No

No. 97-262

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 175

 

IN THE MATTER OF THE

ADOPTION OF H.M.O.

 APPEAL FROM: District Court of the Twelfth Judicial District,

In and for the County of Chouteau,

The Honorable John Warner, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Carl White, Attorney at Law, Havre, Montana

For Respondent:

Chris Christensen, Attorney at Law, Conrad, Montana

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Submitted on Brief: March 26, 1998

Decided: July 16, 1998

Filed:

__________________________________________

Clerk

Justice Karla M. Gray delivered the Opinion of the Court.

¶1 Barbara R. (Barbara) appeals from the order and judgment entered by the 

Twelfth Judicial District Court, Chouteau County, which terminated her parental 

rights and granted the petition of Shannen R. (Shannen) to adopt H.M.O. We reverse 

and remand with instructions.

ISSUES

¶2 Barbara presents the following issues on appeal:

¶3 1. Did the District Court err by applying a retroactive child support obligation to 

the one-year period prior to the filing of the petition for adoption for purposes of 

granting the petition without Barbara's consent?

¶4 2. Does § 40-8-111(1)(a)(v), MCA (1995), allow for a de minimis exception to the 

rule that a parent's consent to adoption is not required when a parent, although able 

to do so, fails to pay child support for the year preceding the petition for adoption?

¶5 3. Did the District Court err under the Indian Child Welfare Act by granting the 

petition for adoption absent supporting testimony from a qualified expert witness?

¶6 4. Does sufficient evidence support the District Court's finding that Barbara's 

continued joint custody likely would result in serious emotional or physical damage 

to H.M.O.?

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Because our resolution of issue 3 is dispositive, we do not address Barbara's other issues.

BACKGROUND

¶7 Barbara married Randy R. (Randy) in November of 1990. They separated after 

six months and H.M.O. was born five and one-half months later. Sometime after H.

M.O.'s birth, Randy requested a paternity test which established that he was H.M.

O.'s father. Barbara and Randy's marriage was dissolved in Cascade County on July 

21, 1993. They were awarded joint legal custody of H.M.O., with Barbara designated 

as the physical custodian. Randy was awarded reasonable visitation rights. Child 

support was determined and Randy paid regularly until he took physical custody of 

H.M.O. on April 15, 1994.

¶8 On that date, Heidi--Barbara's teenage daughter from a previous marriage--

called her stepmother, Karen, and asked to be picked up from softball practice. She 

told Karen that she was tired of Barbara's drinking and of being H.M.O.'s care giver 

and wanted to stay with her father and Karen. Karen then called Shannen, Randy's 

live-in girlfriend, reported that Barbara was drinking again and suggested that 

Shannen pick up H.M.O. because she might be left unsupervised. Shannen contacted 

Randy, who called the Great Falls Police Department. Officer Christopher Paul 

Hickman (Officer Hickman) responded and met Shannen and Karen at Barbara's 

apartment. Barbara's babysitter arrived with H.M.O., called Barbara, and let 

everyone into Barbara's apartment. Officer Hickman told Karen and Shannen that it 

was better if Heidi and H.M.O. went to stay with their respective fathers, since both 

fathers had joint custody of their daughters. 

¶9 Barbara did not return to her apartment and Officer Hickman tracked her down 

at a house party. He observed that she was highly intoxicated, and informed her that 

her daughters were with their fathers. Barbara responded that now maybe she could 

get a life.

¶10 Barbara and Randy entered into a stipulation on May 9, 1994, which gave Randy 

residential custody of H.M.O. with reasonable visitation rights in Barbara. The 

Cascade County district court adopted the stipulation by order the following day and 

placed restrictions on Barbara's visitation, including that she could not drink in H.M.

O.'s presence and could not have overnight visitation until her continued abstinence 

from alcohol had been proven to the court. In addition, Randy's child support 

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obligation was retroactively terminated as of April 15, 1994. Finally, the district 

court ordered that Barbara's support obligation be determined.

¶11 Barbara attempted to contact H.M.O. several times during the subsequent two 

and one-half years. Each time, Randy and Shannen denied Barbara any contact with 

H.M.O.

¶12 Randy initiated child support proceedings sometime in 1994, but Barbara could 

not be located and served until April of 1995. Shortly thereafter, Randy terminated 

the child support proceedings because he and Shannen had married in January of 

1995, and Shannen wanted to adopt H.M.O. Shannen filed her petition for adoption 

in the Twelfth Judicial District Court, Chouteau County, on April 19, 1995, alleging 

that Barbara's consent to the adoption was not necessary because Barbara had not 

paid child support during the prior year and had abandoned H.M.O. Randy 

consented to Shannen's adoption of H.M.O., but Barbara refused to do so.

¶13 By the time the adoption petition was filed, Barbara had completed inpatient 

chemical dependency treatment in Butte and moved to Missoula, where she enrolled 

in outpatient treatment at the Missoula Indian Center. Barbara is an enrolled 

member of the Chippewa-Cree Tribe (Tribe) of the Rocky Boy Reservation. Neither 

H.M.O. nor Heidi is enrolled. In June of 1995, Heidi went to stay with Barbara in 

Missoula for the summer and decided to stay with her while attending high school. 

¶14 During the course of the adoption proceedings, the District Court requested 

home studies of both Barbara and Shannen. Star Jackman (Jackman), a family 

resource specialist for the Department of Public Health and Human Services (the 

Department), issued a report recommending that H.M.O. remain permanently with 

Randy and Shannen. Jackman's report, which contained numerous inaccuracies, 

focused more on Barbara's failure to visit H.M.O. during Randy's custody than on 

the suitability of Shannen and Randy's home. She concluded that H.M.O. had 

become an integral part of the family unit--consisting of Shannen, Randy, H.M.O., an 

older stepbrother, and a younger half-sister--and, as a result, that everyone but 

Barbara would suffer loss if Randy and Shannen did not retain permanent custody 

of H.M.O.

¶15 Martha Vaughan Crago (Crago), another family resource specialist for the 

Department, submitted a report regarding the suitability of Barbara's home after 

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meeting with Barbara and Heidi. The report focused on Barbara's recent success in 

controlling her alcoholism and Shannen's negative attitude toward Barbara. Crago 

concluded that, although there was no guarantee that Barbara would remain alcoholfree, there was no basis to deny her unsupervised visitation or terminate her parental 

rights without her consent. 

¶16 Reba McCracken (McCracken), Shannen's mother, was deposed during the 

course of the adoption proceedings. McCracken, a teacher with an endorsement in 

special education, testified that H.M.O. had not developed the social skills of the 

average child of a similar age when Randy and Shannen initially took custody of H.

M.O. McCracken also testified that Shannen is an "excellent" parent and worked 

extensively with H.M.O. to help H.M.O. develop social skills. 

¶ 17At the beginning of the hearing on Shannen's petition, the District Court 

concluded that H.M.O. would be treated as an Indian child for purposes of the 

Indian Child Welfare Act (the ICWA) and, therefore, that the ICWA applied to the 

adoption proceedings. It further noted that the Tribe was notified of the adoption 

proceedings, as required by the ICWA, but did not respond. Shannen, Randy, 

Barbara, and various friends and family members testified. In addition, Carol 

Richard (Richard), a chemical dependency counselor, testified on Barbara's behalf. 

Shannen's accounting expert also testified that, if Barbara's support obligation had 

been determined, she would have owed $43 per month in child support to Randy.

¶18 The District Court concluded that Barbara's consent to the adoption was not 

required because, although she was able, Barbara had not paid child support for the 

year prior to Shannen's initiation of the adoption proceedings, but that Barbara had 

not willfully abandoned H.M.O. The District Court also concluded beyond a 

reasonable doubt, based on what it characterized as the expert testimony of 

Jackman, McCracken and Richard, that custody of H.M.O. by Barbara likely would 

result in serious emotional or physical damage to H.M.O.; that H.M.O.'s custody 

should be with Randy; that Barbara's parental rights should be terminated; and that 

Shannen's petition for adoption should be granted. Barbara appeals from the order 

and judgment entered on the District Court's findings of fact and conclusions of law.

STANDARDS OF REVIEW

¶19 We review a district court's findings of fact to determine whether the findings 

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are clearly erroneous. Matter of P.E. (1997), 282 Mont. 52, 56, 934 P.2d 206, 209 

(citations omitted). Findings of fact are clearly erroneous "if they are not supported 

by substantial evidence, the court misapprehends the effect of the evidence, or this 

Court's review of the record convinces it that a mistake has been made." In re 

Marriage of Nevin (1997), 284 Mont. 468, 472, 945 P.2d 58, 61 (citation omitted). We 

review a district court's conclusions of law to determine whether they are correct. 

Matter of P.E., 282 Mont. at 56-57, 934 P.2d at 209 (citations omitted).

¶20 Determinations regarding the qualifications and competency of an expert witness 

are within the discretion of the trial court. Cottrell v. Burlington Northern R. Co. 

(1993), 261 Mont. 296, 301, 863 P.2d 381, 384 (citation omitted). We will not overturn 

such determinations absent a showing of an abuse of that discretion. Cottrell, 261 

Mont. at 301, 863 P.2d at 384 (citation omitted).

DISCUSSION

¶21 Did the District Court err under the ICWA by granting the petition for adoption absent 

supporting testimony from a qualified expert witness?

¶22 At the beginning of the hearing, the District Court determined that H.M.O. 

would be treated as an Indian child and, therefore, that the ICWA applied to the 

proceedings; neither party appealed from that determination. The District Court 

subsequently concluded that Jackman's report, McCracken's deposition, and 

Richard's opinion testimony constituted the qualified expert evidence required by the 

ICWA to support its finding, beyond a reasonable doubt, that Barbara's continued 

custody of H.M.O. would likely result in serious emotional or physical damage to H.

M.O. On that basis, the District Court ordered Barbara's parental rights terminated 

and granted Shannen's petition for adoption.

¶23 Barbara argues that, under the ICWA, her parental rights cannot be terminated 

absent testimony from at least one qualified expert witness that serious emotional or 

physical damage to H.M.O. likely will occur if Barbara's joint custody is continued. 

She contends that the District Court's "serious emotional or physical damage" 

determination is not supported by qualified expert testimony.

¶24 As a threshold matter, Shannen contends that this issue is not properly before us 

because Barbara raises it for the first time on appeal. Barbara responds that the first 

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notice she had that Jackman and McCracken were to be treated as experts for ICWA 

purposes was when the District Court entered its findings of fact, conclusions of law, 

and order.

¶25 We generally will not address an issue raised for the first time on appeal when 

the appellant had an opportunity to object at the trial level. Cenex v. Board of 

Com'rs of Yellowstone (1997), 283 Mont. 330, 337-38, 941 P.2d 964, 968 (citation 

omitted); State v. Weeks (1995), 270 Mont. 63, 86, 891 P.2d 477, 491 (citation 

omitted). In cases where the party has not had an adequate opportunity to object, 

however, we will address the issue. See Cenex, 283 Mont. at 338, 941 P.2d at 968. For 

the reasons set forth below, we conclude that Barbara did not have an adequate 

opportunity to object to the District Court's reliance on Jackman and McCracken as 

expert witnesses. Therefore, this issue is properly before us.

¶26 The ICWA provides that:

 [n]o termination of parental rights may be ordered in such proceeding in the absence of a 

determination, supported by evidence beyond a reasonable doubt, including testimony of 

qualified expert witnesses, that the continued custody of the child by the parent or Indian 

custodian is likely to result in serious emotional or physical damage to the child.

 25 U.S.C. § 1912(f). Thus, qualified expert testimony that Barbara's continued joint 

custody would likely result in serious emotional or physical damage to H.M.O. is a 

prerequisite to the termination of Barbara's parental rights. Further, Rule 702, M.R.Evid., 

provides that:

[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to 

understand the evidence or to determine a fact in issue, a witness qualified as an expert by 

knowledge, skill, experience, training, or education may testify thereto in the form of an 

opinion or otherwise.

Both Rule 702, M.R.Evid., and our case law are clear that, before expert evidence can be 

admitted, "some foundation must be laid to show that the expert has special training or 

education and adequate knowledge on which to base an opinion." Cottrell, 261 Mont. at 

301, 863 P.2d at 384. 

¶27 With regard to the foundation necessary to qualify an expert pursuant to Rule 

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702, M.R.Evid., and Cottrell, it is clear that no such foundation was laid for either 

Jackman or McCracken. Jackman did not testify at the hearing and, as a result, no 

effort was made to qualify her as an expert for ICWA purposes. Consequently, the 

only information of record regarding her qualifications is contained in her routine 

report regarding the suitability of Shannen and Randy's home as a permanent home 

for H.M.O., which was submitted for the District Court's consideration by 

stipulation of the parties. That information disclosed only that Jackman was a social 

worker for the Department. No party having laid the necessary foundation, the 

District Court had insufficient information before it to determine that Jackman 

qualified as an expert under Rule 702, M.R.Evid.

¶28 Similarly, Shannen did not offer--or qualify--McCracken, who is Shannen's 

mother, as an expert witness. Like Jackman, McCracken did not testify in person 

during the hearing. Her testimony was admitted via her perpetuation deposition and 

there is no suggestion therein that she was being offered as an expert witness. While 

McCracken's deposition reflects that she is a school teacher with an elementary 

education degree and an endorsement in special education, we conclude that such 

information set forth in a vacuum--that is, without any disclosure that the witness is 

being offered and qualified as an expert--cannot constitute an adequate foundation. 

Therefore, we conclude that the District Court abused its discretion by implicitly 

determining that an adequate foundation had been laid for receipt of McCracken's 

deposition testimony as expert evidence.

¶29 Shannen contends, however, that Jackman, McCracken and Richard were, in 

fact, qualified expert witnesses for ICWA purposes and that their testimony 

supported the District Court's finding, beyond a reasonable doubt, that Barbara's 

continued joint custody of H.M.O. would likely result in serious emotional or 

physical damage to the child. We address these matters in turn.

¶30 Where the ICWA applies, the Guidelines for State Courts; Indian Child Custody 

Proceedings (the Guidelines), regarding expert witnesses for ICWA purposes, also 

apply. Matter of M.E.M. (1981), 195 Mont. 329, 336, 635 P.2d 1313, 1318. The 

Guidelines provide:

 D.4. Qualified Expert Witnesses

(a) Removal of an Indian child from his or her family must be based on competent 

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testimony from one or more experts qualified to speak specifically to the issue of whether 

continued custody by the parents or Indian custodian is likely to result in serious physical 

or emotional damage to the child.

 (b) Persons with the following characteristics are most likely to meet the requirements for 

a qualified expert witness for purposes of Indian child custody proceedings:

(i) A member of the Indian child's tribe who is recognized by the tribal community as 

knowledgeable in tribal customs as they pertain to family organization and childbearing 

practices.

(ii) A lay expert witness having substantial experience in the delivery of child and family 

services to Indians, and extensive knowledge of prevailing social and cultural standards 

and childbearing practices within the Indian child's tribe.

(iii) A professional person having substantial education and experience in the area of his 

or her specialty.

44 Fed.Reg. 67584, 67593 (1979). 

¶31 Nothing of record suggests in any way that Jackman, McCracken or Richard 

could be qualified as experts for ICWA purposes under the first two categories set 

out above. Thus, they could qualify--if at all--only under the third category.

¶32 Shannen contends that, because Jackman is a social worker, the District Court 

did not err in relying on the expert opinions set forth in her home-study report. For 

this proposition, Shannen relies on In re Adoption of M.T.S. (Minn. Ct. App. 1992), 

489 N.W.2d 285, 287. However, Adoption of M.T.S. provides little support for 

Shannen's argument because, beyond a statement that the social workers who 

provided the home-study reports were qualified experts under the ICWA, the 

opinion provides no information on the expertise of the social workers. Adoption of M.

T.S., 489 N.W.2d at 287. In short, whether the social workers were qualified experts 

under the ICWA was not an issue. Adoption of M.T.S., 489 N.W.2d at 287.

¶33 Other courts have held that social workers must have qualifications beyond 

those of the normal social worker to be qualified as experts for the purposes of the 

ICWA. See, e.g., In re Elliott (Mich. Ct. App. 1996), 554 N.W.2d 32, 37 (citation 

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omitted); Matter of N.L. (Okla. 1988), 754 P.2d 863, 868 (citations omitted). Those 

courts based their conclusions on the legislative history of the ICWA which requires 

"expertise beyond the normal social worker qualifications." See In re Elliott, 554 N.

W.2d at 37 (citation omitted); Matter of N.L., 754 P.2d at 868 (citations omitted); see 

also House Report for the Indian Child Welfare Act, H.R. 1386, 95 Cong., 2d Sess. 

22, reprinted in 1978 U.S.C.C.A.N. 7530, 7545. Based on these cases and legislative 

history, we hold that a social worker must possess expertise beyond that of the 

normal social worker to satisfy the qualified expert witness requirement of 25 U.S.C. 

§ 1912(f). 

¶34 As discussed above, Jackman's report contains no substantive information 

regarding her qualifications and experience other than that she was a social worker 

employed by the Department. On the basis of the record before us, we hold that the 

District Court abused its discretion in concluding that Jackman was a qualified 

expert witness for ICWA purposes.

¶35 With regard to McCracken, Shannen cites to no authorities under which 

McCracken's skill and experience as a teacher with a special education endorsement 

would render her a qualified expert witness for ICWA purposes on the issue of 

whether--and to what extent--Barbara's continued joint custody would result in 

serious physical or emotional damage to H.M.O. Nor do such education and 

experience appear--from a logic standpoint--to be sufficient qualifications for an 

expert on that particular issue. Therefore, we hold that the District Court abused its 

discretion in concluding that McCracken was qualified as an expert on the issue of 

whether serious emotional or physical damage to H.M.O. likely would result if 

Barbara retained joint custody of H.M.O.

¶36 Finally, Shannen contends that Richard was called and qualified by Barbara as 

an expert on chemical dependency and its potential impacts on the children of 

chemically dependent people. She also contends that Richard testified that Barbara is 

an alcoholic and clinically depressed and that that testimony is sufficient to support 

the District Court's conclusion regarding the likelihood of serious emotional or 

physical damage to H.M.O. if Barbara maintained her parental rights. We agree--

and, indeed, Barbara concedes--that Richard was qualified as an expert on the issue 

of serious emotional or physical damage to H.M.O. should Barbara retain joint 

custody. We disagree, however, that Richard's testimony is sufficient to support the 

District Court's finding.

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¶37 At no point in Richard's testimony did she opine or even infer that leaving H.M.

O. in the joint legal custody of Barbara and Randy likely would result in serious 

emotional or physical damage to the child. While Richard did state that Barbara was 

both alcoholic and clinically depressed, those conditions--without more--will not 

support a "likely serious emotional or physical damage" finding. Moreover, Richard 

testified that Barbara had had a great deal of success in working on her recovery and 

that Barbara's chances of successfully dealing with her alcoholism have increased 

because Barbara is also being treated for depression. 

¶38 As discussed, Richard's testimony was the only expert evidence before the 

District Court on the likelihood of serious emotional or physical damage to H.M.O. in 

the event Barbara retained joint custody. That testimony is not substantial evidence 

in support of the District Court's finding, beyond a reasonable doubt, that continued 

joint custody by Barbara would result in serious physical or emotional damage to H.

M.O. We conclude, therefore, that the court's finding is clearly erroneous and, as a 

result, we hold that the District Court erred in granting the petition for adoption 

absent substantial supporting testimony from a qualified expert witness.

¶39 Reversed and remanded with instructions to the District Court to vacate its 

judgment and enter a judgment reinstating Barbara's parental rights and denying 

Shannen's petition for adoption.

/S/ KARLA M. GRAY

We concur:

/S/ J. A. TURNAGE

/S/ JIM REGNIER 

/S/ JAMES C. NELSON

/S/ TERRY N. TRIEWEILER

/S/ W. WILLIAM LEAPHART

/S/ WILLIAM E. HUNT, SR.

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