                               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.



                                                         3
         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.




                                                               4
         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




                                                               5
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).


                                                                                    6
          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




                                                             7
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.

                                                                    9
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
                                                              10
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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