Matter of A.C.S. E.S.S. ( 1980 )

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.
" I '
Appeal from: District Court of the Thirteenth Judicial District,
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
Submitted on briefs: August 6, 1980
Decided: 2 6 1980
Filed :
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 cross-
examine 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 testi-
fied 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 further-
more, 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