No. 05-714 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

2006 MT 153 

IN THE MATTER OF 

T.W. and J.M., 

 Youths In Need Of Care. 

APPEAL FROM: The District Court of the Eighteenth Judicial District, 

In and For the County of Gallatin, Cause No. DN-04-01, 

Honorable Holly Brown, Presiding Judge 

COUNSEL OF RECORD: 

For Appellant: 

 Robert J. Quinn, Attorney at Law, Bozeman, Montana 

For Respondent: 

 Honorable Mike McGrath, Attorney General; Jennifer Anders, 

 Assistant Attorney General; Helena, Montana 

 Marty Lambert, County Attorney, Bozeman, Montana 

 Todd Hillier, Attorney at Law, Bozeman, Montana (Guardian Ad Litem) 

 Submitted on Briefs: May 17, 2006 

 Decided: July 11, 2006 

Filed: 

__________________________________________ 

Clerk 
Justice W. William Leaphart delivered the Opinion of the Court. 

¶1 R.M., the father of J.M., appeals the District Court’s order terminating his parental 

rights. The dispositive issue on appeal is whether the District Court properly admitted 

hearsay testimony from Officer Darcy Dahl that created the evidentiary support for 

designating J.M. a youth in need of care. We affirm. 

BACKGROUND 

¶2 This case involves the welfare of four-year-old J.M., born March 13, 2002, to 

R.M. and L.W., his father and mother, respectively. In July 2003 the Department of 

Health and Human Services (DPHHS) took protective custody of J.M. and his halfbrother, T.W., after police interrupted a domestic disturbance involving L.W., her 

boyfriend and her parents. At the time of the incident, the boys were running around 

without shoes in a yard full of broken toys, trash, lawn tools, coolers and other items. 

¶3 After initial proceedings in the Third Judicial District Court, the case was 

transferred to the Eighteenth Judicial District Court, Gallatin County, upon request by the 

Powell County Attorney. The court held a dispositional hearing and although L.W. and 

R.M. chose not to attend, the court approved treatment plans for both parents. Because 

R.M. resided in jail at the time, a social worker visited R.M. to discuss how he could 

successfully complete the plan while incarcerated. R.M. did not sign the treatment plan 

and apparently disagreed with its implementation. 

¶4 The court held a review hearing in July 2004, with neither of J.M.’s parents in 

attendance. At this point, R.M. was still in jail and L.W. had moved to Washington State. 

Through counsel, R.M. asked the court to conduct another adjudication proceeding 

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regarding J.M. because the State had not properly served R.M. when the matter was in 

Powell County. The court agreed and an adjudication hearing followed, with the court 

hearing testimony from R.M., the community social worker on J.M.’s case, and police 

officer Darcy Dahle. 

¶5 Officer Dahle testified to a domestic disturbance between R.M. and L.W., which 

she responded to on the night of January 11, 2004. On hearsay grounds, R.M. objected to 

the admission of Officer Dahle’s testimony regarding statements made by L.W. that 

evening. The court ruled that because L.W. was upset and distraught, the comments to 

Officer Dahle were admissible under Rule 803(2), M.R.Evid., the excited utterance 

exception to the hearsay rule. Officer Dahle testified that L.W. said R.M. became angry 

after she told him that she was tired of his drinking and was going to leave him; R.M. 

threatened L.W. that she would never see her son again. L.W. said that she ran into the 

bathroom with her son to get away from R.M., but that R.M. forced his way in, resulting 

in a tug-of-war over the child. L.W. finally let go because she feared that her child’s 

arms would be broken. R.M. then left with the child and returned twenty minutes later by 

himself, at which point he caused L.W. to take a tumble to the ground, prompting her to 

again run into the bathroom and call someone, who in turn called dispatch.1

 

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Officer Dahle also testified that she responded to a separate domestic dispute 

involving L.W. and R.M. on June 10, 2003. During that incident, according to Officer 

Dahle, L.W. was extremely upset and explained that she and R.M. had been arguing, 

culminating in R.M. smacking her child into a wall. R.M. did not object to this 

testimony. 

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¶6 The court adjudicated J.M. a youth in need of care and amended the treatment 

plan, which R.M. again declined to sign. DPHHS subsequently filed a petition to 

terminate R.M.’s parental rights, alleging that R.M. had not complied with the treatment 

plan, and due to continued incarceration, was unable to parent. R.M. waived his personal 

appearance at the hearing. On October 25, 2005, the District Court ordered termination 

of R.M.’s parental rights. 

¶7 R.M. appeals, insisting that he never agreed to comply with the treatment plan 

because the court incorrectly adjudicated J.M. a youth in need of care by relying on 

impermissible hearsay testimony from Officer Dahle during the adjudication hearing. 

STANDARD OF REVIEW 

¶8 When reviewing a district court’s evidentiary ruling, our standard of review is 

whether the court abused its discretion. The district court has broad discretion in 

determining the admissibility of evidence. Howard v. St. James Community Hospital, 

2006 MT 23, ¶ 17, 331 Mont. 60, ¶ 17, 129 P.3d 126, ¶ 17. Notwithstanding this 

deferential standard, however, judicial discretion must be guided by the rules and 

principles of law; thus, our standard of review is plenary to the extent that a discretionary 

ruling is based on a conclusion of law. In such circumstances, we must determine 

whether the court correctly interpreted the law. State v. Price, 2006 MT 79, ¶ 17, 331 

Mont. 502, ¶ 17, 134 P.3d 45, ¶ 17. 

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DISCUSSION

¶9 Did the District Court properly admit hearsay testimony from Officer Darcy 

Dahle that provided the evidentiary support for designating J.M. a youth in need of 

care? 

¶10 R.M. argues that in adjudicating J.M. a youth in need of care, the District Court 

incorrectly admitted Officer Dahle’s testimony regarding statements L.W. made on the 

night of January 11, 2004. R.M. contends that because L.W. was not present at the 

adjudication hearing, the statements amount to hearsay under Rule 801(c), M.R.Evid., 

and therefore should not have been admitted.2

 In making this argument, R.M. argues that 

he had a Sixth Amendment right to confront L.W. under Crawford v. Washington (2004), 

541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177, Bonamarte v. Bonamarte (1994), 263 

Mont. 170, 174, 866 P.2d 1132, 1134, and Rule 611(e), M.R.Evid. 

¶11 At the outset, we note that R.M. did not specifically object to Officer Dahle’s 

testimony on Sixth Amendment confrontation grounds. Even if he had made such an 

objection, we disagree with R.M.’s contention that Crawford applies to civil cases. 

¶12 In Crawford, the United States Supreme Court held that the Sixth Amendment 

confrontation right precludes testimonial hearsay in criminal cases unless the declarant is 

unavailable and the defendant had the opportunity to confront and cross-examine the 

declarant. 

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Rule 801(c), M.R.Evid., provides that “[h]earsay is a statement, other than one 

made by the declarant while testifying at the trial or hearing, offered in evidence to prove 

the truth of the matter asserted.” Rule 802, M.R.Evid., further provides that “[h]earsay is 

not admissible except as otherwise provided by statute, these rules, or other rules 

applicable in the courts of this state.”

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¶13 R.M. essentially argues that Crawford’s holding applies to civil cases in Montana 

because of our earlier decision in Bonamarte, 263 Mont. at 175, 866 P.2d at 1135, in 

which we held that “the principles behind the right to confront witnesses are applicable to 

civil cases in Montana, as well [as to criminal cases], and that right is guaranteed in Rule 

611(e), M.R.Evid.,”3

 which provides: 

Confrontation. Except as otherwise provided by constitution, statute, these 

rules, or other rules applicable to the courts of this state, at the trial of an 

action, a witness can be heard only in the presence and subject to the 

examination of all the parties to the action, if they choose to attend and 

examine. [Emphasis added.] 

R.M. maintains that since Bonamarte applies the principles behind the confrontation right 

to civil cases, the Crawford holding necessarily applies to civil cases, as well. We 

disagree. 

¶14 As Bonamarte recognizes, Rule 611(e), M.R.Evid., states that the confrontation 

right is subject to exceptions “provided by constitution, statute, these rules, or other rules 

applicable.” In other words, if an exception within the rules of evidence applies to a 

hearsay statement, pursuant to Rule 611(e), M.R.Evid., Montana courts permit the 

testimony in a civil case. The same is not true, however, in a criminal action. The right 

to confrontation in the criminal realm does not depend upon the rules of evidence, since 

not all hearsay implicates the Sixth Amendment’s core concerns. Crawford, 541 U.S. at 

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Bonamarte involved a dissolution action where the trial court permitted the wife 

to testify by telephone because she feared her husband. We held that the court abused its 

discretion in allowing the wife to provide telephonic testimony because it did not afford 

her husband a meaningful opportunity to confront or cross-examine the witness; it also 

did not allow the trial court to observe the witness in making its determination of her 

credibility. 

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51, 124 S.Ct. at 1364, 158 L.Ed.2d at 192. As the Supreme Court observed, “[l]eaving 

the regulation of out-of-court statements to the law of evidence would render the 

Confrontation Clause powerless to prevent even the most flagrant inquisitorial practices.” 

Crawford, 541 U.S. at 51, 124 S.Ct. at 1364, 158 L.Ed.2d at 192. Thus, in a criminal 

action, the right to confrontation may preclude a hearsay statement that the rules of 

evidence would otherwise permit. 

¶15 R.M. does not dispute that a hearing to adjudicate a child as a youth in need of 

care is a civil action. R.M.’s right to confront a witness is therefore subject to Rule 

611(e), M.R.Evid., and thus any applicable exception to the hearsay rule. In this case, the 

“excited utterance” exception under Rule 803(2), M.R.Evid.,4

 applies to Officer Dahle’s 

testimony of L.W.’s statements from June 11, 2004, because L.W. made them 

immediately after fighting with R.M. and while still visibly upset. We conclude that the 

District Court did not abuse its discretion in allowing Officer Dahle’s testimony. 

¶16 Affirmed. 

 /S/ W. WILLIAM LEAPHART 

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Rule 803(2), M.R.Evid., provides that “even though the declarant is available as a 

witness . . . [a] statement relating to a startling event or condition made while the 

declarant was under the stress of excitement caused by the event or condition” is not 

excluded by the hearsay rule. 

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We concur: 

/S/ KARLA M. GRAY 

/S/ BRIAN MORRIS 

/S/ JIM RICE 

Justice James C. Nelson concurs. 

¶17 I concur in the result of the Court’s Opinion, but not in all that is said. 

¶18 As noted at ¶ 11 of the Opinion, R.M.’s objection to Dahle’s testimony was simply 

that it “[c]all[ed] for hearsay.” The State’s attorney responded that the basis for the 

admissibility of the testimony was Rule 803(2), M.R.Evid., the excited utterance 

exception. R.M. did not respond; he failed to set forth the specific basis for his general 

hearsay objection. State v. Ferguson, 2005 MT 343, ¶ 63, 330 Mont. 103, ¶ 63, 126 P.3d 

463, ¶ 63 (“[s]pecific objections must be made to portions of testimony deemed 

inappropriate; broad general objections do not suffice.”) (citations omitted). 

¶19 Instead, on appeal, for the first time, R.M. recasts his arguments as ones involving 

confrontation, citing Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1254, 158 

L.Ed.2d 177; Bonamarte v. Bonamarte (1994), 263 Mont. 170, 866 P.2d 1132; Rule 

611(e), M.R.Evid.; and State v. Mizenko, 2006 MT 11, 330 Mont. 299, 127 P.3d 458. 

Moreover, R.M. made no argument in the trial court that Dahl’s statements might not 

even qualify as excited utterances. 

¶20 The excited utterance exception is one of the recognized exceptions to the hearsay 

rule. Rule 803(2), M.R.Evid. R.M. failed to articulate his objection to the trial court in a 

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fashion that would have preserved any of his present appeal arguments against Dahl’s 

testimony which was offered on the basis of the exception to the hearsay rule. 

¶21 Given the posture in which this case reaches us on appeal from the proceedings 

below, I would arrive at the same result as the Court, but on the basis of the wellestablished rule that this Court will not address an issue raised for the first time on 

appeal, or a party’s change in legal theory. State v. Buck, 2006 MT 81, ¶ 109, 331 Mont. 

517, ¶ 109, 134 P.3d 53, ¶ 109 (citations omitted). I would not go any further than that, 

because of the importance of the arguments being raised here for the first time and 

because of the fundamental nature of the right to parent which is at issue. In re C.R.O., 

2002 MT 50, ¶ 10, 309 Mont. 48, ¶ 10, 43 P.3d 913, ¶ 10.

¶22 I concur in the result. 

/S/ JAMES C. NELSON 

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