No. 80-31 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

IN THE MATTER 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, County Attorney, Billings, Montana 

Olsen, Christensen and Gannett, Billings, Montana 

Filed : 

Submitted on briefs: August 6, 1980 

Decided: 2 6 1980 

Clerk 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

The mother appeals from a Yellowstone County District 

Court judgment that terminated her parental rights and 

awarded custody of her two minor 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 the presence of the mother and counsel. 

The mother contends she was deprived of her right to crossexamine the children. We affirm the judgment of the District 

Court. 

At the hearing to terminate parental rights and to give 

permanent custody to SRS, the mother 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 

distortion of an individual's emotions and interferes with 

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 not have the emotional capability or judgment 

necessary to prove an adequate home 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 the younger son showed signs of 

emotional disturbance. At the time of the hearing, the children 

were twelve and nine years old. 

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A woman friend of the mother who had lived with the 

mother in June 1978, stated that she had seen the mother 

strike the twelve-year-old boy 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 carpet with 

his hands because the vacuum cleaner used too much electricity. 

On the other hand, the mother treated the nine-year-old boy 

as an infant. He was not required to perform household chores. 

A social worker for SRS also testified to the mother'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 for the 

children, and was emotionally incapable of properly caring 

for the children. 

The trial court also announced to counsel and the 

mother that it wished to interview both children in chambers. 

Neither counsel nor the mother objected. The trial court 

interviewed both boys and both stated that they preferred 

to live with an aunt and uncle. The mother now claims that 

the District Court's interview of the boys in chambers 

violated her rights to due process because her attorney was 

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), - Mont . - , 590 P.2d 1117, 1120, 36 St.Rep. 

276, that a child may testify out of the parents' presence 

in abuse and neglect cases "subject to cross-examination by 

the parents' attorney . . ." Nothing in that opinion 

suggests that it is the duty of the District Court judge 

to assert a parent'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 

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merely inquired into the children's desires regarding 

custody. This is a most delicate area, and we see no 

error in the trial court interviewing the children in 

chambers. A record was made of the interviews, and furthermore, any claimed right of cross-examination was waived by 

failing to assert that right at the trial level. The guardian 

ad litem has 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