In re K.H., 366 Mont. 18

State filed identical petitions on July 29, 2011 seeking emergency protective services and adjudication of Youths in Need of Care for K.H. and K.M.; children were 2 and 5 years old.
Ke.H., infant sibling, suffered head trauma under Cadwell’s care, later death; Cadwell alleged to have tripped while holding Ke.H.; CM denied prior abuse allegations.
Mother had multiple intimate partners; investigation revealed bruising and concerns about daycare; photos of home showed disorder and beer cans.
District Court granted emergency protective order and scheduled show-cause hearing; GAL and separate counsel appointed for Mother and the children.
Show-cause hearing occurred November 17, 2011; record showed conflicting injuries and uncertain causation; district court later dismissed the petition for adjudication of Youths in Need of Care for lack of a preponderance of evidence.
Court affirmed dismissal, concluding the State failed to prove by a preponderance that the children were abused or neglected or at risk of abuse or neglect.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Standing to appeal the dismissal	K.H. and K.M. have standing as parties or represented by counsel	Mother contends children are not parties and lack standing	Children have standing; counsel acted within duties and the appeal is proper.
Sufficiency of evidence to adjudicate as Youths in Need of Care	State proved abuse/neglect by preponderance	District Court correctly found no preponderance	District Court did not abuse discretion; insufficient evidence to adjudicate.

In re J.W.C., 2011 MT 312, 363 Mont. 85, 265 P.3d 1265 (Mont. (2011)) (standard for review in youth in need of care and termination cases; abuse of discretion governs)
In re J.A.B., 1999 MT 173, 295 Mont. 227, 983 P.2d 387 (Mont. (1999)) (standard of review for these proceedings; clear-error findings; correctness of law)
In re D.H., 264 Mont. 521, 872 P.2d 803 (Mont. (1994)) (abuse/neglect findings reviewed for error; substantial evidence required)
In re J.L., 2000 MT 289, 302 Mont. 254, 14 P.3d 473 (Mont. (2000)) (standard to review not adjudicated outcomes; same abuse of discretion approach)
Jacobsen v. Thomas, 2004 MT 273, 323 Mont. 183, 100 P.3d 106 (Mont. (2004)) (guardian ad litem vs. attorney representing child; goals of best interests)
In re Rolfe, 216 Mont. 39, 699 P.2d 79 (Mont. (1985)) (attorney for child must disclose conflict with child’s wishes when not in best interests)
In re G.S., 2002 MT 245, 312 Mont. 108, 59 P.3d 1063 (Mont. (2002)) (consider past conduct and danger to child when evaluating ability to parent)
In re S.M., 2001 MT 11, 304 Mont. 102, 19 P.3d 213 (Mont. (2001)) (consideration of mother’s past conduct in risk assessment)
In re E.K., 2001 MT 279, 307 Mont. 328, 37 P.3d 690 (Mont. (2001)) (standard of review for abuse/neglect findings; factual findings reviewed for clear error)