NO. 92-592
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
WANDA D. MCDOWELL,
Petitioner and Appellant,
-v-
RANDY J. McDOWELL,
Respondent and Respondent,
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Michael H. Keedy, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
R. M. Kehew, Law Offices of R. M. Kehew, Kalispell,
Montana
For Respondent:
Robert B. Allison, Kalispell, Montana
Submitted on Briefs: September 16, 1993
Decided: February 1, 1 9 9 4
Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal from the Eleventh Judicial District,
Flathead County, modifying the custody of two minor children. We
affirm.
While the appellant charges thirteen different errors made by
the court, we consider the following question which includes
consideration of all issues raised:
Did the District Court abuse its discretion in modifying the
custody of the two minor McDowell children?
The marriage of Wanda and Randy McDowell was dissolved in
1986, after five years of marriage. Two children, a girl and a
boy, were born to the couple. At the time of the dissolution,
Wanda McDowell was awarded custody and Randy was granted reasonable
rights of visitation. At the time of the hearing on modification,
the children were ages 7 and 9. Wanda has worked to a limited
degree since 1980. Randy has been employed as a custodian and
maintenance man for Flathead County for over eleven years.
Both Wanda and Randy re-married other people. Wanda married
Jerry Harris and moved from Flathead County to Trego, Montana, in
Lincoln County. Wanda and Jerry Harris separated in November of
1990, and she returned to Flathead County. Wanda testified that
her children had told her that Jerry had sexually abused them.
Wanda testified as to her belief that while she was in the hospital
having the couple's first child, Jerry involved both of the
McDowell children in satanic rituals.
In January of 1991, Wanda sought counseling for the children
2
based upon her belief that Jerry had sexually abused her children.
The first counselor saw the children from January until June of
1991. In June, after indication that the children had been
ritually abused, Wanda took the children to see a Missoula
counselor. This counseling lasted several sessions at which time
Wanda was advised by the counselor that she should find a facility
which had special accommodations for children. Wanda then took her
son to Rivendell Treatment Center in Butte. Wanda testified that
she was dissatisfied with the treatment at Rivendell and because
her son was expressing suicidal thoughts, she had him admitted to
Shodair Hospital.
Wanda testified that she removed her son from Shodair Hospital
after a short time because she believed that Hospital personnel had
lied to her with regard to the Hospital's expertise in dealing with
ritually abused children. Shodair personnel testified that Wanda
should not have removed her son from Shodair Hospital and such
removal constituted a significant risk because of his
predisposition towards suicide. Notwithstanding this advice from
the personnel at Shodair Hospital, Wanda removed her son from the
Hospital and then took him to Burley, Idaho where she had located
a journalist whom she believed to be an expert in ritually abused
children.
Before her trip to Idaho, Wanda sent Randy a letter saying
that she had to disappear with the children for several years in
order to protect them. It was at this point, in October of 1991,
that Randy filed a Motion for Modification of Custody in the
Montana District Court.
3
Randy received a court order dated October 9, 1991 awarding
him temporary custody of his children. He was subsequently able to
locate Wanda and the children in Idaho. He obtained the help of
Idaho authorities and took physical custody of his children on
October i5, 1991. Immediately upon assuming custody of the
children, Randy returned them to Shodair Hospital where they
remained for treatment until January of 1992. During this stay,
the children were visited each week by both parents.
A modification hearing was held on June 30 and July 1, 1992.
On August 20, 1992 the District Court entered its Findings of Fact
and Conclusions of Law and Order awarding custody of the children
to Randy with supervised visitation for Wanda. Wanda appeals that
order.
Did the District Court abuse its discretion in modifying the
custody of the two minor McDowell children?
Wanda asserts that the court erroneously modified the custody
of the McDowell children. She claims that she has been unable to
see the children whom she raised for nine years. Randy argues that
Wanda took the children out of the state in direct contravention to
the custody order and that the safety and well-being of his
children required an immediate change in their physical custody
because of possible abuse by their step-father.
Our custody modification statute provides that when the
child's present environment endangers seriously his or her
"physical, mental, moral, or emotional healthv it may "in its
discretion" modify a prior custody arrangement. Section 40-4-
2i9(a) and (c), MCA. Further, the district courts have discretion
4
to modify custody when the custodial parent changes or intends to
change the child's state of residence. Section 40-4-219(f), MCA.
In any custody determination, we will look to see if a
district court's findings are clearly erroneous. In re Marriage of
Klose (19911, 243 Mont. 211, 793 P.2d 1311. And, unless the court
has abused its discretion, we will not overturn a district court's
ruling. In re Marriage of Rolfe (l985), 216 Mont. 39, 699 P.2d 79.
The testimony presented during the modification hearing was
extensive. That testimony is mirrored specifically in the District
Court's findings. There is substantial evidence in the record to
establish that the children here suffered forms of sexual abuse and
possibly satanic ritualistic abuse.
The District Court could not determine exactly what had
happened to the children and although the transcript of the hearing
contains graphic detail, many questions remain unanswered as to the
extent of the abuse. The court did find that Wanda's efforts to
obtain effective treatment, and to help her children, were well
intentioned, but erratic to the point they endangered the children,
particularly the boy. The court also found that the children's
real father, Randy, had been passive in his approach to the
relationship he had with his children. The court determined that
when the children were taken out of state because of possible harm
from their step-father, Randy appropriately sought to protect his
children.
The District Court found that there was a significant
possibility that Wanda had participated in the abuse, and that she
may have told the children they were required to be involved in the
5
satanic cult. The record before us does not contain evidence to
support that finding. On this aspect, the court relied upon
reports from Shodair Hospital which are not a part of this record.
Appellant argues that such records should never have been
considered by the court without appropriate authentication. We
cannot consider this argument because the appellant failed to
object to the records when they were given to the District Court
and were considered by the court. If a party does not object to
evidence at the lower court level, the party cannot object to it on
appeal. Whiting v. State (1991), 248 Mont. 207, 810 P.2d 1177.
Wanda argues that the court did not consider the children's
preference for custodial parent. The record reveals that the court
did not interview the children. While district courts are required
to consider the best interests of the children in determining a
custody arrangement, this Court has determined that a district
court is not required to interview the children in every case. In
re Marriage of Susen (l99O), 242 Mont. 10, 788 P.2d 332. In the
Susen case, the wishes of the children were specifically known. In
the case before us no testimony was obtained from the children so
we do not know their views regarding custody. While an interview
with the children would have been preferable, the record as
hereafter summarized establishes that two counselors and other
qualified persons testified regarding the care and custody of the
children, including the possibility of danger to them. In view of
the facts as determined by the court, which clearly demonstrated
that the best interests of the children required a change in
custody, we conclude the court did not err in failing to interview
6
the children.
Wanda moved for the appointment of an attorney to represent
the children. The father questioned the need for such an
appointment. The District Court did not rule on the motion and did
not express a reason for not making an appointment in its Findings
of Fact, Conclusions of Law and Order dated August 20, 1992.
Section 40-4-205, MCA (1991), in effect on the date of the order,
provided as follows:
40-4-205. Representation of child. The court may
appoint an attorney to represent the interests of a minor
dependent child with respect to his support, custody, and
visitation. The county attorney and the deputy county
attorneys, if any, may not be appointee: for this purpose.
The court shall enter an order for costs and fees in
favor of the child's attorney. The order shall be made
against either or both parents, except that if the
responsible party is indigent, the costs shall be waived.
This code section was interpreted in the custody case of
Milanovich v. Milanovich (1982), 200 Mont. 83, 655 P.2d 959. In
interpreting the foregoing code section, in Milanovich we stated
the rule regarding appointment of attorneys for children as
follows:
"[Tlhe rule is that appointment of counsel is only
necessary when the child needs an advocate to represent
his position as to the issues in dispute or to insure the
development of an adequately complete record concerning
the best interests of the child."
Milanovich, 200 Mont. at 89, 655 P.2d at 962: quoting In the Matter
of Inquiry into JJS Youth In Need of Care (1979), 176 Mont. 202,
577 P.2d 378, 381. In accordance with the Milanovich case, we have
carefully reviewed the record in this case to determine if an
attorney was required to represent the position of the children on
the issues in dispute, or to ensure the development of an
adequately complete record concerning their best interests.
Following are key parts of the findings and conclusions of the
District Court:
FINDINGS OF FACT
6. Several witnesses, including counselors from
Shodair and the parties themselves, indicated that the
children had been sexually abused and molested, probably
by Mr. Harris. This abuse occurred during the mid and
later part of 1990 as best can be determined . . .
5. References and innuendoes during the trial
indicate that Mr. Harris may have been involved with a
satanic cult or participated in "cultistw activities and
rituals. Wanda firmly believes that the children were
molested and abused by Mr. Harris in conjunction with
those rituals. Randy is not so certain of the
ritualistic nature of the abuse, but believes rather
firmly, based upon information that he has, that, at the
very least, the children were sexually abused by Mr.
Harris. . ..
8. In January of 1991 Wanda contacted Carol Lee, a
counselor in Columbia Falls, regarding the children, and
Ms. Lee did counsel the children over a period of time
from January through June of 1991. During the latter
part of that counseling, certain references were made to
ritual abuse. Lee testified that she would have been
willing, and felt competent, to continue counseling with
the children but that Wanda discontinued that counseling
in June when she took the children to see James Ramsey,
a licensed professional counselor .. .
9. Wanda terminated the counseling with Mr. Ramsey,
but, in August or September of that year, J. began
exhibiting very bizarre, self-destructive behavior. He
expressed a desire to commit suicide. As a consequence,
Wanda took him to Rivendale [sic], a children's
psychiatric hospital in Butte. She decided that she did
not like that facility so she took him to Shodair
Children's Hospital for treatment and evaluation.
However, on September 26, 1991, Wanda removed J. from
Shodair against medical advice.
11. ... It should be noted that J. was potentially
suicidal prior to his admission to Shodair and upon his
removal from that facility by Wanda. Lisa Shipley and
Sharon Center, both therapists at Shodair, felt that
removing J. from Shodair under those circumstances
constituted medical abuse and was potentially a serious
endangerment to J. . ..
13. Shodair determined, upon evaluating the
McDowell children [after their return by Randy to Shodair
in October, 19911, that it would be best if both children
remained at Shodair and they did remain there from mid-
October until late January 1992. During the three months
that they were at Shodair, the children had weekly visits
and family sessions with both parents. The therapists
testified that the family sessions between the children,
Randy and Marie, were appropriate and appeared to be
helpful to the children. On the other hand, the weekly
family sessions with Wanda were frequently inappropriate
in that Wanda interjected topics into the conversation
that were considered improper by the therapists .. .
14. The therapists from Shodair felt strongly that
Randy and Marie were in a better position to provide an
appropriate, nurturing and therapeutic home environment
for the children than Wanda was.
16. The children were discharged in January, 1992
and have resided with Randy McDowell since that time.
They are enrolled in school in Smith Valley School, a
rural school just a few miles west of Kalispell. Both
children are progressing adequately in school and appear
to be doing well and have adjusted to that environment,
as well as to the McDowell family home.
17. Dr. Matthew Bosley, a Kalispell pediatrician,
testified that he has treated the McDowell children on
numerous occasions over the last several years. He
testified that the children, particularly J., were
generally hyperactive and ill-behaved when they were in
their mother's custody, and that he had noted an extreme
change in their behavior from prior to their treatment at
Shodair. Dr. Bosley believes that Randy and Marie are
appropriate parents and that the children seem to have
improved since the change of custody.
CONCLUSIONS OF LAW
...
2. The erratic behavior and inconsistent treatment
of the children by Wanda, the removal of the children
from the state of Montana and from Shodair without Court
approval and against medical advice . .
. constitute a
serious physical, mental, moral and emotional
endangerment to the children.
3. The apparent improvement of the children
physically and emotionally since the temporary change of
custody in October of 1991 makes it clear that any trauma
that might have been caused to the children by virtue of
such change of custody has been far outweighed by the
benefits that the children have received from that
change.
4. Based upon the above considerations and the
Findings of Fact, the Court concludes that the
Respondent, Randy J. McDowell, should be awarded the
custody of the minor children.
We have reviewed the extensive testimony on the part of
various experts with regard to the children and their best
interests as well as the testimony of the parents. We conclude
there is substantial and largely uncontradicted evidence to support
the above-quoted Findings of Fact and Conclusions as well as the
remaining Findings of Fact and Conclusions of the District Court.
Applying the Milanovich tests, we conclude that the record
demonstrates the children did not need an advocate to represent
their position as to the issues in dispute, as those issues were
carefully and completely presented. Next, we conclude that the
record without question demonstrates that there was the development
of an adequately complete record concerning the best interests of
the children. We hold that the District Court did not err in its
failure to appoint counsel for the children.
Our attention has been directed to In the Matter of Gullette
(1977), 173 Mont. 132, 566 P.2d 396. Gullette was a contested
guardianship proceeding, rather than a proceeding under the
termination of marriage and child custody provisions as involved in
the present case. However, we carefully consider Gullette because
of the serious nature of the alleged abuse and because of the legal
questions this case raises in terms of future application. The
alleged abuse here was ritual sexual abuse, now a felony in
Montana. Section 45-5-627, MCA (1993).
In Gullette, while discussing the need for counsel to
represent children in a contested guardianship case, this Court
held as follows:
We find the reasoning of the Oregon court in In the
Matter of D. to be the most workable solution to the
problem presented and hold that where custody is in
serious dispute, the court shall appoint independent
counsel for the child or make a finding stating the
reasons that such appointment was unnecessary. [Cases
cited. ]
Gullette, 173 Mont. 140, 566 P.2d at 400.
As pointed out in Gullette, there is no statutory provision
with regard to the appointment of counsel in contested guardianship
cases. The Court extensively discussed the need for counsel in
those proceedings as well as in serious marital custody cases. We
recognize the contradiction between our current holding and the
foregoing holding in Gullette which states that the court shall
appoint independent counsel or make a finding stating the reasons
the appointment was unnecessary. The court did neither in the
present case.
The requirement of Gullette extends beyond the statutory
requirements of § 40-4-205, MCA. We also point out that the
Milanovich case was subsequent in date to Gullette. In addition,
§ 40-4-205, MCA, was amended in 1993 without any change in the
first sentence which states that "the court may appoint an attorney
to represent the interests of a minor dependent child with respect
to the child's support, custody, and visitation." In order to
eliminate the contradictions between Gullette and Milanovich, we
expressly overrule the holding in Gullette.
For assistance in future cases, however, we emphasize again
that the alleged abuse to the children in this case was severe and
involved allegations of ritual sexual abuse. In 1993, Montana
enacted § 45-5-627, MCA, as a criminal felony statute which
provides that a person commits the offense of ritual abuse of a
minor if the person engages in various conduct such as sexual
intercourse, mutilation or sacrifice of animals and other
specifically defined conduct. In consideration of future cases of
alleged ritual abuse, we emphasize that the parties and courts
should carefully consider the possible need for separate counsel to
represent the children as well as the possibility of appointment of
a guardian ad litem.
We conclude that the record contains substantial and extensive
evidence to support the conclusions of the District Court with
regard to custody. We hold the District Court did not abuse its
discretion in changing custody of the children.
Affirmed.
We Concur: ,A
February 1, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
R. M. Kehew
Law Offices of R.M. Kehew
P.O. Box 5427
Kalispell, MT 59903-5427
Robert B. Allison
Attorney at Law
130-5th St. E.
Kalispell, MT 59901
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA