Submitted on Briefs: July 18, 2018
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
Appellant: Daniel V. Biddulph, Ferguson Law Office, PLLC,
Appellee: Timothy C. Fox, Montana Attorney General, Katie F.
Schulz, Assistant Attorney General, Helena, Montana, Joshua
A. Racki, Cascade County Attorney, Great Falls, Montana
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.
AND PROCEDURAL BACKGROUND
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.
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.
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.
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.
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.
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 ...