No. 91-598 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

IN THE MATTER OF 

H.D., a Youth in Need of Care. 

FbLiir( 

Ld. 

OF SUPREifl: 

3& 

Ci- MONTANA 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Carbon, 

The Honorable Maurice R. Colberg, Judge presiding. 

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 ''harm to a child's health 

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.#l There 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.Dets testimony. 

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. 

I I 

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, '*necessarily it 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 DFS1s petition 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 OF 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 OF THE SUPREME COURT 

STATE OF MONTANA