State Ex Rel. Hope House, Inc. v. Merrigan

STEPHEN N. LIMBAUGH, JR., Judge,

dissenting.

I respectfully dissent.

Section 455.2201 sets out the requirements that a domestic violence shelter must meet to qualify for federal funding. One of the requirements is for

persons employed by or volunteering services to the shelter to maintain the confidentiality of any information that would identify individuals served by the shelter and any information or records that are directly related to the advocacy services provided to such individuals;

Sec. 455.220.1(5). To ensure compliance with the confidentiality requirements, the statute also provides:

Any person employed by or volunteering services to a shelter ... shall be incompetent to testify concerning any confidential information described in subdivision (5) ... unless the confidentiality requirement is waived ... by the individual served by the shelter.

Sec. 455.220.2.

In contrast, section 210.140, a part of the Juvenile Code, states in pertinent part:

Any legally recognized privileged communication, except that between attorney and client or involving communications made to a minister or clergyperson, shall not apply to situations involving known or suspected child abuse or neglect....

As I understand the majority opinion, the mandate of section 210.140 does not encompass the information deemed confidential in section 455.220, because that information is categorically different than the “legally recognized privileged communication[s]” to which section 210.140 is addressed. This is the fundamental point of disagreement, though I do agree with the majority that the answer may be found in the dictionary. As the majority correctly notes, a “privileged communication” is a “communication that is protected by law from forced disclosure.” Blacx’s Law Dictionary 273 (7th ed.1999), and a “privilege” is “[a]n evidentiary rule that gives a witness the option not to disclose the fact asked for, even though it might be relevant ... esp. when the information was originally communicated in a professional or confidential relationship.” Id. at 1215. Section 455.220 fits well within those definitions. It is a “law” that expressly protects certain confidential information from *51“forced disclosure” when it is communicated to shelter employees and volunteers by the individuals they serve. In addition, it is a “privilege” because an individual served by a shelter is in a “confidential relationship” and may waive or not waive disclosure of confidential information, which, in this setting, is an “option not to disclose the fact asked for.” Thus, under both definitions, the communication of confidential information under section 455.220 is a “legally recognized privileged communication.”

In my view, sections 455.220 and 210.140, both of which pertain to “legally recognized privileged communications,” appear to be in conflict when applied to cases in which an individual served by a domestic violence shelter is accused of child abuse or neglect. The conflict arises because section 455.220 establishes a legally recognized privilege that presumably applies to communications that involve child abuse and neglect, as is alleged here, while section 210.140 mandates that legally recognized privileges (except those pertaining to attorneys and to clergy) shall not apply to communications involving child abuse or neglect.

“Statutes which seemingly are in conflict should be harmonized so as to give meaning to both statutes.” State ex rel. Riordan v. Dierker, 956 S.W.2d 258, 260 (Mo. banc 1997). In that effort, the courts must “ascertain the intent of the legislature ... (and) give effect to that intent if possible. ... ” Id.

In this case, the conflict is best resolved by reference to the overriding expression of legislative intent as stated in section 211.011: “The child welfare policy of this state is what is in the best interests of the child.” In view of that policy, the legislature must have intended that section 210.140 applies notwithstanding section 455.220 and that section 210.140 is, in effect, an exception to section 455.220.

This conclusion is borne out by reviewing the operation of the two statutes. On the whole, the best interests of children who are at risk due to abuse or neglect are not well served by section 455.220, because it creates a testimonial privilege that precludes the discovery and admission of evidence that children have been abused or neglected by a parent. Instead, the best interests of children are better served by a truth-seeking process in which all testimony and other evidence relevant to the allegations of abuse and neglect are discoverable and admissible. Indeed, that is the very purpose of section 210.140 — to promote the best interests of children at risk by eliminating the privilege in order to further that truth-seeking process. See State v. Ward, 745 S.W.2d 666, 670 (Mo. banc 1988). Although in some small sense children may benefit from section 455.220’s confidentiality rules to the extent that the rules encourage domestic violence victims to seek the protection of shelters not only for themselves but also for their children, that benefit, in my view, is far outweighed by the detriment caused in situations where the parent seeking shelter may be abusing or neglecting the children.

Unfortunately, the majority makes no effort to reconcile the statutes, and its sole concern seems to be the perceived harm caused by the loss of confidentiality. But, it must be emphasized that under my analysis, elimination of the privilege would apply only in the relatively few cases in which the domestic violence victim in a shelter is accused of abuse and neglect, and, even then, the privilege would remain in effect for all other purposes. In fact, no one outside the shelter setting would have access to the confidential information except as it relates to a formal adjudication in the juvenile court, which is itself a confi*52dential proceeding. The majority’s concern is not well-founded.

In sum, I would harmonize the statutes by holding that section 210.140 constitutes an exception to the confidentiality rules of section 455.220 in cases of child abuse or neglect, and, thus, the court was justified in ordering production of the Hope House records. I would quash the writ.

. All statutory references are to RSMo 2000, unless otherwise indicated.