                                                                                         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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