                                                   No.    88-182

                   I N THE SUPREME COURT OF THE STATE OF MONTANA

                                                         1988




I N THE MATTER OF THE A P P J J I C A T I O N OF
ROBERT PETERSON ON BEHALF OF B.S.M,
a youth.




ORIGINAL PROCEEDING:


COUNSEL OF RECORD:

             For Petitioner:

                           R o b e r t M.   P e t e r s o n argued, H e l e n a , M o n t a n a

             F o r Respondent:

                           H o n . M i k e G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
                           C l a y S m i t h argued, A s s t . A t t y . G e n e r a l , H e l e n a
                           D a v i d G. R i c e , C o u n t y A t t o r n e y , H a v r e , Montana


                                                                                                  -




                                                         Submitted:           September 8 , 1 9 8 8

                                                            Decided:          January 6 , 1 9 8 9




                                                    ED SMITH
   Li.
         *   1.

                  -_
                  -a   .                                 Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
      This petition for writ of habeas corpus arises from the
Youth Court of the Twelfth Judicial District.       The Youth
Court determined that B.S.M. was a delinquent youth.      The
Youth Court committed B.S.M. to the Department of Family
Services, Linda K. Walker, Regional Administrator, for place-
ment in an appropriate facility. The petitioner alleges that
the Department of Family Services does not have the authority
to place delinquent youths, but that placement lies with the
judiciary.
      The petition for writ of habeas corpus is denied.
      The following issues are presented:
      1. Whether the decision by the Department of Family
Services to place the delinquent youth in the Pine Hills
School for Boys was a violation of the Separation of Powers
Clause, Art. 111, Sec. 1, 1972 Mont. Const.
      2. Whether the youth was denied due process of law
when the Department of Family Services placed him in the Pine
Hills School for Boys without an adversarial hearing to
decide proper placement.
      The following facts are uncontested. B.S.M. was six-
teen years old at the time of commitment to the Department of
Family Services (Department). On May 7, 1987, B.S.M. was
charged with burglary, theft, and possession of drugs. In
addition, he was charged with the unauthorized use of a motor
vehicle, and refusal to obey the reasonable and lawful de-
mands of his parents. The allegations were admitted by the
youth on May 21, 1987. Thereafter, the judge ordered exten-
sive psychological evaluation for B.S.M.,        pursuant to
S41-5-523(2), MCA, including forty-five days at the Youth
Evaluation Proqram in Great Falls.     A consent decree was
proposed to the Youth Court by both parties requesting that
the youth be placed on probation for one year in the custody
of his mother. The decree was approved on November 3, 1987.
      A second petition was filed on February 1, 1988, by the
deputy county attorney from Hill County, alleging that B.S.M.
had committed fifteen counts of theft, burglary, criminal
trespass, unlawful possession of an intoxicating substance
and of being a runaway between December 31, 1987, and January
17, 1988.    The allegations were admitted by the youth on
February 2, 1988, and by order of the Youth Court on February
3, 1988, B.S.M. was committed to the Department's care until
the age of eighteen.
      Upon entry of the Youth Court commitment order, the
chief probation officer for the Twelfth Judicial District
issued a referral under ARM § 11.7.404(2) to the Youth Place-
ment Committee for the district. The Youth Placement Commit-
tee recommended that B.S.M. be placed in the Pine Hills youth
correctional facility. The Department accepted the recommen-
dation on February 22, 1988, pursuant to § 41-5-527, MCA.
B.S.M. petitioned this Court for writ of habeas corpus.
      In 1987, the Montana legislature created a new state
agency, the Department of Family Services.            Section
2-15-2401, MCA. The purpose of the Department is to develop
and maintain consolidated programs and services for youth and
families, within available resources.    Section 52-1-101 et
                .
seq., MCA (1987) The new statute delegates authority to the
Department for supervision, care, and control of youth,
powers formerly held by the youth courts. Section 52-1-103,
MCA. Section 41-5-523, MCA, gives authority to the Youth
Court to decide the commitment of delinquent youths and
youths in need of supervision. After disposition by the Youth
Court, S 41-5-523(1)(b) now leaves with the Department au-
thority to place the youth in an appropriate facility.
      The first issue is whether the decision by the
Department of Family Services to place the delinquent youth
in the Pine Hill School for Boys was a violation of the
Separation of Powers Clause, Art. 111, Sec. 1, 1972 Mont.
Const.
      According to the petitioner, if the decision to incar-
cerate the delinquent youth is made by the Department, the
decision is not being made by the proper authority. The
legislature created the Department and the governor appoints
the Department director, making it an executive agency.
Therefore, the executive branch is making the decision and
this is a violation of the Separation of Powers Clause. Art.
11, Sections 15, 17, and 24, 1972 Mont. Const. Petitioner
contends the judiciary is the proper decision-making body for
the placement of delinquent youths.
      We hold that there is no violation of the Separation of
Powers Clause in this case. There are a series of steps to
the dispositional/sentencing phase of 5 41-5-523. The Youth
Court is solely responsible for choosing which of the various
alternatives in 5 41-5-523 is appropriate in each individual
case. The alternatives are: § 41-5-523(1)(a), place the youth
on probation; (1)(b), commit the youth to the department;
(1)(c), "order such further care and treatment or evaluation
that does not obligate funding from the department without
the department's approval;' (1) (d), order restitution by the
                          I
youth or his parents; (1) (e), "impose a fine as authorized by
law if the violation alleged would constitute a criminal
offense if comrnited by an adult;" (1)(f), require the perfor-
mance of community service; (1)(9), require the youth or his
parents to receive counseling; (l)(h), require medical and
psychological evaluation of the youth or his parents; (1)(i),
"require the parents, guardians, or other persons having
legal custody of the youth to furnish such servjces as the
court may designate;" or (1)( j ) , require "such further care,
treatment, evaluation, or relief that the court considers
beneficial to the youth and the community."
       Section 41-5-523 (1) (b) allows the judge to place the
youth with the Department.      Once the Youth Court judge de-
cides that the delinquent youth is to be put in the hands of
the Department, then the court has limited control over the
placement of the youth.
      There is no constitutional violation here by giving the
Department the authority to place the child. The decision to
commit the youth is made by the court. It then hands the
placement duties over to the Department.
      The power of the Youth Court is not diminished through
granting the Department placement power of a delinquent
youth.    The court has the exclusive power to sentence the
youth. If the court chooses to place the youth with the
Department, it is just one of the possible proper disposi-
tions. Furthermore, the court reserves residual power, pursu-
ant to S 41-5-523(5), which allows it to revoke or modify the
disposition of the Department at any time, upon notice to the
Department and subsequent hearing. This assures that the
youth retains his rights in case the Department exceeds or
abuses its authority.
      We conclude that 5 41-5-526, MCA, provides the Youth
Court with authority to order the delinquent youth to be
placed with the Department. It is then up to the Department
to place the youth in a proper setting. We also conclude
that the Youth Court has the authority to review the decision
of the Department to determine if the placement is in the
best interests of the minor. See: State v. A.C. (Alaska App.
1984), 682 P.2d 1131.
       It is within the power of the legislature to limit the
placement power of the Youth Court. Public policy dictates
that as the voice of the people, the legislature has the
power to make placement of youths an administative power. If
the people choose to turn full power of placement back to the
Youth Court, they will do so through the elective process.
This Court will not replace legislative discretion with our
own.
      The petitioner is concerned with the fact that the same
body which now places delinquent youths also holds the purse
strings. Under 5 41-5-526, MCA, one of the requirements in
placing the youth is to review all relevant available re-
sources. Section 41-5-102(2), MCA, though, puts forth as the
primary goal the supervision, care, and rehabilitation of the
youth, not   financial considerations.   Petitioner contends
that incarceration expenses are often less than rehabilita-
tion expenses and this will affect the decision of the De-
partment, who pays for the care--that is, Pine Hills will be
used more readily than other more expensive types of foster
care. However, there is no showing that a youth will receive
inadequate care because he is sent to Pine Hills rather than
a home or an out-of-state facility.    The Department must
consider all available resources and, if it concludes that
Pine Hills is the appropriate facility, the placement will be
regarded as proper, absent a finding of abuse of discretion
by the Youth Court.
      Cases from other jurisdictions which have similar youth
placement services, have commented on the propriety of an
administrative agency holding the authority to place delin-
quent youths. In In Interest of G.B. (Neb. 1988), 418 N.W.2d
258, the Nebraska Supreme Court held that it is within the
child's best interest to grant the power to place the youth
with the Department of Social Services. The Nebraska statute
is identical to § 41-5-523.
      Respondent shows that there are other state courts
which have accepted the proposition that a youth court can
commit a youth to a state agency for supervision and treat-
ment. For example, in State v. Dennis F. (N.M.Ct..App. 19861,
725 P.2d 595, 597, the court held:
           Once the children's court has committed
           a child to the custody of the depart-
           ment, the jurisdiction of the court is
           ended, and the Department of Corrections
           is responsible for the care and rehabil-
           itation of the delinquent child.
Other jurisdictions have passed upon statutes that grant.
placement authority with a state agency after commitment by
the youth court, see: State v. A.C. (Alaska App. 1984), 682
P.2d 1131; In Interest of C.D.P. (Iowa 1982), 315 N.W.2d 731;
In Interest of R.D. (Ga. App. 1977), 234 S.E.2d 680; Craft v.
State (S.C. 1984), 314 S.E.2d 330; Dept. of Health & Rehalo.
v. McGregor (Fla. App. 5 Dist. 1987), 511 So.2d 1096.
      The second issue is whether the youth was denied due
process of law when the he was placed in the Pine Hills
School for Boys by the Department without an adversarial
hearing to decide the placement of the youth. Petitioner
contends that the youth was deprived of fundamental rights
prescribed in the Constitution, including: the right to
counsel at all proceedings, the right to confront witnesses,
and the right to cross-examine witnesses who prepare the
social summary or predisposition report. Counsel for the
youth is also concerned that a youth's lawyer will not be
allowed into the placement committee hearing to assure that
the testimony is not misinterpreted and that no testifying
parties unfairly testify against the petitioner.
      ARM § 11.7.406(6) states that the youth's attorney m:
                                                          a7
submit a written statement concerning placement and request
an opportunity to appear before the committee which makes the
recommend-ation to the Department for the youth1s placement.
There is no indication that the committee would deny the
attorney the right to appear, and in this case the attorney
was granted the right to be present.
      Petitioner stresses the need for the presence of coun-
sel at the placement of the minor to insure that the convic-
tion and disposition are not based on misinformation or a
misreading of court records. However, the attorney is present
at the dispositional stage--the hearing in which the Youth
Court commits the youth to the Department. The dispositional
stage is complete once the court chooses one of the subsec-
tions of § 41-5-523, MCA. Beyond commitment of the youth by
the court, the delinquent youth has no absolute right to
counsel at the placement hearing.
      Petitioner asserts that there is danger in allowing the
committee to act without the presence of an attorney because
of the language in ARM § 11.7.406(7), which states that the
committee which recommends placement "may invite persons with
specific or special knowledge to provide information to the
committee which will assist the committee in developing
placement recommendations for the youth. l1 The danger arises
because there is no limit to the information available to the
committee and there is no opportunity to cross-examine those
testifying.
      Placement of the youth begins with a recommendation for
placement of the youth by the committee created through
5 41-5-525. The committee includes experts in the field of
child care. The committee members are: "a representative of
the department, a representative of a county department of
public welfare, a youth probation officer, a mental health
professional., and a representative of a school district
within    the  boundaries   of   the  judicial   district."
$41-5-525(2).   These   people   are   qualified   persons   in
recommending the placement of a youth.
      The youth is not without due process rights at this
point. The committee makes a recommendation to the Depart-
ment, which can choose to accept or reject the recommendation
under S 41-5-527. Regardless of the decision of the Depart-
ment, the Youth Court can modify that decision if the place-
ment is not in the best interests of the child. Moreover, in
this case, the youth was sentenced by the judge until the
time that he reaches majority. The statute allows for a
period of placement and probation until the age of twenty-
one.    We conclude that B.S.M. was not denied due process.
      We deny the petition for writ of habeas corpus.




We concur:




     Justices
Mr. Justice John C. Sheehy, dissenting:



     I dissent from the foregoing opinion upon the grounds
that the 1987 Amendments by the legislature to the Youth
Court Act with respect to sentencing and placing juvenile
offenders deprives the juveniles of due process, and further
the legislation invades the judicial power of the court.
     The declared purpose of the Montana Youth Court Act is
to provide judicial procedures in which the parties are
assured a fair hearing and recognition and enforcement of
their   constitutional - statutory rights.
                        and                           Section
41-5-102 (4), MCA.  Punishment, as such is not a purpose of
the Act. Rather the Act requires that it be interpreted and
construed "to remove from youth committing violations of the
law the element of retribution and to substitute therefor a
program of supervision, care, rehabilitation, and, in
appropriate cases, restitution as ordered by the Youth
Court." Section 41-5-102(2), MCA.
     One would be blind to reality not to recognize that the
1987 Amendments to the Youth Court Act have the principal
purpose of delimiting to the point of elimination any power
of the court to provide supervision, care and rehabilitation,
except for commitment to the Pine Hills facility.
     Refusing to recognize that the Youth Court has been
deprived of the ultimate sentencing authority, the majority
rely on those provisions of 5 41-5-523, MCA, which allow the
Youth Court to enter as judgment-making several possible
dispositions. The fact of the matter however is that in any
case requiring confinement, the Youth Court must commit the
youth to the Department of Family Services.           Section
45-5-523 (1)(b), MCA. The courts power to do anything further
is restricted so that it may not act without the approval of
the Department. Thus the Youth Court may "order such further
care and treatment or evaluation that does not obligate
funding from the Department without the Department's
approval." Section 41-5-523(c), MCA. The majority also rely
on the possibility that the Youth Court may modify its order
at any time. Even that provision however is limited so that
"[Alny order the court may be modified at any time. In the
case of a youth committed to the Department, an order
pertaining to the youth may be modified only upon notice to
the Department and subsequent hearing." Section 41-5-523(5),
MCA.   What these statutes say is that the Department, an
executive agency, has an equal say with the court, a judicial
agency, in matters involving sentencing. That is usurpation
by the executive of a judicial function.
     The due process implications of the Amendments to the
Youth Court Act are not adequately met by the majority.
Article 11, Section 15 of the Montana Constitution states:
     The rights of persons under 18 years of age shall
     include, but not limited to, all the fundamental
     rights   of   this  Article   unless   specifically
     precluded by laws which enhance the protection of
     such persons.
     In testimony before the House Committee considering the
1987 Amendments, one proponent remarked that "the Youth Court
is not a due process court." The legislature may have been
under   that misapprehension.       The  State Constitution
guarantees due process to persons under 18 years of age as
well as to adults.
     A review of the Youth Court Act for procedural
protections find a great deal of due process rights accorded
youths under this Act. The rights accorded youths under this
Act have all the trappings of a criminal proceeding
especially in light of the loss of freedom if a youth is
adjudicated delinquent. Under § 41-5-303, MCA, a youth has a
right against self incrimination, a right to counsel, parents
or legal guardians must be immediately notified of a youth's
detention, and determination of probable cause must be made
in order to detain a youth longer than 24 hours.      Section
41-5-309, MCA, provides that a youth may be released on bail
and the court shall use the provisions of Title 46 (Criminal
Procedure Code) Chapter 9 as guidance. In order to proceed
on a formal petition to declare the youth delinquent the
youth or his parents must be served with a summons. Section
41-5-502, 503, MCA.      Most important, 5 41-5-511, MCA,
provides that a youth has the right to counsel at all stages
of the proceedings. Additionally, youths have the right to
confront and cross-examine witnesses, and to the protections
against inadmissible evidence, or illegally seized evidence
or coerced confessions; the standard of proof is beyond a
reasonable doubt and youths must be fully advised of their
rights.   The 1987 Amendments of the Youth Court Act and the
Administrative Rules promulgated by the Department to
implement the changes conflict with those rights under the
Act.
     AaM 11.7.404 (3) (8-F) and 11.7.406 (7) presents serious
problems with regard to admissibility of statements made and
the right to confront and cross examine witnesses testifying
against the youth. If the people presenting evidence to the
Youth Placement Committee did not testify in court, they
should not be allowed to present evidence at a later hearing.
ARM 11.7.406 (6) does not allow for counsel to he present; a
counsel may submit a written statement, but this does not
guarantee the protection of the youth's rights under the Act,
nor is it specifically stated in the rule that a request for
an attorney to be present will be granted by the Placement
Committee.   Thus there is a conflict with S 41-5-511, MCA,
which quarantees the youth's riaht to have counsel present
"at all stages of the proceedings."      This is a crucial step
in the proceedings and      counsel ought to automatically be
involved. The time of sentencing is a critical stage in the
criminal case and counsel's presence is necessary to ensure
that the conviction and       sentence are not based      on
misinformation or a misreading of the court record. Townsend
v. Burke (1948), 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690.
     Finally, the "Placement Committee" that will decide the
placement is loaded in favor of the Department of Familv
Services. The Committee must include a representative of the
Department, a representative of the County Department of
Public Welfare, a youth probation officer, a mental health
professional,   and   a   representative of   a   school   district
located within the boundaries of the judicial district. The
Committee is appointed by the Department of Family Services.
The mental health professional is not necessarily a
psychiatrist or a psychologist.    He may be a professional
person certified under § 53-21-106, MCA, under the provisions
of ARM 11.7.401 (1)(c). See Matter of J.M. (Mont. 1 9 8 5 ) , 704
P.2d 1037, 1042, (Sheehy, J., specially concurring.)
     The legislature, in its overweening concern for the
"appropriation of resources" (interpret as "read our lips--we
will not raise taxes") has removed the power of the court to
order rehabilitation for a delinquent youth and it has done
so unconstitutionall~7.
                                   r-7


                                              Justice
