Even though he won his case against the state, former Eldon High School track coach Aaron Birdsong is not entitled to have his attorney's fees repaid, the state appeals court in Kansas City ruled this week.
Cole County Circuit Judge Dan Green had ruled on March 14, 2014, that Birdsong was "not the perpetrator of child abuse" as the state's Children's Division had accused him.
In September, Green ruled Birdsong was entitled to $34,451.84 in attorney's fees in the case.
The state Social Services department appealed the September ruling, but not the March judgment.
After getting a Jan. 10, 2011, hotline call reporting Birdsong had sexually abused a 17 year-old female student on the track team, the Children's Division's "Out of Home" Investigation Unit concluded Birdsong had used his position as a public school teacher and track coach to sexually abuse the girl and had committed "sexual maltreatment" of her.
"Birdsong began an inappropriate relationship with her, which included an exchange of hundreds of "romantic' text messages," according to a 13-page opinion by the appeals court's three-judge panel. "One text message included a photograph in which the victim was wearing only her underwear."
The state said Birdsong had told the girl of marriage difficulty and told the girl not to tell anyone about their relationship or he would get in trouble. The case also found Birdsong invited the victim to his home on the pretense of babysitting, but then began kissing and touching her body. The girl became scared and left.
Although the Child Abuse/Neglect Review Board (CANRB), affirmed the sexual abuse finding and ordered Birdsong be placed on the central registry, the coach's appeal argued "the Division improperly used definitions of child sexual abuse" that did not align with state law, making its decisions erroneous.
In his March 2014 ruling, Green agreed. "The decision by the Children's Division uses a definition of "sexual abuse,' "sexual exploitation' and "sexual gratification' which are not in any (state) rule" or Missouri statute, Green wrote. "The decision by the Division of Children Services does not make a finding that (Birdsong) caused any physical injury or emotional abuse to the alleged victim."
Unless there's a specific law requiring attorney's fees are paid, or there are special circumstances in a case, each party is to pay his or her own fees under what's called "The American Rule."
At the appeals court, Birdsong's attorney - David Moen of Jefferson City - argued the Children's Division's use of improper language was a "special circumstance."
But the appeals court disagreed.
Noting Birdsong, in his written request for the CANRB review of the division's original findings, "admitted to kissing the student, making comments about looking down her shirt while she was in the school, and receiving a picture of her topless," Judge Gary Witt wrote for the three-judge appeals court panel: "We fail to see how a state agency taking administrative action to protect a child from these types of admitted and grossly inappropriate acts by a school teacher and coach could rise to the level where equity would require a balance of benefits in favor of the teacher."
Witt also wrote: "In light of the fact that our legislature has instructed the Division that "the safety and welfare of children is paramount,' we do not find the decisions made by the Division and CANRB to be unjustified."
In a separate proceeding that wasn't part of the appeals court case, the facts determined by the initial complaint and investigation led the state Board of Education to revoke Birdsong's teacher's certificate.