DA 10-0234

IN THE SUPREME COURT OF THE STATE OF MONTANA

2010 MT 249N

IN THE MATTER OF:

M.D.,

A Youth in Need of Care.

APPEAL FROM: District Court of the Eighth Judicial District,

In and For the County of Cascade, Cause No. ADJ 98-113-Y

Honorable Thomas M. McKittrick, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Elizabeth Thomas, Attorney at Law; Missoula, Montana

For Appellee:

Steve Bullock, Montana Attorney General; Tammy K Plubell,

Assistant Attorney General; Helena, Montana

Submitted on Briefs: September 29, 2010

Decided: November 30, 2010

Filed:

__________________________________________

Clerk

November 30 2010
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W. William Leaphart delivered the Opinion of the Court. 

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2006, the following decision shall not be cited as

precedent. It shall be filed as a public document with the Clerk of the Supreme Court and

its case title, Supreme Court cause number and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2 M appeals the termination of his parental rights. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 M is the father of M.D. It is undisputed that M.D. has been sexually assaulted. M

merely alleges that he is not the offender. M.D. was six years old when she informed her

mother that her father had sexually assaulted her. Her mother then reported the incident

to the Department of Health and Human Services. Social worker, Nikki Wilkins

(Wilkins), interviewed M.D. During that interview, M.D. disclosed that she and M had

touched each other’s “tutus,” a term she associated with male and female genitalia. M.D.

then described the events of forced intercourse. The District Court concluded that these

comments were about her father.

¶4 Barbara Bottomly (Bottomly) is M.D.’s ongoing therapist. Bottomly testified that

she also conducted a psychosexual assessment of M.D. and that M.D. disclosed that she

had been sexually abused by her father. Bottomly also testified that M.D. demonstrates

sexualized behaviors consistent with a sexually abused child. Bottomly testified that
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after nearly two years of counseling, the only person M.D. has ever named as the

perpetrator of sexual abuse is her father.

¶5 Donna Zook (Zook) conducted a psychosexual evaluation of M. Zook also

reviewed the video of M.D.’s interview with Wilkins. Zook then testified that M.D.’s

statements to Wilkins were coerced because the questions in the forensics interview were

leading such that it appeared M.D. had a script.

¶6 Michael Sullivan (Sullivan) conducted a second psychosexual evaluation of M.

Sullivan concluded that M could not be eliminated as a possible sexual offender.

Sullivan based his opinion on reports of previous sexual abuse, including M.D.’s

statements during her interview with Wilkins and other physical reports that evidenced

physical damage to M.D. was brought on by continuous penetration. Sullivan did not

believe, as Zook did, that M.D.’s statements had been coerced.

¶7 The District Court found that M.D.’s statements were credible, plausible, very

consistent, and indicative that the child was telling the truth. The District Court also

found that the “concerns” Zook testified to do not outweigh the testimonies of Sullivan

and Bottomly. The District Court terminated M’s parental rights under § 41-3-609(d),

MCA, because M had subjected M.D. to aggravated circumstances.

STANDARD OF REVIEW

¶8 This Court reviews a district court’s order on termination of parental rights for an

abuse of discretion. In re C.M.C., 2009 MT 153, ¶ 19, 350 Mont. 391, 208 P.3d 809. A

court acts arbitrarily when it acts without employment of conscientious judgment or in
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excess of the bounds of reason resulting in substantial injustice. Id. Findings of fact are

reviewed under the clearly erroneous standard. Id.

DISCUSSION

¶9 The court may order termination of the parent-child legal relationship upon a

finding established by clear and convincing evidence . . . that . . . the parent has subjected

a child to aggravated circumstances. Section 41-3-609(1)(d), MCA. Aggravated

circumstances include sexual abuse or severe neglect. Section 41-3-423(2)(a), MCA.

In cases involving the termination of parental rights, clear and convincing

proof is simply a requirement that a preponderance of the evidence be

definite, clear, and convincing, or that a particular issue must be established

by a preponderance of the evidence or by a clear preponderance of the

proof. This requirement does not call for unanswerable or conclusive

evidence. The quality of proof, to be clear and convincing, is somewhere

between the rule in ordinary civil cases and the requirement of criminal

procedure--that is, it must be more than a mere preponderance but not

beyond a reasonable doubt.

In re Matter of E.K., 2001 MT 279, ¶ 32, 307 Mont. 328, 37 P.3d 690.

¶10 M argues that M.D.’s testimony was the only evidence identifying that M was the

offender and that M.D’s disclosures were not clear and convincing evidence. He further

argues that Dr. Zook’s testimony is substantial evidence that M.D.’s testimony may have

been coerced. However, the facts to support this case do not hinge on M.D.’s disclosure

in her forensics interview. M.D. told her mother and at least two credible witnesses,

Wilkins and Bottomly, that her father was the person who had sexually abused her. M

does not argue that M.D. was not abused, or that M.D. did not in fact disclose to her

mother, Wilkins, or Bottomly that she was assaulted by her father. The District Court

was presented with clear and convincing evidence when M.D. stated in an interview that
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her father was the perpetrator. This evidence is further supported by testimonies from

Sullivan, Bottomly, and Wilkins that attest to the likely truth of M.D.’s disclosure.

¶11 M presented, through the testimony of Zook, competing philosophies on

post-sexual abuse investigation. While Zook criticized the investigatory methods of

Wilkins, Zook’s theory that M.D. was actually coerced into accusing M of sexual abuse

is not supported by evidence. Even though Zook’s testimony may offer a reasonable

doubt that M.D.’s multiple consistent accounts of abuse may have been coerced, a

reasonable doubt is insufficient to establish that the District Court abused its discretion.

M has not overcome the preponderance of clear and convincing evidence supporting the

conclusion that M sexually abused M.D. Therefore, the District Court did not abuse its

discretion in terminating M’s parental rights.

¶12 We affirm.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ MICHAEL E WHEAT

/S/ PATRICIA COTTER

/S/ BRIAN MORRIS

/S/ JIM RICE