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

10/17/2017

Case Number: DA 17-0181
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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