IN RE PARENTING OF: T.P.D.C., A Minor Child.
BRANDON STAAT, Respondent, Appellee, and Cross-Appellant. TAMI DISNEY, Petitioner and Appellant,
Submitted on Briefs: April 10, 2019
FROM: District Court of the Fourth Judicial District, In and
For the County of Missoula, Cause No. DR 15-27 Honorable
Robert L. Deschamps, III, Presiding Judge.
Appellant: Kathleen A. Molsberry, Matthew B. Lowy, Lowy Law,
PLLC, Missoula, Montana.
Appellee: André Gurr, Garden City Law, PLLC, Missoula,
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
Internal Operating Rules, this case is decided by memorandum
opinion and shall not be cited and does not serve as
precedent. Its case title, cause number, and disposition
shall be included in this Court's quarterly list of
noncitable cases published in the Pacific Reporter and
Tami Disney ("Mother") and Brandon Staat
("Father") have one child together, T.P.D.C. Mother
filed a petition to establish a parenting plan shortly after
T.P.D.C.'s birth. After more than three years of
litigation, Mother petitioned to terminate Father's
parental rights under § 41-3-801(2)(b), MCA, alleging
that the child was conceived from nonconsensual intercourse.
After hearing testimony from both parents and other witnesses
and taking additional evidence, the District Court denied
Mother's petition. Mother appeals and Father
Mother raises four issues on appeal: (1) whether the District
Court failed to apply the proper definitions of
"incapacity" and "consent" under the
statute; (2) whether the District Court erroneously
considered the termination petition in the same action as the
custody matter; (3) whether the District Court failed to
apply the rape shield statute; and (4) whether the District
Court erroneously admitted copies of text messages between
Mother and Father into evidence. Father argues on
cross-appeal that the District Court should have dismissed
We review a district court's findings of fact for clear
error and its conclusions of law for correctness. In re
J.E.L., 2018 MT 50, ¶ 12, 390 Mont. 379, 414 P.3d
279. A finding of fact is clearly erroneous if it is not
supported by substantial evidence, if the trial court
misapprehended the effect of the evidence, or if our review
of the record convinces us that a mistake has been committed.
In re J.E.L., ¶ 12. We review evidentiary
rulings for an abuse of discretion. State v.
Clemans, 2018 MT 187, ¶ 4, 392 Mont. 214, 422 P.3d
Section 41-3-801(2)(b), MCA, allows a district court to
terminate a parent-child legal relationship, if, after an
evidentiary hearing, the court finds by clear and convincing
evidence that the parent "committed an act of sexual
intercourse without consent, sexual assault, or incest that
caused the child to be conceived." Section
45-5-501(1)(b)(i), MCA, provides that a person is incapable
of consent if the person is "mentally . . .
incapacitated."Under § 45-2-101(41), MCA,
"'[m]entally incapacitated' means that a person
is rendered temporarily incapable of appreciating or
controlling the person's own conduct as a result of the
influence of an intoxicating substance."
Mother argues that the District Court failed to apply the
definition of "mentally incapacitated" from §
45-2-101(41), MCA. She asserts that her testimony established
that she was unable to consent to intercourse with Father
within the meaning of the statutory definition because she
was "blacked out." Whether a person is
"mentally incapacitated" is largely a question of
fact. See State v. Gould, 273 Mont. 207, 221, 902
P.2d 532, 541 (1995). The trier of fact-in this case the
trial judge-determines the credibility of witnesses and
decides how much weight to give their testimonies. In re
B.J.T.H., 2015 MT 6, ¶ 16, 378 Mont. 14, 340 P.3d
557. The trial court is in the best position to evaluate the
credibility and demeanor of witnesses. In re
B.J.T.H., ¶ 16.
Mother's testimony was not the only evidence before the
District Court. Mother and Father, as well as their
additional witnesses, presented inconsistent evidence
regarding T.P.D.C.'s conception. In addition, Father
presented copies of text message conversations between
himself and Mother from the pertinent time period. The
District Court found that Mother's contemporaneous text
messages and testimony from other people did not support
Mother's contentions that she was "blacked out"
on the night she alleges T.P.D.C. was conceived. Although the
District Court did not cite the definition of "mentally
incapacitated" from § 45-2-101(41), MCA, its
findings that the evidence did not support Mother's
contentions that she was "blacked out" plainly
imply that the court did not find that Mother was
"mentally incapacitated." The District Court found
not only that the evidence before it was insufficient to
support a finding by clear and convincing evidence that
Father "committed an act of sexual intercourse without
consent, sexual assault, or incest that caused T.P.D.C. to be
conceived," but that the evidence "in fact
establish[ed] by at least a preponderance of the evidence
that the act of sexual intercourse that caused T.P.D.C. to be
conceived was consensual on the part of both" Mother and
Father. Giving appropriate deference to the District
Court's evaluation of the evidence, we hold that
substantial evidence supported its findings, and the findings
are not otherwise erroneous.
Mother next argues that we should reverse the District
Court's denial of her petition because the District Court
should not have heard the petition as part of the ongoing
custody litigation, but rather as a separate proceeding.
Mother maintains that the District Court should not have
relied on the record from the parties' ongoing custody
proceedings. Mother points to no language in the statute
requiring separation of the matters and provides no citation
to any other legal authority to support this argument.
Further, Mother initiated both proceedings and chose to file
the termination petition in the parenting plan case. Finally,
even if the termination petition were considered as a wholly
separate proceeding, the District Court would not have been
in error to consider the record from the parenting case.
See M. R. Evid. 202(b)(6).
Mother maintains that the District Court erred in not
applying the rape shield statute, § 45-5-511(2), MCA, to
preclude testimony and evidence of Mother and Father's
subsequent relationship. Section 45-5-511(2), MCA, applies
only to "prosecutions under this part"-that is,
Title 45, chapter 5, part 5, MCA. Thus, by its plain
language, § 45-5-511(2), MCA, has no application to a
bench trial conducted under § ...