August 14 2012
DA 11-0758
IN THE SUPREME COURT OF THE STATE OF MONTANA 2012 MT 175
IN THE MATTER OF K.H. and K.M.,
Youths in Need of Care.
APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause Nos. BDN 11-159 and BDN 11-160 Honorable Julie Macek, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Allen P. Lanning; Lanning, Harris & Conklin, P.C.; Great Falls, Montana
For Appellee:
Wade Zolynski, Chief Appellate Defender; Sarah Chase Rosario, Assistant Appellate Defender; Helena, Montana (Mother K.H.)
Jane Marie Berger; Great Falls, Montana (Father C.M.)
Pat Paul, Attorney at Law; Great Falls, Montana (Father K.S.)
John Parker, Cascade County Attorney; Jennifer Ropp, Deputy County Attorney; Great Falls, Montana
Submitted on Briefs: May 9, 2012
Decided: August 14, 2012
Filed:
__________________________________________ Clerk Justice Beth Baker delivered the Opinion of the Court.
¶1 Counsel for youths K.H. and K.M. appeals the Eighth Judicial District Court’s
order dismissing the State’s petition to adjudicate the children as youths in need of care.
We affirm.
¶2 We address the following issues on appeal:
¶3 1. Whether the children have standing to appeal the dismissal of the State’s petition for their adjudication as youths in need of care.
¶4 2. Whether the District Court erred in dismissing the State’s petition for adjudication of the children as youths in need of care on the ground of insufficient evidence.
PROCEDURAL AND FACTUAL BACKGROUND
¶5 On July 29, 2011, the State filed identical Petitions for Emergency Protective
Services, Adjudication of Youths in Need of Care, and for Temporary Legal Custody in
two causes involving K.H. and K.M., the daughters of Appellee K.H. (Mother). The
children were two and five years old, respectively, at the time of the petition.
¶6 The State alleged the youths were abused or neglected or at risk of being abused or
neglected. In support of its petition, the State provided an affidavit of Amanda Scott, a
child protection specialist. Scott reported that K.H. and K.M.’s infant sibling, Ke.H.,
sustained head trauma while under the care of Mother’s boyfriend, Charles Cadwell,
which ultimately lead to Ke.H.’s death. Cadwell reportedly stated he tripped on a toy and
fell on Ke.H., causing her injuries. The affidavit also indicated that when K.M. was
questioned about a red mark on her neck, she claimed Cadwell had choked her with a 2 belt. Scott noted that photographs taken of the family’s residence by the Great Falls
Police Department revealed beer cans throughout the home, various coins scattered on
Mother’s bedroom floor, and piles of clothing, towels and bedding strewn about Mother’s
and the children’s rooms.
¶7 On August 1, 2011, the District Court issued an order granting the Department of
Public Health and Human Services (DPHHS) authority to implement emergency
protective services and to place the children in temporary out-of-home care. The court
scheduled a show cause hearing for the petition for adjudication and temporary legal
custody on August 25, 2011. The court appointed separate attorneys for Mother, the
children, K.M.’s father C.M. (Father One), and K.H. and Ke.H.’s father K.S. (Father
Two). The court also appointed a Guardian ad Litem (GAL).
¶8 On August 23, 2011, counsel for Father Two moved for a continuance of the show
cause hearing. The court granted the motion over Mother’s objection and reset the
hearing for October 19, 2011. On August 31, 2011, the State moved for another
continuance and Mother again objected. The court granted the motion and reset the
hearing for November 17, 2011.
¶9 One week before the hearing, the State moved the District Court to adopt a
supplemental affidavit from Scott. The court granted the State’s motion on
November 14, 2011. The affidavit discussed findings made by Dr. Susan Day, a clinical
psychologist who completed a psychological evaluation of Mother, and recounted
Mother’s disclosures of her past intimate relationships. Scott described that Mother dated
3 Father One for a year and a half before leaving him when K.M. was six weeks old.
Mother began seeing Brian Ally for several months and subsequently moved in with him.
Mother reported she believed Ally sexually assaulted K.M., so she left him. Mother
stated she attempted to report Ally to the authorities but nothing came of it. Mother later
began dating Father Two and was residing with him when she gave birth to K.H. and
Ke.H. In August 2010, there was a physical altercation resulting in Father Two being
charged with Partner or Family Member Assault (PFMA) against Mother. She left Father
Two following the incident. Mother met Cadwell in December 2010, and they moved in
together in March 2011. After Ke.H.’s death in July 2011, Mother moved in with her
aunt. Father One subsequently joined her there. In early September 2011, Father One
was involved in a physical altercation with Mother’s brother and was charged with
disorderly conduct. Mother distanced herself from Father One and he left her residence
following the incident. At the time of the hearing, Mother and Father Two were living
together and attempting to reconcile. Father Two informed Scott he wanted to be present
for the children.
¶10 The show cause hearing began on November 17, 2011. Ke.H.’s treating physician
testified that Cadwell’s claim that he tripped and fell on Ke.H. was “completely
inconsistent with her CT and retinal hemorrhage findings.” The physician also stated the
CT scans and a skeletal survey of Ke.H. revealed no evidence of any prior fractures or
previous abuse.
4 ¶11 Great Falls Police Detective Keith Perkins conducted an investigation of the
injuries to Ke.H. He testified that Cadwell initially stated he fell on Ke.H., but later, “he
described picking up [Ke.H.] and shaking her to the point where he demonstrated that her
head struck her back between her shoulders and then her chin struck her chest in front of
her.” Cadwell ultimately was arrested and charged with deliberate homicide. Perkins
also performed a follow-up investigation of K.M.’s claim that Cadwell had choked her
with a belt, but did not find K.M.’s allegations credible and did not charge Cadwell based
on that accusation. Perkins recounted a discussion he had with Mother about an earlier
event in which Father Two interjected in an argument and physical altercation between
K.M. and K.H. and struck K.M., leaving a red mark on her chest. Mother stated she went
to live with her mother after the incident.
¶12 Three months before Ke.H.’s death, Cadwell arranged for Ke.H. to stay home with
him while the two older girls were taken to daycare. Later that morning, Cadwell
contacted Mother and asked if she knew why Ke.H. would have bruising on her buttocks.
Mother asked him if he was responsible for the bruising, which Cadwell denied. Mother
suspected the daycare had caused the bruising. On the advice of friends and family,
Mother changed daycares.
¶13 Testimony of the Mother’s two daycare providers revealed that both witnessed the
girls’ bond with Cadwell, and neither had observed anything other than a positive
relationship between the children and him. The providers expressed shock that Cadwell
5 had abused Ke.H. as they had not seen any earlier signs of abuse. Both testified that the
children were always well groomed and healthy when they arrived each day.
¶14 Dr. Day, the State’s expert witness, testified that Mother should be with her
children as much as she wanted. Dr. Day advised that Mother was currently receiving
individual therapy and should continue to do so for at least nine months. Dr. Day stated
the sessions would benefit Mother and her children, because Mother could use aid in how
to better identify suitable partners.
¶15 The GAL submitted her report to the court and advised that Mother had made
great progress through her therapy sessions and was very proactive with the
recommendations she had been given. The GAL testified the girls love their mother very
much and concluded by stating, “As long as this family voluntarily goes through
counseling . . ., receives whatever services are required—I have no reason to believe they
won’t do that—the children should go back into the home.”
¶16 At the conclusion of the hearing, the court asked for the position of each of the
parties. Counsel for the children stated the following:
My position is based, Your Honor, on my duty to advocate for my clients. . . . I know what they want, and what they want is to be with their mom. Now, I’ve heard in several of these cases that that means that I must do whatever is in my power to make sure that, where those are my client’s wants, that they are put back immediately. I disagree. My job is to get them what they want in the safest way possible, in the way that serves my clients best. And, therefore, I’m not going to say dismiss this, there’s not cause for adjudication. . . . I don’t think that’s my duty. If I think that there is a reasonable case for adjudication, then I have to argue it.
6 ¶17 The court ruled from the bench that the State had not proven the children were in
danger of being abused or neglected. The court followed with a written order in which it
determined that, although the evidence was sufficient to support the Department’s initial
involvement with the family and the State’s original petition, there was insufficient
evidence to find, by a preponderance of the evidence, that the children were abused or
neglected or in danger of being abused or neglected. The District Court accordingly
dismissed the petition for adjudication of the children as youths in need of care. The
State took no further action. The children’s attorney appeals on their behalf.
STANDARD OF REVIEW
¶18 The parties dispute the standard of review applicable to the District Court’s
decision not to adjudicate the children as youths in need of care. Counsel for the children
argues that, in abuse and neglect cases, findings of fact are reviewed under the clearly
erroneous standard and conclusions of law are reviewed for correctness. Citing In re
J.W.C., 2011 MT 312, ¶ 15, 363 Mont. 85, 265 P.3d 1265, he suggests the District
Court’s application of the law to the facts of this case “is a legal conclusion which we
review to determine ‘whether the interpretation of the law is correct.’” Mother asserts we
should review for an abuse of discretion because the evidentiary standard for adjudication
of youths in need of care is lower than in proceedings for the termination of parental
rights. Sections 41-3-422(5)(a)(ii), 41-3-437(2), MCA (adjudication requires a
determination by a preponderance of the evidence that the child is a youth in need of
care); §§ 41-3-422(5)(a)(iv), 41-3-609(1), MCA (termination of a parental relationship
7 requires clear and convincing evidence that the statutory criteria have been met). Mother
contends this is an issue of first impression because this Court has not yet stated the
standard for the denial of a petition to adjudicate, and suggests the standard of review
should be more deferential than that applied to a termination of rights decision.
¶19 We have indicated the standard of review for youth in need of care and
termination proceedings is the same. In re J.A.B., 1999 MT 173, ¶ 16, 295 Mont. 227,
983 P.2d 387. We review a district court’s termination of parental rights for abuse of
discretion. In re J.W.C., ¶ 15. We also review for abuse of discretion a district court’s
determination that a child is abused or neglected. In re D.H., 264 Mont. 521, 524-26, 872
P.2d 803, 805-06 (1994). We have applied the same standard to a district court’s ruling
that a child is not a youth in need of care. In re J.L., 2000 MT 289, ¶ 17, 302 Mont. 254,
14 P.3d 473. The standard of review does not depend on whether the district court grants
or denies a petition to adjudicate a youth in need of care. We have explained the
applicable standard as follows:
We review a district court’s decision to terminate parental rights to determine whether the court abused its discretion. We review a district court’s specific findings to determine whether they are clearly erroneous. A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the court misapprehended the effect of the evidence or if, upon reviewing the record, this Court is left with the definite and firm conviction that the district court made a mistake. In reviewing a district court’s conclusions of law, we determine if they are correct.
In re E.K., 2001 MT 279, ¶ 31, 307 Mont. 328, 37 P.3d 690 (citations omitted). We
apply that standard here and will review the District Court’s findings of fact for clear
error, its conclusions of law for correctness, and the court’s ultimate decision regarding 8 adjudication for abuse of discretion. “A court abuses discretion when it acts arbitrarily,
without employment of conscientious judgment or in excess of the bounds of reason,
resulting in substantial injustice.” In re A.J.W., 2010 MT 42, ¶ 12, 355 Mont. 264, 227
P.3d 1012 (citing In re C.J.K., 2005 MT 67, ¶ 13, 326 Mont. 289, 109 P.3d 232. This
Court does not substitute its judgment for that of the trial court regarding the credibility
or weight to be given to the evidence, nor does this Court review the record to determine
whether evidence would support a different finding. In re I.B., 2011 MT 82, ¶ 36, 360
Mont. 132, 255 P.3d 56; In re K.J.B., 2007 MT 216, ¶ 23, 339 Mont. 28, 168 P.3d 629.
DISCUSSION
¶20 1. Whether the children have standing to appeal the dismissal of the State’s petition for their adjudication as youths in need of care.
¶21 As a preliminary matter, Mother argues this appeal should be dismissed because
the remedy sought by the children cannot be granted. Mother cites § 41-3-113(3), MCA,
(2009),1 which governs appeals in child abuse and neglect cases. That statute states:
If the appeal results in the reversal of the order appealed, the legal status of the child reverts to the child’s legal status before the entry of the order that was appealed. The child’s prior legal status remains in effect until further order of the district court unless the supreme court orders otherwise.
¶22 Mother argues that the statute does not grant to this Court authority to reverse the
District Court and require it to adjudicate the youths in need of care upon request of
counsel for the children. Mother reasons that, because the court dismissed the
1 Because this proceeding occurred prior to the October 1, 2011, effective date of amendments to the law, all references to the Montana Code Annotated are to the 2009 version, unless otherwise indicated. 9 proceedings without granting the State temporary legal custody or adjudicating the
children as youths in need of care, the children’s legal status can only revert to Mother’s
custody. We disagree. In its August 1, 2011 order, the District Court granted emergency
protective services with respect to the youths. Pursuant to this determination, DPHHS
placed the girls with their great aunt where they remained until the adjudicatory hearing.
Reversal by this Court would return the children to the protective custody of DPHHS and
not to Mother. Moreover, Mother’s argument ignores the second sentence of the statute,
under which this Court could directly alter the child’s legal status or order the district
court to do so. The circumstances of this case do not foreclose this Court’s ability to
afford the children a meaningful remedy.
¶23 Mother also argues that the children lack standing. Standing pertains to
justiciability and “is a threshold requirement in every case which we must address and
decide sua sponte even if it is not raised by a litigant.” Dick Anderson Constr., Inc. v.
Monroe Constr. Co., LLC, 2009 MT 416, ¶ 46, 353 Mont. 534, 221 P.3d 675.
¶24 Mother first contends that the children are the subject matter of, and not parties to,
this civil action. She relies on § 41-3-422(9)(a), MCA, which provides in pertinent part:
Any person interested in any cause under this chapter has the right to appear. Any foster parent, preadoptive parent, or relative caring for the child must be given legal notice by the attorney filing the petition of all judicial hearings for the child and has the right to be heard. The right to appear or to be heard does not make that person a party to the action.
10 Mother states that because children are not listed in the statute, they cannot be considered
parties. She further points out that even if children were encompassed by the subsection,
the statute does not grant party status to those it affords “a right to appear or to be heard.”
¶25 We disagree that the statute defeats the children’s standing. The subsection cited
by Mother does not provide that the children are nonparties. Rather, it identifies persons
who are not parties to the proceeding but have a legally cognizable interest and are
entitled to be heard. It does not include the children in the list of such non-parties.
Section 41-3-425, MCA, on the other hand, does include the children—along with the
parents—among those who may be entitled to court-appointed legal representation in the
case, a status reserved for parties whose legal interests are directly at stake in the
proceedings. Further, § 41-3-101(1)(d), MCA, expresses the policy of Montana law to
“recognize that a child is entitled to assert the child’s constitutional rights[.]” We cannot
square the legislature’s directives protecting the interests and rights of children with
Mother’s contention that they are not permitted a voice in these proceedings.
¶26 Second, Mother asserts that an appeal on behalf of the children may be brought
only by the GAL, who is tasked with pursuing the children’s best interests. Section 41-3-
112(3), MCA. She asserts that if counsel wished to advance what was best for his clients,
as he claimed during the hearing, the proper procedure would have been to seek removal
of the GAL pursuant to § 41-3-112(5), MCA. Mother states that counsel’s only role, as
the children’s attorney, was to advocate for their personal interests. She claims he failed
to do so when, acknowledging that K.M. and K.H. wished to return to their mother, he
11 nonetheless advocated for their adjudication as youths in need of care. We do not accept
Mother’s argument.
¶27 In Jacobsen v. Thomas, 2004 MT 273, 323 Mont. 183, 100 P.3d 106, we
addressed § 40-4-205, MCA, which provided that a GAL “may” be an attorney. In that
case, we recognized that the attorney for the children has a distinct role from that of the
GAL:
We hold that when a court appoints a guardian ad litem under § 40-4-205, MCA, unless the court specifically indicates it intends the guardian to act as an attorney representing the child, the guardian is not to act as an attorney. Instead, the guardian is required to fulfill the statutory role to objectively aid the court in its decisions regarding the best interests of the child.
Jacobsen, ¶ 32. The court’s order appointing the GAL here did not state she was to act as
an attorney for the children; thus, counsel and the GAL did not have identical roles.
¶28 Section 41-3-425(2)(b), MCA, requires a district court to appoint representation
for the children after the State has filed a petition alleging abuse or neglect: “the court
shall immediately appoint or have counsel assigned for: . . . any child or youth involved
in a proceeding under a petition filed pursuant to 41-3-422[.]” Under the 2011
amendments to the statute, not at issue here, a district court is required to appoint an
attorney for the children only if a GAL is not appointed. With the revision, a court now
has discretion to appoint counsel for the children in addition to a GAL. Applying the
statute in effect at the time, the District Court appointed counsel to represent the children
and also selected a GAL. Whether counsel was required or—under the statute as
12 revised—appointed in the court’s discretion, we conclude that the attorney has standing
to appeal on behalf of his clients.
¶29 We find Mother’s argument that counsel failed to advocate for the children’s
personal interests unpersuasive. In In re Marriage of Rolfe, 216 Mont. 39, 699 P.2d 79
(1985), we addressed the unique position of an attorney appointed to advocate for a child
when competing interests are in play. Although we specifically limited our holding in
that case to court-appointed representation in a custody dispute, our analysis is instructive
here. We held that, while an attorney has a responsibility to pursue the lawful objectives
of his client, this duty may be affected when “a client’s ability to make adequately
considered decisions in connection with the representation is impaired . . . because of
minority[.]” Rolfe, 216 Mont. at 43, 699 P.2d at 81 (quoting M. R. Pro. Conduct 1.14);
see also M. R. Pro. Conduct 1.2(a). In fashioning the appropriate standard of
representation for an attorney in the situation presented in Rolfe, we explained that both
the child’s best interests and the client’s personal interests must be considered:
We recognize that in Montana the attorney for the child is not a guardian ad litem. Nevertheless his role in a custody dispute is to advocate the child’s best interest, not the child’s wishes. This is a difficult role, particularly when the child’s expressed wishes conflict with the attorney’s determination of his best interests. But, given the immaturity of the client and the pressures that often exist in a divorce situation, it is the Court’s opinion that the best interests of the child, the paramount concern in all custody disputes, is best served by modifying that traditional lawyer-client relationship.
Rolfe, 216 Mont. at 43, 699 P.2d at 81 (emphasis added). Emphasizing “that a child’s
wishes deserve serious consideration,” we determined that counsel for the child must
13 disclose to the court any express wishes of the child that counsel concludes are not in the
child’s best interests. “Th[e] district court must be clearly informed of the child’s wishes
and the basis for that attorney’s determination that it is not in the child’s best interest to
live with the preferred parent.” Rolfe, 216 Mont. at 43, 699 P.2d at 81.
¶30 Here, as in Rolfe, counsel was faced with a situation in which his clients expressed
their personal wishes, but he reasonably believed advocating for that position would not
benefit the young children’s best interests. Counsel disclosed his clients’ desires to the
court and then explained why he could not properly execute his responsibilities as
counsel by arguing that they be immediately returned to their Mother’s care. The record
demonstrates that counsel considered the children’s expressed objective and advocated
for it through a process that would serve their best interests. Counsel acknowledged that
K.M. and K.H. should ultimately be reunited with Mother, but argued that adjudication of
the children as youths in need of care was necessary to ensure Mother received
appropriate treatment so that she could protect her children.
¶31 We hold that K.M. and K.H. have standing to appeal the District Court’s order of
dismissal and that their attorney acted within his representative capacity by advocating
for their adjudication as youths in need of care despite the children’s expressed desire to
return to Mother’s custody.
14 ¶32 2. Whether the District Court erred in dismissing the State’s petition for adjudication of the children as youths in need of care on the ground of insufficient evidence.
¶33 A court “may” adjudicate a child to be a youth in need of care if the State proves,
by a preponderance of the evidence, that the child has been abused or neglected. Sections
41-3-437(2), -102(34), MCA. “Child abuse or neglect” is defined as actual physical or
psychological harm to a child, substantial risk of physical or psychological harm to a
child, or abandonment. Section 41-3-102(7), MCA. “Physical or psychological harm”
occurs when a parent “exposes or allows the child to be exposed to an unreasonable risk
to the child’s health or welfare by failing to intervene or eliminate the risk.” Section 41-
3-102(21)(a)(v), MCA.
¶34 The children assert that the District Court should have determined that the State
met its burden of proof. Counsel points out that Mother has a demonstrated history of
poor judgment in choosing romantic partners, she returned to Father Two after witnessing
him strike K.M. during an altercation between the children, she remained with Cadwell
after discovering the bruising on Ke.H.’s buttocks, and she failed to report any of the
previous instances to the police or Child Protective Services.
¶35 During the State’s summation at the hearing, the Deputy County Attorney began
to underscore Mother’s pattern of choosing partners not conducive to her health. The
court, however, interjected and noted that Mother’s personal relationship choices should
have no bearing on the adjudication proceedings unless those decisions directly affect the
children:
15 Well, let me stop. We can’t—I can’t adjudicate someone as not being a fit parent because they don’t make good choices for themselves, all right? So this idea that she has to make choices for partners that are satisfactory to the Court, if it doesn’t involve the children, is none of our business, frankly, so to the extent that that’s an issue here it shouldn’t be.
¶36 The children argue that this distinction was not supported by Montana law based
on our decision in In re G.S., 2002 MT 245, 312 Mont. 108, 59 P.3d 1063. In that case,
the children witnessed their father commit acts of violence against their mother and were
subject to physical abuse themselves. G.S., ¶ 9. Although the father was incarcerated at
the time of the hearing, we upheld the district court’s order granting DPHHS temporary
legal custody, in part, because the mother “demonstrated an inability to protect the
children from physical abuse or the psychological and emotional effects of living in an
abusive home.” G.S., ¶ 44.
¶37 The children also cite to the following language in In re S.M., 2001 MT 11, ¶ 51,
304 Mont. 102, 19 P.3d 213:
Michelle argues that she poses no harm to her children and that the men previously in her life, Michael and Gerald, cannot now be used to deny her her parental rights. However, as we noted previously, we do not have a crystal ball to look into, so our determination of a person’s ability to parent their child must, to some extent, be based on that person’s past conduct. It is precisely because of the men Michelle previously let into her life and the children’s lives that DPHHS is concerned that Michelle is incapable of keeping her children safe from future harm that could be inflicted upon them by third parties.
¶38 Our precedent instructs a district court to look to a parent’s past conduct to inform
the exercise of its discretion in abuse and neglect proceedings. In both G.S. and S.M., the
mother’s prior relationships themselves did not lead us to affirm the adjudication of the
16 children as youths in need of care. In G.S., we focused on several other factors. For
example, we stated, “[s]ignificantly, the children were present during nearly every one of
the domestic violence incidents” and were repeatedly subject to abuse themselves. G.S.,
¶¶ 13-14. The mother posed a “flight risk” as she was just “passing through Montana,”
had a history of “leaving the jurisdiction,” and she “had no family support nearby.” G.S.,
¶¶ 14, 16. The social worker assigned to the case testified, “it was not in the children’s
best interest to remain with [the mother] because of the children’s fear that when they are
with their mother, [their father] will return and abuse her again.” G.S., ¶ 15. The social
worker noted that the mother was not being forthright with him as she would “change her
story within minutes of giving a different story” and claimed “there was absolutely no
history of abuse.” G.S., ¶ 13. Likewise, in S.M., the district court determined that,
“although [the mother] attempted compliance with her treatment plans, those attempts did
not successfully rehabilitate her to obtaining minimum parenting skills.” S.M., ¶ 43. We
noted the mother’s failure to attend family therapy and the testimony of the mother’s
therapist that she “had demonstrated that she was incapable of safely supervising more
than one child at a time.” S.M., ¶¶ 45, 47. We also expressed concern that the mother
continued to live with her boyfriend once she was confronted with his physical and
sexual abuse of her child. S.M., ¶ 48. Even after the children had been removed from her
care, the mother brought the children’s abuser with her to a DPHHS scheduled visit with
them. S.M., ¶ 49.
17 ¶39 Here, unlike in G.S. and S.M., there was substantial evidence before the District
Court demonstrating that Mother immediately removed her children from environments
that were unsafe for them, remained accountable for her actions, was completely
cooperative with law enforcement, took proactive steps to protect her children, and
continued to abide by the recommendations of her treatment providers. The District
Court did not commit an err of law in concluding that Mother’s past conduct, including
her choice of intimate partners, should be judged by how that conduct affects the
children.
¶40 Both Detective Perkins and Detective Noah Scott described Mother as shocked
when they informed her that Cadwell was responsible for causing Ke.H.’s injuries, and
both stated that she expressed no sympathy for him. They noted Mother did not appear to
be concealing anything and was cooperative throughout the investigation. Perkins stated
that Mother provided detailed accounts of all the information he sought and offered her
phone to the officers because it contained photographs of the bruising on Ke.H.’s
buttocks.
¶41 Amanda Scott testified that Mother had not had any concerns about Cadwell
before Ke.H.’s death. Scott had never received a report that Cadwell or Mother had
abused or neglected the children, nor had she received any reports of alcohol or drug
abuse by either parent. Scott also acknowledged she had not received any notifications
from the children’s daycare providers, who are under a legal obligation to report any
indications of abuse or neglect.
18 ¶42 Dr. Day, who evaluated Mother, acknowledged during the hearing that Mother
exhibited some defensiveness during her evaluation, but testified that was common in
these settings where people “feel scrutinized” and “there’s a lot at stake.” Day elaborated
that “in this situation I felt that [Mother] revealed quite a bit about her history that was
not favorable. I felt like she—you know, she gave it a fair shot, to tell me what was
going on with her, so I didn’t make over-interpretations about the defensiveness.” Day
would not say that Mother currently lacked the capacity to protect her children. She
further stated, “I don’t have any evidence to suggest that she cannot have access to her
children. In fact, it’s probably in all of their best interests that she have as much contact
as she would like at this point.” Day’s prognosis for Mother was “guarded,” and she
concluded by recommending that Mother continue participating in individual therapy for
at least nine months and avoid relationships with people with substance abuse problems,
criminal histories, or who are under child and family services supervision.
¶43 Mother testified that Father Two had been cited for PFMA against her but the
children were not present during that incident. She stated she had no concerns when she
left her children with Cadwell because they bonded with him and did not appear to be
fearful of him. When asked about her reaction when she was notified that Cadwell had
caused Ke.H.’s head trauma, Mother’s response was, “I could not believe that he could
hurt her, and I was mad, I—I fell apart.” Mother stated she was currently engaged in
counseling and would continue to do so even if the abuse and neglect proceedings were
dismissed.
19 ¶44 The GAL stated at the hearing that she spoke with both the counselor for the
children and the counselor for Mother and received positive feedback. In regard to
Mother, the GAL stated:
[Mother] has made great progress, she’s very proactive, I’ve seen that myself. Nothing stops her. If there’s a recommendation made she immediately acts on that. The girls very much love her. I’ve witnessed those, you know, encounters, and what I see is that the girls are upset when they’re separated from their mother . . .
The GAL made the following recommendation: “As long as the family voluntarily goes
through counseling, . . . [and] receives whatever services are required, . . . the children
should go back into the home.”
¶45 After hearing all the testimony and the parties’ closing statements, the District
Court made extensive oral findings, considering and analyzing all the evidence. The
court noted the red mark located on K.M.’s neck, but observed that law enforcement
officers did not find K.M.’s allegation that Cadwell choked her sufficiently credible to
warrant additional criminal charges. The court discussed the state of Mother’s home
when law enforcement entered and determined that laundry, coins, and beer cans lying
around are not uncommon in other households and would not give rise to a youth in need
of care proceeding but for the circumstances leading to the investigation. As to the
bruising on Ke.H.’s buttocks, the court pointed out it was unknown whether Cadwell or
Ke.H.’s daycare provider was responsible for the injury. The court concluded that, based
on the information Mother had at the time, she acted properly in response to the incident
by changing daycares and advising the new providers to look for any physical marks on
20 her children and to notify her if anything was discovered. Regarding Cadwell’s statement
that he inflicted the injuries leading to Ke.H.’s death, the District Court found that: “[b]ut
for this incident in April all parties agree, all the witnesses agree, that there was no
evidence whatsoever for this mother to look at and conclude that Mr. Cadwell was the
problem and that she needed to do anything further to protect any of these children from
him.”
¶46 The court then went on to discuss the mitigating factors weighing in Mother’s
favor:
[M]other submitted to the psychological evaluation, was honest with the provider, in regards to her history of life, in regards to her life experiences[.] . . . The recurring theme, frankly, of the mother’s behavior has been that when, in fact, there has been any incident that has caused her any concern for her children, what she has done is to make a decision to protect the child. She’s made the decision to leave the person that was the problem. She’s made the decision to have that person leave her. And she has I think not chosen her needs over the child but chosen the children’s needs over her own[.]
¶47 The court specifically addressed the fact that Mother had allowed Father Two back
in her life, framing the issue as “whether or not that scenario causes this court to be
concerned that these children would be in danger of abuse or neglect because of her
relationship.” The court noted Father Two had no involvement in the underlying
allegations of this case, and his interjection in the physical altercation between the
children did not form the basis for the original petition.
21 ¶48 In her oral findings, the District Judge stated that, “although there certainly was
sufficient reason for this department to take this matter extremely seriously and to
evaluate this matter as they did,” based upon the record “there is not a preponderance of
the evidence to conclude that the children would be in danger of being abused and
neglected if the department were not involved in this matter.”
Finally, the judge stated:
[I]t’s apparent, this has been a difficult decision for this Court to make because its responsibility is to attempt to look at all matters in regards to the requirements of the law, to not be influenced by sentiment or conjecture or speculation and to look at the actual facts before it to make this decision, and in looking at all of those factors, if I did not believe that these children would not be safe, I wouldn’t do it.
¶49 The court’s detailed analysis reveals that it addressed and carefully considered
every concern the children now raise on appeal. “This Court will not substitute its
judgment for that of the District Court’s regarding the credibility, persuasiveness, and
weight to be given to [the witnesses’] testimony.” I.B., ¶ 36 (citing K.J.B., ¶ 23). We
also will not consider “whether the evidence could support a different finding.” K.J.B.,
¶ 23. The record below demonstrates sufficient evidence to support the District Court’s
determination that K.H. and K.M. were not in substantial risk of physical or
psychological harm or abandonment. Section 41-3-102(7), MCA.
CONCLUSION
¶50 The children had standing to appeal the District Court’s refusal to adjudicate the
children as youths in need of care and their attorney acted within the parameters of his
legal obligations by pursuing their adjudication. The court’s factual findings were not 22 clearly erroneous and its determination that the preponderance of evidence did not
establish the children were youths in need of care was not made arbitrarily, without
conscientious judgment, or in excess of the bounds of reason. The court’s ruling was
thoroughly reasoned and finds support from substantial evidence in the record. The
District Court’s order dismissing the petition is affirmed.
/S/ BETH BAKER
We concur:
/S/ PATRICIA COTTER /S/ MICHAEL E WHEAT /S/ JIM RICE
Justice Brian Morris dissents.
¶51 I agree with the Court that counsel for the children possessed standing to prosecute
this appeal on behalf of the children. I disagree, however, with the Court’s conclusion
that the District Court properly evaluated the evidence and Mother’s response to
perceived threats to her children. The District Court noted that Mother has made the
decision to protect the children whenever “there has been any incident that has caused her
any concern for her children.” The tragic circumstances of this case demonstrate that
Mother’s 20-20 hindsight greatly exceeds her instincts when it comes to dangers to her
23 ¶52 No one disputes that Caldwell shook 17-month-old Ke.H. to the point that she
suffered brain injuries from which she never recovered. This incident took place less
than one hour after Mother had left Caldwell, her boyfriend of six months, in charge of
the care of her three young children. This incident with Caldwell did not represent
Mother’s first failure to heed warning signs.
¶53 A few months earlier, Caldwell had called Mother at work to inquire why Ke.H.
had bruising on her buttocks. Caldwell was home alone with Ke.H. Caldwell denied
having caused the bruising. Mother suspected instead that the child’s daycare provider
had caused the bruising. Mother failed to report the daycare provider to authorities for
suspected physical abuse. Mother testified that she failed to report the suspected physical
abuse out of fear of being accused of abuse or neglect and having to prove herself
innocent. Mother’s decision to put her own concerns above the well being of her children
denied the Department or law enforcement of the chance to investigate the circumstances
under which Mother raised her three young children. This investigation possibly could
have prevented the needless and tragic death of Ke.H. at Caldwell’s hands a few months
later.
¶54 Caldwell represented Mother’s fourth adult romantic relationship. Violence
against Mother and/or her children or her family marred each of these four relationships.
In fact, Mother’s relationship with Brian Ally, her second boyfriend, ended after Mother
had determined that Ally had sexually abused one of her daughters. Mother failed to
report the suspected sexual abuse of her daughter to the Department or the police.
24 Although not discussed directly in the record, we can assume that Mother once again
failed to report suspected sexual abuse of her defenseless daughter out of fear that she
might have been forced to undergo an investigation into how she raised her children and
whether she provided them with a safe home environment.
¶55 Mother had started her adult relationships a few years earlier under similarly
inauspicious circumstances. Mother was 18 when she began dating C.M., the father of
her oldest daughter. Mother left Father 1 shortly after her daughter was born due to
Father 1’s infidelity. Father 1 fathered a child with another woman. Mother nevertheless
turned to Father 1 for help following the tragic death of Ke.H. at Caldwell’s hands.
Father 1 moved back to Great Falls and stayed with Mother and her two surviving
daughters. This arrangement soon ended, however, when Father 1 got into a fight with
Mother’s brother. The fight resulted in Father 1 being charged with disorderly conduct.
¶56 Mother began dating her third boyfriend, Father 2, when she was 21. The stormy
relationship produced a series of violent incidents. At one point, Father 2 intervened in
an argument between Mother’s two older children. Father 2 whacked the older daughter
across the chest. The blow left a red mark on the young girl’s chest. Mother failed to
report this incident, or any of the violent incidents, to law enforcement or other
authorities. I once again must assume that Mother placed her own interest, and concerns
about outside investigators, above the well being of her children when she failed to report
any of the incidents.
25 ¶57 The violence from Father 2 eventually escalated to such a degree, however, that
Mother left Great Falls to move in with her mother in a different city. Mother soon
reconciled with Father 2 and he moved back in with Mother and her daughters. The
short-lived family harmony ended when Mother and Father 2 argued about her alleged
lack of faithfulness. Father 2 ended the dispute by backhanding Mother and tackling her.
The attack led to Father 2’s conviction for partner or family member assault.
¶58 Father 2’s criminal sentence included completion of an anger management
program and the payment of various fines. Father 2’s failure to abide by these conditions
resulted in an outstanding warrant for his arrest. The issuance of the warrant seemed like
an opportune time for Father 2 to fill the void in Mother’s life created by the abrupt
departure of Father 1 after Father 1’s fight with Mother’s brother. Father 2 moved back
in with Mother and her two surviving children at that time. Thus, within months of
Ke.H.’s death at the hands of Caldwell, Mother invites back into her home, with her two
surviving children, two former boyfriends who have a documented history of violence
against Mother or her family.
¶59 I agree with the Court that a person’s failure to make good relationship choices for
themselves, standing on its own, fails to warrant the termination of the person’s parental
rights. Personal autonomy must give way to the children’s best interests, however, when
Mother’s bad choices continue to place her children with men with histories of violence.
Ke.H.’s death by Caldwell forever changes the calculus. The Department now has
documented proof that Mother’s bad relationship choices have dire, and, tragically, fatal
26 consequences for Mother’s children. The home environment provided by Mother,
including the adults whom she invites into this home environment, should serve as the
focal point of the Department’s inquiry regarding the children’s best interests.
¶60 The Court attempts to distinguish our decisions in G.S. and S.M. on the basis that
the violence in those two cases had taken place in the presence of the children and the
fact that the children occasionally were themselves the victims of violence. ¶¶ 39-40.
These attempts fall short of the mark. Mother clearly was the victim of violence by
several of her former partners. Mother provides the only testimony that the children
might not have witnessed all of these attacks. This same Mother failed, however, to
report numerous incidents of domestic violence and Ally’s suspected sexual abuse of one
her daughters out of fear of being accused of abuse or neglect and having to prove herself
innocent. I cannot help but wonder whether Mother considered similar factors when
relating the circumstances of the earlier abuse.
¶61 More importantly, the children themselves were the occasional direct victims of
the abuse. Mother admitted to having witnessed Father 2 strike her older daughter across
the chest. Mother too ignored the fact that Caldwell likely had caused bruising on
Ke.H.’s buttocks a few months before Ke.H.’s death. Mother opted instead to attribute
the bruising to Ke.H.’s daycare provider. Mother’s failure to report her suspicions
regarding the daycare provider to authorities raises serious doubts about the strength of
Mother’s belief in who caused the injuries.
27 ¶62 And finally, it is a cliché that unchecked domestic violence escalates over time.
Mother failed to check Caldwell’s violence against Ke.H. because she “could not believe
that [Caldwell] could hurt [Ke.H.].” The time to defer to Mother’s beliefs long has
passed. I dissent.
/S/ BRIAN MORRIS