NO. 95-387
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
IN THE MATTER OF R.B.O., D.R.O.,
R.I., G.M., T.M.,
Youths in Need of Care.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable John W. Whelan, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Robert G. McCarthy; Dayton & McCarthy,
Anaconda, Montana
For Respondent:
Ross P. Richardson; Henningsen, Vucurovich &
Richardson, Butte, Montana
Submitted on Briefs: March 7, 1996
Decided: July 22, 1996
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
Laura Ison (Ison) appeals from the judgment entered by the
Second Judicial District Court, Silver Bow County, on its findings
of fact, conclusions of law and order terminating her parental
rights. We affirm.
We address the following issues:
1 . Did the District Court err in terminating Ison's parental
rights pursuant to § 41-3-609, MCA?
2 . Was Ison denied due process of law by the District Court's
reliance on reports submitted by individuals who were not subject
to cross-examination?
Ison is the mother of R.B.O., D.R.O., R.I., G.M. and T.M. She
has a long history of contact with the Montana Department of Family
Services (DFS), now the Department of Public Health and Human
Services. In 1989, DFS obtained a Temporary Investigative
Authority (TIA) relating to Ison's care of her children. The
children were placed in foster care and Ison participated in an
informal treatment plan. The TIA was dismissed in January of 1990.
On January 22, 1990, DFS received a complaint that Ison was
taking illegal drugs and leaving her children unattended. On
February 15, 1990, she was arrested in Great Falls for felony
theft. The children were placed in foster care and remained there
until June 1, 1990, when they were placed with relatives in Butte.
R.B.O., D.R.O. and R.I. were returned to Ison in September, and
G.M. and T.M. in October, of 1991.
On April 3, 1992, Ison filed a complaint with DFS alleging
that four of her children had been sexually abused. DFS provided
2
counseling for Ison and day care and counseling for her children.
On June 30, 1992, DFS received a complaint, which was later
substantiated, that Ison had left her children unattended. On
October 5, 1992, DFS received another complaint alleging that Ison
had left her children unattended; DFS determined that this
complaint was not valid.
In October of 1992, Ison informed DFS that she did not have a
residence for the children. G.M. and T.M. were placed in foster
care, while the other three children remained at a residence in
Butte. Ison left Butte for a week and, on her return on October
21, 1992, she took the children to stay with her at a local motel.
On January 13 and February 4, 1993, DFS received complaints
that Ison's children had not been picked up from school; DFS
determined that the complaints were valid. On February 12, 1993,
Ison's parole officer informed DFS that Ison was in the Women's
Transitional Center (Pre-Release Center) as the result of a parole
violation. The children stayed with friends in Butte at that time,
but on March 19, 1993, Ison informed DFS that the children needed
placement. She entered into an agreement with DFS under which she
agreed to temporarily place her children in foster care.
Ison later arranged for the children to reside with friends in
Butte and, as a result, the children were removed from foster care
on June 9, 1993. On July 1, 1993, the individuals caring for the
children informed DFS that they could no longer do so. At that
time, DFS petitioned the District Court for another TIA and the
children were again placed in foster care, where they have
3
remained. On August 16, 1993, the court found the children to be
youths in need of care as defined in § 41-3-102, MCA.
While in the Pre-Release Center, Ison entered into a treatment
plan with DFS which commenced on October 29, 1993, and ended, by
its terms, on April 29, 1994. The treatment plan was filed with,
and approved by, the District Court. On April 28, 1994, DFS moved
for a continuation of temporary legal custody of the children based
on a report by DFS social worker Dave Evans (Evans). The Evans
report noted that Ison had complied with the treatment plan, but
recommended that the children remain in DFS' temporary custody for
an additional sixty-day period while efforts toward reuniting Ison
with her children continued.
On May 3, 1994, while Ison was living away from the Pre-
Release Center, but subject to its day reporting program, Ison was
again arrested and jailed for using methamphetamines in violation
of program regulations. Ison's parole officer informed DFS that
she would be incarcerated for a minimum of 120 days at the Women's
Correctional Center. In an updated report dated May 6, 1994, which
contained this information, Evans noted Ison's inability to provide
proper care and supervision of her children; his concern about her
ability to remain involved with her children was evident. The
District Court extended DFS' temporary legal custody of Ison's
children for ninety days on June 3, 1994.
On August 18, 1994, DFS petitioned for termination of Ison's
parental rights and permanent legal custody of her children.
Counsel was appointed to represent Ison and the court continued
4
DFS' temporary custody of her children pending a hearing on the
petition to terminate. The hearing was continued several times by
motion or agreement of Ison. On December 6, 1994, DFS moved to
dismiss the petition and continue temporary legal custody of Ison's
children for an additional six months; Ison stipulated to the six-
month continuation of temporary custody. The District Court
continued DFS' temporary legal custody on December 14, 1994; it did
not dismiss the petition to terminate Ison's parental rights.
Ison had returned to the Pre-Release Center from the Women's
Correctional Center in late November of 1994 and, thereafter, DFS
attempted to work on a new treatment plan for her. DFS ultimately
presented the treatment plan, which retained the possibility of
returning Ison's children to her care and custody, to Ison and
asked her to sign it; she refused. On January 20, 1995, DFS moved
the District Court for approval of the new treatment plan and a
hearing was scheduled for January 27, 1995.
On or about January 21, 1995, however, Ison was again found to
have used drugs and jailed. DFS was advised that she again would
be sent to the Women's Correctional Center. Ison was scheduled to
be released on August 21, 1995.
Following Ison's reincarceration, Evans concluded that another
treatment plan would not be practical. Due to her repeated drug
violations, he felt that the October 29, 1993, treatment plan
clearly had been unsuccessful. Accordingly, DFS again petitioned
the District Court for termination of Ison's parental rights on
February 6, 1995; an amended petition was filed a week later.
5
At the beginning of the March 9, 1995, hearing on DFS'
petition to terminate, Ison moved to dismiss the petition on the
grounds that no court-approved treatment plan was in place as
required by § 41-3-609, MCA. The District Court requested briefs
on the issue and completed the hearing. Ison's motion to dismiss
subsequently was denied.
On April 4, 1995, the court ordered a post-hearing
supplemental evaluation of Ison and report by Dr. Mark Moser
(Mozer), a clinical psychologist who had evaluated her in June of
1994. Ison moved to vacate the order, requesting the District
Court to appoint some other suitable professional to perform the
evaluation. The court denied Ison's motion. Mozer subsequently
performed a psychological evaluation of Ison and submitted his
report to the court.
On June 27, 1995, the District Court issued its findings of
fact, conclusions of law and order terminating Ison's parental
rights. Ison appeals
Did the District Court err in terminating Ison's
parental rights pursuant to § 41-3-609, MCA?
Section 41-3-609(l), MCA, provides that a district court may
terminate a person's parental rights if it finds that:
(c) the child is an adjudicated youth in need of
care and both of the following exist:
(i) an appropriate treatment plan that has been
approved by the court has not been complied with by the
parents or has not been successful; and
(ii) the conduct or condition of the parents
rendering them unfit is unlikely to change within a
reasonable timeL.1
The District Court found that the three conditions set forth in
6
§ 41-3-609(l) (c), MCA, existed and, on that basis, terminated
Ison's parental rights.
In Matter of D.H. (1994), 264 Mont. 521, 872 P.2d 803, we
clarified the standards under which we review a district court's
determinations in proceedings to terminate parental rights. We
review a district court's factual findings to determine whether
they are clearly erroneous. Matter of D.H., 872 P.2d at 805. Such
a finding is clearly erroneous if it is not supported by
substantial evidence; or, if so supported, the district court
misapprehended the effect of the evidence; or, if so supported and
the district court did not misapprehend the effect of the evidence,
this Court is left with the definite and firm conviction that a
mistake has been committed. Matter of D.H., 872 P.2d at 805
(citing Interstate Prod. Credit Ass'n v. DeSaye (1991), 250 Mont.
320, 323, 820 P.2d 1285, 1287). With the exception of a district
court's conclusions involving the exercise of discretion, such as
a determination that a child is abused and neglected, we review
conclusions of law in termination of parental rights cases to
determine whether they are correct. Matter of D.H., 872 P.2d at
805-06.
Ison contends that the statutory requirements of § 41-3-609,
MCA, were not satisfied and, therefore, that the District Court
erred in terminating her parental rights. We begin by addressing
the District Court's findings under § 41-3-609(l) cc), MCA, in turn.
The District Court found that Ison's children were adjudicated
youths in need of care. Ison does not dispute this finding and,
7
indeed, the record reflects that she stipulated that her children
were abused, neglected or dependent youths at the time of the
court's adjudication in August of 1993.
The District Court also found, under § 41-3-609(l) (c) (i), MCA,
that Ison's court-approved treatment plan, which had expired on
April 29, 1994, was not successful. We review the record to
determine whether substantial evidence supports this finding.
Ison had been residing at the Pre-Release Center for at least
eight months by the time the District Court approved the October
29, 1993, treatment plan. Both her involvement with law
enforcement and her problems in providing a stable and appropriate
home for her children resulted in large part from Ison's drug use.
The stated purposes of the treatment plan were 1) to
facilitate the establishment of physical and emotional stability
for Ison's children; 2) to assist Ison in establishing herself as
a person capable of providing consistent and adequate care for her
children; and 3) to provide DFS with information necessary to
develop the most appropriate permanent plan for her children. The
plan set forth numerous tasks for Ison, including individual and
family counseling, weekly contact with her children and release of
information from her family, mental health and chemical dependency
counselors regarding her progress. Within two weeks of her release
from the Pre-Release Center, the treatment plan required Ison to
secure adequate housing for herself and her children; moreover,
"during this time when Laura's children are returned to her care,"
she was to remain drug and alcohol free and her children were to be
8
supervised at all times. Evans testified, and these latter
provisions of the treatment plan clearly contemplate, that the plan
could not be successfully completed while Ison continued to reside
at the Pre-Release Center.
Evans testified, and it is undisputed, that Ison complied with
the applicable provisions of the court-approved treatment plan
while residing at the Pre-Release Center. Ison's actual residence
at the Pre-Release Center ended in approximately mid-April, 1994,
when she moved into a house trailer in Butte, but she remained
subject to the Pre-Release Center's day reporting program.
According to Evans, Ison was living in adequate housing when the
treatment plan expired by its terms on April 29, 1994; Evans'
report filed April 28, 1994, recommended that DFS' temporary legal
custody of Ison's children be continued for sixty days while Ison's
ability to continue to establish a home environment, maintain
counseling and work towards being reunited with her children in her
home were monitored. Thus, the record is clear that, while Ison
was making progress vis-a-vis the eventual return of her children
to her care, the purposes of the treatment plan had not yet been
accomplished at the time the treatment plan expired on April 29,
1994.
On May 3, 1994, less than a week after the treatment plan
expired, Ison was arrested and jailed at the Butte-Silver Bow Jail
for drug involvement; she subsequently was incarcerated at the
Women's Correctional Center. Evans opined that, based on Ison's
continued drug use and reincarceration, the treatment plan had not
9
been successful. As a result, DFS petitioned to terminate Ison's
parental rights.
For reasons not clearly reflected in the record, DFS later
determined not to pursue the petition to terminate. Instead, DFS
tried to work toward a new treatment plan for Ison, still
contemplating the possibility of the eventual return of her
children to her care. Ison refused to sign the plan. DFS moved
for court approval of the new treatment plan on January 20, 1995,
and a January 27 hearing was scheduled.
On January 21, 1995, the day after DFS' motion, Ison was again
found to have used methamphetamines. Indeed, Linda Rogers
(Rogers), Ison's chemical dependency counselor at the Pre-Release
Center, testified that Ison discussed the possibility of doing so
with her in advance and, notwithstanding her advice to Ison that
such an action could have significant consequences with regard to
her efforts to regain custody of her children, Ison went ahead with
the drug use. Ison was again jailed and subsequently returned to
the Women's Correctional Center. Evans concluded again that the
October 29, 1993, treatment plan had not been successful and that
another plan would not be practical.
Mary Kay Starin (Starin), the guardian ad litem for Ison's
children, also testified at the hearing on DFS' petition to
terminate Ison's parental rights. In Starin's opinion, chemical
dependency was Ison's central problem and Ison had not yet dealt
successfully with that problem. Thus, Starin opined that the
treatment plan was not successful.
10
In addition to the testimony of Evans and Starin, Ison's own
testimony at the hearing indicates that the treatment plan had not
been successful. She admitted, although not consistently, that she
knew one of the goals of the treatment plan was that she remain
drug-free, and the record is clear that she had not done so in
either May of 1994 or January of 1995. Ison conceded that her
actions "in the last couple of years" had not been in the best
interests of her children. She confirmed Rogers' version of the
conversation between them the day before she used drugs in January
of 1995. Ison admitted that she was addicted to methamphetamines
and that she knew that continuing her drug use would have a
negative effect on her children and her efforts to regain their
custody and retain her parental rights. While tending to blame the
lack of availability of a particular treatment plan for her
continued dependency on drugs, Ison stated candidly that "[i]t was
my choice and I chose to use."
The record before us contains more than substantial evidence
in support of the District Court's finding, pursuant to § 41-3-
609(l) Cc) (i), MCA, that Ison's treatment plan had not been
successful. Moreover, the testimony and reports discussed above
also constitute substantial evidence in support of the District
Court's finding, pursuant to § 41-3-609(l) (c) (ii), MCA, that Ison's
condition was unlikely to change in a reasonable time. The court
did not misapprehend the evidence in these regards and we are not
left with a definite and firm conviction that a mistake has been
committed. Thus, we conclude that the District Court's findings on
11
the three conditions required by § 41-3-609(l) (c), MCA, before
parental rights can be terminated are not clearly erroneous.
Ison argues, however, that the District Court erred as a
matter of law in terminating her parental rights because (1.) there
was no court-approved treatment plan in existence after April 29,
1994, and (2) the court's review of a treatment plan existing only
under a dismissed petition for termination of parental rights
allows consideration of matters too remote to serve as a basis for
termination. She cites no authority for either proposition and, as
a result, we address her arguments only briefly.
Ison's first argument appears to be that her parental rights
could not be terminated because no court-approved treatment plan
existed after the April 29, 1994, expiration of her treatment plan
and, therefore, the statutory requirement of a court-approved
treatment plan was not met. It is true that § 41-3-609(1)(c)(i),
MCA, requires an appropriate and court-approved treatment plan.
However, nothing in the statute requires, or even suggests, that a
treatment plan must be in effect at the time proceedings to
terminate parental rights are begun or completed. Indeed, from a
practical standpoint, such a requirement would preclude
terminations because the parent could always assert that he or she
still had an opportunity to successfully comply.
Moreover, we recently have held that treatment plans can be
found to be unsuccessful after the plan is completed. In Matter of
S.C. (1994), 264 Mont. 24, 869 P.2d 266, the mother complied with
two treatment plans which had been approved by the district court;
12
following completion of the treatment plans, however, the mother
again became involved with drugs and attempted to commit suicide.
In affirming the district court's determination that the treatment
plan had not been successful, we stated:
It is well established that a parent must not only comply
with the treatment plan, but the treatment plan must also
be successful. [Citation omitted.] After reviewing the
record in this case we conclude that the District Court
properly determined that the treatment plans were
appropriate and they were complied with, but were not
successful in resolving M.C.'s long-term mental illness
problems.
Matter of S.C., 869 P.2d at 269.
In the instant case, one of the goals of the treatment plan
was that Ison remain drug-free. It is undisputed that Ison
complied with the October 29, 1993, treatment plan while it was in
effect through April 29, 1994. However, mere days after the
expiration of the treatment plan, and before her children were
returned to her, Ison again used drugs and was reincarcerated.
Ison again tested positive for drug use in January of 1995, while
residing at the Pre-Release Center, whereupon she was returned to
the Women's Correctional Center. Thus, given the goals of the
treatment plan, it is clear that Ison's continued refusal to
refrain from drug use is sufficient to establish, under § 41-3-
609(1) (c) (i), MCA, that a "treatment plan that has been approved by
the court . . has not been successful[.l"
Ison also argues that, upon the dismissal of DFS' original
petition to terminate parental rights based on the lack of success
of the expired treatment plan, the District Court erred in not
requiring a new treatment plan. Ison's argument is based on a
13
misreading of the record.
The record reflects that on December 6, 1994, DFS moved to
dismiss without prejudice its August 18, 1994, petition to
terminate Ison's parental rights; as part of the same motion, DFS
requested a six-month extension of its custody of Ison's children.
Ison stipulated to the continuance of DFS' custody of her children
and, on December 14, 1994, the District Court granted that
continuation of custody. The District Court did not dismiss the
August 18, 1994, petition to terminate. One week later, Ison again
used drugs and DFS proceeded with termination proceedings rather
than continuing its efforts toward obtaining court approval of a
new treatment plan.
Thus, contrary to Ison's assertion, DFS' original petition to
terminate was not dismissed. On this record, therefore, the issue
of whether dismissal of a petition to terminate parental rights,
where the petition had been based on an alleged lack of successful
completion of a treatment plan, necessitates a new court-approved
treatment plan and subsequent statutorily-required proceedings
prior to termination of parental rights is not before us.
Finally, Ison's related argument that the lack of a new
treatment plan permitted the District Court to consider matters
"too remote" is without merit. Ison's drug dependency was a long-
term problem impacting directly on her ability to successfully
parent her children. She could not, or would not, resolve the
problem, as evidenced by two incidents of drug use over an
approximately eight-month period while she was still subject to
14
Pre-Release Center drug monitoring. There is nothing "remote"
about Ison's repeated drug use here; it is strong evidence, as was
the case in Matter of S.C., that the treatment plan was not
successful.
We hold that the District Court did not err in terminating
Ison's parental rights pursuant to § 41-3-609(l), MCA.
Was Ison denied due process of law by the District
Court's reliance on reports submitted by individuals who
were not subject to cross-examination?
Ison argues generally that the District Court denied her due
process of law by relying on reports contained in her file without
requiring the authors of those reports to testify, and be subjected
to cross-examination, at the hearing on DFS' petition to terminate
her parental rights. Her primary contention is that the District
Court erred in ordering a post-hearing psychological evaluation by
Moser and in relying on Moser's report from that evaluation in its
findings of fact and conclusions of law. Ison also makes a passing
reference to the District Court's allegedly erroneous reliance on
reports from the Pre-Release Center.
We repeatedly have warned district courts that the receipt and
consideration of even pre-hearing reports in proceedings such as
those to terminate parental rights can have severe due process
consequences. See, u, Matter of Moyer (1977), 173 Mont. 208,
211, 567 P.2d 47, 49. The possibility of error is great when trial
courts rely on reports not supported through examination of their
authors by the parties. Matter of M.F. (19821, 201 Mont. 277, 287,
653 P.2d 1205, 1210.
15
Here, however, Ison did not raise her due process concerns
relating to the District Court's post-hearing order for an
evaluation and report by Mozer, and the court's reliance on Mozer's
report, in the District Court. The record reflects that Ison
recognized, and availed herself of, the opportunity to object to
the court's post-hearing order; indeed, she moved to vacate the
order requiring the psychological evaluation and corresponding
report. The basis of her motion, however, was not the due process
argument she attempts to raise here that the author of the report
would not be subject to cross-examination. Rather, Ison objected
to Mozer performing the evaluation, alleging bias, and merely
requested that a different professional perform the evaluation.
We have long refused to address issues raised for the first
time on appeal. Lane v. Smith (1992), 255 Mont. 218, 221, 841 P.2d
1143, 1145. Ison's due process argument relating to her inability
to cross-examine Mozer prior to the District Court relying on his
post-hearing evaluation report is raised for the first time on
appeal and after a recognized opportunity--indeed, an exercised
opportunity--to object. We refuse to address Ison's argument.
Ison also makes a passing reference to the District Court's
error in relying on reports by Michelle Jenicek, her primary
counselor at the Pre-Release Center, apparently urging the same due
process argument set forth above. The record reflects, however,
that Ison was not only aware of the reports but that her counsel
cross-examined Evans with regard to the contents of those reports.
Nor did she object to the presence of the reports in the file or
16
the District Court's reliance on them. Indeed, Ison's counsel
stated that "[rlather than going through the details of each
report, I'd ask that the Court review those individual reports."
A party cannot assert error on appeal with regard to a matter
in which it acquiesced in the trial court. In re Pederson (1993),
261 Mont. 284, 287, 862 P.2d 411, 413; In re Marriage of West
(1988), 233 Mont. 47, 51, 758 P.2d 282, 285. Here, Ison not only
acquiesced in the District Court's reliance on the Pre-Release
Center reports, she actively encouraged it. As a result, we will
not address her assertion of error in this regard.
Affirmed.
We concur:
17