No. 80-31 IN THE SUPREMECOURT OF THE STATE OF MONTANA 1980

IN THEMATTER OF A.C.S. and E.S.S., Youth in Need of Care.

Appeal from: District Court of the Thirteenth Judicial District, " I' In and For the County of Yellowstone. Honorable Diane G. Barz, Judge presiding. Counsel of Record: For Appellant: Stacey and Nye, Billings,Montana For Respondent: Harold F. Hanser, CountyAttorney, Billings, Montana Olsen, Christensenand Gannett, Billings, Montana

Filed: Submitted on briefs: August 6,1980 Decided: 

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ClerkMr. Justice Daniel J. Shea delivered the Opinion of the Court. Themother appeals from a Yellowstone County District Court judgment that terminated her parental rights and awarded custody of her twominor sons to the Department of Social and Rehabilitation Services (SRS). The sole issue is whether the District Court erred by interviewing the children in chambers outside thepresence of the mother and counsel. Themother contends she was deprived of her right to crossexamine the children. We affirm the judgment of the District Court. At thehearing to terminate parental rights and to give permanent custody to SRS, themother was represented by counsel, and both children were represented by an attorney, who had been appointed as a guardian ad litem to protect their interests. A clinical psychologist testified that he had examined the mother and found that she suffered from schizophrenia of a schizo-affective type,a mental illness that causes a distortionof an individual's emotionsand interfereswith an accurate perception of the feelings of others. He testified that the problem was of long duration and that therapy would not likely improve the condition. He concluded that the mother did nothave the emotional capability or judgment necessary to prove an adequatehome environment for the children. The same psychologist examined and evaluated the children. He testified that the emotional development of the older son was normal, but that theyounger son showed signs of emotionaldisturbance. At the time of the hearing, the children were twelve and nine years old. 

## -2-A woman friend of themother who had lived with the mother in June 1978, stated that shehad seen themother strike the twelve-year-oldboy with the cord of a vacuum cleaner for a trivial reason, and that the mother also required this son to pick up the lint from the carpetwith his hands because the vacuum cleaner used too much electricity. On the other hand, themother treated the nine-year-old boy as an infant. He was not required to perform household chores. A socialworker for SRS also testified to themother's harsh treatment of one son and lenient treatment of the other son. Finally, the childrens' paternal grandmother testified that, based upon her observations, the mother could not care forthe children, 

### and was emotionally incapable of properly caring for the children. The trial court also announced to counsel and the mother that itwished to interview both children in chambers. Neither counsel nor the mother objected. The trial court interviewedboth boys and both stated that they preferred to livewith an aunt and uncle. Themother now claims that the District Court's interview of the boys in chambers violated her rights to due process because her attorneywas not present to cross-examine them. We decline to apply the plain error doctrine to this case. The mother relies on our statement in In the Matter of T.E.R. (1979),

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### , 590 P.2d 1117, 1120, 36 St.Rep. 276, that a childmay testify out of the parents' presence in abuse and neglect cases "subject to cross-examinationby the parents' attorney 

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# .." Nothing in that opinion suggests that it is the duty of the District Court judge to assert aparent's right to cross-examination if counsel for the parent does not. Unlike T.E.R., this case does not involve a child giving testimony in chambers. The court -3-merely inquired into the children's desires regarding custody. This is a most delicate area, and we seeno error in the trial court interviewing the children in chambers. A recordwas made of the interviews,and furthermore, any claimed right of cross-examinationwas waived by failing to assert that right at the trial level. The guardian ad litemhas also filed a brief in this appeal and strongly supports the District Court's judgment. We affirm the judgment of the District Court terminating

We Concur:

Chief Justice