K.H., In re, 98-456

• Decision Date: 03 June 1999
• Docket Number: No. 98-456,98-456
• Citation: 981 P.2d 1190
• Parties: In The Matter of K.H. and K.L.E., Youths in Need of Care.
• Court: Montana Supreme Court

Page 1190

981 P.2d 1190

1999 MT 128

In The Matter of K.H. and K.L.E., Youths in Need of Care.

No. 98-456.

Supreme Court of Montana.

Submitted on Brief March 18, 1999.

Decided June 3, 1999.

Jill Deann LaRance, LaRance Law Firm, Inc., Billings, Montana, For Appellant.

Hon. Joseph P. Mazurek, Attorney General; Mark W. Mattioli,Assistant Attorney General, Helena, Montana, Dennis Paxinos, Yellowstone County Attorney; Melanie Logan, Deputy Yellowstone County Attorney, Billings, Montana, For Respondent

Damon L. Gannett, Gannett Law Firm, Billings, Montana, Guardian Ad Litem for K.H.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶1 T.L.E., a Crow Indian and the natural mother of the children, appeals from the order of the Thirteenth Judicial District Court, Yellowstone County, terminating her parental rights to her son, K.H., pursuant to the Indian Child Welfare Act of 1978 (ICWA) and the Montana Code. ¹ We reverse.

¶2 The dispositive issue on appeal is whether the District Court erred under ICWA by terminating T.L.E.'s parental rights to K.H. without the required testimony of a qualified expert witness.

Factual and Procedural Background

¶3 On September 2, 1995, K.H., a boy, was born to T.L.E. In September of 1996, shortly after K.L.E. was born, the Montana Department of Public Health and Human Services (the Department) petitioned for temporary investigative authority over T.L.E.'s children. The petition was brought due to concerns regarding T.L.E.'s chronic use of illicit drugs and alcohol, including the use of such substances while she was pregnant with her children. T.L.E. did not object to the Department obtaining temporary investigative authority. The petition was granted and the children were placed in foster care. In October of 1996, T.L.E. entered into the first of several voluntary treatment plans with the Department. At the time, T.L.E. was told by the Department that continued drug and alcohol use could result in the termination of her parental rights.

¶4 However, T.L.E. relapsed into alcohol, marijuana, and cocaine use, and became depressed and suicidal. In an attempt to alleviate T.L.E.'s bouts of depression, the Department placed her in foster care with the children; however, she lasted less than twenty-four hours in this arrangement before leaving. In late October of 1996, T.L.E. was discharged from chemical dependency treatment due to a lack of attendance and substance abuse relapses. Upon relapsing, T.L.E. was filled with thoughts of suicide and was admitted for psychiatric treatment. ²

¶5 In December of 1996, the Department petitioned for temporary custody of the children. Again, T.L.E. did not object. In January of 1997, T.L.E. was arrested for shoplifting and criminal sale of dangerous drugs; she received probation. That same month, she entered into another voluntary treatment plan, but failed to comply with its terms. T.L.E. subsequently entered into other treatment plans with the Department, but was repeatedly unsuccessful in controlling her addictions.

¶6 During her treatment, T.L.E. missed scheduled visits with her children, and later admitted that some of these absences were due to alcohol abuse. T.L.E. also arrived at a scheduled visitation in March of 1997 reeking of alcohol and claimed that it had been spilled upon her, but refused to submit to a breathalyzer test. In April of 1997, T.L.E. was evicted from her apartment and stated that she could not adequately care for both of her children. Indeed, a number of times T.L.E. offered to relinquish custody of the children because she could not adequately provide for them.

¶7 T.L.E. adamantly maintains that she has remained drug and alcohol free since June of 1997, when she was arrested for probation violations and sentenced to three years with the Department of Corrections (DOC). Pursuant to her probationary violations, the DOC initially placed T.L.E. in the Butte Prerelease Center. In July of 1997, the Department petitioned the court to extend temporary custody, citing T.L.E.'s failure to successfully comply with or complete any of her court-approved treatment plans. The extension of temporary custody was granted without objection from T.L.E. While in Butte, T.L.E. entered the Montana Chemical Dependency Center; she was discharged from the program in September of 1997 for lack of progress. In October of 1997, T.L.E. was transferred to the Montana Women's Prison in Billings for failure to comply with regulations at the Butte Prerelease Center. While incarcerated at the Women's Prison T.L.E. has continued to experience disciplinary problems and has been written up an average of once per month for various infractions of prison rules. T.L.E. has admitted missing several prison classes and meetings necessary to her treatment plans as a result of her inability to compose her emotions when she is not drinking or using illegal drugs on a regular basis.

¶8 At the same time, since being imprisoned, T.L.E. has demonstrated some progress towards meeting the goals of her treatment plans: she has addressed her chemical dependency issues by attending classes, including the successful completion of a drug and alcohol education program consisting of instruction in the roots of addiction, personal values, alternatives to drug-induced highs, methods of enhancing self-respect, relationship skills, and coping with life after incarceration; she has also been attending alcoholics anonymous; she successfully completed a class in coping with anxiety and depression and has continued to work on her depression issues; she has attended positive parenting classes; she has participated in additional programs involving relationships with men, criminal thinking, skills building, grief group, and moral recognition therapy; and she is close to completing her GED.

¶9 In October of 1997, K.H. was placed in his father's custody. In December of 1997, the Department petitioned for permanent custody and termination of T.L.E.'s parental rights, citing general noncompliance with her treatment plans. ³ After a hearing on the Department's termination petition, the District Court terminated T.L.E.'s parental rights to K.H. T.L.E. appeals.

Discussion

¶10 Did the District Court err under ICWA by ordering termination of T.L.E.'s parental rights to K.H. without the required testimony of a qualified expert witness?

¶11 Determining the qualifications of an expert witness is a matter within a trial court's discretion, and this Court will not overturn such determinations in the absence of an abuse of that discretion. In the Matter of the Adoption of H.M.O., 1998 MT 175, p 20, 289 Mont. 509, p 20, 962 P.2d 1191, p 20.

¶12 T.L.E. argues that the Department failed to qualify an appropriate expert witness with credentials beyond that of a normal social worker and, therefore, that the District Court erred in finding beyond a reasonable doubt that her parental rights should be terminated pursuant to ICWA. The Department contends, in response, that T.L.E. has "waived" this claim on appeal by failing to object at the termination hearing to the Department's introduction of its witness, social worker Lori Hicks (Hicks), as an appropriately qualified ICWA expert.

¶13 ICWA provides in relevant part:

No 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. [Emphasis added.]

25 U.S.C. § 1912(f). Thus, we must determine, as a threshold matter, whether this Court should reach the merits of T.L.E.'s challenge to the Department's reliance on Hicks as a qualified expert witness for purposes of terminating Indian parental rights pursuant to ICWA.

¶14 T.L.E. relies upon this Court's recent decision in Matter of H.M.O., where, after noting that qualified expert testimony is a "prerequisite" to the termination of parental rights under ICWA, this Court held 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)." Matter of H.M.O., pp 26, 33 (emphasis added). We generally decline to address an issue raised for the first time on appeal where the litigant had an opportunity to object at trial; however there is a limited exception which permits this Court to reach the merits of an issue, in the absence of a timely objection, when the party did not have an adequate opportunity to object at the trial level. See Cenex v. Board of Comm'rs for Yellowstone County (1997), 283 Mont. 330, 337-38, 941 P.2d 964, 968. In Matter of H.M.O., this Court invoked that limited exception and took cognizance of the appellant's challenge to the State's witnesses as qualified ICWA experts, despite a failure to object to those witnesses at the trial level. See Matter of H.M.O., p 25.

¶15 The Department contends that Matter of H.M.O. is distinguishable, however. The appellant in that case never had an adequate opportunity to object to the State's expert witnesses because the "testimony" at issue was contained in written reports received into evidence; no foundation was therefore established for the admission of the expert testimony. In contrast, T.L.E. was represented by counsel at her termination hearing, but never objected to the adequacy of the foundation established by the Department for the presentation of Hicks' expert testimony--including Hicks' opinion, pursuant to § 1912(f) of ICWA, that K.H. was seriously endangered by a continuation of the parental relationship with T.L.E. Nor did T.L.E. choose to voir dire Hicks regarding her qualifications as an appropriate ICWA expert. According to the Department, this Court should therefore decline to invoke the limited exception recognized in Matter of H.M.O....