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In the Matter of K.H. and K.M.

August 14, 2012


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

The opinion of the court was delivered by: Justice Beth Baker

Submitted on Briefs: May 9, 2012

Decided: August 14, 2012



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.


¶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 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 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.

¶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 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.

¶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.


¶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 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 ...

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