State of Missouri, Respondent v. David Salazar, Appellant

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: State of Missouri, Respondent v. David Salazar, Appellant Case Number: WD65099 Handdown Date: 02/13/2007 Appeal From: Circuit Court of Buchanan County, Hon. Keith B. Marquart, Judge Counsel for Appellant: Merle K. Turner Counsel for Respondent: Laura B. Donaldson Opinion Summary: David Salazar appeals his conviction for criminal nonsupport. Salazar contends (1) that the trial court, by refusing to order blood testing, denied him due process and improperly hindered his ability to prove he was not the biological father; (2) that his due process rights were violated because his responsibility for child support was based upon an administrative order of paternity, as opposed to a determination made in a court of law; and (3) that his 28-day sentence amounts to cruel and unusual punishment in that the sentence is disproportionate to the wrongful act he committed. AFFIRMED. Division holds: Applicable law supports none of Salazar's points. The Supreme Court of Missouri definitively has held that the state need not order a DNA test in a prosecution for criminal nonsupport because biological paternity is not an element of the crime. Furthermore, "legal process," as defined by statute, can be provided by an administrative agency. Sufficient due process rights were afforded at the administrative hearing. The same due process rights at the administrative agency, combined with the right of judicial review, render the separation of powers argument without merit. Finally, a 28-day sentence for failing to pay child support did not deprive Salazar of rights provided by either the United States or Missouri constitution.

entirely on a finding that he has failed to support a child who has been "legitimated by legal process." That finding, in turn, is based upon nothing more than an order of the department of child support enforcement. Because no court (including the court that heard the criminal charge) has determined yet that Salazar actually owes this child a duty of support, his conviction for misdemeanor nonsupport should be reversed. Citation: Opinion Author: Victor C. Howard, Chief Judge Opinion Vote: AFFIRMED. Lowenstein, Ulrich, Breckenridge, Spinden and Smith, JJ., concur in majority opinion. Holliger, J., dissents in separate opinion. Smart, Ellis, Newton and Hardwick, JJ., concur in dissenting opinion. Opinion: David Salazar appeals his conviction for criminal nonsupport under section 568.040.(FN1) He alleges three errors. David contends (1) that the trial court, by refusing to order blood testing, denied him due process and improperly hindered his ability to prove he was not the biological father; (2) that his due process rights were violated because his responsibility for child support was based upon an administrative order of paternity, as opposed to a determination made in a court of law; and (3) that his 28-day sentence amounts to cruel and unusual punishment in that the sentence is disproportionate to the wrongful act he allegedly committed. We affirm. David Salazar ("David") and Shannon McClure ("Shannon") were married on June 17, 2000, in Grundy County, Missouri. They separated in September 2000, but remained married at the time of trial. Shannon gave birth to a daughter, A.S., on November 29, 2001. David and Shannon both claim they did not have sexual relations with each other in the fourteen months preceding A.S.'s birth. David is named as A.S.'s father on her birth certificate because, according to Shannon, a clerk at the hospital where A.S. was born insisted that the name of Shannon's husband be placed on the birth certificate. The Division of Child Support Enforcement ("DCSE") served a "Notice and Finding of Financial Responsibility" on

David alleging he had a duty to support A.S. David and Shannon contacted DCSE and denied David's paternity. David requested a hearing to contest the finding. After David failed to appear at the hearing, the Director of DCSE, pursuant to section 454.490, entered a default decision and order on April 1, 2003, declaring David to be A.S.'s father and requiring him to pay child support to Shannon for A.S. in the amount of $278 per month, beginning December 15, 2002. Shannon subsequently filed for public assistance in Buchanan County, and the Buchanan County prosecutor's office charged David with nonsupport, a class A misdemeanor, on January 2, 2004. David waived a jury and a trial was held on November 29, 2004. David testified that he was aware of the administrative order declaring him to be A.S.'s father and requiring him to support A.S., and he admitted that he provided no support for A.S. during October and November 2003. The judge found David guilty and sentenced him on February 7, 2005, to twenty-eight days in the Buchanan County jail. The Missouri Supreme Court has definitively rejected David's argument that due process required the trial court to order DNA testing during the criminal proceeding. A trial court is not required to order DNA testing in a criminal nonsupport case because biological paternity is not an element of proof in a criminal nonsupport case. State ex rel. Sanders v. Sauer, 183 S.W.3d 238, 239-40 (Mo. banc 2006). As in our case, the defendant in Sauer was never proven to be the biological father in the civil paternity case. However, the State's burden is only to prove beyond a reasonable doubt "that the child was 'legitimated by legal process;' whether the defendant is truly the biological father of the child is irrelevant." Id. at 240 (citations omitted). David was not entitled to DNA testing in the criminal proceeding.(FN2) David's other due process claim centers on his assertion that A.S. was not "legitimated by legal process" because an administrative determination of paternity is not a "legal process." He claims only a determination by an Article V court qualifies as "legal process." However, Missouri statutes clearly give administrative determinations of paternity the same force and effect as those made in a court of law. See § 454.490.1. And, the extensive statutory requirements and safeguards, including judicial review, upon which an order of paternity must rest, afford full due process. A parent commits the crime of nonsupport under section 568.040 if he knowingly fails to provide support for his child. Section 568.040.2(1) defines "child" as a biological or adopted child, or a child whose status has been determined by a court of law in a proceeding for dissolution or legal separation, "or any child legitimated by legal process." (Emphasis

added.) The statutory process used to establish paternity in David's case constitutes a "legal process." Section 210.822.1 provides in relevant part that "[a] man shall be presumed to be the natural father of a child if: [h]e and the child's natural mother are or have been married to each other and the child is born during the marriage." David is A.S.'s presumed father because A.S. was born during his marriage to Shannon. Section 454.485.1 permits the entry of an order establishing paternity "when the man is presumed to be the child's father pursuant to section 210.822...." The Director had the statutory authority to establish that A.S. is David's "child." David deploys, as a shield, his own failure to make use of the due process available to him. The Division of Child Support Enforcement served a "Notice and Finding of Financial Responsibility" on David as required by section 454.470.1. David subsequently requested an administrative hearing, and one was scheduled, pursuant to sections 454.470.4 and 454.475. David failed to appear at the administrative hearing, thus neglecting the due process afforded him. Since David failed to appear at the hearing, the Director was authorized under section 454.475.4 to enter the administrative order of paternity. David had the right to obtain, in accordance with section 536.110, judicial review of the Director's administrative orders. § 454.475.5. This right of judicial review was clearly set forth in the default decision and order sent to David. He chose not to avail himself of the judicial review process and yet another opportunity to be heard. Our Supreme Court has previously answered David's constitutional concerns about this statutory procedure. In providing the opportunity for an impartial, full and fair hearing, coupled with the right of judicial review to correct errors, "the legislature has adopted a familiar procedure, frequently approved" that ensures due process. Dye v. Div. of Child Support Enforcement, Dep't of Soc. Servs., State of Mo., 811 S.W.2d 355, 359 (Mo. banc 1991). Also, "[t]he limitation of the authority of the administrative agency, together with the right of judicial review, saves the statute from the separation of powers argument." Id. For the purpose of meeting the definition of "child" under section 568.040.2(1), there is no relevant distinction between a parent-child relationship that has been established in a dissolution or paternity proceeding and a parent-child relationship that has been established in an administrative proceeding like the one used in this case. The administrative proceeding is a legal process that has been established by the Missouri legislature as a way of establishing a parent-child relationship. And, the legislature could not have made clearer the nature and effect of an administrative paternity order.

Once an administrative order establishing paternity is filed and docketed in the circuit clerk's office, as it was here, it establishes "legal paternity for all purposes." § 454.485.3. "[T]he order shall have all the force, effect, and attributes of a docketed order or decree of the circuit court...," including enforceability by supplementary proceedings and contempt of court. § 454.490(1). In State ex rel. Hilburn v. Staeden, 91 S.W.3d 607, 610 (Mo. banc 2002), the Supreme Court found this legislative engrafting of the "characteristics of a circuit court judgment upon" an administrative decision constitutional. Since "[o]nly a court can enforce administrative orders so that they have the effect of a judgment ... the statutory grant of authority to enforce an administrative order by the same means used to enforce a judgment does not represent executive branch encroachment on the exclusive power of the judiciary." Id. at 611. While the entry of a judgment remains the quintessential function of the court, executive agencies remain free to employ administrative adjudication incidental and necessary to the discharge of their proper duties. Id. at 610; Dye, 811 S.W.2d at 359. David offers no compelling justification for not construing this administrative adjudication as "legal process." In Sauer, the Supreme Court found that a child was "legitimated by legal process" upon a court's entry of a default judgment of paternity under the Uniform Parentage Act, sections 210.817-.852, RSMo 1987. The result of the circuit court proceeding was a "civil order" of paternity sufficient to support criminal prosecution. Sauer, 183 S.W.3d at 240. The Court also explained that such a proceeding "is no different than a number of other situations in which an individual is subject to criminal liability for violation of a civil order," specifically mentioning prosecution of a class A misdemeanor under section 302.321 (driving while license revoked) based upon an administrative civil order. Id. (emphasis added). All the State must prove is "the existence of the civil order and its violation beyond a reasonable doubt in order to convict the defendant; not that the underlying facts giving rise to the civil order are true beyond a reasonable doubt." Id. There is no room to negotiate around the Supreme Court's reasoning equating an administrative order with a court decree as a basis for criminal prosecution.(FN3) David's third point on appeal is that the trial court erred in sentencing him to twenty-eight days in the Buchanan County jail because the sentence amounts to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and Article I, Sections 11, 21, and 31 of the Missouri Constitution, in that the sentence is disproportionate to the wrongful act he allegedly committed. He breaks his argument into three parts.

The essence of the first part of David's argument is that even if the sentence is well within the one-year maximum sentence for the class A misdemeanor of nonsupport, the evidence showed that David had affirmatively done nothing at all wrong or illegal, and it is Missouri law, not his own actions, that made him the presumed father of A.S. Therefore, David argues, the sentence of twenty-eight days is so disproportionate to his crime as to "shock the moral sense of reasonable men." In Solem v. Helm, 463 U.S. 277, 290-92 (1983), the United States Supreme Court articulated a three-part test to determine the proportionality of a sentence in accordance with the Eighth Amendment: "(1) [a]n examination of the gravity of the offense and the harshness of the penalty; (2) a comparison of the sentences imposed on other criminals in the same jurisdiction; and (3) a comparison of the sentences imposed for commission of the same crime in other jurisdictions." State v. Lee, 841 S.W.2d 648, 654 (Mo. banc 1992). As a result of Solem, the Missouri Supreme Court adopted "the rule that a punishment within statutory limits can nevertheless be cruel and unusual because of its duration if it is so disproportionate to the offense committed as to shock the moral sense of reasonable people." State v. Williams, 936 S.W.2d 828, 832 (Mo. App. W.D. 1996) (citing State v. Bell, 719 S.W.2d 763, 766 (Mo. banc 1986)). After Solem, the U.S. Supreme Court decided Harmelin v. Michigan, 501 U.S. 957 (1991). The Missouri Supreme Court, in State v. Lee, interpreted Harmelin as altering the three-part cruel and unusual punishment test of Solem by making it "clear that comparison to sentences given to other defendants for the same or a similar crime is irrelevant except when the court finds the sentence in question grossly disproportionate." Lee, 841 S.W.2d at 654. We are bound by Lee. State v. Hall, 56 S.W.3d 475, 480 (Mo. App. W.D. 2001). Thus, our initial inquiry is whether David's sentence was grossly disproportionate. Id. at 480-81. If not, that completes our analysis of whether his sentence is "cruel and unusual." Id. David was convicted of a class A misdemeanor, which is punishable by a jail sentence of up to one year. § 558.011.1(5). He was sentenced to only twenty-eight days in jail. Despite David's disavowal of any personal responsibility in this matter, we find that the trial court's sentence of twenty-eight days was not so disproportionate to the offense committed as to shock the moral sense of reasonable people. Therefore, we hold that his sentence does not constitute "cruel and unusual punishment." The second part of David's argument is that, essentially, he was sentenced to twenty-eight days in jail because of

a debt, in contravention of Article I, Section 11 of the Missouri Constitution. Article I, Section 11 provides that "no person shall be imprisoned for debt, except for nonpayment of fines and penalties imposed by law." David contends that child support would seem to fit under the ordinary definition of "debt." The Missouri Supreme Court has already rejected this contention. In State v. Davis, 469 S.W.2d 1, 2 (Mo. 1971), a father was convicted of nonsupport of his four children and sentenced to six months imprisonment. The defendant argued that his duty to support his children had been reduced to a judgment for money in the divorce proceeding and that the nonsupport prosecution merely sought to enforce that judgment by jailing him for nonpayment thereof. Id. at 3. The court rejected this argument and determined that a jail sentence for a conviction of criminal nonsupport is not imprisonment for debt. Id. The third part of David's sentencing argument is that he is being imprisoned, in contravention of Article I, Section 31 of the Missouri Constitution, for violation of an administrative order, issued by an administrative law judge. Article I, Section 31 provides that "no law shall delegate to any commission, bureau, board or other administrative agency authority to make any rule fixing a fine or imprisonment as punishment for its violation." David's argument is without merit because he was not found guilty of violating an administrative rule or order. Rather, he was found guilty of violating section 568.040, a Missouri statute. Point III is denied. The judgment of the trial court is affirmed. Footnotes: FN1.All statutory references are to RSMo 2000, unless otherwise indicated FN2.David was afforded an opportunity for genetic testing in the administrative proceeding. Section 454.485.5(2) provides that "[i]n an action contesting paternity, the director shall require genetic testing at the request of a party to such action if such request is supported by a sworn statement of such party which ... [d]enies paternity and sets forth facts establishing a reasonable possibility that there was no sexual contact between the parties." Section 454.485.5. Neither David nor Shannon, A.S.'s mother, requested genetic testing or provided the Director with the required sworn statement. Because neither party complied with the statutory requirements, the State was not required to carry out genetic testing during the administrative process. FN3.Although not a direct issue in this appeal, David's concern that the administrative order of paternity forever shackles him is unfounded. Whether David is actually the biological father of A.S. has never been determined and

was not an issue in the criminal case. It would be an issue in a dissolution proceeding and David would not be "precluded from raising the issue of paternity ... by collateral estoppel." Smith v. Smith, 985 S.W.2d 829, 835 (Mo. App. W.D. 1999). Separate Opinion:

for David Salazar and the independence of the judicial system. David Salazar is now held to be the father of A.S. for all purposes and for all time, despite both mother and father's statements to the contrary and without any determination of that relationship by a court of law. Personally, Salazar also faces a felony conviction in the future if he fails to pay child support. For our legal system a declaration by an executive branch administrative agency without even one shred of sworn testimony is now held to be constitutionally equal to a determination by a court of law even though the agency had the authority to say Salazar was the father but not the power to say that he was not.(FN1) This court finds that Salazar is guilty of criminal non-support not based on biological paternity, an adoption or dissolution decree or any finding by a court of law but because the child ("A.S.") had been "legitimated by legal process" for the purposes of the criminal statute by an administrative order filed with the circuit court of Buchanan County. The DCSE order was not a judicial judgment under article V of the Missouri Constitution, was not conclusive on the issue of paternity and fails to support his conviction. I would therefore reverse. Factual and Procedural Background I essentially agree with the recitation of the facts by the majority opinion. However, the State in support of the conviction also frequently argues the presence of Salazar's name on the birth certificate that was put into evidence at the trial. Fourteen months after their separation, McClure gave birth to A.S. At that time, McClure requested that the child's birth certificate not list a father. The hospital, nonetheless, placed Salazar's name on the birth certificate.(FN2) At the criminal trial Salazar and McClure were the only witnesses to testify. Both testified that while they were

married at the time of birth, they had no sexual relations in the preceding fourteen months. McClure further identified the child's father as Charles Puentes, and also testified that she has since had another child by Puentes. Finding that "the child in question has been legitimated by legal process," the court found Salazar guilty of misdemeanor non-support. Section 568.040 sets out the elements of the crime of criminal non-support inter alia: A person commits the crime of nonsupport if he knowingly fails to provide, without good cause, adequate support for his spouse; a parent commits the crime of nonsupport if such parent knowingly fails to provide, without good cause, adequate support which such parent is legally obligated to provide for his child or stepchild who is not otherwise emancipated by operation of law. (Emphasis added.) The criminal statute also specifically defines the term "child" and how the relationship of father and child can be established. Four Means by Which Father and Child Relationship May be Established Under the Criminal Statute A parent's obligation of support is not directly found in an administrative order, but derives from the fact that the defendant has an unsupported "child" as the criminal non-support statute defines that term. Section 568.040.2(1). The dispositive issue in this appeal is whether the prosecution sufficiently established that A.S. was Salazar's child under that statute. Section 568.040.2(1) provides four methods by which the State could show that A.S. was Salazar's "child." Those four methods are (1) biological parentage, (2) adoption, (3) legitimation by legal process, or (4) a determination of the child's relationship to the defendant by a court of law in a proceeding for dissolution or legal separation. Id. The State proved none of them beyond a reasonable doubt.(FN3) At sentencing, the trial court said: The court has not made a finding that you are the biological parent. The court has not made a finding that you are the adoptive parent. But the evidence proves beyond a reasonable doubt that this child is your child because it was legitimated by legal process. It is for those reasons that the court found you guilty.

The sole ground relied upon by the majority to support a finding under the criminal statute that Salazar was A.S.'s father was the DCSE order. I would hold that the administrative support order is not "legal process" as used in the statute and is not a judgment of a constitutional court protected from collateral attack. The DCSE order did not establish legitimization by legal process. The majority states that the DCSE order, when filed with the circuit court, became a judgment of the court, was conclusive of fatherhood under section 568.040, and cannot be collaterally attacked. The majority believes that the decision in State ex rel Sanders v. Sauer held that (1) actual (biological) paternity cannot be an issue in the criminal prosecution and (2) that the docketed administrative order has the same force and effect as did a judicial determination of paternity. This reading of Sauer is incorrect because it mistakenly treats an executive branch agency finding as the equivalent of a judgment by a court of law in a paternity action under section 210.826. The criminal non-support statute cannot be properly understood or applied without consideration of the provisions of the Uniform Parentage Act ("UPA") contained in sections 210.817 through 210.852. The UPA sets up procedures for the judicial determination of paternity and also codifies the presumptions of paternity discussed earlier. See footnote 3, supra. The UPA provides expressly that the DCSE may initiate a judicial determination of paternity under section 210.826. DCSE did not do so here. The contrast in procedures demonstrates the threat of the majority's holding. In a judicial paternity proceeding brought by DCSE it would have been required to present evidence including sworn testimony. It takes no legal analysis to understand that a court would not likely find paternity where the mother denied it. But DCSE did, and the failure to prove non-paternity(FN4) is blamed on the parents and, particularly, on Salazar's failure to show up at the hearing. In effect DCSE and the majority would place the burden of proof on the "defendant" rather than the person seeking support.(FN5) Sauer Did Not Hold that Biological Paternity Is Never an Issue Under the Criminal Non-Support Statute Sauer was an original writ action prohibiting a circuit court from ordering DNA testing in a non-support

prosecution. 183 S.W.3d at 239. The defendant in Sauer requested the DNA test after having failed to appear for similar testing on four occasions in a prior paternity action. Id. That action was filed by the Division of Family Services seeking a declaration of paternity under the UPA, and resulted in a default judgment in favor of the Division. Id.; see also section 210.826. Section 210.841 provides that a judgment of paternity under the UPA is conclusive as to the existence of the parent-child relationship for all purposes.(FN6) Id. at 840. Relying on this statutory provision, the majority in Sauer held that the child in that case had been "legitimated by legal process" within the meaning of Section 568.040.1(2). Id. The majority here gives an executive branch order the same legal effect. Section 568.040 expressly provides that biological paternity is one way of proving that A.S. was Salazar's child. What Sauer actually held was that the prior paternity judgment under the UPA "legitimated the child by legal process" and that the defendant could not obtain blood testing to disprove biological paternity because it had already been determined by a court of law. Although not expressly mentioned by the majority, the opinion necessarily is based (as pointed out by Judge White's dissent) on the principle that the judicial paternity determination could not be collaterally attacked. Sauer precisely describes the State's burden of proof in a criminal non-support case to prove "beyond a reasonable doubt that a judgment was entered establishing that the child was 'legitimated by legal process[.]'" Id. (emphasis added). In the instant case, the majority opinion substitutes a docketed administrative order for the paternity judgment under section 210.826 that was present in Sauer. Legal Process under Section 568.040 Refers to a Judgment of a Constitutional Court The majority holds that the provisions of section 454.490 allowing the docketing of a DCSE order with the circuit court and giving that order "the force, effect and attributes of a judgment" render the administrative order here the equivalent of a judgment for all purposes.(FN7) To do so violates the doctrine of separation of powers. Missouri's statutory scheme for child support enforcement was enacted in 1982 to bring the state in compliance with the requirements of Title IV-D of the Social Security Act. See Dye v. Div. of Child Support Enforcement, 811 S.W.2d

355, 359 (Mo. banc 1991). In particular, the federal legislation requires that state child support enforcement agencies have access to expedited procedures "without the necessity of obtaining an order from any other judicial or administrative tribunal." 42 U.S.C. section 666(c)(1).(FN8) In order to comply with this federal mandate, Missouri enacted section 454.490, which authorizes the clerk of a circuit court to enter a DCSE order in the judgment docket of the circuit court, and further provides that: Upon docketing, the order shall have all the force, effect and attributes of a docketed order or decree of the circuit court, including, but not limited to lien effect and enforceability by supplementary proceedings, contempt of court, execution and garnishment. It is notable that the legislative enactment gives a docketed administrative order the "force, effect and attributes" of a circuit court order, but stops short of actually declaring that upon docketing, it becomes a judgment of the circuit court. See State ex rel. Hilburn v. Staeden, 91 S.W.3d 607, 611 (Mo. banc 2002). Our Supreme Court has twice faced the issue of the effect of these statutory provisions and their relationship to the separation of powers doctrine. In Dye the provisions were held constitutional because "the limitation of the authority of the administrative agency, together with the right of judicial review, saves the statute from the separation of powers argument." 811 S.W.2d at 359. In Staeden, the putative father attacked the statutory scheme contending, as does the State here, that it transforms administrative orders into circuit court judgments. The court expressly rejected that assertion, saying, "judgments can only be entered by judges who hold office under article V of the Missouri Constitution." Staeden, 91 S.W.3d at 611. An administrative order docketed under the procedure authorized by section 454.490, as was done in this case, "derives the qualities of a circuit court judgment, but it does so only to the extent necessary to permit its enforcement by the court. It does not become an actual judgment of the court absent judicial review." Id. at 610-11. The majority disingenuously dispatches this distinction by holding that there is no separation of powers issue because it says so. It also ignores the finding in Staeden that the availability of judicial review does not make an administrative order a judgment unless there is, in fact, judicial review and a true judgment entered by a court. 91 S.W.3d at 610.

Even assuming that the purpose of the Chapter 454 scheme is to determine paternity, there is no "judgment" of paternity, as required by Sauer. As explained below, it follows from the fact that no such judgment has been entered that the State has failed to meet its burden of establishing beyond a reasonable doubt that this child was "legitimated by legal process." Based upon the judicial review available under section 454.475, the majority today holds that Salazar is prevented from collaterally attacking the prior determination of paternity because he failed to take actions that would have triggered judicial review. The majority refuses to even treat collateral estoppel as an issue even though it sub silentio uses that doctrine to prevent Salazar from contesting whether A.S. is his child. It must do so because to say otherwise would conflict with other cases and would undermine this conviction. The majority says that Salazar can get the relief he needs if he will simply go through a dissolution and obtain a determination that the child is not his. But Salazar cannot do so if the administrative order is to be given the effect of a judgment and not be subject to collateral attack. If the DCSE order is conclusive for the purposes of a criminal proceeding, it is also conclusive in a civil dissolution action.(FN9) The State bore the burden of establishing that Salazar owes a duty of support to his "child," as that term is used in Section 568.040, and, unlike in Sauer, there has been no "legal process" that judicially determined his parentage and thereby the duty. In the absence of "legal process" of the type contemplated in section 568.040 and described in Sauer, Salazar was not prevented from collaterally attacking the administrative order used to establish his obligation of support in this criminal prosecution. The majority has mistakenly held that the administrative order was conclusive on the issue of paternity. Only the judgment of a court could be conclusive on that issue. The administrative finding that he is obligated to pay support is not the equivalent of a judicial declaration of paternity under Chapter 210. The administrative order at issue in this case is not the type of "legal process" contemplated by the criminal non-support statute. Because the State failed to prove beyond a reasonable doubt that Salazar is the father of this child, as those terms are used in section 568.040, I would reverse his conviction for non-support. Footnotes:

FN1.The majority cites the language of section 454.485.3 that the administrative order establishes "legal paternity" for all purposes but ignores the next subsection, which says that the agency can never determine that a husband of the mother is not the father. Thus, in one sense, the agency here could do nothing other than declare Salazar to be the father. FN2.Section 193.085 requires that the name of a woman's husband must appear on the birth certificate of her child unless affidavits attesting to biological parentage in another man are obtained from the mother, the putative father, and the husband. The trial court and the majority do not rely upon the birth certificate, which would, in any event, create only a rebuttable presumption. FN3.At trial, the State made no attempt to establish through blood testing that Salazar was the biological or adoptive father of the child, or that Salazar and his wife had divorced or legally separated. Although not expressly argued by the State, it appears to place some emphasis on the presence of Salazar's name on the birth certificate and her birth during marriage. Salazar's name on the birth certificate does not establish even a presumption of paternity. The presumption that a woman's husband is the natural father only arises if he is named with his consent. R.S.Mo. section 210.822.1 (3)(b). Both Salazar and the mother specifically denied any consent. The presumption that a child is legitimate if born during marriage was expressly not relied upon by the trial court. Section 210.822.1 establishes another presumption of paternity if a man and the "child's natural mother are or have been married to each other and the child is born during the marriage. This presumption is rebuttable under section 210.822.2. Whether either of these presumptions satisfies this burden in a criminal case need not be considered because the trial court expressly denied reliance upon them suggesting that it believed that the testimony of Salazar and the mother had rebutted the presumptions. FN4.Which the DCSE hearing officer could not have done anyway. See footnote 1, supra. FN5.Here of course the mother was not seeking support from Salazar but the State was seeking reimbursement for part of the benefits it was paying mother. FN6.Similar language is contained in section 454.485.3 where a man is the presumed father. Its effect, however, is substantially undercut by the provision in subsection 4 that forbids a finding of non-paternity. In any event, as

discussed later, I would hold that only a court could judicially determine paternity. FN7.The State never expressly asserts that the docketed order is a judgment. Even so, its argument would make it indistinguishable from a judgment by a circuit court. The majority denies that it is a judgment but gives it such broad effect that it is distinguishable in name only. FN8.The requisite expedited procedures must allow the agency to (1) obtain genetic testing, (2) subpoena financial information, (3) gather information from other state agencies, (4) access certain government and private records, (5) direct a change in payee, (6) withhold an obligor's income, (7) secure an obligor's assets, and (8) increase support payments to include arrearages. 42 U.S.C. section 666(c). There is, of course, no requirement that the state provide expedited procedures for the prosecution of criminal non-support cases. FN9.However, we have previously held that collateral estoppel did not apply to an administrative order because the issue was not the same in a subsequent dissolution. In Smith v. Smith, 985 S.W.2d 829, 835 (Mo. App. W.D. 1998), we held that an administrative proceeding under Chapter 454 for child support was intended only to determine whether an individual was the "presumed father." Thus, we held that a "presumed father" (as in this case because of birth during marriage) as determined under Chapter 454 could contest the paternity of the child in a subsequent dissolution of marriage action. We so held because the doctrine of collateral estoppel requires an identity of issues in the two proceedings. We held that the dissolution action was intended to determine actual paternity while the Chapter 454 action was concerned only with who was the presumed father. Id. This principle applies equally and with greater urgency here, where deprivation of liberty is at issue. This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.