In re M.A.L.

• Decision Date: 21 November 2006
• Docket Number: No. 05-262.,05-262.
• Citation: 2006 MT 299,148 P.3d 606
• Parties: In the Matter of M.A.L., D.L., and T.L., Youths in Need of Care.
• Court: Montana Supreme Court

Page 606

148 P.3d 606

2006 MT 299

In the Matter of M.A.L., D.L., and T.L., Youths in Need of Care.

No. 05-262.

Supreme Court of Montana.

Submitted on Briefs March 29, 2006.

Decided November 21, 2006.

COPYRIGHT MATERIAL OMITTED

For Appellant: Vince van der Hagen, Office of Public Defender, Great Falls, Montana.

For Respondent: Honorable Mike McGrath, Attorney General; Tammy K. Plubell, Assistant Attorney General, Helena, Montana, Brant Light, County Attorney; Sarah Corbally, Deputy County County, Great Falls, Montana.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 D.L. appeals from the judgment of the Eighth Judicial District Court, Cascade County, terminating his parental rights. We affirm.

¶ 2 We consider the following issues on appeal:

¶ 3(1) Whether the District Court's application of §§ 41-3-609(1)(d) and 41-3-423(2)(a), MCA, was an unlawful retroactive application of the statutes?

¶ 4(2) Whether the District Court abused its discretion by admitting a judgment of D.L.'s prior sexual offense conviction over the objection of D.L.?

¶ 5(3) Whether the District Court incorrectly concluded that D.L.'s prior Texas conviction for indecency with a child constituted an "aggravated circumstance" under the statute?

¶ 6(4) Whether the District Court abused its discretion when it terminated D.L.'s parental rights?

¶ 7(5) Whether the District Court's findings of fact are clearly erroneous?

¶ 8(6) Whether D.L. sufficiently preserved his equal protection argument for appeal?

BACKGROUND

¶ 9 D.L. is the natural father of M.A.L., born on November 25, 1999, D.L.,¹ born on November 1, 2000, and T.L., born on November 19, 2001. The children have been in the State's custody since September 11, 2002, and were adjudicated as youths in need of care, within the meaning of § 41-3-102, MCA, by written order on September 26, 2002.

¶ 10 In July 2002, the Montana Department of Public Health and Human Services (DPHHS) received a referral from Texas Child Protection Services (TCPS) stating that they had been involved with the children's birth mother, A.B. TCPS purchased bus tickets to Great Falls for A.B. and her three children so she could leave the children's father, D.L., and not lose custody of the children at that time, as TCPS refused to permit A.B. to both remain with D.L. and keep her children.

¶ 11 The Eighth Judicial District Court, Cascade County, terminated A.B.'s parental rights on April 27, 2004. The court extended temporary legal custody to DPHHS while it investigated how to proceed with respect to D.L. While DPHHS investigated D.L., it learned that he had a prior conviction for a sexual offense involving a minor in Texas. DPHHS filed a petition to terminate D.L.'s parental rights on May 19, 2004. Additionally, it requested the court to determine that based upon the existence of an aggravated circumstance, pursuant to § 41-3-423, MCA, it was not necessary for DPHHS to provide rehabilitative services to D.L. On September 20, 2004, D.L. filed a motion to dismiss the termination petition. D.L. argued that finding an aggravated circumstance based upon a sexual offense conviction that predates the passage of § 41-3-423, MCA, would constitute an unlawful retroactive application of the statute. On September 21, 2004, the State filed a brief in response to D.L.'s motion to dismiss. The State argued that since § 41-3-423, MCA, was in existence at the inception of the action, it was not an unlawful retroactive application of the statute.

¶ 12 The District Court conducted a hearing on D.L.'s motion to dismiss and thereafter denied the motion by written order on September 28, 2004. The court reasoned that since § 41-3-423, MCA, was in effect at the time the State initiated the youth in need of care action, it was appropriate to apply the statute to D.L. The court determined that the State correctly relied upon D.L.'s 1985 conviction to establish an aggravated circumstance.

¶ 13 The court held the termination hearing on January 13, 2005, and allowed the State to introduce certified copies of a "Deferred Adjudication Order," a "Judgment Adjudicating Guilt," and an "Indictment of [D.L.] for the Offense of Aggravated Sexual Assault on a Child" from the State of Texas. The 252nd District Court of Jefferson County, Texas, indicted D.L. in August 1985. Count I of the indictment states that D.L.:

[D]id then and there sexually assault [S.G.] ... a person younger than seventeen (17) years of age and not the Defendant's spouse, by intentionally and knowingly causing the sexual organ of the Complainant to come in contact with the Defendant's sexual organ; and the Complainant was then and there younger than fourteen (14) years of age.

Count II of the indictment states, in part, that:

[D.L.] hereinafter, the Defendant, did then and there with intent to arouse and gratify the sexual desire of the Defendant, have sexual contact by touching the breast of [S.G.] ... and did then and there with the intent to arouse and gratify the sexual desire of the defendant, have sexual contact by touching the genitals of [S.G.], a child under the age of seventeen (17) years and not the Defendant's spouse.

In the deferred adjudication order for the offense of "Lesser Included: Indecency With A Child," dated April 28, 1986, the Texas court found:

In the best interests of society and the Defendant, the Court, after hearing evidence finds that it substantiates the Defendant's guilt and defers further proceedings without entering an adjudication of guilt and places the Defendant on Probation for a period of six (6) years.

According to the certified copy of the judgment adjudicating guilt, which refers to the deferred adjudication order and which incorporates the "Motion to Revoke Unadjudicated Probation," signed by the Texas court judge on April 17, 1987, the court revoked D.L.'s probation, due to his violation of the conditions of the probation, and imposed a punishment of a five-year commitment to the Texas Department of Corrections.

¶ 14 D.L. objected to the admission of the Texas court documents as hearsay, and also maintained that the documents did not establish that he was guilty of the offense of indecency with a child. In addition, D.L argued that even assuming he had been convicted of the offense of indecency with a child, that Texas offense would not meet the definition of an "aggravated circumstance" pursuant to § 41-3-423(2)(a), MCA. D.L.'s counsel requested additional time to review the documents, and the court granted the request, continuing the hearing until January 20, 2005.

¶ 15 D.L. failed to appear for the hearing on January 20, 2005, but his counsel renewed his objection that the deferred adjudication order was hearsay and thus inadmissible. The court ruled that the document was admissible under M.R. Evid. 803(22) as an exception to the general hearsay rule. D.L.'s counsel further argued that the document was not relevant because a Texas conviction for indecency with a child was analogous to an indecent exposure conviction in Montana, thus not constituting an aggravated circumstance pursuant to § 41-3-423(2)(a), MCA, which was rejected by the District Court.

¶ 16 On February 1, 2005, the District Court entered written findings of fact, conclusions of law, and an order terminating D.L.'s parental rights to M.A.L., D.L.² and T.L. The court found that pursuant to § 41-3-609(1)(d), MCA, D.L. had subjected a child to one of the circumstances listed in § 41-3-423(2)(a) through (2)(e), MCA, that being the aggravated circumstance of sexual abuse by reason of his adjudication of guilt for the offense of felony indecency with a child. The court also found that the children had been in the State's custody since September 11, 2002, twenty-nine of the past twenty-nine months, and, therefore, a presumption that the termination of D.L.'s parental rights was in their best interests had arisen pursuant to § 41-3-604, MCA (2003). The court granted permanent legal custody of the children to DPHHS with the right of DPHHS to appear in all future proceedings to consent to their adoption or guardianship. On February 18, 2005, D.L. filed a motion pursuant to M.R. Civ. P. 50(b) for judgment as a matter of law. The court denied this motion. D.L. appeals.

STANDARD OF REVIEW

¶ 17 We review a district court's conclusions of law to determine whether the court interpreted the law correctly. In re A.J.E., 2006 MT 41, ¶ 21, 331 Mont. 198, ¶ 21, 130 P.3d 612, ¶ 21. "We review a district court's ruling on the admissibility of evidence for an abuse of discretion." In re M.W., 2004 MT 301, ¶ 14, 323 Mont. 433, ¶ 14, 102 P.3d 6, ¶ 14 (citation omitted). "The determination of whether evidence is relevant and admissible is left to the sound discretion of the trial judge and will not be overturned absent a showing of abuse." M.W., ¶ 14. The test for an abuse of discretion is whether the trial court acted arbitrarily, without employment of conscientious judgment, or exceeded the bounds of reason resulting in substantial injustice. A.J.E., ¶ 21. This Court reviews a district court's findings of fact to determine whether the findings are clearly erroneous. In re L.M.A.T., 2002 MT 163, ¶ 15, 310 Mont. 422, ¶ 15, 51 P.3d 504, ¶ 15. A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the district court misapprehended the effect of the evidence, or, if after review of the record, this Court is left with a definite and firm conviction that the district court made a mistake. L.M.A.T., ¶ 15. We review a district court's ultimate decision to terminate parental rights for an abuse of discretion. A.J.E., ¶ 21.

¶ 18 "[T]he best interests of the child are of paramount concern in a parental rights termination proceeding and take precedence over the parental rights." A.J.E., ¶ 22. The party seeking to terminate the parental rights must demonstrate by clear and convincing evidence that the statutory requirements for termination...