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In re Parenting of S.F.R.T.

Supreme Court of Montana

June 4, 2019

IN RE THE PARENTING OF: S.F.R.T., Minor Child. JUSTIN PALMER, Petitioner, Appellee, and Cross-Appellant. and TEAGAN TROMP, Respondent and Appellant.

          Submitted on Briefs: May 22, 2019

          APPEAL FROM: District Court of the Twentieth Judicial District, In and For the County of Lake, Cause No. DR-17-99 Honorable James A. Manley, Presiding Judge

          For Appellant: Brandi R. Ries, Emily A. Lucas, Ries Law Group, P.C.

          For Appellee: Tyler G. Moss, O'Neill Law Office, PLLC

          James Jeremiah Shea, Justice delivered the Opinion of the Court.

          OPINION

          James Jeremiah Shea, Justice.

         ¶1 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 Montana Reports.

         ¶2 Teagan Tromp (Mother) appeals the order of the Twentieth Judicial District, Lake County, denying her petition for termination of parental rights, denying her request for a permanent order of protection, and adopting a parenting plan. We affirm.

         ¶3 Mother and Justin Palmer (Father) were never married or in a dating relationship. They have one child together, S.F.R.T., born on August 30, 2013. Father was unaware of the child's conception and birth until several years later when Mother informed him in a letter. After learning about S.F.R.T., Father began developing a relationship with her, until a disagreement about parenting time arose. Eventually, Mother terminated all contact between Father and S.F.R.T.

         ¶4 On October 19, 2017, Father served Mother his Petition for Establishment of Permanent Parenting Plan. Mother filed a Petition for Permanent Order of Protection against Father and a Counter-Petition for Termination of Parental Rights, claiming S.F.R.T. was conceived from sexual intercourse without consent. On June 21, 2018, the District Court held a hearing, during which it received testimony from the parents and other witnesses. The District Court denied both of Mother's petitions and adopted a parenting plan. Mother appeals.[1]

         ¶5 We review a district court's decision to terminate parental rights for an abuse of discretion. In re T.S.B., 2008 MT 23, ¶ 17, 341 Mont. 204, 177 P.3d 429. Because a parent's right to the care and custody of his or her child is a fundamental liberty interest, a district court must make specific factual findings. In re D.B., 2007 MT 246, ¶ 17, 339 Mont. 240, 168 P.3d 691. We review these findings for clear error. In re T.S.B., ¶ 18. We review a district court's decision regarding protective orders for a manifest abuse of discretion. Shammel v. Canyon Res. Corp., 2003 MT 372, ¶ 12, 319 Mont. 132, 82 P.3d 912. We review a district court's decision regarding a parenting plan for an abuse of discretion. Woerner v. Woerner, 2014 MT 134, ¶ 12, 375 Mont. 153, 325 P.3d 1244.

         ¶6 Section 41-3-801(2)(b), MCA, allows a district court to terminate a parent-child legal relationship, if, after an evidentiary hearing, the district 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." A person commits the offense of sexual intercourse without consent if the person "knowingly has sexual intercourse with another person without consent or with another person who is incapable of consent." Section 45-5-503(1), MCA.

         ¶7 In this case, the District Court held an evidentiary hearing where it heard unrebutted evidence that Mother's conduct "would have reasonably be[en] understood to indicate consent, and no statements or conduct indicating lack thereof, other than the appearance of substantial intoxication that both parties were in." Thus, based on this unrebutted evidence, the District Court concluded Mother failed to provide clear and convincing evidence that Father knowingly had sexual intercourse with another person who is incapable of consent. We agree. The District Court's denial of Mother's Counter-Petition for Termination of Parental Rights was not an abuse of discretion. See In re T.S.B., ¶ 17.

         ¶8 Given the lack of threats of violence or force in the record and the finding that the sexual intercourse was consensual, the District Court's denial of Mother's Permanent Order of Protection ...


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