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, Atto rney 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:

__________________________________________ ClerkJustice W. William Leaphart delive red the Opinion of the Court. ¶1 R.M., the father of J.M., appeals the Distri ct 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 fou r-year-old J.M., born March 13, 2002, to R.M. and L.W., his father and mother, respec tively. 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 boy s 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, Galla tin County, upon request by the Powell County Attorney. The court held a dispositional hearing a nd 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 wo rker 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 h earing in July 2004, with ne ither of J.M.’s parents in attendance. At this point, R.M. was still in ja il and L.W. had moved to Washington State. Through counsel, R.M. asked the court to conduct another adjudication proceeding

2regarding J.M. because the St ate had not prope rly served R.M. when the matter was in Powell County. The court agreed and an ad judication hearing followed, with the court hearing testimony from R.M., the community so cial worker on J.M.’s case, and police officer Darcy Dahle. ¶5 Officer Dahle testified to a domestic di sturbance between R.M. and L.W., which she responded to on the night of January 11, 2004. On hearsa y grounds, R.M. objected to the admission of Officer Dahle’s testimony re garding 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., th e 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 th e 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 tw enty minutes later by himself, at which point he caused L.W. to ta ke a tumble to the ground, prompting her to again run into the bathroom and call someone, who in turn called dispatch. 1

1 Officer Dahle also testified that she re sponded to a separate domestic dispute involving L.W. and R.M. on Ju ne 10, 2003. During that incident, according to Officer Dahle, L.W. was extremely upset and explai ned 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.

3¶6 The court adjudicated J.M. a youth in n eed 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 th at R.M. had not complie d 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 ag reed 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 evidenti ary ruling, our standard of review is

whether the court abused its discretion. The district court has broad discretion in determining the admissi bility of evidence. Howard v. St. Jame s Community Hospital , 2006 MT 23, ¶ 17, 331 Mont. 60, ¶ 17, 129 P.3d 126, ¶ 17. Notwithstanding this deferential standard, however, judicial di scretion 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.

4DISCUSSION ¶9 Did the District Court properly admi t hearsay testimony from Officer Darcy Dahle that provided the evid entiary support for designatin g J.M. a youth in need of

care? ¶10 R.M. argues that in adjudicating J.M. a yout h 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. wa s not present at the adjudication hearing, the statements amount to hearsay under Rule 801(c), M.R.Evid.,

and therefore should no t 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, 11 34, and Rule 611(e), M.R.Evid. ¶11 At the outset, we note that R.M. did no t specifically object to Officer Dahle’s testimony on Sixth Amendment c onfrontation 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 Cour t held that the Sixth Amendment confrontation right precludes testimonial hearsa y in criminal cases un less the declarant is unavailable and the defendant had the opport unity to confront a nd cross-examine the

declarant.

2 Rule 801(c), M.R.Evid., provides that “[h] earsay is a statement, other than one made by the declarant while testif ying 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 otherw ise provided by statute, th ese rules, or other rules applicable in the courts of this state.”

5¶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 an d subject to the examination of all the parties to the action, if they ch oose 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 cons titution, statute, these rules, or other rules applicable.” In other words, if an exception with in the rules of evid ence 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 tr ue, 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

3 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 con front or cross-examine the witness; it also did not allow the trial court to observe the witness in making its determination of her credibility.

651, 124 S.Ct. at 1364, 158 L. Ed.2d at 192. As the Supr eme 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 confront ation 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 conf ront a witness is therefore subject to Rule 611(e), M.R.Evid., and thus any a pplicable exception to the hearsay rule. In this case, the “excited utterance” exception und er 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 ups et. We conclude that the

District Court did not abuse its discretion in allowing Officer Dahle’s testimony. ¶16 Affirmed.

/S/ W. WILLIAM LEAPHART

4 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.

7We 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 Op inion, but not in all that is said. ¶18 As noted at ¶ 11 of the Op inion, R.M.’s objection to Da hle’s testimony was simply that it “[c]all[ed] for hearsay. ” The State’s attorney resp onded that the basis for the admissibility of the testimony was Rule 80 3(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 Mo nt. 103, ¶ 63, 126 P.3d 463, ¶ 63 (“[s]pecific objections must be made to portions of testimony deemed inappropriate; broad gene ral objections do not suffi ce.”) (citations omitted). ¶19 Instead, on appeal, fo r 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 argume nt in the trial court that Dahl’s statements might not even qualify as excited utterances. ¶20 The excited utterance exception is one of the recogniz ed exceptions to the hearsay rule. Rule 803(2), M.R. Evid. R.M. failed to articulate his objection to the trial court in a

8fashion that would have pres erved any of his present appe al 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 i ssue 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, ¶ 10 9 (citations omitted). I would no t 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 whic h 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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