STAFF FOR THE INTEREST AND CONVENIENCE OF THE READER. THE SUMMARIES MAY NOT INCLUDE ALL ISSUES PENDING BEFORE THE COURT AND DO NOT REFLECT ANY OPINION OF THE COURT ON THE MERITS OF A CASE. COPIES OF ALL BRIEFS FILED WITH THE COURT ARE AVAILABLE AT THE SUPREME COURT BUILDING, COURT EN BANC DIVISION. SUMMARIES ARE UNOFFICIAL AND SHOULD NOT BE QUOTED OR CITED.

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DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

9:30 a.m. Tuesday, December 3, 2013

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SC93471
Melody Frye v. Ronald J. Levy, Director, State of Missouri, Division of Social Services, Children's Division
Howell County
Challenge to removal of name from central Child Abuse and Neglect registry

Listen to the oral argument:

The director of social services was represented during arguments by Gary Gardner of the attorney general's office in Jefferson City, and Frye was represented by Chris Fisher of Ray & Fisher in West Plains.

Melody Frye (Mother) is married to Joseph Frye (Stepfather), who was found responsible for the death of Mother’s minor daughter. The state charged Mother with neglecting all three of her minor daughters, alleging she had been aware Stepfather was abusing them and had not supervised him. Under section 210.152, RSMo, the state children’s division has 90 days to investigate claims of neglect and inform the interested parties of its determination. The division first notified Mother its determination would be delayed due to a delay in obtaining necessary reports and then, 100 days after the initial report, notified her of its determination. The division added Mother’s name to the central registry of child abuse or neglect perpetrators, for which she requested judicial review. The trial court found the division lost its authority when it extended the investigation past the 90-day notice period and ordered that Mother’s name be removed from the registry. The division appeals.

The division director argues the trial court erred in ordering that Mother’s name be removed from the central registry for child abuse and neglect perpetrators. He contends that, in certain situations, the division is authorized to investigate reports of abuse and neglect more than 90 days after receiving the report. The director asserts that, when there is good cause for the children’s division to delay a conclusion, the 90-day notice limit is a direction and not a mandate.

Mother responds that the trial court correctly ordered that her name be removed from the central registry. She argues the children’s division does not have authority to delay its conclusions beyond 90 days. Mother contends the division’s authority comes exclusively from the state statutes. She asserts that section 210.152 is written as a mandate and contains no good cause exception for extending the 90-day notice limit. Mother argues that subjects under investigation such as herself are prejudiced by the division’s noncompliance with the statutory time limits.

SC93653
In re the matter of Taryn Williams v. State of Missouri, Department of Social Services, Children's Division, Child Abuse and Neglect Review Board
Jackson County
Challenge to removal of name from central Child Abuse and Neglect registry

Listen to the oral argument:

The state and board were represented during arguments by Gary Gardner of the attorney general's office in Jefferson City, and Williams was represented by Christopher Mirakian of Wyrsch Hobbs & Mirakian PC in Kansas City.

The state children’s division found that Taryn Williams had sexually maltreated a person younger than 18 years. Under section 210.152, RSMo, the children’s division has 90 days to investigate claims of neglect or abuse and inform the interested parties of its determination. The division told Williams that its determination would be delayed due to an attempt to obtain a transcript of text messages relating to the allegations. Then, 133 days after beginning the investigation, the division notified Williams that it determined she had committed the offense. The division added Williams’ name to the central registry for child abuse and neglect perpetrators, for which Williams requested judicial review. The trial court found the division did not have good cause to delay its determination and ordered that Williams’ name be removed from the registry. The division appeals.

The division argues the trial court erred in ordering Williams’ name be removed from the central registry for child abuse and neglect perpetrators. It contends that, in certain situations, it is authorized to investigate reports of abuse and neglect more than 90 days after receiving the report. The division asserts that, when there is good cause for it to delay a determination, the 90-day notice limit is a direction and not a mandate. It argues the trial court also erred in finding that working with law enforcement on the investigation was not a good cause for delay. The division contends law enforcement was attempting to obtain a transcript of text messages that would corroborate the existing evidence. It asserts it did not matter that the evidence it ultimately used for the determination was gathered within the first 30 days. The division argues that child abuse and neglect investigations do not affect due process rights because they are administrative and do not make binding determinations regarding legal rights.

Williams responds the trial court did not err in ordering that her name be removed from the central registry. She argues that the time limits in sections 210.145, RSMo, and 210.152 are mandatory because the legislature implicated sanctions for noncompliance. Williams contends that the language and context of the statutes connotes a mandatory duty and that treating these mandates as directory would make them unworkable. She asserts that the child abuse and neglect investigation did affect her due process rights because it implicated her liberty interests by barring her from working with children, which directly affects her employment. Williams argues the trial court correctly found the division delayed the determination of its investigation without showing good cause. She contends that the transcript of text messages was not necessary to the determination and that the division’s investigator did not diligently attempt to obtain the cell phone and its contents.

SC93412
In re: James Michael Riehn
Barry County
Attorney discipline
Listen to the oral argument:

The Office of Chief Disciplinary Counsel was represented during arguments by Deputy Chief Disciplinary Counsel Sam Phillips of Jefferson City, and Riehn was represented by Donald Cupps of Ellis, Cupps & Cole PC in Cassville.

Barry County attorney James Riehn and the chief disciplinary counsel have entered into a stipulation (agreement) regarding this case. They stipulate that Riehn agreed to assist attorney Al Don Trotter, also of Barry County but in a separate practice, in representing a couple, Christina Miess and Mark Barton, who were involved in a vehicular accident that claimed the lives of their children riding with them. The couple signed contingency fee agreements Trotter provided, which did not state the procedure for expenses or Riehn’s portion of the fee. Miess later dismissed both attorneys and obtained a trial court order disqualifying them from representing Barton as well. When the case was decided, the attorneys requested to receive portions of the awards Miess and Barton ultimately won according to the fee agreements. Riehn acknowledges his contingency fee agreement violated Rule 4-1.5(c) by failing to include certain provisions. He also acknowledges he violated Rules 4-1.5(e) and 4-1.7 by jointly representing Miess and Barton without obtaining written consent. Riehn also admits he violated Rule 4-1.9 by continuing to represent Barton in his claims arising from the accident after Miess had discharged Trotter and himself. The chief disciplinary counsel asks this Court to discipline Riehn’s law license.

Both the chief disciplinary counsel and Riehn argue that this Court should reprimand Riehn. They contend Riehn violated subsections (c) and (e) of Rule 4-1.5 as well as Rules 4-1.7 and 4-1.9. They assert the American Bar Association standards and prior decisions of this Court suggest that a public reprimand is appropriate in this situation.

Riehn also argues that he had a good faith belief that no conflict existed, and if it did, it did not arise until the distribution phase of the case. He contends he has cooperated and maintained full disclosure during the proceedings and has no dishonest or selfish motives.

SC93414
In re: Al Don Trotter
Barry County
Attorney discipline
Listen to the oral argument:

The Office of Chief Disciplinary Counsel was represented during arguments by Deputy Chief Disciplinary Counsel Sam Phillips of Jefferson City, and Trotter was represented by Sara Rittman of Rittman Law LLC in Jefferson City.

Barry County attorney Al Don Trotter and the chief disciplinary counsel have entered into a stipulation (agreement) regarding this case, the facts of which are substantially similar to those described above in Case No. SC93412. A disciplinary hearing panel found Trotter violated the rules of professional conduct. The chief disciplinary counsel asks this Court to discipline Trotter’s law license.

Both the chief disciplinary counsel and Trotter argue that this Court should reprimand Trotter and place him on probation. They contend Trotter violated subsections (c) and (e) of Rule 4-1.5 as well as Rules 4-1.7 and 4-1.9. They argue the American Bar Association standards and prior decisions of this Court suggest that a public reprimand is appropriate in this situation. They further contend that, because Trotter has a prior disciplinary history, the additional step of probation is warranted to improve his practice and protect the public as well as to maintain the integrity of the profession.

Trotter admits his disciplinary history is an aggravating factor. He contends mitigating factors include that he fully and freely disclosed all facts and cooperated in the proceedings. Trotter also asserts that he does not have a dishonest or selfish motive and that he already has been sanctioned in federal court regarding this same proceeding.