No. 05-262 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

2006 MT 299 

IN THE MATTER OF 

M.A.L., D.L., and T.L., 

 Youths In Need Of Care. 

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

In and For the County of Cascade, Cause BDJ 02-175-Y, 

Honorable Julie Macek, Presiding Judge 

COUNSEL OF RECORD: 

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 

 

 Submitted on Briefs: March 29, 2006 

 Decided: November 21, 2006 

Filed: 

__________________________________________ 

Clerk
 2 

 

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. 

1

D.L. and his son have the same initials. Thus, when we refer to D.L. the child, we 

will denote such. 
¶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 

 3 
§ 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 

 4 
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 

 2

The child. 

 5 
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. 

 6 
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 have been met. A.J.E., ¶ 22 

(citation omitted). 

DISCUSSION 

Issue 1 

¶19 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?

¶20 D.L. argues that the District Court erroneously concluded that the statutes were not 

retroactively applied. D.L. contends that by applying the statutory amendment, which 

became effective October 1, 1999, to an act that occurred thirteen or more years prior to 

the enactment is a retroactive application which violates § 1-2-109, MCA, and infringes 

on his vested, constitutional parental rights. D.L. notes that the pre-1999 version of § 41-

3-609, MCA, did not give discretion to the court to terminate parental rights based solely 

upon the commission of a sexual offense by a parent. Instead, the pre-1999 version of 

§ 41-3-609, MCA, required the court to give the parent the opportunity to complete a 

 7 
court-ordered treatment plan, and thus application of the amended statute in this case 

gives the alleged commission of the sexual offense a different legal effect from that it had 

under the law when it occurred. 

¶21 The State argues that the District Court correctly determined that §§ 41-3-

609(1)(d) and 41-3-423(2)(a), MCA, were not retroactively applied to D.L. because the 

statutes existed at the inception of the youth in need of care action. The State maintains 

that applying an amended statute to a factual situation occurring prior to the amendment 

is not a retroactive application. Moreover, the State contends that it was not D.L.’s prior 

conviction that caused DPHHS to intervene and file a youth in need of care action in the 

first place; rather, it was only after the children’s adjudication and their placement in 

foster care that D.L.’s prior sexual offense became relevant. Alternatively, the State 

argues that even if the statutes were retroactively applied to D.L.’s circumstances, such 

retroactive application was appropriate because the statutes are remedial in nature. 

¶22 Section 41-3-609(1)(d), MCA (2003), states, in relevant part, as follows: 

 The court may order a termination of the parent-child legal 

relationship upon a finding established by clear and convincing evidence 

. . . that any of the following circumstances exist: 

 . . . 

 (d) the parent has subjected a child to any of the circumstances listed 

in 41-3-423(2)(a) through (2)(e)[.] 

In turn, the circumstances listed in § 41-3-423(2)(a), MCA (2003), include “aggravated 

circumstances, including but not limited to abandonment, torture, chronic abuse, or 

sexual abuse or chronic, severe neglect of a child[.]” Section 41-3-102(22)(a), MCA 

(2003), defines sexual abuse as “the commission of sexual assault, sexual intercourse 

 8 
without consent, indecent exposure, deviate sexual conduct, sexual abuse, ritual abuse, or 

incest, as described in Title 45, chapter 5.” 

¶23 Generally, DPHHS must make reasonable efforts to reunite a family after the 

children have been removed from the home. See § 41-3-423(1), MCA. However, 

pursuant to the operation of § 41-3-609(1)(d), MCA, DPHHS does not need to make 

reasonable efforts to provide preservation or reunification services if the court finds that 

the parent has subjected a child to any of the aggravated circumstances listed in § 41-3-

423(2)(a), MCA. 

¶24 As a general rule, statutes cannot be applied retroactively unless expressly so 

declared by the Montana legislature. Section 1-2-109, MCA. A retroactive law is one 

“which takes away or impairs vested rights acquired under existing laws or creates a new 

obligation, imposes a new duty, or attaches a new disability in respect to transactions 

already passed.” Porter v. Galarneau, 275 Mont. 174, 183, 911 P.2d 1143, 1148-49 

(1996) (citing Continental Oil Co. v. Montana Concrete Co., 63 Mont. 223, 207 P. 116 

(1922)). A retroactive law is one which “gives a transaction a different legal effect from 

that which it had under the law when it occurred.” Saint Vincent Hosp. v. Blue Cross, 

261 Mont. 56, 60, 862 P.2d 6, 9 (1993). However, “[a] statute does not operate 

retroactively merely because it is applied to conduct occurring prior to its enactment.” 

Carelli v. Hall, 279 Mont. 202, 210, 926 P.2d 756, 761 (1996) (citing Porter, 275 Mont. 

at 183, 911 P.2d at 1148). 

¶25 This Court has held that “an amended statute which is applied to a factual situation 

which occurred prior to the enactment of the amendment is not viewed as retroactive in 

 9 
application.” Stiffarm v. Furois, 217 Mont. 335, 338, 704 P.2d 75, 77 (1985). In 

Stiffarm, Joseph Stiffarm (Stiffarm) was arrested on February 5, 1984, for driving under 

the influence of alcohol, and refused to submit to a chemical test to determine the alcohol 

concentration on his breath. Stiffarm had also previously refused the test in March 1982. 

Effective October 1, 1983, the Legislature had amended § 61-8-402, MCA, requiring the 

revocation of a driver’s license for one year upon a second or subsequent refusal to 

submit to a chemical test within five years of a previous refusal. Based on the amended 

statute, Stiffarm’s license was revoked for one year. Stiffarm argued that the revocation 

was improper because only one of the offenses upon which it was based occurred after 

the effective date of the statutory amendment. This Court rejected the argument, 

concluding that application of the new statute was not impermissibly retroactive: 

No sanction was imposed [by the new statute] on the first refusal occurring 

prior to the effective date. Rather, it served as a condition for imposing the 

one-year revocation for the subsequent refusal. The statute requires 

revocation of appellant’s license in response to his refusal in February of 

1984 because it was a repetitive refusal. 

 

Stiffarm, 217 Mont. at 337-38, 704 P.2d at 77. Similarly, in the present case, no 

additional sanction was imposed on D.L.’s 1985 conviction by enactment of the new 

statute alone. Rather, the 1985 conviction was made a condition for termination of D.L.’s 

parental rights in the event D.L. subsequently neglected his children and thereby 

necessitated the filing of an abuse and neglect petition.3

 

 3

Termination of parental rights under § 41-3-609(1)(d), MCA, may only be 

ordered following the filing of a petition alleging the child has been abused or neglected. 

See §§ 41-3-607(1), 41-3-422(1)(a) and (10), and 41-3-602, MCA. 

 10 
¶26 D.L. further argues that the application of the statutes affects a “vested right,” and 

is thus retroactive in nature. A vested right is one that so completely and definitely 

belongs to a person that it cannot be impaired or taken away without the person’s 

consent. Black’s Law Dictionary 1324 (7th ed. 1999). It is well-established in Montana 

that a parent’s right to care and custody of his child is a fundamental liberty interest 

which must be protected by fundamentally fair procedures. L.M.A.T., ¶ 33. However, in 

a parental rights termination proceeding, the best interests of the child are of paramount 

concern and take precedence over the rights of the parent. A.J.E., ¶ 22. The 

constitutional protection surrounding family rights is tempered by the State’s parens 

patriae responsibility to protect the welfare of the children. Parens patriae traditionally 

refers to the role of the state as sovereign or guardian of persons who are under a legal 

disability, such as juveniles, and stands for “the principle that the state must care for 

those who cannot take care of themselves, such as minors who lack proper care and 

custody from their parents.” Matter of S.L.M., 287 Mont. 23, 39, 951 P.2d 1365, 1375 

(1997) (citing Black’s Law Dictionary 1114 (6th ed. 1990)). Section 41-3-101, MCA 

(2003), states the policy of the state with regards to the welfare of children: 

 (1) It is the policy of the state of Montana to: 

 (a) provide for the protection of children whose health and welfare 

are or may be adversely affected and further threatened by the conduct of 

those responsible for the children’s care and protection; 

 . . . . 

 (4) In implementing the policy of this section, the child’s health and 

safety are of paramount concern. 

Title 41, Chapter 3 of the MCA provides procedures by which the State may become 

involved in the care and custody of children in Montana and when the State may remove 

 11 
a child from the parent’s custody or terminate the legal parent-child relationship. See 

generally Title 41, Chapter 3, parts 3, 4, and 6, MCA. Under these provisions, the child’s 

custody may be transferred from a natural parent to the State or other third party upon a 

court order entered after a finding that the child is a youth in need of care. Section 41-3-

438(3), MCA (2003). A youth in need of care determination must be based on a finding 

that the child is abused, abandoned, or neglected. Section 41-3-102(29), MCA (2003). 

In such a case, the State can intervene without the parent’s consent, and, upon clear and 

convincing proof, a parent determined by a court of law to be unfit, as defined in § 41-3-

609, MCA, must yield his or her vested right in the care and custody of his or her child. 

¶27 In these proceedings, D.L.’s prior conviction did not require or inevitably lead to 

his children being abused or neglected and an abuse and neglect petition being filed. 

Rather, his prior conviction only became relevant as an independent ground for DPHHS 

to petition for termination of D.L.’s parental rights after his children were abused and 

neglected. A further reason why the application of the amended statutes does not 

necessarily “give the transaction a different legal effect from that which it had under the 

law when it occurred,” as D.L. argues, is because D.L. was not even a parent in 1985, 

when he committed the crime in Texas. The amended statutes became effective on 

October 1, 1999, and D.L.’s first child, M.A.L., was born on November 25, 1999. Thus, 

as of October 1, 1999, D.L. was on notice, even before his children were born, that his 

1985 conviction would present a basis for the termination of his parental rights in the 

event his children became abused or neglected. 

 12 
¶28 The District Court relied on persuasive authority from other jurisdictions to 

support its conclusion that §§ 41-3-423(2)(a) and 41-3-609(1)(d), MCA, were 

appropriately applied to D.L. The Court of Appeals of New York, in In re Marino S.,

795 N.E.2d 21 (N.Y. 2003), addressed the retroactive application of a statute which 

provided an aggravated circumstance as grounds for termination of parental rights. 

There, the State instituted child abuse proceedings against the parents in August 1997, 

and filed petitions to terminate parental rights in September 1998. In February 1999, 

during the pendency of the abuse and termination proceedings, New York passed the 

Adoption and Safe Families Act (ASFA), and subsequently brought a motion in the 

underlying abuse proceeding for a finding of “aggravated circumstances,” a term 

introduced by ASFA. The effect of a finding of aggravated circumstances is to dispense 

with the requirement that an agency responsible for having placed the children in foster 

care or seeking to terminate parental rights exercise diligent efforts to reunite the parents 

with the children. The parents challenged the retroactive application of ASFA to their 

pending proceedings insofar as their termination petitions were amended to include a 

cause of action for severe abuse based on a felony sex offense. The court determined that 

the ASFA should be applied retroactively, “[b]ecause the statute is remedial in nature and 

does not impair vested rights . . . .” Marino S., 795 N.E.2d at 26. 

¶29 We simply note that the facts in Marino S. are different from those in the case at 

hand because Marino S. truly does involve the retroactive application of the New York 

statute, since the termination proceeding was in progress when the statute was amended. 

The difference here is that the statute was amended before the termination proceedings 

 13 
were even begun. Our concern here is only the application of the statutory provisions to 

factual events preceding the effective date of the statute. Support for our holding herein 

can be found in the following cases, wherein courts have held that the provisions of the 

ASFA, or implementing state statutes, were properly applied to facts predating the 

effective date of the statute and that no improper retroactive application occurred as a 

result. 

¶30 The Supreme Court of Texas, in In re A.V., 113 S.W.3d 355 (Tex. 2003), held that 

termination of a father’s parental rights based on the length of incarceration of the father, 

convicted prior to the enactment of a statute allowing length of incarceration to be used 

as a legal basis for the termination of parental rights, did not violate the prohibition 

against retroactive application of the law. The father argued that the statute was 

unconstitutionally retroactively applied to him, and because the statute was not enacted 

until 1997, his pre-1997 criminal conviction and imprisonment could not be used to 

satisfy the subsection’s elements. The court concluded that the statute did not constitute 

an additional punishment for the father’s criminal conduct, but rather focused on the 

father’s future imprisonment and inability to care for the child, and noted the State’s duty 

to protect the safety and welfare of its children and the policy of intervening in the 

parent-child relationship when necessary. A.V., 113 S.W.3d at 361. 

¶31 Likewise, the California Court of Appeals in In re Joshua M., 66 Cal. App. 4th 

458 (1998), held that a denial of reunification services to a father under a statute 

permitting such denial when the parent was previously unsuccessful in unifying with the 

minor’s sibling or unsuccessful in treatment of a long-standing substance abuse problem 

 14 
did not constitute an unfair retroactive application of a newly created statute, even though 

the circumstances that activated the statute occurred before its effective date. The 

California court stated: 

 “It is well settled that ‘[a] statute does not operate retroactively 

merely because some of the facts or conditions upon which its application 

depends came into existence before the enactment.’ [Citation.]” 

(Armstrong v. County of San Mateo (1983) 146 Cal.App.3d 597, 613, 194 

Cal.Rptr. 294). 

 The statute’s reliance upon antecedent events or conduct is 

analogous to recidivism provisions in the Penal Code, such as the “Three 

Strikes” law and other habitual offender laws, that enhance punishment 

because the defendant has committed other crimes in the past. 

Joshua M., 66 Cal. App. 4th at 469. See also In re Guardianship of B.L.A., 753 A.2d 770 

(N.J. Super. Ch. 2000) (in a proceeding to determine whether the New Jersey Department 

of Youth and Family Services (DYFS) was required to provide reasonable efforts to 

reunify a child with a parent, reliance by DYFS on events which occurred prior to the 

effective date of the governing statute did not improperly give retroactive effect to the 

statute); In re Sheneal W. Jr., 728 A.2d 544 (Conn. Super. 1999) (new statutory provision 

could be applied retroactively to an assault conviction by the parent that occurred prior to 

the effective date of the statute); Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140 (2003) 

(requiring sex offenders who were convicted before the passage of the Alaska Sex 

Offender Registration Act to comply with its provisions did not violate the prohibition 

against retroactive application of the law because the Act is non-punitive in intent and 

effect). 

 15 
¶32 In summary, §§ 41-3-423(2)(a) and 41-3-609(1)(d), MCA, went into effect in 

1999. DPHHS initiated the termination proceeding against D.L. on September 13, 2003. 

Thus D.L. was on notice that his prior Texas conviction for a sexual offense against a 

child could be used as an aggravated circumstance to justify grounds for termination of 

his parental rights if he allowed his children to be abused and neglected. We conclude 

that applying the statutes to the conviction which occurred prior to the effective date does 

not constitute an unlawful retroactive application of §§ 41-3-423(2)(a) and 41-3-

609(1)(d), MCA. 

Issue Two 

¶33 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.? 

¶34 D.L. argues that the District Court erroneously admitted the certified copy of the 

Judgment Adjudicating Guilt pursuant to the hearsay exception set forth in M. R. Evid. 

803(22). D.L. contends that the exception in M. R. Evid. 803(22) does not apply because 

it cannot be determined from the document whether the Texas court accepted a nolo 

contendere plea, which is excluded by the rule. Furthermore, D.L. argues that the 

judgment must show the essential facts necessary to sustain the judgment or evidence 

must be introduced to show such facts, or else the plain meaning of M. R. Evid. 803(22) 

is violated. 

¶35 The State responds that the exception does apply because D.L. clearly entered a 

guilty plea, not a nolo contendere plea. The State further argues that it was not required 

 16 
to prove the underlying facts of D.L.’s criminal conviction or offer more than the 

certified copy of the conviction. We agree with the State. 

¶36 M. R. Evid. 803(22) provides the following exception to the hearsay rule even 

though the declarant is available as a witness: 

 Judgment of Previous Conviction. Evidence of a final judgment, 

entered after a trial or upon a plea of guilty (but not upon a plea of nolo 

contendere), adjudging a person guilty of a crime punishable by death or 

imprisonment in excess of one year, to prove any fact essential to sustain 

the judgment, but not including, when offered by the prosecution in a 

criminal prosecution, judgments against persons other than the accused. 

The pendency of an appeal may be shown but does not affect admissibility. 

¶37 The judgment adjudicating guilt specifically states that D.L., after being fully 

advised by the court and waiving his constitutional rights, entered a guilty plea. There is 

no evidence suggesting that he entered a nolo contendere plea. In criminal appeals, this 

Court has consistently held that “prior convictions are presumptively valid, and a 

defendant who challenges the validity of his prior conviction during a collateral attack 

has the burden of producing direct evidence of its invalidity.” State v. Anderson, 2001 

MT 188, ¶ 20, 306 Mont. 243, ¶ 20, 32 P.3d 750, ¶ 20 (citation omitted). Further, this 

Court has held that when DPHHS relied upon a prior conviction to establish an 

aggravated circumstance, it was not required to present evidence of the circumstance of 

the conviction. L.M.A.T., ¶ 36. Here, the certified copy of the judgment adjudicating 

guilt was properly admitted under M. R. Evid. 803(22), and the State only needed to 

present the certified copy as evidence of the conviction. We conclude that the District 

Court did not abuse its discretion when it admitted the judgment adjudicating guilt into 

evidence as proof of an aggravated circumstance pursuant to § 41-3-423(2)(a), MCA. 

 17 
Issue Three 

¶38 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?

¶39 D.L. argues that the District Court incorrectly concluded that his prior conviction 

in Texas for indecency with a child constituted an “aggravated circumstance” under § 41-

3-423(2)(a), MCA. D.L. contends that the Texas crime of indecency with a child is 

analogous to the Montana crime of indecent exposure, under § 45-5-504, MCA. He also 

argues that the State did not introduce clear and convincing evidence that the crime 

committed in Texas would constitute “sexual abuse” as defined by Montana law. 

¶40 The State argues that an aggravated circumstance includes subjecting a child to 

sexual abuse, and notes that the definition of sexual abuse in Montana law includes 

indecent exposure.4

 It contends that the language of the statutes is clear and 

unambiguous, and thus the District Court correctly concluded that the Texas offense 

clearly constitutes an aggravated circumstance. 

¶41 The District Court rejected D.L.’s distinction and concluded that when a court 

properly finds that a parent has committed an act described in § 41-3-423(2)(a), MCA, 

then § 41-3-609(1)(d), MCA, grants the court the authority to terminate the parent’s 

parental rights. The District Court’s interpretation is not arbitrary and is based on the 

 4

We address only the State’s argument that because D.L. acknowledges that the 

Texas crime of indecency with a child is at least the equivalent of the Montana crime of 

indecent exposure, which would constitute sexual abuse under Montana statute, it 

constitutes an aggravated circumstance. The State did not argue which other Montana 

offenses would be equivalent to the Texas offense of which D.L. was convicted, and thus 

we do not reach that issue. 

 18 
plain language of the statutes, which are clear and unambiguous. As set forth earlier, 

§ 41-3-423(2)(a), MCA, provides that an aggravated circumstance includes subjecting a 

child to sexual abuse. Section 41-3-102(22)(a), MCA (2003), defines sexual abuse as 

“the commission of sexual assault, sexual intercourse without consent, indecent exposure, 

deviate sexual conduct, sexual abuse, ritual abuse, or incest . . . .” 

¶42 In L.M.A.T., the District Court admitted copies of the father’s “Judgment and 

Sentence and Warrant of Commitment” from Washington State, which provided “clear 

and convincing” evidence that the father was convicted of attempted rape of a child in the 

second degree. L.M.A.T., ¶ 35. This Court held that the plain language of § 41-3-

403(2)(a), MCA (1999) (now § 41-3-423(2)(a), MCA), allows a court to conclude that 

preservation or reunification services are not required if it finds that any of the criteria in 

the statute are met. We determined that “the court made the necessary finding that [the 

father’s] conviction of attempted rape of a child in the second degree qualified as 

‘subject[ing] a child to aggravated circumstances,’” and that § 41-3-403(2)(a), MCA 

(1999) (now § 41-3-423(2)(a), MCA) includes “sexual abuse” of a child as an example of 

an aggravated circumstance. L.M.A.T., ¶ 36. Thus, “a conviction for attempted rape of a 

child met this definition and the District Court’s findings were not clearly erroneous.” 

L.M.A.T., ¶ 36. 

¶43 The facts of L.M.A.T. are similar to the case at hand. D.L. has an out-of-state 

conviction for the sexual abuse of a child. As this Court previously articulated, “we must 

follow the ubiquitous rule under § 1-2-101, MCA, that it is the obligation of the 

reviewing court, in interpreting a statute or an Act of legislation, to simply ascertain and 

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declare what is in terms or in substance contained therein, not to insert what has been 

omitted or omit what has been inserted.” Montana Power Co. v. Public Service Com’n,

2001 MT 102, ¶ 26, 305 Mont. 260, ¶ 26, 26 P.3d 91, ¶ 26 (citation omitted). Since the 

definition of sexual abuse includes indecent exposure, and D.L. was convicted of at least 

the equivalent of indecent exposure in Texas, the District Court correctly concluded that 

D.L. subjected a child to an aggravated circumstance pursuant to § 41-3-423(2)(a), MCA. 

Issue Four 

¶44 Whether the District Court abused its discretion when it terminated D.L.’s 

parental rights?

¶45 D.L. argues that the District Court abused its discretion by terminating his parental 

rights based on the commission of a crime that occurred in 1985 and which if committed 

in Montana would have been a misdemeanor. D.L. contends that the distinction between 

a misdemeanor and a felony fundamentally relates to the threat level an offender poses to 

his or her child and thereby relates to whether or not it is reasonable to attempt 

reunification of the parent and child. 

¶46 The District Court terminated D.L.’s parental rights based on §§ 41-3-423(2)(a) 

and 41-3-609(1)(d), MCA. As stated earlier, these statutes allow termination of parental 

rights based on the finding of an aggravated circumstance against a child which includes 

sexual abuse. The court properly admitted D.L.’s Texas conviction of indecency with a 

child, and this constituted an aggravated circumstance. 

¶47 D.L. claims that the District Court terminated his parental rights “solely” because 

of his conviction for sexual abuse of a child. However, this is incorrect. In addition to 

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the above evidence, § 41-3-604(1), MCA (2003), entitled “[w]hen petition to terminate 

parental rights required,” presumes that if a child has been in foster care for fifteen of the 

most recent twenty-two months, it is in the best interests of the child to terminate the 

parental rights. D.L. does not dispute that M.A.L., D.L.,5

 and T.L. have been in the 

State’s care and custody since September 11, 2002—a period of twenty-eight consecutive 

months to the date of his termination hearing on January 20, 2005. D.L. did not have any 

significant contact with his children for more than three years. In addition to being 

adjudicated guilty of the offense in Texas, D.L. failed to complete his court-ordered sex 

offender treatment plan. The Texas Child Protective Services agency refused to allow 

A.B. to both remain in Texas with D.L. and keep the children. There was also evidence 

in the record that M.A.L. claimed that D.L. sexually abused her. 

¶48 This evidence clearly establishes that maintaining their current placement in a 

foster home best serves the children’s physical, mental, and emotional conditions and 

needs. There is substantial evidence to support the District Court’s findings regarding 

termination, and it did not abuse its discretion when it terminated D.L.’s parental rights. 

Issue Five 

¶49 Whether the District Court’s findings of fact are clearly erroneous?

¶50 D.L. argues that the District Court’s findings of fact are not supported by 

substantial credible evidence and are clearly erroneous. First, D.L. asserts that no 

evidence was introduced at the hearing to support the court’s findings of fact numbered 

(1) through (4). Finding (1) identified D.L. as the natural father of the children. D.L. 

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The child. 

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initiated contact with the court by written letter on September 27, 2002, when he first 

became aware of the youth in need of care action and identified himself as the children’s 

father. Since this letter was in the record before the court, the court was clearly in a 

position to make such a finding. Finding (2) identifies the date that the court adjudicated 

the children as youths in need of care. The District Court is the same court that 

adjudicated the youths in September 2002, the adjudicatory order is part of the record, 

and thus this finding is supported by substantial credible evidence. Finding (3) is based 

upon the District Court’s uncontested findings of fact from the termination hearing of the 

mother, A.B. Similarly, Finding (4) states when the court terminated the mother’s 

parental rights, and this termination order is also part of the District Court’s record. 

¶51 Second, D.L. argues that the court’s findings numbered (5) through (11) are 

erroneous because there was no evidence presented that the documents from Texas 

concerning the prior conviction were actually referring to him. However, the certified 

documents all identify and name D.L. as the defendant. Thus it was appropriate for the 

court to enter these findings. D.L. also claims that these findings are insufficient because 

the documents the court relied on did not state facts proving that sexual abuse as defined 

by Montana law occurred. However, the certified copy of D.L.’s adjudication of guilt 

from the Texas court clearly establishes that D.L. was convicted of a felony sexual 

offense against a child. D.L. claims that there was no evidence to support the court’s 

Finding (12), which stated that the children had been in the custody of DPHHS since 

September 11, 2002. This fact is also in the court’s record. 

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¶52 Third, D.L. argues that Finding (17) is incorrect in stating that the “above made 

findings of fact have been proven by clear and convincing evidence,” and he contends 

that the Texas court documents do not provide clear and convincing evidence that 

termination of parental rights is appropriate. This Court has explained that: 

[C]lear and convincing proof is simply a requirement that a preponderance 

of the evidence be definite, clear, and convincing, or that a particular issue 

must be clearly established by a preponderance of the evidence or by a clear 

preponderance of proof. This requirement does not call for unanswerable or 

conclusive evidence. The quality of proof, to be clear and convincing, is 

somewhere between the rule in ordinary civil cases and the requirement of 

criminal procedure—that is, it must be more than a mere preponderance but 

not beyond a reasonable doubt. 

L.M.A.T., ¶ 33 (citing In re E.K., 2001 MT 279, ¶ 32, 307 Mont. 328, ¶ 32, 37 P.3d 690, 

¶ 32 (citation omitted)). It is the State’s burden to prove by clear and convincing 

evidence that an aggravated circumstance exists, and thus that the termination of parental 

rights is appropriate. Section 41-3-423(4), MCA. A certified copy of a prior conviction 

meets the definition of clear and convincing evidence to establish an aggravated 

circumstance. L.M.A.T., ¶ 35. We conclude that the District Court’s findings of fact are 

supported by substantial credible evidence, and its conclusion that D.L.’s prior conviction 

for a sexual offense against a child constituted an aggravated circumstance is supported 

by clear and convincing evidence. 

Issue Six 

¶53 Whether D.L. sufficiently preserved his equal protection argument for appeal? 

¶54 D.L. argues that §§ 41-3-423(2)(a) and 41-3-609(1)(d), MCA, are unconstitutional 

and violate the Equal Protection Clause of the United States and Montana Constitutions. 

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D.L. contends that the right of a parent to custody of his or her child is a fundamental 

constitutional right, and that strict scrutiny should be applied to any law that threatens 

that right. The State asserts that D.L. failed to challenge these statutes on equal 

protection grounds in the District Court, and thus his equal protection argument is not 

properly before this Court. 

¶55 It is well-established that this Court will not address an issue presented for the first 

time on appeal. In re T.E., 2002 MT 195, ¶ 20, 311 Mont. 148, ¶ 20, 54 P.3d 38, ¶ 20. 

We will not fault a District Court for failing to address statutory deficiencies that are not 

brought to its attention during the proceedings because doing so would encourage 

litigants to withhold objections rather than raise the issues appropriately in the District 

Court. T.E., ¶ 23. As a result, it is necessary to resolve the State’s threshold argument at 

the outset. The general rule for the necessity of presentation of issues in the lower court 

for preservation for appeal is: 

[W]here a party fails to raise an issue in the pleadings, does not present 

argument on the issue during the hearing on the merits of the case, does not 

move to amend the pleadings to conform to any evidence presented and 

raises the issue for the first time in a post-hearing memorandum which the 

district court does not address in its order, the issue has not been timely 

raised and may not be raised on appeal. 

Nason v. Leistiko, 1998 MT 217, ¶ 18, 290 Mont. 460, ¶ 18, 963 P.2d 1279, ¶ 18 (citing 

Marsh v. Overland, 274 Mont. 21, 29, 905 P.2d 1088, 1093 (1995)). 

¶56 D.L. raised his equal protection argument for the first time in a M. R. Civ. P. 50(b) 

motion made after the court entered judgment against him. The State responded to D.L.’s 

motion by contending that a M. R. Civ. P. 50(b) motion was not appropriate under the 

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Rules of Civil Procedure since a jury did not decide the issue of termination of D.L.’s 

parental rights, and even if the court found that it was applicable to the circumstances of 

D.L.’s case, he did not meet his burden for prevailing under the Rules of Civil Procedure. 

The District Court denied the motion and held that the motion “makes substantially 

similar arguments as those previously made to the Court. The Court has already 

thoroughly considered and rejected those arguments and will not reconsider them.” Upon 

review of the hearing transcript, it appears D.L. briefly mentioned a constitutional due 

process argument during the hearing. However, the District Court did not address D.L.’s 

argument in its findings of fact, conclusions of law and order, and D.L.’s argument on 

appeal is that the statutes violate the Equal Protection Clause, which is an argument that 

he did not raise before the District Court. 

¶57 M. R. Civ. P. 50(a) permits a party to move for judgment as a matter of law after 

the opposing party has been fully heard and prior to the submission of the case to the 

jury. If such a motion made at the close of evidence is denied, M. R. Civ. P. 50(b) allows 

the moving party to renew its motion within ten days after the court’s entry of final 

judgment in the case. Here, D.L.’s M. R. Civ. P. 50(b) motion was not properly before 

the District Court because he was not “renewing” any M. R. Civ. P. 50(a) motion, and 

regardless, “[a] party cannot raise arguments in its post-trial motion for judgment as a 

matter of law under Rule 50(b) that it did not raise in its pre-verdict Rule 50(a) motion.” 

Freund v. Nycomed Amersham, 347 F.3d 752, 761 (9th Cir. 2003). In D.L.’s reply brief 

to his M. R. Civ. P. 50(b) motion, he alternatively attempted to change it to a M. R. Civ. 

P. 59(g) motion to alter or amend. However, the District Court did not address this 

 25 
change in its order denying the motion. Regardless, D.L. could not have raised a new 

equal protection argument in a M. R. Civ. P. 59(g) motion either, because it is not 

intended to allow the parties to present the case under new theories, and cannot be used to 

raise arguments which could, and should, have been made before the judgment was 

issued. Nelson v. Driscoll, 285 Mont. 355, 360-61, 948 P.2d 256, 259 (1997). 

¶58 We conclude that D.L. failed to timely raise this issue in the District Court and, 

therefore, cannot raise the issue on appeal. Thus, we decline to address whether the 

statutes in question violate the Equal Protection Clause of the United States and Montana 

Constitutions. 

CONCLUSION 

¶59 For the foregoing reasons, the judgment of the District Court is affirmed. 

 /S/ JIM RICE 

We concur: 

/S/ JAMES C. NELSON 

/S/ JOHN WARNER 

/S/ W. WILLIAM LEAPHART 

/S/ BRIAN MORRIS 

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