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

Filed:

Submitted on Briefs: March 7, 1996

Decided: July 22, 1996
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

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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

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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 PreRelease 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

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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 sixmonth 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.

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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

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§ 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 longterm 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:

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