                                           NO.    89-554

                        IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                 1990



      IN RE THE MATTER OF H.F.



      APPEAL FROM:          District Court of the Nineteenth Judicial District,
                            In and for the County of Lincoln,
                            The Honorable Robert Keller, Judge presiding.


      COUNSEL OF RECORD:
                        For Appellant:
                            Amy Guth, Libby, Montana
                        For Respondent:
                            Marc Racicot, Attorney General
                            James Yellowtal, Asst. Atty. General
              -
      tc                    Scott Spencer, Lincoln County Attorney
      C3
                                                  ----~




                                             Submitted on Briefs:     March 22, 1 9 9 0
-.    - -4                                                 Decided:   May 1 1 19g0
--'   Filed:
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                                          " "Flerk
Justice R. C. McDonough delivered the opinion of the Court.

     The original-opinion in this cause was dated April 10, 1990,
and filed with the Clerk of the Supreme Court on that date.       We
have modified that original opinion. Our original opinion in this
cause dated April 10, 1990 is hereby withdrawn.
     This is an appeal from an order of the Youth Court of the
Nineteenth Judicial District, Lincoln County, finding the appellant
H.F., a delinquent youth and committing her to the custody of the
Department of Family Services until       she attains the age of
nineteen.    The Youth Court further ordered that H.F. be placed in
a secure facility such as that afforded by Mountain View School for
Girls.    We affirm in part and reverse in part.
     The issues on appeal are:
     1.   Did the Youth Court properly commit H.F. to the Department
of Family Services?
     2.     Did the Youth Court err in ordering that H.F. be placed
in a Youth Correctional Facility?
     On July 7, 1989, H.F. Is mother filed a complaint charging H.F.
with ungovernable behavior.       In the complaint, H.F.'s mother
alleged that H.F. abused drugs and alcohol, had run away on several
occasions and had used a family vehicle without permission.       On

July 11, 1989, H.F. entered into a consent agreement, in which she
agreed to abide by 13 separate rules of probation until November


     Following the execution of this agreement, H.F. violated
several of its conditions. As a result, she was charged with being
a delinquent youth, and was committed to Mountain View School, a
Youth Correctional Facility, for a 45 day evaluation.     Following
this 45 day evaluation, the Youth Court scheduled a dispositional
hearing in order to determine what course of action should be taken
to help H.F. overcome her problems.
     After H.F.   completed the evaluation she returned to her
parents1 home.    Unfortunately, during the interval between her
evaluation and the scheduled dispositional hearing, H.F. got into
trouble by abusing alcohol and disobeying her parents. This course
of conduct led her parents to report that H.F. was I1totally out of
control.
     On October 25, 1989, the dispositional hearing was held and
H.F. was adjudicated a delinquent youth.       As a result she was
committed to the custody of the Department of Family Services until
age 19.    The order of commitment specified that H.F. I1shall be
placed in a secure facility such as that afforded by Mountain View
School for girl^.^^   The net effect of that order was to commit the
youth to the Mountan View School For Girls, the only female youth
correctional facility.    This appeal followed.
     Section 41-5-103(13) (b), MCA, defines a delinquent youth as
a youth
     who, having been placed on probation as a delinquent
     youth or a youth in need of supervision, violates any
     condition of [her] probation.

     On July 11, 1989, H.F. was placed on probation after entering
into a consent adjustment without petition.         Further, it is
undisputed that H.F. violated the terms of her probation by failing
to report to her probation officer, being disobedient to her
parents and returning home past curfew.   Therefore, in light of 5
41-5-103 (13)(b), MCA, H.F was properly adjudicated a delinquent
youth.
     section 41-5-523(1), MCA, allows the Youth Court to commit a
delinquent youth to the custody of the Department of Family
Services if it finds that the youth is in need of placement in
other than the youth's own home. After commitment, the Department
must determine the appropriate placement for the youth.         The
Department's authbrity as to placement in the matter is not an
issue on appeal.
      In order for the court to commit a youth to a youth
correctional facility the court must determine that the youth is
a serious juvenile offender and that such placement is necessary
for the protection of the public. Section 41-5-523 (1)(b)(ii), MCA.
A serious juvenile offender is defined as:

     a youth who has committed an offense against the person,
     an offense against property, or an offense involving
     dangerous drugs which would be considered a felony
     offense if committed by an adult. Section 41-5-103 (24).
     The Youth Court in this case did not find that H.F. was a
serious juvenile 6ffender and the initial violation or violations
of her conditions of probation were not acts to bring her within
the definition of a serious juvenile offender. The court therefore
was without authority to commit H.F. to a youth correctional
facility.
     We hold that the Youth Court properly found H.F. was a
delinquent youth and that she was properly committed to the custody
of the Department. of Family Services.     However, we reverse that
portion of the Youth Court's order, which mandated that H. F. be
placed in a secure facility such as Mountain View School for Girls.
     Affirmed in part; reversed in part.


                                                   Justice    /'
We Concur:       j-7




       Chief ~ustice
