                                                        NO.    92-049

                                   IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                              1992



  IN THE MATTER OF INQUIRY INTO
  B.S. AND J.S.,
  Youths in Need of Care.




  APPEAL FROM:                               ~istrictCourt of the Tenth Judicial District,
                                             In and for the County of Fergus,
                                             The Honorable Peter L. Rapkoch, Judge presiding.


  COUNSEL OF RECORD:
                              For Appellant:
                                             Jerrold L. Nye, Nye     &   Meyer, Billings, Montana
                              For Respondent:
                                             Hon. Marc Racicot, Attorney General, Kathy Seeley,
                                             Assistant Attorney General, Helena, Montana;
                                             Thomas P. Meissner, Fergus County Attorney,
                                             Lewistown, Montana



P-T?r'-"   ."*\*   :*   <.   .r.   ,ex
                                     *<;a.
                                              ?   ' "
                                                              Submitted on Briefs:       April   2,   1992

                                                                              Decided:   April 15, 1992
Justice Terry N. Trieweiler delivered the opinion of the Court.
     This is an appeal from an Order of the Tenth Judicial District
Court, Fergus County, granting the Department of Family Services
temporary investigative authority and protective services of the
appellants' two minor children.   We reverse the District Court.
     On January 3, 1992, the Fergus County Attorney, on behalf of
the Department of Family Services, filed a petition for temporary
investigative authority and protective services of B.S. and J.S.
Relying on a Department of Family Services report, the District
Court granted the petition, finding probable cause to believe the
children were, or were in danger of, being abused or neglected. A
guardian ad litem was appointed to represent the children, and an
order was issued requiring the parents to comply with the terms of
the temporary order, or appear before the court on January 21,
1992, to show cause why they had not complied.
     A show cause hearing was held on January 21, 1992.            On
January 24, 1992, the District Court entered an order for immediate
protection of the children, giving the Department of Family
Services temporary investigative authority and the right to remove
the children from the home.    The children were removed from the
home by the Department of Family Services and placed in foster
care.   The parents appeal the District Court order.
     The issue on appeal is whether there was sufficient admissible
evidence to establish probable cause for issuance of the order
granting temporary investigative authority to the Department of
Family Services.
     In the show cause hearing held on January 21, 1992, the State
elicited testimony from a social worker assigned to the case, the
guardian ad litem, and an alcohol and drug counselor.   The social
worker and guardian ad litem testified regarding statements from
individuals who had expressed concern that the parents had drug
and\or alcohol dependencies.    They testified that they themselves
had not seen the parents drink, nor witnessed any problems with the
children which would suggest neglect, abuse, or dependency.
     The bulk of testimony elicited from the social worker and the
guardian ad litem in this case was hearsay evidence, and should not
have been considered by the District Court.    Without the hearsay
statements, even the State concedes that no evidence was offered
showing the children were abused or neglected or in danger of being
abused or neglected. In the absence of a showing of probable cause
that the children were abused or neglected, or in danger of being
abused or neglected, the proper action by the District Court at the
adjudicatory hearing would have been to dismiss the petition and
any order for immediate protection should have been vacated.
Section 41-3-404 (4)(a), MCA.
      Accordingly, the District Court's order is reversed.     The
petition is dismissed without prejudice.    The children should be
returned to their parents pending further proceedings consistent
with this opinion.
We concur:
                                         April 15, 1992

                                  CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:


Jerrold L. Nye
Nye & Meyer, P.C.
3317 Third Avenue North
Billings, MT 59101-1906


Thomas P. Meissner
Attorney at Law
701 E. Main, Ste. A
Lewistown, MT 59457


Hon. Marc Racicot, Attorney General
Kathy Seeley, Assistant
Justice Bldg.
Helena, MT 59620




ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA

BY: qn
           r
           -
            L-, L & ,
                 . i '

  Deputy
