No. 02-137
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 163
IN RE THE MATER OF L.M.A.T and B.L.F.T.,
Youths in Need of Care.
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln,
The Honorable Michael C. Prezeau, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Amy N. Guth, Libby, Montana (natural father)
For Mother:
Scott Spencer, Libby, Montana (natural mother)
Guardian ad Litem:
Ann C. German, Libby, Montana
For Respondent:
Mike McGrath, Montana Attorney General, Jennifer M. Anders, Assistant
Montana Attorney General; Bernard G. Cassidy, Lincoln County Attorney,
Libby, Montana
Submitted on Briefs: June 13, 2002
Decided: July 25, 2002
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Donald, the natural father of L.M.A.T. and B.L.F.T., appeals from two Nineteenth
Judicial District Court orders that were entered during child protection proceedings for his
daughters. Although the State had petitioned for permanent legal custody and termination of
parental rights, following the evidentiary hearing, the District Court did not proceed on the
issue of termination, but rather entered an order adjudicating L.M.A.T. and B.L.F.T. as
youths in need of care and granting the Department of Public Health and Human Services
(DPHHS) temporary legal custody for six months. The court also granted DPHHS the
authority to forego reunification efforts with Donald. On appeal, Donald contends he did not
receive proper notice of the proceedings prior to the filing of the State's Petition for
Permanent Legal Custody and Termination of Parental Rights with Right to Consent to
Adoption (hereinafter, Petition for Permanent Legal Custody) and alleges the State's Petition
for Permanent Legal Custody and the District Court's order granting DPHHS temporary legal
custody did not meet statutory notice requirements. Donald also contends the District Court
failed to conduct a timely show cause hearing following the State's Petition for Permanent
Legal Custody and appeals the District Court's order authorizing DPHHS to forego
reunification efforts with him, arguing that the court failed to make sufficient findings. We
affirm.
¶2 Donald presents the following issues on appeal:
1. Whether failure to personally serve the father, who was incarcerated in another
state, with notice of proceedings prior to filing a petition for permanent legal custody and
termination of parental rights constitutes reversible error;
2
2. Whether the petition for permanent legal custody and subsequent order granting
temporary legal custody, contained the required statutory notices;
3. Whether the District Court failed to conduct a timely show cause hearing; and
4. Whether the District Court erred when it granted the State's request for
determination that preservation or reunification services for the father were unnecessary.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 Following reports of abuse and neglect, the State filed a Petition for Temporary
Investigative Authority (TIA) and Protective Services on November 17, 2000, and L.M.A.T.
and B.L.F.T. were removed from their mother's home. L.M.A.T. (now 5 years old) and
B.L.F.T. (nearly 3 years old) remain in foster care where they have been since December of
2000. Throughout these proceedings, Donald has been incarcerated in Washington State,
having been found guilty on March 2, 2000, of the attempted rape of a child in the second
degree.
¶4 On November 21, 2000, a Summons and Order to Show Cause and a copy of the
November 17, 2000 Petition for TIA were served on Donald by mail at a corrections facility
in Airway Heights, Washington. Following a show cause hearing on December 4, 2000,
during which the children's mother, Catherine, did not oppose the TIA petition, the District
Court entered an order granting TIA to DPHHS for 90 days. The accompanying Certificate
of Service listed Donald's address as "unknown," and the record is not clear whether he
received a copy of this December 6, 2000 order.
¶5 Following a review hearing on February 26, 2001, the District Court continued the
TIA for two weeks, and re-set the hearing for March 12, 2001. A copy of the District Court
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order continuing the TIA was served on Donald by mail at a corrections facility in Aberdeen,
Washington. On March 2, 2001, the State filed a Petition for Temporary Legal Custody. On
that same day, Donald was served by mail at the Aberdeen facility with a Summons and
Order to Show Cause for the March 12, 2001 hearing, and also copies of the Petition for
Temporary Legal Custody and the proposed treatment plan for Catherine.
¶6 After another continuance, the review hearing commenced on March 19, 2001, during
which Catherine agreed to the Petition for Temporary Legal Custody and her treatment plan.
On March 21, 2001, the District Court entered an Order Granting Temporary Legal Custody
to DPHHS for a six-month period. A Certificate of Service, dated March 26, 2001, indicates
this order and a copy of Catherine's treatment plan were served on Donald by mail at his
Aberdeen address.
¶7 At a review hearing on September 17, 2001, the State requested a 90-day extension of
temporary legal custody, since it intended to file for permanent legal custody. The District
Court granted the extension and appointed indigent counsel for Catherine. On September 18,
2001, the State filed the Petition for Permanent Legal Custody, and attached a copy of
Donald's Judgment and Sentence and Warrant of Commitment from Washington. Also on
September 18, 2001, Amy Guth, who had been acting as Guardian Ad Litem for L.M.A.T.
and B.L.F.T. since November 20, 2000, filed a Motion to Appoint Counsel, requesting that
she be appointed to represent Donald pursuant to the public defender contract. The District
Court granted this motion the next day.
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¶8 The District Court entered an order on September 19, 2001, granting continued
temporary legal custody to DPHHS for a period of 90 days. This order was served on
Donald by mail at his Aberdeen address. On that same day, the District Court also issued a
Summons and Order to Show Cause relating to the State's Petition for Permanent Legal
Custody, setting the hearing date for November 5, 2001. The Summons and Order to Show
Cause was personally served on Donald at the Aberdeen correction facility on October 2,
2001. Donald's appointed counsel was served by mail with copies of the Summons and
Order to Show Cause and the Petition for Permanent Legal Custody on September 19, 2001.
¶9 During the show cause hearing on November 5, 2001, Catherine was prepared to
relinquish her rights as to B.L.F.T., but wished to continue her treatment plan and possibly
reunite with L.M.A.T. Donald's counsel also appeared, and represented that Donald
contested termination of his parental rights as to both girls. Donald's counsel also informed
the court that Donald would be incarcerated in Washington until 2004, at which time he
would presumably be eligible for parole. On November 8, 2001, the District Court granted
continued temporary legal custody and scheduled the hearing on the State's Petition for
Permanent Legal Custody for January 4, 2002.
¶10 Catherine did not appear on January 4, 2002, so the District Court vacated the hearing
date and continued temporary legal custody pending further adjudication of whether
L.M.A.T. and B.L.F.T. were youths in need of care. At this time, a letter from Donald was
filed with the court, wherein he expressed an interest in reuniting with his children upon
release from prison.
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¶11 On January 24, 2002, the State filed a Request for Determination, asking the District
Court to determine that preservation or reunification services need not be provided as they
relate to Donald. The State based its request on Donald's conviction for attempted rape of a
child in the second degree and his continued incarceration in Washington.
¶12 The hearing on the State's Petition for Permanent Legal Custody was held on January
24, 2002. At the hearing, Donald's counsel objected to the proceedings as untimely. The
court overruled the objection and upon the request of the State and in light of our recent
decision, In re T.C., 2001 MT 264, 307 Mont. 244, 37 P.3d 70 (district court improperly
terminated parent's rights without first adjudicating whether children were youths in need of
care), the hearing proceeded on allegations that the children were youths in need of care and
request for temporary legal custody to DPHHS.
¶13 During the hearing, Beverly Miller (Miller), a social worker on the case, explained
that DPHHS requested that it be excused from providing preservation or reunification
services for Donald because B.L.F.T. had never seen Donald and Donald could not work on
beginning a relationship with either child until he was released. Miller testified that Donald
was convicted in Washington for attempted sexual intercourse with an unrelated thirteen year
old. Miller told the court that Donald was sentenced to 89 months, and after credit for time
served, he had 78 months (six years, six months) to serve beginning April 2000, and thus
would not be discharged from his sentence until 2006. Miller also explained that if the
children had to wait until Donald was available to begin parenting, the children's foster
parents may not form necessary attachments, which would lead to less bonding for the
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children and a loss of trust. The court received copies of Donald's Washington Judgment and
Sentence and Warrant of Commitment, which indicated he was arrested on June 4, 1999 and
convicted on March 2, 2000. Donald remains incarcerated in Washington, serving his
sentence. Donald's counsel presented no evidence and at the end of the hearing, moved to
dismiss on grounds of failure of proof. The court denied the motion
¶14 On January 30, 2002, the District Court entered an Order Authorizing Department to
Forego Reunification Efforts with Donald, noting that Donald's conviction of attempted rape
of a child in the second degree was an "aggravated circumstance," as defined in § 41-3-423,
MCA (2001). The District Court also entered an order adjudicating L.M.A.T. and B.L.F.T.
as youths in need of care and granting temporary legal custody to DPHHS for six months. It
is from these two orders that Donald appeals. The children's mother has not appealed any of
the protection proceedings.
STANDARD OF REVIEW
¶15 This Court reviews a district court's findings of fact to determine whether the findings
are clearly erroneous. See In re A.M., 2001 MT 60, ¶ 33, 304 Mont. 379, ¶ 33, 22 P.3d 185, ¶
33 (citing In re J.N., 1999 MT 64, ¶ 11, 293 Mont. 524, ¶ 11, 977 P.2d 317, ¶ 11). 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 reviewing the record, this Court is left
with a definite and firm conviction that the district court made a mistake. In re A.M., ¶ 33
(citation omitted). This Court reviews a district court's conclusions of law to determine
whether the court interpreted the law correctly. In re A.M., ¶ 33 (citation omitted). We
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review transfer of a child's custody from his or her parents to DPHHS for abuse of discretion
since such a transfer of custody is dependent upon an initial discretionary determination that
the child is abused or neglected. See Matter of Custody of J.H., 1998 MT 128, ¶ 15, 289
Mont. 111, ¶ 15, 958 P.2d 1191, ¶ 15 (citing Matter of C.M. (1997), 281 Mont. 183, 186, 932
P.2d 1063, 1065).
DISCUSSION
Issue 1
¶16 Does failure to personally serve the father, who was incarcerated in another
state, with notice of proceedings prior to filing a petition for permanent legal custody
and termination of parental rights constitute reversible error?
¶17 Donald argues that the State failed to properly serve him with notice of any of the
proceedings prior to the State's Petition for Permanent Legal Custody, which was filed on
September 18, 2001, and served on his appointed counsel, September 19, 2001 (Donald was
personally served on October 2, 2001, with the District Court's September 19, 2001
Summons and Order to Show Cause on the Petition for Permanent Legal Custody). Donald
contends those previous proceedings were therefore void as applied to him because he
received notice of those prior proceedings by mail, not by personal service. 1 In support of
1
In his reply brief, Donald asserts for the first time on appeal that the District Court
did not have jurisdiction over Donald until he was personally served on October 2, 2001. We
will not address an issue raised for the first time in a reply brief. See Unified Industries, Inc.
v. Easley, 1998 MT 145, ¶ 28, 289 Mont. 255, ¶ 28, 961 P.2d 100, ¶ 28 (citations omitted);
and Rule 23(c), M.R.App.P. Accordingly, we decline to address this argument.
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his contention, Donald cites §§ 41-3-422(4)-(7), MCA (2001) 2 . Section 41-3-401, MCA
(1999), provides in relevant part:
(3) A petition alleging abuse or neglect is a civil action brought in the
name of the state of Montana. The Montana Rules of Civil Procedure apply
except as modified in this part. Proceedings under a petition are not a bar to
criminal prosecution.
(4) The parents or parent, guardian, or other person or agency having
legal custody of the youth named in the petition, if residing in the state, must
be served personally with a copy of the petition and summons at least 5
working days before the date set for hearing. If the person or agency cannot be
served personally, the person or agency may be served by publication in the
manner provided by the Montana Rules of Civil Procedure for other types of
proceedings.
¶18 In interpreting a statute, we first look to the plain meaning of the words it contains.
City of Great Falls v. DPHHS, 2002 MT 108, ¶ 16, 309 Mont. 467, ¶ 16, 47 P.3d 836, ¶ 16
(citation omitted). Section 41-3-401(4), MCA (1999) (now renumbered at § 41-3-422(6),
MCA (2001)), provides that personal service is required for parents "if residing in the state."
At no time during these proceedings has Donald resided in Montana. Therefore, the State
was not required under § 41-3-401(4), MCA (1999), to personally serve Donald in these
proceedings. While these provisions do not specify what method of service is required for
parents living outside the State, we conclude, and the State concedes, that when the
2
Except for subsection (5), which was inserted in 2001, these subsections were
previously found at §§ 41-3-401(3)-(5), MCA (1999), and were renumbered and amended in
some minor respects in 2001. We note that § 41-3-422, MCA (2001), became effective as of
October 1, 2001, and accordingly, we will apply § 41-3-401, MCA (1999), for consistency
with the remainder of this Opinion.
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whereabouts of parents or guardians having legal custody are known, the better practice is to
personally serve them with a copy of all petitions in accordance with § 41-3-422, MCA
(2001).
¶19 While we stress the importance of proper notice in all child protection proceedings
and recognize that Donald received personal service of these proceedings only once, that is
not dispositive of the issue before us. The District Court orders that Donald seeks to
invalidate would include those orders granting and continuing the TIA and those orders
granting and extending temporary legal custody to DPHHS. Although Catherine, who had
physical custody of the children, disputed some of the factual allegations, she did not oppose
the State's petition for TIA, and agreed to the petition for temporary legal custody and her
treatment plan. At the September 17, 2001 hearing, Catherine did not object to the State's
request to continue temporary legal custody, but stated she would contest termination of
parental rights. Donald was incarcerated at all times during these proceedings. Therefore, it
would have been impossible for him to exercise his legal custodial rights to parent L.M.A.T.
and B.L.F.T. during this time frame.
¶20 Moreover, while the evidentiary hearing on January 24, 2002, was initially set to
consider the State's Petition for Permanent Legal Custody and Termination of Parental
Rights, the District Court did not make such a determination, but rather adjudicated the
children as youths in need of care and granted DPHHS temporary legal custody for a six-
month period. The court recognized our recent holding from In re T.C., where we held that a
stipulation to temporary legal custody is not the equivalent of a stipulation that a child is a
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youth in need of care, and without such a specific adjudication, a district court cannot
terminate parental rights. See In re T.C., ¶¶ 18-19. Significantly, the District Court has not
ordered termination of either parent's rights in any of these proceedings. The court scheduled
a hearing on the Petition for Permanent Legal Custody and Termination of Parental Rights
for July 16, 2002. The court also set a permanency hearing for February 22, 2002, in light of
its determination that DPHHS could forego reunification efforts with Donald. However, this
hearing date has since been vacated by the District Court, since it was divested of jurisdiction
upon Donald's appeal to this Court.
¶21 This Court has repeatedly stated that "no civil case shall be reversed by reason of error
which would have no significant impact upon the result; if there is no showing of substantial
injustice, the error is harmless." In re J.M., 2001 MT 51, ¶ 16, 304 Mont. 303, ¶ 16, 21 P.3d
618, ¶16 (citing In re A.N., 2000 MT 35, ¶ 55, 298 Mont. 237, ¶ 55, 995 P.2d 427, ¶ 55). We
conclude that Donald failed to demonstrate how personal service of the proceedings prior to
the Petition for Permanent Legal Custody would have significantly impacted these
proceedings. Nor has Donald shown that invalidation of any of the proceedings would have
a significant impact on his parental rights, since none of the proceedings prior to the State's
Petition for Permanent Legal Custody sought to terminate Donald's parental rights, and
neither parent's rights have been terminated by the District Court. Moreover, formal
adjudication of the children as youths in need of care did not occur until January of 2002, at
which time Donald had been personally served and was represented by counsel.
11
Accordingly, we conclude that failure to personally serve Donald notice of those proceedings
prior to filing the Petition for Permanent Legal Custody was not reversible error.
Issue 2
¶22 Did the petition for permanent legal custody and subsequent order granting
temporary legal custody, contain the required statutory notices?
¶23 Donald argues that because the State's Petition for Permanent Legal Custody and the
District Court's January 30, 2002 orders did not contain the notices mandated by §§ 41-3-
422(13) and (14), MCA (2001), they are invalid and cannot be enforced. Subsection (13)
requires DPHHS, when serving a petition in an abuse and neglect proceeding, to advise
parents or legal guardians of their right to counsel and right to contest the allegations, as well
as the required timeliness for hearings. See § 41-3-422(13), MCA (2001). Similarly, when a
District Court issues an order in an abuse and neglect proceeding, it is required to include
notice concerning statutory requirements for timeliness of hearings, presumptions of the best
interests of the child, and that completion of a treatment plan does not guarantee return of a
child. See § 41-3-422(14), MCA (2001).
¶24 However, these subsections were not applicable to the child protection proceedings
concerning L.M.A.T. and B.L.F.T. When the 2001 Legislature added subsections (13) and
(14) to § 41-3-422, MCA, it provided the following savings clause: "This act does not affect
rights and duties that matured, penalties that were incurred, or proceedings that were begun
before the effective date of this act." See 2001 Mont. Laws Ch. 281, Sec. 19. The Compiler's
Comments for § 41-3-422, MCA (2001), indicate the effective date of the Chapter 281
Amendments was October 1, 2001. Therefore, because the child protection proceedings for
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L.M.A.T. and B.L.F.T. were initiated by the State's Petition for TIA and Protective Services
on November 17, 2000, §§ 41-3-422(13) and (14), MCA (2001), were not applicable.
Accordingly, neither the State nor the District Court committed reversible error by omitting
the notice provisions.
Issue 3
¶25 Did the District Court fail to conduct a timely show cause hearing?
¶26 Donald argues that under § 41-3-432, MCA (2001), the District Court was required to
conduct a show cause hearing within ten days of September 18, 2001, the day the State filed
its Petition for Permanent Legal Custody. Section 41-3-432(1)(a), MCA (2001), provides
that "[a] show cause hearing must be conducted within 10 days, excluding weekends and
holidays, of the filing of an initial child abuse and neglect petition unless otherwise stipulated
by the parties pursuant to 41-3-434 or unless an extension of time is granted by the court."
Donald contends that, since the District Court's Summons and Order to Show Cause on the
Petition for Permanent Legal Custody was the first document personally served on him, the
petition qualified as the "initial" pleading as contemplated by the statute, and thus he argues
the court's hearing on November 5, 2001, was held well past the ten-day requirement.
¶27 We conclude that the petition for permanent legal custody and termination of parental
rights did not constitute an "initial" filing. Here, the initial filing was the State's Petition for
TIA and Protective Services, filed on November 17, 2000. Accordingly, § 41-3-403(1)(c),
MCA (1999), applied. It provides that upon the filing of a petition for temporary
investigative authority and protective services, the court must conduct a show cause hearing
13
within twenty days of issuing an order granting relief as required for the immediate
protection of a child. Section 41-3-403(1)(c), MCA (1999). Following the State's petition
for TIA and protective services, the District Court conducted a show cause hearing on
December 4, 2000, which fell within the twenty-day requirement mandated by § 41-3-
403(1)(c), MCA (1999).
¶28 Moreover, the statute Donald relies on, § 41-3-432, MCA (2001), became effective on
October 1, 2001. See Compiler's Comments, § 41-3-432, MCA (2001). Therefore, even if
we accept Donald's argument that the Petition for Permanent Legal Custody was the "initial"
filing, § 41-3-432, MCA (2001), would not apply, since it was not in effect when the State
filed the petition on September 18, 2001.
¶29 For the foregoing reasons, we conclude the District Court did not fail to conduct a
timely show cause hearing.
Issue 4
¶30 Did the District Court err when it granted the State's request for determination
that preservation or reunification services for the father were unnecessary?
¶31 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 (2001) (formerly § 41-3-
403(2), MCA (1999)). However, a district court "may make a finding that [DPHHS] need
not make reasonable efforts to provide preservation or reunification services if the court finds
that the parent has subjected a child to aggravated circumstances, including but not limited to
abandonment, torture, chronic abuse, or sexual abuse or chronic, severe neglect of a child."
Section 41-3-423(2)(a), MCA (2001) (formerly § 41-3-403(2)(a), MCA (1999)).
14
¶32 In 2001, the Legislature added that a court's "finding that preservation or reunification
services are not necessary pursuant to this section must be supported by clear and convincing
evidence." See 2001 Mont. Laws Ch. 281, Sec. 8, adding § 41-3-423(4), MCA (2001).
However, like §§ 41-3-422(13) and (14), MCA (2001), (See ¶ 24 herein), this amendment did
not affect rights and duties related to proceedings that began prior to the October 1, 2001
effective date, and therefore would not apply in these child protection proceedings. While §
41-3-403(2), MCA (1999), allowed a district court to make a finding regarding the necessity
of preservation and reunification efforts, it did not provide any guidance as to the State's
burden of proof.
¶33 It is well-established that a natural parent's right to care and custody of his child is a
fundamental liberty interest which must be protected by fundamentally fair procedures. See
In re A.C., 2001 MT 126, ¶ 20, 305 Mont. 404, ¶ 20, 27 P.3d 960, ¶ 20 (citations omitted).
Accordingly, in regard to the statutorily-required findings supporting termination of parental
rights, we have stated that the burden is on the party seeking termination to demonstrate by
clear and convincing evidence that every requirement set forth in the statute has been
satisfied. In re A.C., ¶ 20 (citation omitted). While we recognize that in these proceedings
neither parent's rights have been terminated, we conclude that because a court's determination
that reunification services are not required may necessarily impact termination of a parent's
rights, the district court's findings under § 41-3-403(2), MCA (1999), must be supported by
clear and convincing evidence. In cases involving the termination of parental rights,
clear 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
15
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.
In re E.K., 2001 MT 279, ¶ 32, 307 Mont. 328, ¶ 32, 37 P.3d 690, ¶ 32 (citation omitted).
¶34 We have recently clarified that when reviewing a district court's findings in a
termination of parental rights case, even for clear and convincing evidence, the applicable
standard of review remains the same; "[t]his Court reviews a district court's findings that the
statutory criteria supporting termination are met to determine whether those findings are
clearly erroneous--that is, whether they are supported by substantial evidence, whether the
district court misapprehended the effect of the evidence, or whether this Court is left with a
definite and firm conviction that the district court made a mistake." In re A.C., ¶ 36 (citations
omitted).
¶35 We conclude that the District Court's finding that DPHHS was not required to provide
reunification services was supported by substantial and uncontroverted evidence. At the
evidentiary hearing on January 24, 2002, the District Court admitted copies of Donald's
Judgment and Sentence and Warrant of Commitment from Washington State, which provided
clear and convincing evidence that Donald was convicted of attempted rape of a child in the
second degree and was sentenced to a term of 89 months, with credit for time served.
Without objection, the court heard testimony from Miller that Donald's conviction was a
result of him attempting to have sexual intercourse with a thirteen year old, and that he was
not related to the victim. Miller also explained that waiting for Donald to discharge his
16
sentence would negatively affect the required bonding the children needed. Donald did not
present any evidence rebutting the assertions by Miller, nor did he assert that his Washington
conviction was invalid or not yet final.
¶36 Contrary to Donald's contentions, the State was not required to present evidence as to
the finality of his conviction. In criminal appeals, we have 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
(citing State v. Okland (1997), 283 Mont. 10, 18, 941 P.2d. 431, 436) (lack of direct evidence
as to a conviction's validity is not sufficient to shift the burden to the State to prove validity).
Nor was the State required to present evidence concerning the circumstances of the
conviction. The plain language of § 41-3-403(2)(a), MCA (1999), allows a court to conclude
preservation or reunification services are not required if it finds one of the criteria is met.
Here, the court made the necessary finding that Donald's conviction of attempted rape of a
child in the second degree qualified as "subject[ing] a child to aggravated circumstances."
Section 41-3-403(2), MCA (1999), includes "sexual abuse" of a child as an example of
"aggravated circumstances." We conclude that a conviction for attempted rape of a child met
this definition, and the District Court's findings were not clearly erroneous.
¶37 Accordingly, we conclude the District Court did not err when it granted the State's
request for determination that preservation or reunification services for Donald were
unnecessary.
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¶38 We affirm.
/S/ PATRICIA COTTER
We Concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
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