LAURA DENVIR STITH, Judge.
This Court agrees that Ms. Jamison and Ms. Dotson have shown they have a protected liberty interest in not having their names included in the Central Registry and subject to dissemination to current and prospective employers before they receive notice and an opportunity to be heard. For these reasons, to the extent that the Act permits the division to list the names of persons in the Central Registry based on the findings of an investigator and local director, it is invalid because it does not provide alleged perpetrators with the necessary notice and opportunity to be heard. Similarly, to the extent that the Act permits listing persons in the Central Registry merely based on a finding by an investigator, a local director, or the CANRB of probable cause to believe abuse or neglect occurred, it is invalid. Unless and until the CANRB determines that the allegations are proven by a preponderance of the evidence, the division cannot constitutionally include the alleged perpetrators in the Central Registry.
The trial court held that to pass constitutional muster the alleged perpetrator must also be guaranteed the right to subpoena and cross-examine sworn witnesses and the rules of evidence must apply in the CANRB hearing. It therefore held the Act unconstitutional in its entirety. Were the alleged perpetrator granted no further right to review, this Court would agree. But the CANRB hearing is a pre-deprivation hearing, from which an aggrieved alleged perpetrator has an immediate right to de novo judicial review. This subsequent review renders these additional procedural safeguards unnecessary to satisfy due process. Therefore, the procedural protections provided at the CANRB hearing are adequate if a preponderance of the evidence standard is applied.
I. FACTUAL AND PROCEDURAL BACKGROUND
Ms. Jamison is a registered nurse and the founder and chief executive officer of Faith House, a licensed child care center and residential child care agency in St. Louis. Ms. Dotson is a licensed practical nurse employed at Faith House. On January 2, 2003, an anonymous call made to the division's child abuse and neglect hotline alleged that Ms. Jamison and Ms. Dotson negligently failed to supervise the children in their care.
At that time, the Act provided that if a division investigator "found probable cause to believe . . . that the individual has committed child abuse or neglect," sec. 210.110(2), then the individual should be listed in the Central Registry. The Central Registry is a statewide child abuse and neglect registry maintained by the division as part of Missouri's efforts "to promote the safety of children . . . [by] providing services in response to reports
Beginning the day the hotline call was made, a division investigator reviewed documents and interviewed the victims, Ms. Jamison and Ms. Dotson, and several witnesses. On January 29, 2003, the investigator issued her report, finding probable cause to believe Ms. Jamison and Ms. Dotson neglected children under their care. Based solely on the investigation, before any formal notice or a hearing was provided to Ms. Jamison or Ms. Dotson, the division entered the two women's names in the Central Registry as persons there was probable cause to believe were guilty of child abuse or neglect. As a result, the Department of Health and Senior Services ("DHSS") decreed that Ms. Jamison was not allowed to be present during Faith House's hours of operation.
According to these regulations, the director must review "all appropriate material" and independently determine whether to uphold the investigator's decision. 13 CSR 40-31.025(2)(B). Although "all appropriate material" is not defined and no provision entitles a person to submit a written explanation of the alleged abuse or neglect, in this instance, the director permitted Ms. Jamison and Ms. Dotson to provide affidavits setting forth their versions of the events. In a letter sent on April 3, 2003—64 days after the women were first listed in the Central Registry — the director informed Ms. Jamison and Ms. Dotson that he was upholding the investigator's finding of probable cause and, as required by 13 CSR 40-31.025(2)(C), informed them how to seek further review. During this entire period, Ms. Jamison and Ms. Dotson's names were included in the Central Registry and, therefore, available to inquiring employers. See sec. 210.150.
Still believing that the findings against them were incorrect and that their names should not be listed in the Central Registry, Ms. Jamison and Ms. Dotson made a timely, written request for review by the CANRB.
Under section 210.153.4(2), Ms. Jamison and Ms. Dotson were entitled to appear before the CANRB, with or without counsel, to testify in person or to submit a written statement.
The CANRB did not schedule a hearing until July 22, 2003, some three and one-half months after Ms. Jamison and Ms. Dotson received the local director's decision to uphold the probable cause finding. The version of the statute then in effect provided that the CANRB "shall sustain the division's determination if [it] is supported by evidence of probable cause and is not against the weight of such evidence." Sec. 210.152.4. Twenty days later, on August 11, 2003, Ms. Jamison and Ms. Dotson received notice that the CANRB upheld the probable cause finding. This meant Ms. Jamison's and Ms. Dotson's names remained in the Central Registry, just as they had for more than six months.
The statutory scheme permits an alleged perpetrator aggrieved by the CANRB's decision to seek de novo judicial review within 60 days, see sec. 210.152.5, and Ms. Jamison and Ms. Dotson did so on October 9, 2003. "In reviewing such decisions, the circuit court shall provide the alleged perpetrator the opportunity to appear and present testimony. The alleged perpetrator may subpoena any witnesses except the alleged victim or the reporter." Id. Ms. Jamison's and Ms. Dotson's names remained in the registry for the 25 months during which the case was pending in the circuit court. On November 3, 2005, the court ruled that the Act violated the women's due process rights.
II. STANDARD OF REVIEW
The case below was tried to the court pursuant to section 210.152. The judgment in a court-tried case will be sustained on appeal unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declared or applied the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).
Whether a statute is unconstitutional is a question of law, the review of which is de novo. Doe I v. Phillips, 194 S.W.3d 833, 841 (Mo. banc 2006). Because
III. PROCEDURAL DUE PROCESS
A. Determining What Process Is Due.
The due process clauses of the United States and Missouri constitutions prohibit the taking of life, liberty or property without due process of law. U.S. Const. amend. XIV, sec. 1; Mo. Const. art. I, sec. 10.
Under both the federal and state constitutions, "[t]he fundamental requirement of due process is the opportunity to be heard `at a meaningful time and in a meaningful manner.'" Mathews, 424 U.S. at 333,, 96 S.Ct. 893 quoting, Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965); accord, Moore v. Bd. of Educ. of Fulton Public School No. 58, 836 S.W.2d 943, 947 (Mo. banc 1992). This does not mean that the same type of process is required in every instance; rather, "due process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); accord State ex rel. Cook v. Saynes, 713 S.W.2d 258, 262 (Mo. banc 1986). Three factors must be considered in determining what procedures are constitutionally sufficient:
Mathews, 424 U.S. at 335, 96 S.Ct. 893; accord Belton v. Bd. of Police Comm'rs, 708 S.W.2d 131, 135, 137 (Mo. banc 1986).
The United States Supreme Court has consistently held "that some form of hearing is required before an individual is finally deprived of a [protectable] interest" because "the right to be heard before being condemned to suffer grievous loss of any kind . . . is a principle basic to our society.'" Mathews, 424 U.S. at 333, 96 S.Ct. 893
Applying these principles here, this Court must first decide whether Ms. Jamison and Ms. Dotson have a protected liberty or property interest in not being listed in the Central Registry. If so, then this Court must determine whether the women were provided with notice and an opportunity to be heard at a meaningful time and in a meaningful manner. If this process was inadequate, this Court must determine what alternative or additional protections are necessary to satisfy due process.
B. Constitutionally Protected Interest: "Stigma Plus" Test
The division concedes that making Ms. Jamison's and Ms. Dotson's names available to potential employers and others entitled to view names listed in the Central Registry creates a stigma that is damaging to the women's reputations. See, e.g., Valmonte v. Bane, 18 F.3d 992, 1000 (2d Cir.1994); In the Matter of Application of Anonymous v. Peters, 189 Misc.2d 203, 730 N.Y.S.2d 689, 693 (2001) (stigma results from listing on child abuse registry). But, as the division notes, stigma alone is insufficient to invoke due process protections. Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). For state action resulting in stigmatization to rise to the level of a constitutionally protected interest, a person must also show that the state action affects some other tangible liberty or property interest. Id. This standard is known as the "stigma plus" test. See, e.g., Valmonte, 18 F.3d at 999; In the Matter of Lee TT v. Dowling, 87 N.Y.2d 699, 642 N.Y.S.2d 181, 664 N.E.2d 1243, 1249 (1996).
Ms. Jamison and Ms. Dotson argue that the "plus" element of this test is satisfied because the burden placed on employers who retain or hire those listed in the Central Registry effectively precludes those listed from working in the child care profession. This practical effect arises because of the statutory and regulatory requirements associated with the registry. Although the names contained in the Central Registry are not released to the general public, they are available "to persons who have a right to such information," including businesses and agencies "providing or having care or custody of a child."
In fact, all Missouri child care providers are required to use the Central Registry to screen their employees and volunteers to determine whether they have committed child abuse or neglect, 19 CSR 30-62.102(1)(K), and serious ramifications will result if an employer hires or continues to employ a person whose name is in the Central Registry. For example, the DHSS "may prohibit the person from being present in the facility during child care
These statutory and practical burdens facing a Missouri child care employer effectively preclude an individual listed in the Central Registry from obtaining employment in the child care profession. "[T]he right to hold specific private employment and to follow a chosen profession free from unreasonable governmental interference" implicates constitutionally protected liberty interests. Greene v. McElroy, 360 U.S. 474, 492, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959). Because child-care employers are required to consult the Central Registry to screen employees, public dissemination necessarily follows inclusion. Thus, listing one's name in the Central Registry "squarely implicate[s] a protected liberty interest" and satisfies the "plus" element of the stigma plus test. Dupuy v. Samuels, 397 F.3d 493, 503 (7th Cir.2005); accord, Anonymous, 730 N.Y.S.2d at 693.
The division suggests that plaintiffs must show that they have lost their jobs or that their employer has lost its license or funding before a cognizable injury can be shown. As courts in other states have recognized, however, the fact that an entity employing listed persons is subject to losing funding or licensing is itself sufficient to constitute a bar to hiring and to invade the listed persons' liberty interest because no reasonable employer would hire or retain them in these circumstances. For example, the court in Cavarretta v. Dept. of Children and Family Serv., 277 Ill.App.3d 16, 214 Ill.Dec. 59, 660 N.E.2d 250, 254 (1996), found that persons placed on the Illinois child abuse registry "may be prohibited from working in certain professions, such as child care and teaching," because a state statute allowed for revocation or denial of licenses for child care facilities who retain or hire such persons and because an employer who hired such persons faced the possibility of tort liability for negligent hiring should abuse allegations arise. Cavarretta found that this bar to employment in one's chosen field implicates a constitutionally protected liberty interest and that the fact that placement of the plaintiff's name in the child abuse registry had yet to result in "an adverse employment decision" was immaterial. Id. 660 N.E.2d at 254-55; see also Valmonte, 18 F.3d at 998-99, 1002 (petitioner need not "await the consummation of threatened injury to obtain preventative relief").
Similarly, the New Hampshire Supreme Court found that, because the "State may revoke the license of any child day care agency that employs a person listed" in the child abuse registry, listing an individual in the registry implicates a liberty interest by "essentially barr[ing] him from working with children, and caus[ing] him to become
C. Due Process Requires The Opportunity To Be Heard At A Meaningful Time And In A Meaningful Manner.
Because Ms. Jamison's and Ms. Dotson's liberty interests are affected by their listing, this Court must determine whether the Act's procedures adequately protect their interests. This Court will address each of their claims in turn. In so doing, it is guided by the admonition stated above that a court must weigh three factors when determining what process is required: (1) the private interest at stake; (2) the "risk of erroneous deprivation of such interest through the procedures used, and the probable value, if any" of different procedures; and (3) the State's interest. Mathews, 424 U.S. at 335, 96 S.Ct. 893.
1. Notice and an Opportunity to Be Heard Are Required Before Inclusion in the Central Registry.
Ms. Jamison and Ms. Dotson argue the Act is constitutionally infirm because it permits their names to be listed in the Central Registry without first providing adequate notice of the claims or an adequate opportunity to be heard in response. They aver that they are entitled to a pre-deprivation hearing before being listed. In considering this claim, the Court is guided by the well-settled principle that if the State feasibly can provide a hearing before deprivation of a protected interest, it generally must do so in order to minimize "substantively unfair or mistaken deprivations." Zinermon v. Burch, 494 U.S. 113, 132, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990); Cleveland Bd. of Edu. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) ("root requirement" of due process is "that an individual be given an opportunity for a hearing before he is deprived of any significant property interest") (emphasis in original); Fuentes v. Shevin, 407 U.S. 67, 80, 81, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) ("If the right to notice and a hearing is to serve its full purpose, then, it is clear that it must be granted at a time when the deprivation can still be prevented").
Here, a hotline call was made to the division alleging that Ms. Jamison and Ms. Dotson had negligently failed to supervise children in their care. In response, an investigator from the division interviewed them and several others about the alleged negligence. At the conclusion of this investigation, the investigator determined that there was probable cause to believe they had committed child neglect, so they were listed in the Central Registry. Ms. Jamison and Ms. Dotson were not given formal notice of the charges prior to being listed and, therefore, had no opportunity to respond to the specific charges made. Even after they were listed, the division was not required to and apparently did not give the women notice of the charges but merely informed them of the division's determination. See sec. 210.152.2. Additionally, although Ms. Jamison and Ms. Dotson were allowed to file affidavits explaining their side of what they thought the charges were about, the Act does not provide alleged perpetrators a formal opportunity to present an explanation when the local director reviews the investigator's findings. Id.
The investigation alone, even after review by the local director, is plainly insufficient to support the loss of liberty that accompanies listing in the Central Registry. Although Ms. Jamison and Ms. Dotson responded to an investigator's queries, they were not afforded specific notice of the allegation being investigated. Consequently, this did not constitute an opportunity to be heard at a meaningful time or in
The high risk of an erroneous deprivation provides an additional reason that investigation alone is insufficient to support placement on the Central Registry. The evidence adduced below shows that the CANRB reverses the local director's probable cause determination "somewhere in the vicinity" of 35-40% of the time, and this presumably occurs after the local director has reversed additional initial probable cause by the investigator. As this rate of reversal makes evident, the "the risk of erroneous deprivation of the private interest through the procedures used," Mathews, 424 U.S. at 335, 96 S.Ct. 893 is high indeed, and the probable value providing notice and hearing before being listed is significant.
Furthermore, under the current procedures there is a considerable post-listing delay before individuals receive a CANRB hearing, at which they are first provided with an opportunity to be heard. "The length and consequent severity of a deprivation are considered in determining what procedural protections are constitutionally required." Belton, 708 S.W.2d at 137. Here, although all parties conformed to statutory time frames, more than six months passed between the date Ms. Jamison and Ms. Dotson were informed of the finding of probable cause and the date of their CANRB hearing.
Failure to provide a pre-deprivation hearing is acceptable only if (1) a pre-deprivation hearing would be "unduly burdensome in proportion to the liberty interest at stake," (2) the State is unable to anticipate the deprivation, or (3) an emergency requires immediate action. Zinermon, 494 U.S. at 132, 110 S.Ct. 975; Bell v. Burson, 402 U.S. 535, 542, 91 S.Ct. 1586,
Nonetheless, and despite the lengthy and often erroneous deprivation of liberty interests prior to an opportunity to be heard, the division argues that this case falls within the narrow category of cases in which a post-deprivation hearing is sufficient to satisfy due process because the urgency of child abuse situations requires the division to take immediate action to protect children. Bell v. Burson, 402 U.S. at 542, 91 S.Ct. 1586. Citing the State's strong interest in protecting children from abuse and neglect, see, e.g., Jane Doe I v. Phillips, 194 S.W.3d 833, 845 (Mo. banc 2006), the division notes that listing perpetrators of abuse in the Registry provides a means to protect both victims of child abuse and other children 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 responsible for caring for and protecting children. See sec. 210.109.2. Thus, the division argues, it should be able to include persons in the Registry based solely on the initial investigation or local director's review.
Although protecting children from abuse and neglect is a significant state interest, it can be fulfilled by means other than depriving individuals of substantial liberty interests without a prior opportunity to be heard. The division has not shown that inclusion in the Registry is required for the division or law enforcement to respond to emergencies by investigating reports of abuse or neglect, removing children from dangerous environments, or pursuing criminal charges against an alleged perpetrator. Rather, the Registry provides information to employers in the child care industry as a complement to the additional and more immediate protective measures permitted by Missouri law. "The need for expediency cannot overshadow the fact that a critical decision [is] being made about" an individual. New York v. David W., 95 N.Y.2d 130, 711 N.Y.S.2d 134, 733 N.E.2d 206, 210-13 (2000) (although streamlined procedures used to determine sex offender registry requirements and dissemination guidelines helped "notify vulnerable populations of a possible threat," the procedures were unconstitutional because they failed to provide probationers an opportunity to be heard before deprivation of a liberty interest).
Ms. Jamison and Ms. Dotson have a right to pre-deprivation notice and opportunity to be heard. It violated their due process rights to list them in the Central Registry prior to the CANRB hearing, when such procedural protections are first granted.
2. The Division Must Prove Allegations by a Preponderance of the Evidence at CANRB Hearing.
Similarly, once Ms. Jamison's and Ms. Dotson's appeal reached the CANRB, if it found the allegations of neglect were "supported by evidence of probable cause" and were "not against the weight of the evidence," sec. 210.152.4, the CANRB left their names in the Central Registry, without inquiring whether the alleged abuse or neglect could be proved by a preponderance of the evidence.
A probable cause standard does not require a fact finder to balance conflicting evidence. Thus, it is ill suited to the determination of whether an individual has abused or neglected a child, for abuse frequently involves private conduct for which there is no supporting evidence or objective eyewitness. Questions about whether abuse occurred are, therefore, often resolved by means of subjective determinations of credibility. As the probable cause standard does not require a balancing of available evidence, it leaves the ultimate assessment "open to the subjective values" of the fact finder, thereby magnifying the risk of erroneous fact finding. Santosky v. Kramer, 455 U.S. 745, 762, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).
An equally important problem with the probable cause standard is that it "places the brunt of the risk of error, if not the entire risk of error, on" the alleged perpetrator. Preisendorfer, 719 A.2d at 594; cf. Cavarretta, 214 Ill.Dec. 59, 660 N.E.2d at 258 (requiring use of preponderance standard so that the child protection agency and the subject "share the risk of error, rather than have the accused bear the brunt of the risk"). Due process requires the use of a standard of proof that "reflects not only the weight of the private and public interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants." Santosky, 455 U.S. at 755, 102 S.Ct. 1388. Since the interests of both parties involved in this case are substantial, it is unacceptable that one party should bear the majority of the risk of error.
For these reasons, a number of other courts have rejected statutes similarly permitting listing of persons in child abuse registries based on application of only a "probable cause" or a "credible evidence" standard at the agency level. For instance, Valmonte, 18 F.3d at 1003-04, found that a "credible evidence" standard
This Court, too finds that the use of the probable cause standard during a CANRB proceeding does not provide constitutionally sufficient safeguards. Due process requires a CANRB to substantiate a report of child abuse or neglect by a preponderance of the evidence before an individual's name can be included in and disseminated from the Central Registry.
3. Other Procedural Protections Are Not Required at the Pre-Deprivation Hearing.
Unlike at the investigation and the first review stages, at the CANRB level, alleged perpetrators are provided notice of the charges and an opportunity to present their side of the case. See generally 13 CSR 40-31.025(2)(C) (notice) and section 210.153.4; 13 CSR 40-31.025(8)(C), (E), (F) (opportunity to be heard). Specifically, alleged perpetrators "may be represented pro se or be represented by legal counsel" and may appear in person or "submit a written statement . . . in lieu of personal appearance." Sec. 210.153.4(2). The statute further provides that "witnesses providing information on behalf of the child, the alleged perpetrator or the department" may be called. Sec. 210.153
Due process requires an impartial decision maker, see, e.g., Goldberg v. Kelly, 397 U.S. 254, 271, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), but it also presumes the honesty and impartiality of decision makers in the absence of a contrary showing. Wagner v. Jackson County Bd. of Zoning Adjustment, 857 S.W.2d 285, 289 (Mo.App. W.D.1993). Since there is no suggestion or showing that a CANRB is incapable of deciding the issue before it fairly, there is no need for a decision maker other than is already provided by the Act.
Similarly, although Ms. Jamison and Ms. Dotson argue that requiring witnesses who testify in a CANRB proceeding to be under oath "is in the interests of both citizens and the state, and is relatively cost-free," they offer no authority suggesting that a failure to do so at an administrative level violates due process. No Missouri case has recognized such a right,
In this circumstance, the procedure provided at the administrative level is sufficient to satisfy minimum due process standards. Courts have recognized a right to a full evidentiary hearing of the type sought by Ms. Jamison and Ms. Dotson only in situations in which the deprivation results in the denial of the basic necessities of life. See Goldberg, 397 U.S. at 264, 90 S.Ct. 1011. In other cases, the courts have held that protections akin to those provided before the CANRB, which include notice and the opportunity to be heard, are sufficient to satisfy due process.
In Loudermill, for example, the Supreme Court considered the process due to state public employees prior to termination. Specifically noting that its holding rested in part on the statutory provision for a "full post-termination hearing," the Court found that due process was satisfied by an employee's receipt of "oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story" before deprivation of his interest. 470 U.S. at 546, 105 S.Ct. 1487.
Similarly, this Court determined that due process did not require "extensive, formal hearings" before suspension of a police officer. Belton, 708 S.W.2d at 138. Belton noted that when pre-deprivation procedures are coupled with adequate post-deprivation remedies, they are sufficient if they provide "`an initial check against mistaken decisions.'" Id., citing Loudermill, 470 U.S. at 545, 105 S.Ct. 1487. It held that providing the officer with "notice of the charges and the evidence against her and an opportunity to present her side of the story" before suspension satisfied due process requirements. Id.
The reasoning in these cases is applicable here. While, Ms. Jamison's and Ms. Dotson's right to pursue professions of their choosing is significant, Greene, 360 U.S. at 492, 79 S.Ct. 1400; Loudermill, 470 U.S. at 543, 105 S.Ct. 1487, neither woman is entirely deprived of a means of livelihood as a result of the inclusion of their names in the Central Registry. Although they may be forced to work in a field with which they have no experience and for which they have no special training or skills, and although finding such work "will take some time and is likely to be burdened by the questionable circumstances under which [they] left [their] previous job," Id., they can still earn a living. Compare Goldberg, 397 U.S. at 264, 267-68, 90 S.Ct. 1011 (discontinuance of welfare benefits entitled person to full evidentiary hearing because they provide "the very means by which to live"); see also Mathews, 424 U.S. at 340-41, 96 S.Ct. 893 (comparing welfare recipient's interest with plaintiff's interest in disability benefits, which are not based on financial need and could be supplemented by other sources and, so, entitled plaintiff to "something less than an evidentiary hearing").
In light of the State's interest in protecting children and the fact that the Act provides Ms. Jamison and Ms. Dotson with the right to seek de novo judicial review, the protections given at the CANRB hearing are sufficient.
D. De Novo
Judicial Review Under a Preponderance of the Evidence Standard.
By statute, an alleged perpetrator aggrieved by the CANRB's decision is entitled to "de novo judicial review in the circuit court." Sec. 210.152.5. Ms. Jamison and Ms. Dotson argue, however, that this post-deprivation review is inadequate in two respects. First, they argue that, as to cases arising before August 28, 2004, prior case law has interpreted the Act to require the circuit court to determine only whether the division had probable cause to believe abuse or neglect occurred and not to require proof by a preponderance of the evidence. See Williams v. State, 978 S.W.2d 491, 494 (Mo.App. S.D.1998). Williams correctly held that, because section 210.152.5 specifically provides for de novo judicial review, a trial court must base its decision on the evidence presented in the trial court and not merely review the record before the CANRB. See also Lipic v. State, 93 S.W.3d 839, 842 (Mo. App. E.D.2002); Petet v. State, 32 S.W.3d 818, 821 (Mo.App. W.D.2000). Without further explanation, however, Williams also concluded that in so doing the ultimate issue was whether there was probable cause to believe the alleged perpetrator committed the abuse or neglect. 978 S.W.2d at 494.
As the division notes in its brief, "there is nothing in the statute to support" Williams' application of a probable cause
Ms. Jamison's and Ms. Dotson's second claim relating to the de novo review focuses on the statutory provision that the "alleged perpetrator may subpoena any witnesses except the alleged victim or the reporter" at the review hearing. Sec. 210.152.5. They argue that this is unfair because it will prevent them from confronting and cross-examining the witnesses against them. But they also recognize that public policy considerations, including protecting child victims from further harm and protecting the anonymity of reporters,
This Court rejects Ms. Jamison's and Ms. Dotson's premise that only a dual inability to subpoena the victim or reporter can protect their right to cross-examination. The argument can only be based on the presumption that the division will be permitted to introduce affidavits or prior statements or testimony of the victim and reporter if the division chooses not to call the victim or reporter. Such is not the case.
As this Court noted earlier, approval of the less formal hearing procedure provided before the CANRB is premised on the availability of a "full post-termination hearing" in the circuit court, Loudermill, 470 U.S. at 546, 105 S.Ct. 1487. At the post-termination hearing, the alleged perpetrator must be provided a fair opportunity to present a defense. See Weiss v. United States, 510 U.S. 163, 178, 114 S.Ct. 752, 127 L.Ed.2d 1 (1994) ("a fair trial . . . is a basic requirement of due process"); State v. Baumruk, 85 S.W.3d 644, 650 (Mo. banc 2002) ("Failure to give the accused a fair hearing violates the minimal standards of due process").
Thus, during de novo review in the circuit court, a victim or reporter who testifies voluntarily or under subpoena from the division would be subject to cross-examination,
This Court holds that individuals subject to having their names included in the Central Registry have a constitutionally protected liberty interest because the dissemination of their names from the Central Registry creates a stigma damaging to their reputation and effectively precludes their employability in the profession of their choosing. Thus, before such individuals can be included in the Central Registry they are entitled to notice and a pre-deprivation hearing before the CANRB, at which a preponderance of the evidence standard will apply. To the extent that sections 210.110 and 210.152 permit listing prior to a CANRB finding of abuse or neglect by a preponderance of the evidence, they violate due process and are invalid. This Court further finds that, upon de novo judicial review of a CANRB decision, due process requires application of a preponderance of the evidence standard of proof. As interpreted, the remainder of the Act is constitutional. Accordingly, this Court affirms the judgment in part, reverses it in part, and remands the case.