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Weber v. State

Supreme Court of Montana

June 16, 2015

LESLEE WEBER, Plaintiff, Appellant, and Cross-Appellee,
v.
STATE OF MONTANA, Defendant, Appellee, and Cross-Appellant

Submitted on Briefs April 15, 2015.

Released for Publication July 2, 2015.

APPEAL FROM: District Court of the First Judicial District, In and For the County of Broadwater, Cause No. DV 2011-58. Honorable James P. Reynolds, Presiding Judge.

For Appellant: Norman L. Newhall, Linnell, Newhall, Martin & Schulke, P.C., Great Falls, MT.

For Appellee: Randy J. Cox, Boone, Karlberg, P.C., Missoula, Montana; Pamela Snyder-Varns, Risk Management & Tort Defense Division, Helena, Montana.

BETH BAKER. We concur: MIKE McGRATH, PATRICIA COTTER, LAURIE McKINNON, MICHAEL E WHEAT.

OPINION

Page 9

[379 Mont. 389] Beth Baker, Justice.

[¶1] Leslee Weber appeals the First Judicial District Court's March 3, 2014 order granting summary judgment to the State of Montana. The State cross-appeals the District Court's August 14, 2013 order denying summary judgment to the State. Because we resolve the case on the State's cross-appeal, we do not reach the issues Weber raises on appeal. The question presented in the cross-appeal is whether, in its 2013 order, the District Court erred in rejecting the State's request for immunity under § 41-3-203(1), MCA. We reverse the District Court's 2013 denial of summary judgment and affirm the court's judgment in favor of the State.

PROCEDURAL AND FACTUAL BACKGROUND

[¶2] This case arises from marriage dissolution proceedings between Leslee Weber and Kelly Etapa, the birth parents of two minor daughters, F.E. and G.E. In May 2007, Weber and Etapa were legally separated by a Wisconsin court. In June of that year, Weber and the girls left Wisconsin to spend the summer at the family's cabin in Montana. Etapa trailered the family's horses to Montana and returned to Wisconsin the following day.

[¶3] Before leaving, Weber applied for a job in Wisconsin and was scheduled to return there in August. While she was in Montana, Weber discovered that she was not chosen for the Wisconsin job, and she decided to seek employment in Montana. In July, Weber was hired as a counselor at the Willow Creek School in Broadwater County. She notified Etapa via certified letter that she intended to remain in Montana with F.E. and G.E.

[¶4] In September 2007, Weber contacted the Broadwater County Sheriff's Department and said that Etapa had made threats against F.E. and G.E. The Sheriff's Department referred Weber to Brooke [379 Mont. 390] Dolan, the Broadwater County Crime Victims Advocate. In October, Etapa filed a motion in the Wisconsin court to enforce that court's physical placement order governing custody and visitation. The Wisconsin court issued an order requiring Weber to allow Etapa to have visitation with F.E. and G.E. over Christmas. On November 30, Weber called the Centralized Intake, Child and Family Services Division of the State of Montana Department of Public Health and Human Services (Department) and said she feared that, once her divorce was final, Etapa would emotionally

Page 10

and verbally abuse F.E. and G.E. The Centralized Intake specialist instructed Weber to discuss her concerns with her attorney and, as her divorce was not yet final, to address through her parenting plan any fears that Etapa would abuse F.E. and G.E.

[¶5] In December 2007, Weber filed for divorce in Broadwater County and obtained a Temporary Order of Protection, barring Etapa from contact or communication with Weber, F.E., or G.E. Around the same time, Weber asked Lisa Schmiesing, a licensed social worker, to evaluate F.E. and G.E. to determine how their upcoming visit with Etapa would affect them. Schmiesing met with F.E. and G.E. four times between December 2007 and January 2008. On January 24, Schmiesing called Centralized Intake at the Department and reported that she believed Weber was psychologically abusing the girls and might physically harm them. Schmiesing also filed a written Child Protection Report, documenting the same concerns:

I have come to the conclusion that [the girls'] father has NOT abused them and their mother has brainwashed them into believing their father is evil and should be killed. . . . I am very concerned for the girls' safety. I believe that their mother is seriously delusional (mentally ill) and if she has any suspicions that I believe the girls should see their dad she will take them and run away so that their father cannot find them. . . . I believe the girls should be removed from their mother's custody immediately to prevent further ...

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