                                   No. 85-276

                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                      1986




IN THE MATTER OF DECLARING
M.L.H., H.M.H., and R.H.,
Youths in Need of Ca-re.




APPEAL FROM:        The District Court of the Twentieth Judicial District,
                    In and for the County of Lake,
                    The Honorable C.B. McNeil, Judge presiding.

COUNSEL OF RECORD:

         For Appellant:
                    French, Nercer, Grainey & Duckworth; Edward R .
                    Duckworth, Polson, Montana

         For Respondent :
                    Hon. Mike Greely, Attorney General, Helena, Montana
                    Joe Roberts, Asst. Atty. General, Helena
                    John Frederick, County Attorney, Polson, Monta.na
                    Larry Nistler, Deputy County Atty., Polson

         For Arnicus/Gua.rdian Ad Litem:
                    Matthew O'NeiJ-1; Christian, McCurdy   G   Wold, Polson,
                    Montana




                                      Submitted on Briefs: Nov. 21, 1985
                                        Decided:   February 25, 1986


         F f B .4 ;'s 1986
Filed:
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.


      Following an adjud.icatory hearing the Twentieth Judicial
District, Lake County District Court declared M.L.H.,         H.M.H.
and R.H.   youths in need of care.       Their parents appeal the
adjudicatory    order    and   the   dispositional   order   of   the
District Court placing the children in two separate foster
homes.
      We reverse and remand for proceedings consistent with
this opinion.
      The parents present these issues for review:
      1.   Whether      the District Court committed reversible
error in failing to make a record of an in-chambers interview
of the children.
      2.   Whether the District Court's findings of fact and
conclusions of     1.aw are    supported by   sufficient evidence.
      3.   Whether the District Court erred by indicating at
the adjudicatory hearing that it intended to transfer custody
of the children from the parents to the Department of Social
Rehabilitation and Services.
      The children, through their guardian ad ].item, present
the   following questions in their brief as amicus curiae:
      1.    Whether     certain documentary   evidence   should be
disregarded as ina.dmissible hearsay.
      2.   Whether the District Court erred in placing the
three children in two separate foster homes.
      The appellant parents are both disabled by illness.         The
father, a retired dairy farm worker, is 67 years old and
suffers from emphysema.         The mother is 46 years old and

suffers from obesity, high blood pressure, diabetes, and an
old back injury.    Their sole support is from social security
payments which total approximately $775 per month.
     The appellants have six children.      Three are concerned
in this proceeding: M.L.H.,     a female, age 13;       H.M.H.,    a
female, a.ge 12;    and R.H.,   a   male, age   11.   The record
contains little reference to the other three children.        They
are two females and a male in their late teens.
     The appellants own a small house and an adjoining lot.
This house has two bedrooms, a living room, a kitchen, and a
bathroom.     The six children share one bedroom and also use
the living room for sleeping as well.
     The nature of the physical environment of the children
may be   set forth by a quote from a report of a social
caseworker:
    On every visit social worker has made to the home,
    there have been clothes strewn all over the floors
    of every room. The clothes have to be stepped on
    when walking through the rooms.     Junk is piled
    everywhere and leftover food sits out on the
    kitchen table and counter tops. Dirty dish.es are
    everywhere.    A foul smell is everywhere and
    permeates everything.
The same report contains statements that set forth the nature
of the parental attitude and ability to control the children:
     Children literally run the streets, enga.ge in
     illegal behavior and get themselves involved in
     potentially physically and emotionally damaging
     situations.
     Neither parent is motivated to instill. in their
     children the difference between right a.nd wrong,
     respect for others and their rights, or to provide
     an adequate physical and emotional environment.
     However, although    the   evidence   shows that   the home
environment and discipline is poor, the witnesses testified
predominately that the children were healthy and bright.          No
evidence demonstrated problems in school.       Therefore, of the
facts presented, not all are neqztive.
        In   1980,     the    Montana     Department         of         Social        and
Rehabilitative Services was granted temporary investigative
authority of the appellants' children.                   In 1984, a petition
for temporary legal custody of the three children was filed.
An adjudicatory hearing was held in March of 1985 and the
children     were    adjudicated     youths       in    need       of    care.         A
dispositional hearing in April of 1985 resulted in an order
that custody be granted to the Lake County Office of Human
Services for foster home placement.               The three children were
placed in two separate homes for an initial period of one
year.        The     appellants      filed    this       appeal         after      the
dispositional        order.       The     appeal        is     from      both      the
adjudication and        disposition.         The guardiun ad litem was
granted leave to file an amicus curiae brief.
      The first issue presented              for review is whether the
Oistrict Court committed reversible error in failing to make
a record of its in-chambers interview with the children.
Near the conclusion of the adjudicatory hearing there was
discussion     concerning      the   District      Court's          intention         to
conduct an in-home inspection and an in-chambers interview of
the children.        However, there is no record of, or reference
to, the in chambers interview beyond the discussion of intent
to   conduct    such    an    interview.          Absent       a   record        or    a
reference, we do not know if the interview was conducted;
however both parties treat the matter as if it was.                               The
remaining discussion on this issue will be based                            on the
assumption that it was conducted.
      The    appellants, in their argument that the District
Court erred in not making a record of the interview, refer to
S    40-4-214(1),     MCA,    contained      in   the    statutes on             child
custody matters in marriage dissolution, which reads:
       The court may interview the child in chambers to
       ascertain the child's wishes as to his custodian
       and as to visitation. The court may permit counsel
       to be present at the interview. The court shall
       cause a record of the interview to be made and to
       be part of the record in the case.
       In further support of their argument the appellants cite
In re Marriage of Brown (1978), 179 Mont. 417, 587 ~ . 2 d361,
wherein       a    District Court                 did   not make       a    record of         the
in-chambers interview with. the children in a dissolution of
marriage          custody         proceeding.           We    remanded       in Brown         for
reconsideration of the property division and also on the
basis that a record of the in-chambers interview was mandated
by statute.             Brown, 587 P.2d at 336.                  The appellants point
out that the rationale in Brown was reiterated in Wilson v.
Wilson    (1979), 180 Mont. 377, 590 P.2d                           1136.         We did not
reman.d in Wilson, however, because the District Court had
entered       findings            as   to    the child's wishes              and, also, a
witness       had       testified            as    to   what    occurred          during      the
interview.              Wilson,        590 P.2d         at   140.      We note that no
findings were made concerning the in-chambers interview in
the instant case.
       The        respondent,               Sta-te, a.ttempts          to       counter       the
appellants'          argument           on    this      issue by    pointing            out   two
problems:          nonapplicability of the cited law and waiver.                              The
respondent argues that S 40-4-214(l), MCA, is part of the
Uniform Marriage and Divorce Act.                            It deals only with child
custody       in        a    dissolution           proceeding,      and         there    is   no
provision          in       the     child         abuse,     neglect,       and    dependency
statutes requiring and interview to be recorded.                                  If correct,
this same reasoning would apply to the Brown and Wilson case
law,     as       it        dealt      with        child     custody       in     dissolution
proceedings          al-so.            As    to waiver, the         respondent relies
heavily on the transcript setting forth the discussion in the
District Court concerning the District Court's intentions to
conduct the in-home inspection and the in-chambers interview.
The respond.ent alleges that the appellants freely consented
to the interview between the Distrj-ct Court and the children
when it was clear the interview would not be recorded.
     Section 40-4-214 ( I . ) , MCA, deals with child custody in a
dissolution of marriage proceeding.         It is true that no
provision   in   the   abuse, neglect, or   dependency   sta.tutes
require an interview to be recorded.        However, we find no
provision in those statues that specifically allows for an
in-chambers interview either.
    Whether dealing with       child custody in a dissolution
proceeding, or in an abuse, neglect, or dependency proceeding
which may result in removing custody of a child from the
parents, the same legal reason.ing applies to any in-chambers
interview conducted.     That reasoning is best set forth in the
commissioner's note to 5 40-4-214, MCA, which provid-es:
    This section       . . .
                          [is] designed to permit the
    court to make custodial and visitation decisions as
    informally and non-contentiously as possible, based
    on as much relevant information as can be secured,
    while preserving a fair hearing for all interested
    parties.
    The general rule is that the judge may interview
    the child in chambers. It is often important for
    the judge to discover the attitudes and wishes of
    the ch.ild, and there is no reason to subject the
    child to the formality of the courtroom and the
    unpleasantness of     cross  examination.      This
    provision does not require the judge to permit
    counsel to be present at the interview, but he must
    make some kind of record of the interview (using a
    court reporter or a tape recorder) so that counsel
    for all parties will have access to the substance
    of the interview.
Section 40-4-214, MCA, (Annot.)   .
     The same reasoning applies to a dispositional hearing
concerning custody of youths in need of care.      The nature of
the children's interest can best be gleaned from such an
interview, while shielding the children from the rigors of
the courtroom.       However, the parties to the dispositional
hearing have just as great a need for access to the substance
of the interview as do parties to a, custody in dissolution
hearing.    Furthermore, as a matter of due process, a record
made in-chambers provides this Court access to evidence on
which the District Court may have relied in making its order.
As we have explained:
       Without the record of the interview and without
       specific findings as to the wishes of the children,
       counsel and this Court do not know with any degree
       of certainty the basis for the District Court's
       conclusion on custody ma.tters.
In re Marriage of Brown (1978), 179 Mont. 417, 426, 587 P.2d
361, 366.     We hold that a District Court may conduct an
in-chambers interview of children in an abuse, neglect and
dependency proceeding.      However, once the District Court, in
its discretion, decides to hold such an interview it must
make a record of the interview.          The respondent's argument
that the parents' waived. their right to access to a record of
the interview has no merit.        In the di.scussion between the
court and the parties regarding the interview, no mention was
made of a record and it was reasonable of the appellants to
assume that a record would be mad-e.
       The second issue presented by the parents is whether the
District Court's findings of fact and conclusions of law are
supported by sufficient evidence.        For discussion, we combine
this    issue with    the   children's   second   issue of whether
certain reports should be disregarded by this Court because
they were inadmissible as hearsay.
       The findings of a d.istrict court in an abuse or neglect
action enjoy a presumption of correctness a.n.d. will not be
overturned unless so unsupported by credible evidence as to
amount to a clear abuse of discretion.                   In re C.M.S.        (Mont.
1979),     609     P.2d     240,     243,      36   St.Rep.          2004,   2008.
Furthermore, in a bench trial, such as this, we presume the
district judge disregarded inadmissible evidence in reaching
his decision.          In the Matter of M.F.,           J.F. and R.W.        (Mont.
I-982), 653 P.2d         1205, 1210, 39 St.Rep.          2103, 2109; In the
Matter of Moyer (1977), 173 Mont. 208, 211, 567 P.2d 47, 49.
       The parents1 attorney objected to the presence in the

court file of any statements not supported by testimony.                        We
have cautioned that          "   [t]he possibility of error would be
great where a trial court relied on reports not supported by
examination at a custody hearing.''                 In the Matter of M.F.,
2.F.    and R.W.       (Mont. 1982), 653 P.2d 1205, 1210, 39 St.Rep.
2103, 2109.        Due process is violated if the authors of such
reports    are     not    required       to   testify    and    be    subject to
cross-examination.          In the Matter of Moyer (1977), 173 Mont.
208, 211, 567 P.2d 47, 49.                However, in this instance, the
author    of     the    reports    did    testify    and    were      subject to
cross-examination.          No evidence was presented to rebut the
presumption that any hearsay within the reports, themselves,
was disregarded by the District Court.                  The court explicitly
based its findings upon the testimony of the witnesses and
upon the reports of only those who testified.                        Therefore we
find that the District Court properly considered only the
admissible evidence.          However, because of the uncertainty of
the substance of the in-chambers interview we cannot say that
there    was     substantial      credible      evidence       to    support   the
adjudicatory order.
       The parents also contend the District Court erred in
indicating its intention to transfer custody from the parents
to   the    Department of         Social and     Rehabilitation Services
before the dispositional hearing was completed.                  The parents
argue this made the completion of the dispositional hearing
required by section 41-3-406, MCA, a mere formality.                     The
mandate of section 41-3-406 is clear.               A district court may
make    a   dispositional         order   only   after    a     dispositional
hearing.         We have cautioned previously that "[tlo insure
that the minors          involved    received the full protection of
[custody]       laws,    these    procedures     should    be     'rigorously
followed. ' "     In the Matter of Guardianship of Aschenbrenner
(1979), 182 Mont. 540, 553, 597 P.2d 1156, 1164.                   Here, the
record indicates the District Court stated its intention to
transfer custody to the State three times, and before the
parties had the opportunity to present any evidence at the
dispositional hearing.           This is error and we reverse.
       This case is remanded in order to clearify the evidence
relied on by the District Court to support the adjudicatory
order and to allow for a full dispositional hearing.                     The
children's guardian ad litem argues that because of surprise
they were unaware that the State would recommend separating
the child-ren,and therefore was unable to present evidence on
that issue or effectively cross-examine the testimony which
recommended      the    separation.        Because we     remand, another
opportunity      to     present     the   children's     interest will    be
afforded to counsel.
       Reversed and remanded.




We Concur:
