Virginia L. Graham vs. Missouri Dept. of Social Services

VIRGINIA L. GRAHAM, ) ) Appellant, ) WD87772 ) consolidated with WD87839 v. ) ) OPINION FILED: MISSOURI DEPT. OF ) DECEMBER 23, 2025 SOCIAL SERVICES, ) ) Respondent. )

Appeal from the Circuit Court of Randolph County, Missouri The Honorable Mason Robert Gebhardt, Judge

Before Division Two: Edward R. Ardini, Jr., Presiding Judge, Karen King Mitchell, Judge and Cynthia L. Martin, Judge

Virginia L. Graham ("Graham") appeals from the trial court's judgment dismissing her petition for de novo judicial review of a decision made by the Child Abuse and Neglect Review Board ("the Board"). Graham asserts that the trial court erred in dismissing the petition as untimely because she filed the petition within sixty days of her subjective review of the Board's decision letter, and the statute and regulations addressing notification of the Board's decision are unclear and conflicting. Finding no error, we affirm.

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Factual and Procedural History Graham is the mother of a minor child. In October 2022, the Children's Division, a part of the Missouri Department of Social Services ("Department"), made a preponderance of the evidence finding of neglect against Graham involving the minor child. 1 See section 210.152.2(1) 2 (requiring the Children's Division to investigate reports of abuse or neglect and then notify the alleged perpetrator that the Children's Division has determined that abuse or neglect exists by a preponderance of the evidence). Pursuant to section 210.152.4, Graham timely sought administrative review of the Children's Division's determination by the Board. By letter dated August 16, 2023, the Board informed Graham that it had upheld the Children's Division's determination of neglect. The August 16, 2023 letter was sent to Graham by regular mail, and was also emailed to Graham on August 16, 2023. The Board's letter stated that "[i]f you are the alleged perpetrator and you disagree with the [Board's] decision to uphold the Children's Division's finding, you have the right to file a petition for de novo judicial review within sixty (60) days of receiving this notification."

1 The factual basis for the finding of neglect is not at issue in this appeal and is not further addressed. A similar finding of neglect was made by the Children's Division against M.W., Graham's significant other who lives with Graham and the minor child. M.W. has also appealed the trial court's dismissal of his petition for de novo judicial review of the Board's decision. That appeal is pending in this court as WD87773, and involves identical issues as are presented in Graham's appeal. 2 All statutory references are to RSMo 2016 as amended through October 19, 2023, the date that Graham filed the petition for de novo judicial review.

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Graham filed a petition for de novo judicial review on October 19, 2023, in the Circuit Court of Randolph County. The petition asserted that, despite repeatedly giving the Department her correct address, the Board's decision letter was improperly addressed and was never received by Graham via regular mail. The petition acknowledged that the Board's decision letter had been emailed to Graham, but alleged that Graham did not receive the Board's decision until she opened and read the email on or after August 22,

The Department filed an answer on December 4, 2023. The Department was then granted leave to file an amended answer raising the defense that Graham's petition for de novo judicial review had not been timely filed. The Department alleged that pursuant to section 210.152.6, an alleged perpetrator who is aggrieved by a decision of the Board may seek de novo judicial review, and that the request for judicial review "shall be made within sixty days of notification of the decision" of the Board. The Department alleged that notification of the Board's decision via email was authorized by 13 CSR 35- 31.025(7)(I), 3 and that Graham was thus notified on August 16, 2023, when the Children's Division sent the Board's decision letter to Graham by email. On October 4, 2024, the Department filed a motion to dismiss Graham's petition for de novo judicial review because it was not timely filed. 4 The Department's motion to

3 All references to the Code of State Regulations are to the version in effect on October 19, 2023, the date that Graham filed the petition for de novo judicial review. 4 The Department's motion to dismiss claimed that Graham's untimely petition deprived the trial court of subject matter jurisdiction. However, the timeliness of Graham's petition for de novo judicial review did not implicate the trial court's subject matter jurisdiction, and instead only implicated the trial court's statutory authority to

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dismiss argued that section 210.152.6 and 13 CSR 35-31.025(7)(I) required Graham's petition for de novo judicial review to be filed no later than Monday, October 16, 2023, and that Graham's petition was untimely because it was not filed until October 19, 2023. 5

Graham did not file a written response to the Department's motion to dismiss. During a hearing on the motion to dismiss, Graham's attorney claimed that Graham never received the notice of the Board's decision that was sent by regular mail. Graham's attorney admitted that the e-mail attaching the Board's decision letter arrived in Graham's email account on August 16, 2023, but argued that Graham did not receive the email until she opened the email on August 22, 2023. Graham's attorney thus argued that Graham's petition was timely filed on October 19, 2023. The trial court granted the motion to dismiss in a docket entry on December 15,

1. Graham filed a notice of appeal on January 23, 2025. The notice of appeal was

assigned case number WD87772. After being informed that the docket entry did not meet the requirements of an appealable judgment set forth in Rule 74.01(a), Graham filed a motion in the trial court seeking the entry of an appealable judgment. The trial court granted the motion and entered a signed judgment of dismissal on February 11, 2025

consider the petition. See J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249, 254-55 (Mo. banc 2009). 5 While the Department's motion to dismiss identifies Saturday, October 14, 2023, as the day on which the sixty-day period for filing a petition for de novo judicial review ended, when computed using the guidelines set forth in Rule 44.01(a), the sixty-day period ended on Sunday, October 15, 2023. Both of these dates fell on a weekend, so that Graham was required to file a petition for de novo judicial review by Monday, October 16, 2023. All Rule references are to Missouri Court Rules, Volume 1--State, 2024 unless otherwise indicated.

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("Judgment"). Graham filed a second notice of appeal on February 21, 2025. Graham's second notice of appeal was assigned case number WD87839, and the two appeals were consolidated under case number WD87772. Standard of Review When a judgment does not set forth a basis for the trial court's decision to dismiss a petition, "we presume the dismissal was on a basis set forth in the motion to dismiss, and we will affirm the dismissal if it can be supported on any basis set forth in the motion to dismiss." In re Marriage of Hyde, 717 S.W.3d 211, 215 (Mo. App. W.D. 2025) (quoting Hartman v. Logan, 602 S.W.3d 827, 835 (Mo. App. W.D. 2020)). Here, the Department's motion argued a single basis for dismissal: that Graham's petition for de novo judicial review was not timely filed pursuant to section 210.152.6, depriving the trial court of authority to consider the petition. The trial court's authority to consider a petition seeking de novo judicial review of an administrative decision is a question of law that we review de novo. Quincy Clark Ent., LLC v. Liquor Control, 677 S.W.3d 610, 612 (Mo. App. W.D. 2023); see also Ground Freight Expeditors, LLC v. Binder, 359 S.W.3d 123, 126 (Mo. App. W.D. 2011) ("We . . . apply a de novo standard of review to the [trial] judge's determination that it lacked the authority to entertain [an] application for trial de novo."). Analysis Graham presents two points on appeal challenging the trial court's dismissal of her petition for de novo judicial review. In her first point on appeal, Graham asserts that the trial court erred in "dismiss[ing] the underlying case without specifying the grounds for

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dismissal, such that the court seemingly failed to accept [the petition's] averments as true and to provide favorable inferences to [Graham]." Graham's second point on appeal argues that the dismissal of her petition was improper because the dismissal "was seemingly predicated on unclear and/or conflicting statutes and agency regulations." We address the points in order. Graham's first point on appeal is deficient on its face. An appellant's brief must include one or more points relied on. Rule 84.04(d). Separate points relied on are required for each trial court ruling or action an appellant challenges. Rule 84.04(d)(1)(A). Accordingly, "[c]onsolidating 'multiple, independent claims' into a point is not permitted." Lexow v. Boeing Co., 643 S.W.3d 501, 506 (Mo. banc 2002) (quoting Kirk v. State, 520 S.W.3d 443, 450 n.3 (Mo. banc 2017)). A point relied on that challenges more than one trial court ruling or action is considered multifarious and preserves nothing for review. Id. Here, Graham's first point on appeal challenges two trial court actions. Graham challenges the form of the Judgment by complaining that it failed to explain the basis for the trial court's dismissal of Graham's petition. And, Graham challenges the substantive basis for the Judgment by complaining that the trial court failed to accept all facts alleged in the petition as true. Despite improperly alleging two, distinct trial court errors in her first point on appeal, Graham's argument supporting the point only discusses the trial court's failure to accept the petition's factual averments and favorable inferences therefrom as true. "An appellant, to properly brief a case, must develop the issues raised in the points relied on in

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the brief's argument portion," by demonstrating how the principles of law and facts of the case interact. Alagha v. Cottle Auto. Repair, Inc., 715 S.W.3d 580, 585 (Mo. App. W.D. 2025). The failure to do so constitutes an abandonment of the argument on appeal. In Interest of S.R.W., 715 S.W.3d 223, 230 (Mo. App. W.D. 2025). Accordingly, while Graham's first point on appeal is impermissibly multifarious, her complaint that the Judgment failed to explain the basis for dismissal has been abandoned on appeal. 6 We therefore exercise our discretion to consider Graham's remaining complaint that the trial court failed to view the facts alleged in the petition and all reasonable inferences therefrom in the light most favorable to Graham. "[A] defendant may properly file a motion to dismiss for failure to state a claim under Rule 55.27(a)(6) when it appears from the face of the petition that an affirmative defense is applicable." Evans v. Empire Dist. Elec. Co., 346 S.W.3d 313, 317 (Mo. App. W.D. 2011) (footnote omitted). Here, the Department's motion to dismiss was based on the affirmative defense that Graham's petition for de novo judicial review was not timely

6 Even had Graham challenged the form of the Judgment in a separate point relied on and developed the issue in the argument portion of her brief, the challenge would not have been meritorious. The common practice of ruling on motions to dismiss without explaining the trial court's basis for doing so is acknowledged by our settled standard of review, which requires in such instances that an appellate court presume the dismissal was on a basis set forth in the motion to dismiss. See Tuttle v. Dobbs Tire & Auto Ctrs., Inc., 590 S.W.3d 307, 310 (Mo. banc 2019). Graham did not timely request that the trial court make findings of fact and conclusions of law in ruling on the Department's motion to dismiss as would have been permitted by Rule 73.01(c). And even if that Rule, which applies to cases "tried" without a jury, would not have required findings had they been sought, Graham did not file a Rule 78.07(c) motion after the trial court's dismissal of her case. Rule 78.07(c) requires objections to the form or language of a judgment to be raised in a post-judgment motion in order to preserve the issue for appellate review.

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filed within sixty days of notification of the Board's decision to uphold the Children's Division's determination of abuse. A motion to dismiss for failure to state a claim on which relief can be granted is solely a test of the adequacy of the petition. When considering whether a petition fails to state a claim upon which relief can be granted, [we] must accept all properly pleaded facts as true, giving the pleadings their broadest intendment, and construe all allegations favorably to the pleader. McClendon v. Mo. Comm'n on Hum. Rts., 713 S.W.3d 686, 692 (Mo. App. W.D. 2025) (citation omitted) (quoting Matthews v. Harley-Davidson, 685 S.W.3d 360, 366 (Mo. banc 2024)). Graham alleges that in dismissing her petition as untimely filed, the trial court failed to accept the properly pleaded facts in her petition as true. We disagree. The petition alleged that the Board's decision letter was dated on August 16, 2023; that the decision letter was mailed to Graham; and that the decision letter was emailed to Graham. The petition alleged that the letter sent by regular mail to Graham was never received because it was directed to an incorrect address. The petition alleged that the email attaching the decision letter was not opened and read by Graham until on or after August 22, 2023, a factual assertion which requires the inference that the email was received in Graham's email account. The petition alleged that the Board's August 16, 2023 decision letter attached to the email advised Graham that her sixty-day time frame for filing a petition for de novo judicial review began upon her "receipt" of the letter. Finally, the petition reflected on its face that it was filed on October 19, 2023, which is more than

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sixty days after the date of the Board's decision letter, but less than sixty days after Graham claims to have opened and read the email attaching the Board's decision letter. The question framed by the Department's motion to dismiss was whether Graham's petition for de novo judicial review was timely filed within sixty days of notification of the Board's decision. The trial court's resolution of this issue required it to determine what constitutes "notification" pursuant to section 210.152.6, a question of law. The trial court could resolve this legal issue while accepting all of the factual averments in Graham's petition as true. See Mo. Soybean Ass'n v. Mo. Clean Water Comm'n, 102 S.W.3d 10, 22 (Mo. banc 2003) (holding in a decision that predates J.C.W. ex rel. Webb that where "the facts are uncontested, a question as to the subject[]matter jurisdiction of a court is purely a question of law"); Ground Freight Expeditors, LLC, 359 S.W.3d at 126 (holding that although J.C.W. ex rel. Webb had been decided after Missouri Soybean Association, the standard set forth therein for evaluating the merits of a motion to dismiss based on the absence of statutory authority remained applicable). We therefore reject Graham's assertion that in concluding that her petition for de novo judicial review was not timely filed, the trial court failed to accept all properly pleaded facts in her petition as true. Graham takes issue with this conclusion by contending that the trial court was bound to accept as true her claim that she was not "notified" of the Board's decision and did not "receive" the Board's decision letter until she opened and read her August 16, 2023 email on or after August 22, 2023. But, this is not a properly pleaded fact. It is instead a legal assertion which presumes that "notification" contemplated by section

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210.152.6 requires proof that Graham actually reviewed the Board's decision letter. "[A]lthough we treat all of the factual allegations in a petition as true, and liberally grant to plaintiffs all reasonable inferences therefrom, [c]onclusory allegations of fact and legal conclusions are not considered in determining whether a petition states a claim upon which relief can be granted." McConnell v. West Bend Mut. Ins. Co., 606 S.W.3d 181, 190 (Mo. App. W.D. 2020) (quoting Hendricks v. Curators of Univ. of Mo., 308 S.W.3d 740, 747 (Mo. App. W.D. 2010)). Though the trial court was required to accept as true Graham's factual assertion that she did not subjectively learn of the Board's August 16, 2023 decision until she opened and read an email from the Children's Division attaching the Board's decision on August 22, 2023, the trial court was not required to accept as true Graham's legal assertion that August 22, 2023, was thus the date of "notification" or "receipt" that triggered commencement of the sixty-day time frame for filing a petition for de novo judicial review pursuant to section 210.152.6. See id. (holding that a plaintiff cannot plead legal conclusions as ultimate facts to survive a motion to dismiss). Point One is denied. In Point Two, Graham alleges that the trial court erred in dismissing her petition for de novo judicial review because the dismissal "was seemingly predicated on unclear and/or conflicting statutes and agency regulations, in that the agency rule related to the filing of judicial review is defectively subjective as it relies upon the date a notification is received as opposed to more objective terms, such that filing deadlines in this cause were not certain and the notification failed to certify method of delivery." Graham's point on appeal is convoluted, but appears to be grounded in the premise that section 210.152.6 is

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in conflict with the Department's promulgated rules addressing notification, and the premise that the Department's promulgated rules require subjective receipt to commence the time to file a petition for de novo judicial review. Neither premise is accurate. Section 210.152.6 describes the mandatory time for filing a petition for de novo judicial review following a Board determination of abuse or neglect as follows: "The request for a judicial review shall be made within sixty days of notification of the decision of the child abuse and neglect review board decision." Section 210.152.6 (emphasis added). "Notification" is not statutorily defined, and no process for providing "notification" is set forth in the statute. However, as Graham concedes, pursuant to the authority granted to the Department in sections 210.153 and 660.017, the Department promulgated 13 CSR 35- 31.025 to describe the process to be used by the Board when administratively reviewing child abuse and neglect determinations made by the Children's Division. In pertinent part, the regulation provides that, following the Board's determination, "the [Children's D]ivision, on behalf of the [B]oard, shall promptly notify the alleged perpetrator of the [B]oard's decision in writing." 13 CSR 35-31.025(7)(I) (emphasis added.) In the event that the Board upholds the Children's Division's finding of abuse or neglect, as occurred in this case, 13 CSR 35-31.025(7)(I) directs this written notification to occur as follows: [T]he [Children's D]ivision shall send the decision to the alleged perpetrator's Address of Record. Any properly addressed decisions under this rule that are returned as refused or unclaimed shall be deemed satisfactory notice. The [Children's D]ivision shall notify the parties and the alleged perpetrator's attorney, if applicable, by regular or electronic mail. . . .

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This regulation is not inconsistent with section 210.152.6. Nor is it unclear. Instead, the regulation plainly provides that "notification" of the Board's decision as required by section 210.152.6 shall be made by having the Children's Division send the Board's written decision to an alleged perpetrator's Address of Record, which is defined as "the mailing address or electronic mailing address that the alleged perpetrator provides to the Children's Division or the last known address of the alleged perpetrator discovered during the investigation or last known address contained in the information systems of the Department." 13 CSR 35-31.025(1)(B). And, the regulation contemplates that notification shall be deemed to have occurred even if the Board's decision is not actually read or reviewed by the intended recipient since notice shall be deemed satisfactory if a properly addressed decision is refused or unclaimed. Graham fails to identify any part of the Department's regulations that are unclear, or inconsistent with section 210.152.6. Her summary contention to that effect is without merit. Instead, the well pled factual assertions in Graham's petition for de novo judicial review establish that the Children's Division followed the procedure set forth in 13 CSR 35-31.025(7)(I) at least with respect to notifying Graham of the Board's decision by email. The Children's Division emailed the Board's August 16, 2023 decision letter to the email Address of Record that Graham admits is hers. Accordingly, the Children's Division notified Graham of the Board's decision on August 16, 2023. 7 The sixty-day

7 We need not resolve whether the mailing address used to send the Board's decision to Graham by regular mail was an "Address of Record" as contemplated by the Department's regulations.

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period for filing a petition for de novo judicial review began that day, and expired on Sunday, October 15, 2023, so that the final day for filing a petition for de novo judicial review was Monday, October 16, 2023. See Rule 44.01. Because Graham's petition was not filed until October 19, 2023, it was not timely filed, and the trial court had no authority to consider the petition. Graham notes that the Board's decision letter advised that she had sixty days from the date of "receipt" of the letter to file a petition for de novo judicial review. Graham thus argues that the Board's decision letter added a subjective element to determining the meaning of "notification" as used in section 210.152.6. We agree that the word "receipt" is not used in section 210.152.6 or in 13 CSR 35- 31.025(7)(I). However, Graham's argument that the Board's decision letter rendered section 210.152.6 and 13 CSR 35-31.025(7)(I) unclear by implying the need for subjective actual review in order to be "notified" is not preserved. 8 This argument plainly exceeds the scope of Graham's point relied on, which is limited to a claim that the statute and Department regulations addressing notification are conflicting and unclear. Atkisson v. Mo. Dep't of Corr., 716 S.W.3d 304, 314 (Mo. App. W.D. 2025) (holding that argument which exceeds a point relied on preserves nothing for appellate review).

8 Graham's argument is also not self-proving. The mere fact that "receipt" is used in the Board's decision letter does not require the conclusion that subjective actual review of the letter was required to commence the time for filing a petition for de novo judicial review. Arguably, the word "receipt" can be equated with objective notification as described in section 210.152.6 and in 13 CSR 35-31.025(7)(I). We need not and do not resolve that issue here.

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Even had Graham preserved her argument about the Board decision letter, we would not need to address whether use of the word "receipt" in the letter influenced the calculation of Graham's time to file a petition for de novo judicial review. 9 Graham concedes that her email account "received" the notification sent by the Children's Division on the Board's behalf on August 16, 2023. She cites no authority for the proposition that notification by an email to an Address of Record is extended beyond the date the email arrives in the email account to the date a recipient decides to open and review the email. In fact, the Department's regulations disabuse Graham's argument by providing that notice is deemed satisfactory if a properly addressed decision is "returned as refused or unclaimed." 13 CSR 35-31.025(7)(I). An email that is properly sent to an email Address of Record is thus satisfactory notice on the date it is deposited in the email account, regardless whether the email is effectively "refused" or "unclaimed" because it is left unopened and unreviewed for a period of time. We conclude that although "notification" is not defined in section 210.152.6, the meaning of the term is provided by 13 CSR 35-31.025(7)(I), a duly promulgated regulation which describes how notification of a Board decision must be made. We thus conclude that the trial court did not err in dismissing Graham's petition for de novo judicial review as untimely filed because section 210.152.6 and 13 CSR 35-31.025(7)(I)

9 Graham does not argue on appeal, as her attorney did before the trial court, that the letter's use of the word "receive" in the August 16, 2023 letter operated to mislead Graham as to the pertinent date for calculating the time to file the petition for de novo judicial review. Accordingly, we do not address that issue in this Opinion.

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required Graham to file her petition within sixty days of delivery of the Board's decision to Graham's email Address of Record on August 16, 2023. 10

Point Two is denied. Conclusion The Judgment is affirmed.

__________________________________ Cynthia L. Martin, Judge

All concur

10 Section 210.152.6 and 13 CSR 35-31.025(7)(I) thus combine to require notification to occur in a manner that is reasonably calculated to apprise an alleged perpetrator of a Board decision as to afford a meaningful opportunity to seek judicial review. Notice is a concept that is rooted in due process of law as guaranteed by the United States Constitution. See Donaldson v. Mo. State Bd. of Registration for the Healing Arts, 615 S.W.3d 57, 63 (Mo. banc 2020) ("Procedural due process requires the government to provide 'notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections' before depriving any person of a property interest.") (quoting In re Foreclosures of Liens for Delinquent Land Taxes by Action in rem Collector of Revenue, 334 S.W.3d 444, 447-48 (Mo. banc 2011)). "Notice" is the etymon of "notification." See Webster's Third New International Dictionary 1545 (1993) (defining "notification" as "the act or an instance of notifying: intimation, notice; esp: the act of giving official notice or information"); see also Black's Law Dictionary 1277 (12th ed. 2024) (defining "notification" as "notice").