Matter of H.D ( 1992 )

No. 91-598
IN THE SUPREME COURT OF THE STATE OF MONTANA
IN THE MATTER OF
H.D., a Youth in Need of Care.
Ld. 3&
FbLiir( OF SUPREifl: C
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i MONTANA
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APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Carbon,
The Honorable Maurice R Colberg, Judge presiding.
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COUNSEL OF RECORD:
For Appellant:
Gary L Spaeth, Spaeth Law Firm,
.
Red Lodge, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Michael S.
Wellenstein, Assistant Attorney General,
Helena, Montana; A W. wTonyg8
. Rendall, Carbon
County Attorney, Red Lodge, Montana
Guardian Ad Litem:
Damon L. Gannett, Gannett & Ventrell,
Billings, Montana
Submitted on Briefs: July 2, 1992
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
This is an appeal from the judgment of the District Court of
the Thirteenth Judicial District, Carbon County, declaring H.D. a
youth in need of care and granting temporary custody to the
Department of Family Services for a period of one year. H.D. Is
father appeals. We affirm.
Appellant raises the following issues:
1. Did the District Court abuse its discretion when it
declared H.D. a youth in need of care and ordered temporary care,
custody, and control of H.D. be awarded to the Department of Family
Services of the State of Montana for a period of one year?
2. Did the District Court err when it retained jurisdiction
throughout the custody hearings?
3. Did the District Court err when it denied the motion by
H.D.'s father to compel discovery responses from the State?
H.D. was born on May 31, 1985. H.D. Is natural mother and
father were divorced three years later and the court awarded the
father custody of both H.D. and her brother, N.D. H.D.'s father
has been her primary caretaker since 1988.
In early June 1990, H.D.'s father moved with his two children
and his fiance, O.D., from California to Red Lodge, Montana.
Shortly thereafter, the father and O.D. were married.
The Montana Department of Family Service's (DFS) first contact
with H.D.'s family arose during a custody dispute in 1988 between
H.D.'s father and her natural mother, L.D. L.D. alleged that the
father sexually abused H.D. Similar allegations were also made by
O.D. in 1990 during a divorce proceeding between O.D. and H.D.'s
father.
H.D. has been in the physical custody of the DFS since
November 24, 1990. On December 10, 1990, the DFS filed a petition
for temporary investigative authority of H.D. and her brother, N.D.
The District Court granted the DFSts petition relative to H.D.,
however, denied the request as it pertained to N.D.
A guardian ad litem was appointed for H.D. On February 22,
1991, the DFS petitioned for temporary legal custody of H.D. As of
the date of the petition, H.D. was a resident of Carbon County,
Montana. Hearings on the DFSts petition were held on March 13,
1991, April 15 and 16, 1991, and May 15, 1991. At the time of the
temporary custody hearings in 1991, H.D. was five years old.
Four professionals, including a physician, two clinical
psychologists, and a licensed social worker, testified at the
temporary custody hearings. All four were qualified to testify as
experts in the areas of child abuse and child sexual abuse. All
four of them concluded that H.D. was a victim of sexual abuse.
The two psychologists expressed the opinion that H.D. was
seriously damaged emotionally. They testified that H.D. was in
need of mental health intervention and recommended that she undergo
professional, individual therapy. The other experts agreed therapy
was necessary. The experts also concurred that H.D.*s father
should undergo therapy.
In addition to hearing from the expert witnesses, the District
Court listened to other witnesses familiar with H.D.'s situation.
The court viewed a video deposition of H.D., considered 21 nude
photographs of H.D. taken by her father and natural mother, and
listened to evidence that H.D.'s father had physically abused O.D.
in the presence of his children.
After considering the testimony and evidence, the District
Court entered its Findings of Fact and Conclusions of Law and
Order. In its order dated July 16, 1991, the court concluded that
H.D. "is abused and neglected and is therefore a Youth in Need of
Care within the meaning and definitions of Sections 41-3-102 (2) and
(11) M.C.A." Finding that H.D. Is health is harmed or threatened by
acts or omissions of her father, the court ordered that H.D. be
removed from her father's care and placed in the custody of the DFS
for a period of one year. The father appeals from this judgment.
Did the District Court abuse its discretion when it declared
H.D. a youth in need of care and ordered temporary care, custody,
and control of H.D. be awarded to the Department of Family Services
of the State of Montana for a period of one year?
Before modifying the rights of a parent and awarding temporary
custody of a child to the DFS, the district court must adjudicate
the child to be a "youth in need of care." Section 41-3-406(1),
MCA. Section 41-3-102(11), MCA, defines "youth in need of care" to
be a child who is dependent, abused, or neglected. According to
§ 41-3-102(2), MCA, an abused or neglected child means:
[A] child whose normal physical or mental health or
welfare is harmed or threatened with harm by the acts or
omissions of his parents or other person responsible for
his welfare. [Emphasis added.]
Section 41-3-102(3), MCA, provides that ' h r to a child's health
'am
or welfare1# includes the harm that occurs whenever the parent
commits sexual abuse or allows such abuse to be committed against
the child.
When we consider a trial court's award of temporary custody
pursuant to 3 41-3-406, MCA, the ruling of the court is presumed
correct. It will not be reversed by this Court unless there is (1)
a mistake of law, or (2) a lack of substantial credible evidence to
support the findings amounting to an abuse of discretion. Matterof
TA. (1991), 249 Mont. 186, 190, 814 P.2d 994, 997; Matter of S.P.
(1990), 241 Mont. 190, 194, 786 P.2d 642, 644.
The father contends the District Court clearly abused its
discretion by finding H.D. a youth in need of care. Specifically,
the father argues that no direct evidence exists to prove he
sexually abused his daughter.
First of all, we note that it was not necessary that the DFS
prove H.D. had been sexually abused by her father. It was
sufficient to show that H.D.'s mental health or welfare was harmed
by her father's acts or his llomissions.#lThere was substantial
evidence from four different experts revealing that H.D.'s mental
health had been damaged while her father was responsible for her.
Second, there was also evidence that H.D. was sexually abused by
her father. However, that finding was not a prerequisite to a
conclusion that H.D. was a youth in need of care.
At the hearings, each expert witness testified that H.D. had
been sexually abused. Dr. Patrick J. Sauerts determination was
based on discussions with H.D., as well as observations of the
young girl. Dr. Sauer testified that H.D. told him that both Bob
Lee (a former boyfriend of H.D.*s mother) and her father had
touched her chest and vagina. Dr. Sauer explained that when he
asked H.D. how her breasts were touched, H.D. provided him with a
spontaneous, visual demonstration. Dr. Sauer determined that the
spontaneity of the demonstration gave weight to H.Detstestimony.
Dr. Donna Veraldi, clinical psychologist and expert witness,
testified that H.D.'s behavior was characteristic of a sexual abuse
victim. Her conclusion was based on a personal interview with
H.D., formal tests she administered for H.D., and the reports of
other professionals who examined H.D. Specifically, Dr. Veraldi
attested that H.D. exhibited symptoms and suffered from
post-traumatic stress disorder. She defined this disorder as "an
emotional and often physiological re-experiencing of a traumatic
event." According to Dr. Veraldi, H.D. experienced nightmares and
bed wetting--particularly around times of visitation with her
father. H.D. also exhibited a sense of foreshortened future and
avoidance of discussing traumatic events. Dr. Veraldi further
explained that H.D.Is behavior deteriorated when she asked her to
discuss "the touching and her father." This deteriorating
behavior, testified Dr. Veraldi, was consistent with a child who
has been sexually abused.
Ed Lambrecht, licensed social worker for the DFS who conducted
the investigation concerning H.D., testified that his interviews
with H.D. led him to conclude H.D. was sexually abused.
Dr. Tranel, a psychologist, was called as an expert witness by
the father. After reviewing H.D.*s video deposition and a taped
interview of H.D. by Mr. Lambrecht, Dr. Tranel testified that he
was convinced that H.D. was exposed to sexually inappropriate
conduct. He testified that, in his opinion, H.D. had been abused
by her primary caretaker or someone in her family constellation.
Dr. Tranel explained that:
All of [H.D. Is] problems are generated by a solar
milieu, a family constellation, an environment that is
lacking in a lot of healthy features, security,
stability, and consistency, and probably oversexualized
activity, including the strong possibility of sexual
abuse.
Dr. Tranel concluded that the abuser was one of H. D. Is primary
caretakers. The record reveals that since the dissolution in 1988,
H.D. had lived with her father and he was her primary caretaker.
In addition to expert testimony, the court viewed H.D. Is video
deposition. H.D. testified that her father had touched her on "her
bottom" and on her breasts. She told others so that he would stop
touching kids, and she did not want to live with her father.
Both psychologists, Dr. Veraldi and Dr. Tranel, determined
H.D. to be emotionally abused and in need of mental health
intervention. Dr. Tranel testified that H.D. is seriously
emotionally disturbed.Iv He indicated that without professional,
individual therapy, H.D. may develop, in the long term, multiple
personalities as a result of the sexual abuse she has experienced.
Dr. Veraldi expressed the opinion that H.D. suffered from
post-traumatic stress disorder. Both Dr. Veraldi and Mr. Lambrecht
recommended that H.D. not be returned to her father's custody.
In making its decision to modify the father's parental rights,
the court relied on a combination of the testimony of four expert
witnesses, a video deposition of H.D., a series of nude photographs
of H.D., and evidence of physical abuse by H.D.'s father against
his ex-wife, O.D., in the presence of his children. Additionally,
the court based its decision in part on the father's choice not to
provide as evidence the results of a court-ordered psychological
evaluation of the father. The court's findings and conclusions
were supported by substantial credible evidence. We find no abuse
of discretion by the District Court.
II
Did the District Court err when it retained jurisdiction
throughout the custody hearings?
As his second issue on appeal, H.D. Is father contends that the
court's jurisdiction expired on March 15, 1991, and that after such
time, the court was without authority to make a determination
concerning the custody of H.D. He maintains that each and every
time the court provided for a continuation of protective services
for his daughter after March 15, 1991, it did so without authority.
Consequently, the father argues that his daughter should be
returned to him.
On February 22, 1991, the DFS petitioned for temporary custody
of H.D. Due to a conflict in schedules, the original hearing date
of March 5, 1991, was rescheduled until March 13, 1991. The
parties agreed that the temporary investigative authority and
protective services granted to the DFS on December 10, 1990, and
originally set to expire on March 10, 1991, would remain in effect
until March 15, 1991.
At the end of the March 13, 1991, temporary custody hearing,
the District Judge ordered the proceedings to continue on April 15,
1991. He also ordered conditions in existence under the temporary
investigative authority order of December 10, 1990, to remain in
effect until further order of the District Court.
Further hearings were conducted on April 15 and 16, 1991. At
the conclusion of those hearings, the court ordered, until the next
hearing, the continuation of the same December 10, 1990, temporary
investigative and protective service arrangements pertaining
to H.D.
The final hearing occurred on May 15, 1991. The same
arrangements were continued once again until the court issued its
findings of fact and conclusions of law and order on July 16, 1991.
H.D.'s father has offered no statutory authority for his
argument that, once granted, investigative authority cannot be
continued by further order of the court. We decline to impose
limitations, based on the facts of this case, that were not imposed
by the legislature.
We conclude that in ordering a continuation of protective
services of H.D., the District Court acted at all times pursuant to
statutory authority. Section 41-3-403, MCA, entitled "Order for
immediate protection of youth," gives the trial court authority to
provide for immediate protective services. Upon the filing of a
petition for temporary investigative authority and protective
services, 5 41-3-403(2)(g), MCA, permits the court to grant as
relief "such other temporary disposition as may be required in the
best interest of the youth."
Subsection (2) (g) of 5 41-3-403, MCA, is applicable in the
present case. It authorized the District Court to use broad power
to make continuing arrangements for H.D.'s protection.
I11
Did the District Court err when it denied the father's motion
to compel further discovery responses from the State?
On March 22, 1991, after the first hearing was continued, the
parties exchanged formal requests for discovery. H.D.'s father
submitted written interrogatories and requests for production to
the DFS. Responses were provided by the DFS on April 1, 1991.
On April 9, 1991, six days before the continued hearing date,
H D. s father moved the court to compel further answers to his
.
interrogatories numbered 1, 2, and 3. Those interrogatories
basically asked the DFS to identify its expert witnesses and the
substance of their testimony. They also requested that the DFS
specify in detail the basis for its petition and identify the
witnesses who would testify to those details. In response to those
interrogatories, the DFS identified the expert witnesses who would
be called to testify and provided records setting forth the results
of their examinations and investigation. The father was referred
to the records for further information.
The District Court denied the father's motion for the reasons
that it considered the answers adequate under the circumstances:
there was not adequate time prior to trial to provide for the
detailed kind of supplemental responses sought by the father; and
since the same witnesses had been identified long ago, the father
had some obligation to interview them and determine the substance
of their opinions on his own.
The District Court has inherent discretionary power to control
discovery and that power is based upon the court's authority to
control trial administration. Massaro v. Dunham (1979), 184 Mont.
400, 404, 603 P.2d 249, 251. In judging whether a party has failed
to properly answer interrogatories, '*necessarilyit must lie within
the authority of the trial judge to determine from the
circumstances of each case what constitutes compliance and
non-compliance . . . ." Wove v. Northern Pac. Ry. (1966), 147 Mont. 29,
40, 409 P.2d 528, 534. tv[W]e will reverse the trial judge only
when his judgment may materially affect the substantial rights of
the appellant and allow a possible miscarriage of justice.It Wolfe,
409 P.2d at 534.
The father has not shown that the court's ruling prejudiced
his case. To the contrary, the record reveals that the court
administered the discovery process fairly. The DFS provided the
father with a substantial amount of documentation which would
enable him to understand the reasons for the DFS1spetition and the
nature of the evidence the DFS would present. Additionally, the
DFS gave the father the names of all the witnesses it planned to
call at trial. The father was free to interview the named
witnesses to discover their opinions in greater detail.
We conclude that the District Court did not abuse its
discretion when it denied appellant's motion to compel discovery.
The judgment of the District Court is affirmed.
We concur:
December 22, 1992
CERTIFICATE O F SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Gary L. Spaeth
Spaeth Law Firm
P.O. Box 1361
Red Lodge, MT 59068
Hon. Marc Racicot, Attorney General
Michael S. Wellenstein, Assistant
Justice Bldg.
Helena, MT 59620
Damon L. Gannett
Gannett & Ventrell
175 No. 27th St., No. 1306
Billings, MT 59103
A. W. "Tony" Kendall
Carbon County Attorney
P.O. Drawer U
Red Lodge, MT 59068
ED SMITH
CLERK O F THE SUPREME COURT
STATE O F MONTANA