                                                                                     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

children.

                                         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




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