In re X.V.H.

• Citation: 348 P.3d 672 (Table),378 Mont. 541
• Decision Date: 03 March 2015
• Docket Number: No. DA 13–0858.,DA 13–0858.
• Parties: In the Matter of X.V.H., A Youth.
• Court: United States State Supreme Court of Montana

378 Mont. 541

348 P.3d 672 (Table)

In the Matter of X.V.H., A Youth.

No. DA 13–0858.

Supreme Court of Montana.

Submitted on Briefs Jan. 28, 2015.

Decided March 3, 2015.

For Appellant: Nancy G. Schwartz, N.G. Schwartz Law, PLLC; Billings, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman, Assistant Attorney General; Helena, Montana, Bernard G. Cassidy, Lincoln County Attorney, Robert Slomski, Deputy Lincoln County Attorney; Libby, Montana.

Opinion

Justice JAMES JEREMIAH SHEA delivered the Opinion of the Court.

¶ 1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, 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 X.V.H., a youth, appeals the November 4, 2013 Youth Court order of commitment of the Nineteenth Judicial District, Lincoln County, which revokes his Youth Court probation and requires X.V.H. to register as a Level 2 sex offender. We affirm.

¶ 3 On November 26, 2012, the Youth Court filed an order of commitment for X.V.H. after X.V.H. admitted to two counts of felony sexual assault of two child victims. X.V.H. was ordered to serve probation at Alternative Youth Adventures (AYA) in Boulder. The terms of X.V.H.'s probation included condition 3: being obedient to guardians, teachers, therapist, group home staff, and his probation officer, and condition 4: successfully completing a sex offender treatment program. The order of commitment stated: “The Court defers any decision regarding requiring registration of the Youth as a sexual offender until after the Youth has completed treatment.”

¶ 4 The State filed a petition to revoke probation on October 16, 2013. The petition alleged that X.V.H. violated condition 3 of probation by not being obedient to authority figures and condition 4 by not successfully completing treatment. At the hearing on the petition to revoke, X.V.H. admitted to violating conditions 3 and 4 of his probation. The Youth Court also addressed his sexual abuse of a third child victim, to which X.V.H. had not immediately admitted in sessions with his therapist. The second order of commitment was filed on November 5, 2013. The second order revoked probation, committed X.V.H. to Pine Hills Youth Correctional Facility in Miles City, and required X.V.H. to register as a Level 2 sex offender. X.V.H. appeals the second order of commitment.

¶ 5 X.V.H. argues that the Youth Court abused its discretion by ordering him to register as a sex offender because he had not yet completed treatment. X.V.H. notes that the first order of commitment provided that the Youth Court deferred the decision of requiring registration “until after the Youth has completed treatment.” X.V .H. asserts that completion of treatment was a “condition precedent” to the decision of registration, and since that condition had not yet occurred, the Youth Court's decision to require him to register was premature. X.V.H. contends that the Youth Court should have continued to defer the decision until he had completed treatment at Pine Hills.

¶ 6 The State argues that X.V.H. was required to register as a sex offender under the Sexual or Violent Offender Registration Act, §§ 46–23–501, MCA, et. seq., and X.V.H. did not meet any of the criteria which allow relief from registration under § 41–5–1513(1)(d), MCA. The State further contends that X.V.H. was required to “successfully complete the sexual offender treatment program at AYA,” (emphasis added) under the first order of commitment, which X.V.H. did not do. X.V.H.'s therapist reported that “he has not internalized his treatment and will not use the skills he has learned to remain at a nominal level of risk for re-offense.” The State argues that because X.V.H. had unsuccessfully completed treatment at AYA, the Youth Court was within its discretion to order registration at the hearing on the petition to revoke X.V.H.'s probation.

¶ 7 We will not overrule a youth court's judgment absent a clear abuse of discretion. 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. In re C.D.H., 2009 MT 8, ¶ 21, 349 Mont. 1, 201 P.3d 126 (citations and quotations omitted). In this case, the State's contention that X.V.H. did not successfully complete sex offender treatment at AYA as required by the first order of commitment is well taken. X.V.H.'s therapist at AYA reported that X.V.H. would not be allowed to graduate from the AYA sex offender treatment program. X.V.H. did not complete several homework assignments, and he continued to act inappropriately among his peers.

¶ 8 Assuming arguendo that the completion of treatment constituted a “condition precedent” which had to be satisfied before the Youth Court could require X.V.H. to register, the condition was satisfied when X.V.H. unsuccessfully completed treatment at AYA. To hold otherwise would reach an absurd result in which X.V.H. could theoretically put off registration indefinitely by continually failing to successfully complete treatment. Accordingly, the Youth Court did not abuse its discretion by ordering X.V.H. to register as a Level 2 sex offender.

¶ 9 X.V.H. next argues that the Youth Court violated his Fifth Amendment right against self-incrimination by considering his failure to immediately admit sexual abuse of another victim, citing State v. Imlay, 249 Mont. 82, 813 P.2d 979 (1...