NO. 92-592 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

WANDA D. MCDOWELL, 

Petitioner and Appellant, 

-vRANDY 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, 1994 
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 midOctober 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