10/17/2017
DA 17-0181
Case Number: DA 17-0181
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 252
IN THE MATTER OF:
M.C.,
A Youth in Need of Care.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and For the County of Lake, Cause No. DN 15-15
Honorable Deborah Kim Christopher, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Katy Stack, Attorney at Law, Missoula, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant
Attorney General, Helena, Montana
Stephen Eschenbacher, Lake County Attorney, Benjamin Ancieaux,
Deputy County Attorney, Polson, Montana
Submitted on Briefs: September 27, 2017
Decided: October 17, 2017
Filed:
__________________________________________
Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 J.C. (Mother) appeals an order of the Twentieth Judicial District Court, Lake
County, terminating her parental rights to her minor child, M.C. Mother raises three
issues, however only one issue is properly before this Court for review. We affirm and
address the following issue:
Did the District Court properly admit Mother’s psychological evaluation at the
termination hearing?
FACTUAL AND PROCEDURAL BACKGROUND
¶2 In March 2015, the Department of Public Health and Human Services (the
Department), filed a Petition for Emergency Protective Services (EPS), Adjudication of
Child as Youth in Need of Care, and Temporary Legal Custody (TLC). The District
Court granted EPS and Mother subsequently stipulated to TLC. The Department
prepared a treatment plan for Mother, which she signed and the District Court approved
and ordered on May 21, 2015.
¶3 As part of her treatment plan, Mother agreed to undergo a psychological
evaluation:
Psychological Evaluation. To identify all of Mother’s mental health
issues and narrowly tailor future treatment, Mother will submit to a
psychological evaluation with a professional approved by CPS. Mother
will follow recommendations made by the professional, including any
recommendations that may lead to a higher level of care, including
in-patient or out-patient mental health treatment and/or anger management
classes.
(Emphasis in original). The treatment plan specifically stated the psychological
evaluation’s two purposes: (1) to identify Mother’s mental health issues; and (2) to
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narrowly tailor future treatment. Mother agreed to follow the evaluation’s
recommendations in working towards reunification with M.C. when she signed the
treatment plan.
¶4 Dr. Theresa Reed (Dr. Reed), a Licensed Clinical Psychologist, performed
Mother’s psychological evaluation on September 3, 2015. The evaluation consisted of
various sections, including background information, family and personal health history,
legal history, mental status examination, test results, and conclusions and
recommendations.
¶5 The Department and Mother worked together for over a year to reunify M.C. with
Mother. The reunification efforts were unsuccessful, however, and in November 2016,
the Department filed a petition to terminate Mother’s parental rights. The District Court
held a termination hearing in January 2017, at which time the court issued oral findings
of fact and conclusions of law immediately terminating Mother’s parental rights.
¶6 A supervisor for Child Protective Services, Jeanne Frolander (Frolander), testified
for the Department at the termination hearing. During its direct examination of
Frolander, the Department moved for admission of Mother’s September 3, 2015,
psychological evaluation performed by Dr. Reed. Mother’s counsel objected to the
evaluation’s admission on grounds that it was inadmissible hearsay. The Department
contended the evaluation was admissible under the business records exception to the
hearsay rule. After additional dialogue between the parties and the Judge, the District
Court admitted the psychological evaluation as a business record but limited its use to the
recommendations made therein. Mother appeals the District Court’s evidentiary ruling,
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arguing the District Court improperly admitted the psychological evaluation into
evidence.
STANDARD OF REVIEW
¶7 We review a district court’s evidentiary rulings for abuse of discretion and “will
not reverse evidentiary rulings absent a manifest abuse of discretion.” In re A.N., 2000
MT 35, ¶ 22, 298 Mont. 237, 995 P.2d 427 (quoting In re Inquiry into M.M., 274 Mont.
166, 169, 906 P.2d 675, 677 (1995)).
DISCUSSION
¶8 Did the District Court properly admit Mother’s psychological evaluation at the
termination hearing?
¶9 A natural parent’s “right to the care and custody of a child is a fundamental liberty
interest.” In re A.D.B., 2013 MT 167, ¶ 42, 370 Mont. 422, 305 P.3d 739. Therefore, an
individual’s parental rights are protected and, in the case of an abuse and neglect
proceeding, may only be terminated pursuant to strict statutory guidelines. See
§§ 41-3-601 to 41-3-612, MCA. A court may order termination of the parent-child
relationship if “the child is an adjudicated youth in need of care” and (1) “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 (2) “the conduct or condition of the parents
rendering them unfit is unlikely to change within a reasonable time.” Section
41-3-609(1)(f)(i)-(ii), MCA. See also In re A.D.B., ¶ 42; In re D.B., 2012 MT 231, ¶ 19,
366 Mont. 392, 288 P.3d 160.
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¶10 In “determining whether the conduct or condition of the parents is unlikely to
change within a reasonable time” the court must find that continuing the parent-child
relationship “will likely result in continued abuse or neglect or that the conduct or the
condition of the parents renders the parents unfit, unable, or unwilling to give the child
adequate parental care.” Section 41-3-609(2), MCA. To make such a determination, the
court is required to consider certain factors, including “emotional illness, mental illness,
or mental deficiency of the parent . . . .” Section 41-3-609(2)(a), MCA. Thus, a court is
statutorily obligated to examine a parent’s mental health when deciding whether or not to
terminate parental rights.
¶11 At the onset of an abuse and neglect proceeding, a petition is filed in district court
pursuant to § 41-3-422, MCA, and the court must conduct a show cause hearing within
20 days. Section 41-3-432, MCA. Either at the show cause hearing or pursuant to
§ 41-3-437(1), MCA, the court will adjudicate a child as a youth in need of care if
necessary. The court’s “[a]djudication must determine the nature of the abuse and
neglect and establish facts that resulted in state intervention and upon which disposition,
case work, court review, and possible termination are based.” Section 41-3-437(2),
MCA. The court is statutorily authorized to “order . . . examinations, evaluations, or
counseling of the child or parents in preparation for the disposition hearing . . . .”
Section 41-3-437(7)(b)(ii), MCA. Additionally, a parent’s treatment plan may require the
parent obtain “medical or psychiatric diagnosis and treatment . . .” or “psychological
treatment or counseling.” Section 41-3-443(3)(b)-(c), MCA.
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¶12 In this case, the District Court approved and ordered Mother’s treatment plan,
which required her to undergo a psychological evaluation and follow its
recommendations. The District Court was well within its statutory authority to require
the evaluation pursuant to § 41-3-437(7)(b)(ii), MCA, in preparation for the disposition
hearing, and § 41-3-443(3)(b)-(c), MCA, in ordering Mother’s treatment plan. When she
signed her treatment plan, Mother agreed to follow the evaluation’s recommendations.
The court ordered psychological evaluation thus became part of the court proceedings
and allowed the court to consider any part of the evaluation for purposes of disposition of
the case. Accordingly, the District Court was free to consider Dr. Reed’s psychological
evaluation at the January 2017 termination hearing in deciding whether to terminate
Mother’s parental rights.
¶13 Such a conclusion is consistent with the statutory scheme and objectives of youth
in need of care proceedings. A distinct purpose of the evaluation was to identify
Mother’s mental health issues, a factor the District Court must consider when deciding
whether or not to terminate parental rights pursuant to § 41-3-609(2)(a), MCA. Indeed,
Mother’s compliance with the recommendations of the previously ordered evaluation was
one of the salient issues to be assessed by the District Court at the termination hearing. A
district court should not be precluded from considering at a later time in the same
proceeding an evaluation it previously ordered in a treatment plan that was agreed to by
Mother and approved by the court. If Mother needed the doctor for cross-examination or
confrontation, Mother could have subpoenaed Dr. Reed before the January termination
hearing to ensure the doctor’s presence and availability for questioning. As the
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evaluation was previously ordered by the court and became part of the court proceeding,
it did not have to be admitted under a hearsay exception. Therefore, we do not consider
whether the evaluation is a business record. Our decision is based on the unique statutory
scheme of youth in need of care proceedings and the requirement that a parent’s mental
health be considered in assessing the parent’s ability to continue to parent. Parents may
always dispute the validity of an evaluation by subpoenaing the evaluator and raising an
objection at the appropriate time.
¶14 Finally, Mother also argues her due process rights were violated because TLC
expired in May 2016 and the Department’s petition filed in September of 2016 was a
request to extend TLC, rather than a petition to adjudicate M.C. as a youth in need of
care. We do not address this issue because Mother waived it in September 2016 when
she agreed to the Department’s request that TLC be extended for six months and
represented to the court it was not necessary for the Department to file a new petition to
adjudicate M.C. as a youth in need of care. Mother also contends the Department failed
to accommodate her reading disability and provide an appropriate treatment plan as
required by the Americans with Disabilities Act (ADA). This Court does not consider
issues raised for the first time on appeal “because it is fundamentally unfair to fault the
trial court for failing to rule correctly on an issue it was never given the opportunity to
consider.” In re T.E., 2002 MT 195, ¶ 20, 311 Mont. 148, 54 P.3d 38 (quoting In re
D.H., 2001 MT 200, ¶ 41, 306 Mont. 278, 33 P.3d 616). Therefore, “[i]n order to
preserve a claim or objection for appeal, an appellant must first raise that specific claim
or objection in the district court.” In re T.E., ¶ 20. Here, Mother did not preserve her
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accommodation and ADA claims for appeal because she did not raise the issues in
District Court.
CONCLUSION
¶15 During an abuse and neglect proceeding, a court may order the psychological
evaluation of a parent pursuant to multiple statutes. If a treatment plan requires a parent
follow a psychological evaluation’s recommendations, a court must have access to the
evaluation to determine whether a parent complied with his or her treatment plan.
Furthermore, court ordered psychological evaluations help a court evaluate a parent’s
mental health during termination proceedings. Such evaluations are part of the court
record and may be used by the court throughout an abuse and neglect proceeding.
¶16 Affirmed.
/S/ LAURIE McKINNON
We Concur:
/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ MICHAEL E WHEAT
/S/ DIRK M. SANDEFUR
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Matter of M.C. YINC
Combined Opinion