Rowdy Rascals Daycare in Butte

The exterior of 3021 Carter St., the location listed for Rowdy Rascals Daycare, is shown here in Butte.

A lawsuit filed in District Court alleges physical and verbal abuse at Butte's Rowdy Rascals day care center, owned by Kelley Rauch.

Unnamed employees of the day care are also accused of participating in the alleged abuse. The suit also alleges that Rauch's husband, Benjamin Rauch, a Butte-Silver Bow police officer, used his law-enforcement status to "threaten" children.

The suit also names a number of other defendants, including Butte-Silver Bow County; the Butte-Silver Bow Sheriff's Department; the Department of Public Health and Human Services Quality Assurance Division; DPHHS Director Sheila Hogan; and Penny Job, an employee of DPHSS who inspected the day care.

While lawyers for the various defendants were largely reluctant to talk about the pending litigation or did not respond to calls seeking comment, court documents include numerous denials of the allegations laid out in the lawsuit.

According to court documents, the allegations in the suit are built on the accounts of "five current and previous staff members and six parents with children in the day care" as well as on at least one complaint investigation conducted by the Montana Department of Public Health and Human Services Quality Assurance Division between 2011 and 2017.

The plaintiffs in the case are Rosella A. Descharme and an unnamed child in Descharme's legal custody. They filed their initial complaint in March 2017 and a second amended complaint in February of this year.

According to the amended complaint, the child, who has been diagnosed with autism, attended both Rowdy Rascals and Rowdy Rugrats, a second Rauch-owned day care that is no longer operating.

The suit alleges that Descharme's child was one of a number of children who were "disciplined inappropriately" at Rowdy Rascals.

The suit alleges that an unnamed day care employee "was physically and verbally abusive"; "spanked non-verbal children," including Descharme's child; "called children nasty names and yelled at them"; "'popped' or 'smacked' (struck) a child in the mouth if he or she cried or yelled"; "talked badly about an infant's parents in front of the child"; and "allowed and encouraged children to assault other children when they were hurt by another child."

The complaint alleges that another unnamed day care employee reported some of the abuse to Kelley Rauch, who did not pass along the allegations to DPHHS, despite being legally obligated to do so, and who instead "referenced the verbal abuse in a warning" sent via a private Facebook message to day care staff.

The complaint also alleges that Kelley Rauch put Descharme's child in "time out" for hours at a time, failed to use funds from a DPHHS-provided Best Beginnings Scholarship to "provide any special care" for the child, "did not have toys out for the children, either loose or in containers," and "refused to hold crying infants and left them alone with no human contact or comfort for long periods of time."

Kelley Rauch also allegedly enlisted Benjamin Rauch, a Butte-Silver Bow law enforcement officer, to inappropriately discipline children.

According to the complaint, "Mr. Rauch ... at his wife's request, would come to the day care while on duty and in his police uniform and take children outside who were in trouble. He would threaten to take them to jail, reportedly terrifying the children."

The complaint also refers to reports from employees and parents of day care workers "withholding snacks as a form of discipline, restraining children roughly … and not calling or reporting to parents when their children were injured."

In their responses to both the original and the amended complaints, attorneys for the defendants have repeatedly denied both the underlying claims of abuse and the numerous counts that derive from how that alleged abuse was handled.

The Administrative Rules of Montana state that "Physical punishment, including spanking or other forms of corporal punishment, is strictly prohibited in day care facilities. Discipline shall include positive guidance, redirection and the setting of clear limits that foster the child's ability to become self-disciplined."

In alleging that the Rauchs and day care employees violated this and other administrative rules and caused emotional distress to Descharme as well as harm to Descharme's child, the lawsuit levels sixteen counts against the defendants, including negligence, negligent supervision of employees, negligent infliction of emotional distress, intentional infliction of emotional distress, failure to report, failure to provide training, breach of contract, and assault.

In court documents filed last August, Brian J. Smith, a lawyer representing Rowdy Rascals and the Rauchs, denied the plaintiffs allegations, stating that "No children were abused or neglected while under the care and supervision of the Rowdy defendants" and that "Rowdy defendants did not know, nor did they have a reasonable cause to suspect that any of the children at the daycare were being abused or neglected."

In a September filing, Mark A. Thieszen, an attorney for Benjamin Rauch, said that his client "denies that he menaced children by threatening them while in his police uniform." While Rauch "admits that he would at times appear at the day cares while on break during patrol shifts," according to the filing, he denied that "he actively participated in the abuse of children, menaced children, or failed to file a report when he should have." In particular, he denies "abusing or neglecting (Descharme's child) or treating (Descharme's child) with disrespect, distain (sic), or harmful contact."

Thieszen also argued, "Discovery may disclose that plaintiffs suffered from pre-existing mental/psychological condition(s) unrelated to the alleged conduct of this defendant, which caused or contributed to plaintiffs' claimed damages, thereby precluding or proportionally reducing plaintiff's damage claims."

After the second amended complaint was filed this February, attorneys for the day care, the Rauchs, and Butte-Silver Bow again answered with denials of the charges, with claims of not having "sufficient knowledge" of other charges to respond to them, and with disputes about some of the plaintiffs' basic claims in their suit. In one filing, for example, attorneys for Rowdy Rascals and the Rauchs "deny that the business entities (the day cares) are correctly named or described."

Notably, three of the defendants — the DPHHS Quality Assurance Division, DPHHS Director Sheila Hogan, and DPHHS employee Penny Job — still had not officially been served with the lawsuit as of Wednesday afternoon, despite the second amended complaint being filed electronically several months ago. This was seemingly due to problems in how the plaintiffs' attorneys filed the document.

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Without being served, attorneys for the three DPHHS defendants have not had an opportunity to officially respond to the charges through court records.

When contacted for this story, Jon Ebelt, a public information officer for DPHHS, declined to comment on allegations made in the lawsuit that DPHHS was negligent in permitting the Rauchs to continue operation of their day care after investigating complaints of abuse against Descharme's child and other children.

According to the lawsuit, DPHHS investigated three complaints regarding Kelley Rauch between 2013 and 2015. (Ebelt was able to confirm one of these complaints by press time; he was not yet able to confirm or deny that the other two had been made.)

The first of these investigations allegedly occurred in response to a complaint made on Nov. 13, 2013, "regarding Mrs. Rauch as a result of a report of inappropriate discipline towards the children in her care," the lawsuit states. As a result of this investigation, DPHHS required staff to complete training and technical assistance for discipline, according to court documents.

A second investigation occurred after a second complaint about Kelley Rauch's use of inappropriate discipline was made on July 25, 2014, the lawsuit says. Again, day care staff were apparently required to undergo training for discipline and for mandatory reporting of abuse and neglect. A month later, DPHHS issued a Directed Plan of Correction.

A third investigation, which DPHHS has confirmed, occurred after a complaint was made in 2015. In response to this complaint, staff were again required to complete training and technical assistance for discipline and reporting abuse and neglect, and another Directed Plan of Correction was issued. In addition, a complaint investigation was initiated to look into allegations from a former employee of inappropriate discipline at the day care.

According to publicly available records, DPHHS licensing worker Penny Job investigated this complaint on April 9, 2015, and reported that day care employees had violated several administrative rules:

  1. "Based on interviews, CCL found that staff members failed to make a report of suspected abuse or neglect within 24 hours of receiving the information. In addition, the department found that caregivers were not aware of the proper procedure for mandatory reporting."
  2. "Based on interview, CCL found that inappropriate discipline was used at the facility. Interviews revealed that the use of physical discipline including spanking, popping on the mouth, and restraining had been used. Other types of inappropriate discipline such as yelling, intimidating, and the use of use of extended time out periods, were also reported during the interviews."
  3. "Based on interviews, CCL found that had infants been left to cry and sometimes were not soothed, held, or responded to at least once each hour while the infant was awake. Individual personal contact and attention by the same adult was not specifically provided to each infant on a regular basis."
  4. "Based on interview, CCL found that when injuries and certain accidents occurred at the facility, the parents of children involved did not receive written incident reports. It was reported several times that no written incident report was provided when children had bite marks, bruises, cuts, or when children displaying sexual behaviors toward other children."

When asked whether DPHHS followed protocol in this matter, Ebelt said that the agency had.

In addition to these complaints, routine, follow-up, and renewal inspections of Rowdy Rascals found numerous less serious deficiencies at the day care, ranging from failing to post emergency phone numbers to not having sufficient smoke detectors to having an unapproved caregiver provide direct unsupervised care to children.

According to Ebelt, "[I]t is very common to identify deficiencies during inspections. When that occurs, a facility is given the chance to provide a Plan of Correction to correct the deficiencies. Then, child care licensing performs a follow-up inspection to ensure the identified issues have been corrected."

The Descharmes' lawsuit does not specify an amount of financial damages the plaintiffs are seeking in the suit, but a court filing from October 2017 notes that the "Plaintiffs believe the amount of compensatory damages will be significant and include both general and punitive damages that naturally result from Defendant's conduct." Those damages, the plaintiffs argue, "relate to loss of trust by the general public, the menacing of a child by a government agent in full uniform on tax-payer funded time, reasonable compensation for pain and suffering, and punitive damages to ensure Defendants discontinue engaging in this conduct again in the future."

In the second amended complaint filed this February, the plaintiffs asked for "Affirmative relief improving Montana's licensing of child daycare facilities to prevent a reoccurrence of the child abuse DPHHS confirmed here" along with fees and other financial damages.

Reached by phone, Matthew Lowy, an attorney for the plaintiffs, stated that his clients are alleging that DPHHS's role in enabling abuse at Rowdy Rascals resulted less from a failure to follow to protocol and more from adhering too closely to that protocol.

"In my review of the rules, it's not clear to me that the government really handled it wrong," Lowy said. "There may have been too strict of an adherence to the rules, in permitting corrective action over and over again. But it's not clear to me that the government's conduct was in fact wrong, specifically DPHHS.

"And so really what we're seeking is some affirmative relief from the government and looking for them to change the rules so that a licensing worker who reviews a day care and locates this volume of repeated infractions, especially of such a serious nature, has the discretion to yank their license and shut down a day care to prevent a recurrence," Lowy continued. "I'm not prepared to say the government did everything exactly right to the letter of the rule, but that's why we've engaged DPHHS as a party to the litigation — it's really to seek the affirmative relief and making changes to prevent future harm, if we can be successful. That's our goal. And if there was negligence in not having shut down the day care sooner, then the government can own that responsibility and we can move on."

Attorneys for Kelley Rauch could not be reached despite numerous attempts to do so, while Thieszen declined to comment, citing a policy against commenting on pending litigation.

Tracey Neighbor Johnson, one of three attorneys from Missoula's Boone Karlberg firm representing Butte-Silver Bow County and the Sheriff's Department, did comment, saying, "I don't expect that the county will be involved in a jury trial. We don't feel like there's a connection with respect to our client."

Johnson said she anticipated filing pretrial motions seeking summary judgment for the county and the Sheriff's Department.

Butte-Silver Bow District Court Judge Brad Newman recused himself from presiding over the case in September, and Silver Bow's other District Court Judge, Kurt Krueger, declined jurisdiction. In court documents, neither justice explained his rationale for not taking the case. As a result of their decisions not to preside, Judge Rienne H. McElyea of Gallatin County District Court has been presiding over the case since late last year.

According to court filings, a pre-trial conference with the parties involved has been scheduled for Nov. 27 at the Gallatin County Law and Justice Center.

While the Bozeman-based McElyea will preside over the case, various sources indicate a trial would be held in Butte if the case is not settled beforehand.

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