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In re G.W.

Supreme Court of Montana

August 7, 2018

IN THE MATTER OF: G.W., A Youth in Need of Care.

          Submitted on Briefs: July 18, 2018

          APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. ADN 16-006 Honorable Gregory G. Pinski, Presiding Judge

          For Appellant: Daniel V. Biddulph, Ferguson Law Office, PLLC, Missoula, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, Joshua A. Racki, Cascade County Attorney, Great Falls, Montana



         ¶1 G.W.'s mother, S.W. (Mother) appeals from an order of the Eighth Judicial District Court, Cascade County, terminating her parental rights. We affirm and address:

Whether the District Court clearly erred by adjudicating G.W. a Youth in Need of Care.


         ¶2 In January 2016, the Department of Public Health and Human Services (Department) petitioned the District Court for Emergency Protective Services (EPS) and Temporary Investigative Authority (TIA) over G.W., then age four. In its petition and accompanying affidavit, the Department requested TIA because of: (1) allegations G.W.'s father, S.N. (Father) physically and sexually abused G.W.; and (2) allegations Mother psychologically abused G.W. by fabricating allegations against Father and thereby subjecting G.W. to a harmful amount of unwarranted medical interventions.

         ¶3 The affidavit detailed the Department receiving over a dozen reports, beginning when G.W. was seventeen-months-old, alleging Father abused G.W. As a result, Mother had G.W. examined by several healthcare providers and mental-healthcare providers "without any physical evidence of physical or sexual abuse." The affidavit described Deputy Popelka's questioning of G.W.: "I asked [G.W.] what she did today. [G.W.] stated she was at her dad's house, and she slept in his bed until morning, when he carried her back to her bed. She said her vagina hurt, because he hurt it. Then she said, 'Mom, I don't know the rest.'" (Emphasis omitted.) Further, the affidavit noted Father did not have "any unsupervised contact with [G.W.] since [G.W.'s] birth." The District Court granted the Department EPS and later, upon Mother's and Father's stipulations, TIA.

         ¶4 In March 2016, the Department removed G.W. from Mother's care, placing her in therapeutic foster care and allowing Mother and Father visitation. The Department expressed uncertainty about Father's ability to parent G.W. due to his limited contact with G.W. The Department petitioned the District Court to adjudicate G.W. a Youth in Need of Care (YINC) based on concerns Mother psychologically abused G.W. by subjecting her to ongoing, unsubstantiated allegations Father abused her. The District Court scheduled an adjudication hearing. The parties requested the District Court allocate an entire day for the hearing. The District Court scheduled a three-hour hearing and Mother moved for the court to reconsider its allocation, asking for "eight hours or more." In an order on trial administration, the District Court noted, based on its experience, "[m]ost adjudicatory hearings take 15 minutes or less" because they are "limited" in scope, the burden of proof is the preponderance of the evidence, and "extensive factual and expert testimony" is unnecessary. The District Court invited the parties, upon their agreement, to submit expert witness depositions for the court to consider prior to the hearing and maintained the scheduled three hours for the adjudication hearing. The parties agreed and Mother submitted an expert witness deposition of Dr. Brenda Roche for the District Court's consideration.

         ¶5 Dr. Roche did not evaluate G.W. personally, but reviewed G.W.'s medical record and met with Mother twice. In Dr. Roche's deposition, she questioned the methodology Dr. Michael Bütz, one of the Department's experts, used and opined that G.W. seeing several therapists was not uncommon for a four-year-old. In Dr. Roche's deposition, she also questioned the Department's efforts to prevent G.W.'s removal from Mother's care.

         ¶6 In May 2016, the District Court held G.W.'s adjudicatory hearing. Attorneys for the Department, Mother, and Father appeared in addition to G.W.'s appointed Guardian ad Litem. At the outset, the District Court stated it reviewed Dr. Roche's deposition and, "With that in mind, each party has an hour. I have timers up here, and your cross-examinations will count against your time." Thus, the court determined that the previously allocated amount of time-three hours-would be distributed evenly between the Department, Mother, and Father, with each having one hour to present evidence. Mother did not object to the District Court allocating her one hour, of the three-hour hearing, to present. The Department presented two witnesses, Dr. Bütz and Dr. Patrick Davis. Mother cross-examined both of the Department's witnesses and presented one witness, Dr. Cynthia Brewer. Father did not present any witnesses.

         ¶7 Dr. Bütz testified he performed a psychological examination of G.W. and concluded G.W. was "an average little girl" with "average intellectual ability [and] average adaptive ability," but suffers "delays" because of "distress and regression" caused by multiple presentations ...

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