No. 95-129
IN THE SUPREMECOURT OF THE STATE OF MONTANA
1995
IN THE MATTER OF
A.Z.G., a/k/a A.Z.Y.,
A Youth Under the Age of Eighteen.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Edward P. McLean, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Holly JO Franz, Gough, Shanahan, Johnson
& Waterman, Helena, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Barbara C. Harris, Assistant Attorney General,
Helena, Montana
Robert L. "Dusty" Deschamps III, Missoula
County Attorney; Robert L. Zimmerman,
Deputy County Attorney, Missoula, Montana
Submitted on Briefs: September 28, 1995
Decided: November 9, 1995
Justice Charles E. Erdmann delivered the opinion of the Court.
This is an appeal of an order of the Youth Court in the Fourth
Judicial District Court, Missoula County, suspending AZY's prior
commitment to the Department of Family Services (DFS) and placing
AZY on probation subject to AZY residing with his father. We
reverse and remand for proceedings consistent with this opinion.
The dispositive issue on appeal is whether the Youth Court
erred in ordering AZY's placement with his father as a condition of
his probation.
FACTS
AZY is a minor, sixteen years of age. He committed the
offense of criminal mischief which, if committed by an adult, is in
violation of 5 45-6-101, MCA (1993), and was found to be a
delinquent youth within the meaning of 5 41-5-103(7) (a), MCA
(1993). The Youth Court placed AZY on probation under the
jurisdiction of DFS and released him into the custody of his
mother. AZY's mother had been his sole custodian for the previous
thirteen years. A subsequent petition was filed alleging AZY
violated the conditions of his probation.
The Youth Court held a disposition hearing on the petition to
revoke and committed AZY to the custody of DFS with placement at
Pine Hills School for boys. The court then suspended the
commitment to DFS and placed AZY on probation under the supervision
of the Youth Court Probation Department with the condition that AZY
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move to Seattle, Washington, and reside with his father. From this
disposition, AZY and his mother appeal.
DISCUSSION
Did the Youth Court err in ordering the placement of AZY with
his father a condition of his probation?
AZY and his mother argue that the Youth Court exceeded its
authority in placing AZY outside his home. They contend that
§ 41-5-523, MCA (1993), limits the Youth Court's dispositional
authority if the court determines that the youth is in need of a
placement other than the youth's own home.
41-5-523. . . . (1) If a youth is found to be a
delinquent youth or a youth in need of supervision, the
youth court may enter its judgment making any of the
following dispositions:
(a) place the youth on probation;
(b) commit the youth to the department if the court
determines that the youth is in need of placement in
other than the youth's own home, provided that:
(i) the court shall determine whether continuation
in the home would be contrary to the welfare of the youth
and whether reasonable efforts have been made to prevent
or eliminate the need for removal of the youth from the
youth's home. The court shall include a determination in
the order committing the youth to the department.
AZY and his mother contend § 41-5-523(l) (b), MCA (1993),
provides DFS with the sole authority to place a youth outside of
his own home in all circumstances except when a youth is committed
to a mental health facility. See also § 41-5-523(1)(j), MCA
(1993). AZY and his mother argue that the Youth Court improperly
removed AZY from his mother's home and her sole legal custody and
placed him in the care of his father, a noncustodial parent.
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The State agrees that if the Youth Court had committed AZY to
DFS, the court could not have ordered specific placement. However,
the State argues that the Youth Court placed AZY on probation
pursuant to 55 41-5-523(l) (a), -703, MCA (1993), and placed him
with his father as a condition of that probation. The State
stresses that there are no statutory restrictions to conditions on
probation.
The State references an Arizona case where the court upheld
probation that required the youth to spend weekends at a detention
center while otherwise on probation and living with his parents.
The Arizona court concluded that the youth court's "ability to
impose conditions of probation exists even though it is not
specifically set forth in the statute." In re the Appeal in Pima
County Juvenile Action No. J-20705-3 (Ariz. Ct. App. 1982), 650
P.2d 1278, 1279.
AZY and his mother dispute that case's applicability here
because Arizona's statutes provide for a disposition by the court
where the youth may be placed with his parents subject to the
supervision of the probation officer. See Ariz. Rev. Stat. Ann.
5 8-241(A) (2) (a) (1994). In that case, the youth remained under
the custody of his parents but was under the probation officer's
supervision on weekends. Under Montana law such a disposition is
not available and the case cited is inapplicable to the issue
presented here.
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The State further argues AZY has "a home" with his father.
The Youth Court Act does not define "a youth's own home" as
referred to in § 41-5-523(l) (b), MCA (1993). In Black's Law
Dictionary, home is " [tlhat place in which one in fact resides with
the intention of residence . . . .'I Black's Law Dictionary 374
cab. 5th ed. 1983) . An unmarried minor child's residence is
defined in 5 l-1-215(4), MCA (1993), as "the residence of the
parent having legal custody or, if neither parent has legal
custody, the residence of the parent with whom he customarily
resides . . . .'I
DFS's report to the court noted AZY had not spent any length
of time with his father and their contact had been inconsistent.
AZY's father did not have custody of the youth and had not seen him
for over a year prior to this action. In addition, we note AZY has
been a full-time student in Montana's schools while residing with
his mother. Therefore, we conclude that AZY's father's home is not
"the youth's own home" within the meaning of § 41-5-523(1)(b), MCA
(1993). Nevertheless, the State asserts that the Youth Court
properly considered AZY's best interests while maintaining a family
environment. In doing so, the State argues the court fulfilled the
purposes of the Youth Court Act as stated in 5 41-s-102, MCA
(1993).
The Youth Court concluded it had the authority to place AZY
with his father. We review a District Court's conclusion of law
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for its correctness. Carbon County v. Union Reserve Coal Co., Inc.
(Mont. 1995), 898 P.2d 680, 686, 52 St. Rep. 529, 533.
The 1987 amendments to the Youth Court Act, 55 41-5-101 to
-1008, MCA, expanded the role of DFS while it diminished the role
of the youth courts. In the Matter of B.L.T. (1993), 258 Mont.
468, 471, 853 P.2d 1226, 1228. Prior to those amendments, the
youth court had full authority over placement of youths. Section
41-5-523, MCA (1985). The amendments preserved the youth court's
power to sentence the youth but granted to DFS control over the
placement of the youth. In the Matter of the Application of
Peterson (1989), 235 Mont. 313, 316, 767 P.2d 319, 321. In
Peterson, we upheld that transfer of authority and ruled the
legislature had the power to make placement of youths an
administrative power. Peterson, 767 P.2d at 321.
Section 41-5-523(l) (b), MCA (1993), provides that the youth
court shall "commit the youth to [DFSI if the court determines that
the youth is in need of placement in other than the youth's own
home . . . .'I The court stated, in the record, that AZY's mother
"does not have the parenting skills necessary to keep LAZY] at her
residence at the present time." The court then found it was in
AZY's best interest to reside with his father instead of with his
mother. Thus, the court determined continuation in the home would
be contrary to AZY's welfare and such a determination requires the
court's committal of AZY to DFS for placement. Section
41-5-523(l) (b) (i), MCA (1993).
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In deciding the youth's placement, DFS must review
recommendations made by the youth placement committee. Section
41-5-527(l), MCA (1993). The legislature, in § 41-5-526(4), MCA
(1993), specifically provided that the youth placement committee
may recommend to DFS the youth's placement with his parent or other
family member as an alternative to placement in a licensed facility
or with a guardian. From this provision, we determine that the
legislature intended placement with a non-custodial parent to be no
different than any other alternative placement sites outside of the
youth's own home.
We conclude that the placement of AZY outside of his mother's
home was under the authority of DFS. Therefore, we hold that the
Youth Court erred in ordering the placement of AZY with his father
as a condition of his probation. It is important to note that the
legislature revised the Youth Court Act again in 1995 and amended
the language of § 41-5-523, MCA (1993), though the question of how
those revisions would affect the facts of this case is not before
us.
Because of our holding in this issue, we do not find it
necessary to discuss the other issues raised by appellant. We
reverse and remand for proceedings consistent with this opinion.
Justice
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we concur: ,,A
Justices
Justice William E. Hunt, Sr. dissenting.
"Home" is a word with innumerable definitions, meaning
different things to different people. For example, while the
majority correctly quoted Black's Law Dictionary for its definition
of "home", Black's also defines "home" as "the habitual abode of
one's family." Black's Law Dictionary 374 (6th ed. 1990). The
habitual abode of half of A.Z.G.'s family is in Seattle, and that
is also his home when he is with his father.
The facts of this case support a broader definition of "home."
A psychologist's examination found A.Z.G. to have a "normal amount
of rebelliousness", with much of his involvement in the legal
system stemming from "family conflict." court reports from
A.Z.G.'s therapists at Mountain View School indicate his problems
center around the deteriorating relationship with his mother. The
two have a history of unproductive conflict, which on at least one
occasion resulted in law enforcement being dispatched to the
mother's house. While A.Z.G. undeniably must be held responsible
for his own behavior, reports to the court indicate a need for his
mother to work on parenting skills and her tendency to be over-
controlling. These same reports indicate the mother continually
denies any involvement in her son's difficulties and refuses to
recognize any need to change her own behavior.
Meanwhile, A.Z.G.'s father stands ready to take his son home
to an environment free from the cycle of conflict that A.Z.G. and
his mother apparently cannot escape. The father has a steady job,
a stable home, and a warm and respectful relationship with his son.
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In ordering probation, the Youth Court allowed the family to work
on solving A.Z.G.'s difficulties without the drastic step of
transferring custody of him to the State. This decision was
reasonable, warranted under the specific facts of this case, and
certainly did not constitute an abuse of discretion.
I also disagree with the majority's declaration that "the
legislature intended placement with a non-custodial parent to be no
different than any other alternative placement sites outside of the
youth's own home." I am not persuaded the legislature intended the
advantages and disadvantages of parental placement to be weighed
equally against the advantages and disadvantages of placement with
the State, as represented by an institution or a foster home.
Unlike the State, a parent has constitutional rights and
responsibilities to a child that have been repeatedly recognized,
both by this Court and by the Supreme Court of the United States:
The Court has frequently emphasized the importance of the
family. The rights to conceive and to raise one's
children have been deemed essential, basic civil rights
of man, and rights far more precious than property
rights. It is cardinal with us that the custody, care
and nurture of the child reside first in the parents,
whose primary function and freedom include preparation
for obligations the state can neither supply nor hinder.
Stanley v. Illinois (1972), 405 U.S. 645, 654, 92 S.Ct. 1208, 1212,
31 L.Ed.2d 551, 558 (citations omitted). When, as here, the rights
of a parent are potentially to be weighed against the rights of a
third party, "it has long been the law in Montana that the right of
the natural parent prevails until a showing of a forfeiture of this
right." Henderson v. Henderson (1977), 174 Mont. 1, 10, 568 P.2d
177, 182 (citations omitted). Despite this settled law, the
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majority opinion may be interpreted to excuse the State from giving
greater deference to a parent than it does to a facility or
institution. This case therefore sets a troubling precedent.
A.Z.G.'s mother has made a legitimate attempt to parent her
son. Though laudable, her attempt apparently has not been
completely successful. It was not an abuse of discretion for the
Youth Court to let the father have a try. For this reason, I would
affirm the judgment of the Youth Court.
Justice Terry N. Trieweiler concurs in the foregoing dissent.
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