                                       NO.      95-004
                   IN THE SUPREME COURT OF THE STATE OF MONTANA



IN THE MATTER OF F.H.,
         A Minor     Child.




APPEAL FROM:            District  Court of the Eighteenth  Judicial               District,
                        In and for the County of Gallatin,
                        The Honorable   Larry Moran, Judge presiding.


COUNSEL OF RECORD:
               For    Appellant:
                        Ann Gilkey,        Special    Assistant     Attorney    General,
                        Department    of    Family   Services,     Helena,   Montana
               For    Respondent:
                        Leanne M. Schraudner,   Schraudner          &Hillier,       Bozeman,
                        Montana;  Glenna Kurns,   Lewistown,         Montana       (Guardian
                        ad litem)


                                               Submitted    on Briefs:       May 11,          1995
                                                                  Decided:      August        15,    1995
Filed:
Justice            Fred         J.        Weber         delivered                 the       Opinion                of     the      Court.

          This           is      an         appeal                from       an       adoption                 order            rendered              by        the
Eighteenth                Judicial                 District                  Court,             Gallatin                County.              We reverse
and remand.

          We consider                      the      following                  issues:

          I.       Does         the         failure               to     notify             the        guardian             ad litem                 of        F.H.

constitute                reversible                    error?

          II.           Did     the         District                Court            err        by       issuing           an adoption                     order
without           notification                      to        and consent                   from            the      Department                of         Family

Services?
          This           case        involves                a minor            child,               F.H.,         whose         natural             parents

lost      parental                   rights             to        the        child          because                of     child         neglect                 and

sexual          abuse          by the             father.                The parental                       rights         of      D.H.        and C.C.,
father           and mother                  of     F.H.,              were       terminated                   on June            2,      1994            in    the

Tenth      Judicial                  District                Court,           Fergus             County.                Permanent             custody            of

F.H.      was granted                      to     the        Department                    of     Family             Services.

          F.H.           has     one great                   grandparent,                        Elizabeth                Chase,          65 years               of

age,      who is              married              to        Larry           Chase,             age 53.                 Larry       and Elizabeth

Chase           filed          a petition                     for        permanent                   adoption              on      July         I,         1994.

F.H.      was born                   February                11,        1987.              The District                    Court         of     Gallatin
County           issued              an      Order            for        Adoption                    Hearing              and      Investigation,

which      provided                  that         a copy            of the           order           should             be served             on the            DFS

"which            shall              furnish                 to        the        Court              a       written              report             of         its

investigation                        of      the         petitioners,                       their             family,             home,              and        the

circumstances                    of the            minor            child            . . .II             On September                  15,     1994,            DFS

presented                an      investigative                           report             to        the         court         which          contained

                                                                                  2
extensive             documentation                   of       the      involvement                   of DFS and its                          personnel

from       December             of     1989 on.                 That        report            showed           that         on February                         23,
1993,       F.H.         was placed                 in        the      home of                Larry         and           Betty             Chase;              and

that       F.H.       was transferred                          to      a Youth               Dynamics            home in                    Bozeman              on

June       8, 1993.              On December                    21,        1993,          F.H.       was placed                   in         the       foster

home of           David         and Jane Yearous                           with        the       intention                 that         it        would          be

a      foster-adoptive                        permanent                    placement                 for         F.H.                   The            report
concludes             with            the      recommendation                          of      the         DFS that                there                  is     no

intention             to exclude                the        Chases           as a part                of    F.H.'s             life--they                        are

family          and      have          done        their            best          to      continue             to         stay         in         constant

touch       with         him.          The recommendation                              on the           part         of     DFS is                 that         the

Yearous           family             would      best          meet         F.H.'s            special            specific                     needs.               In

addition            the         report           described                  at         some       length              various                    witnesses

which       included             the         following:                    Youth        Dynamics               treatment                     supervisor

and        Youth         Dynamics                southwestern                          regional             manager                    at         Bozeman,

therapist             at Bozeman,                  and Jim Moe, placing                               social              worker             for       DFS in

Lewistown.                 The         report         then            emphasized                 that          the         foregoing                   people

have       a documented                      and      ongoing               and        therapeutic                    relationship                             with

F.H.       and      would            be able             to     update              the       court         as        to      F.H.'s                current

progress            in     the         Yearous             home.             The          report           was        signed                 by     Christy

Ruckwardt,               Family             Resource                Specialist,                  DFS.           The         findings                   of       the

District            Court            following                hearing             do not           indicate                 that             any       of       the

DFS material                 was specifically                           considered.

           The hearing                 on the petition                        for       permanent               adoption                    of     F.H.         was

held       in     the      Gallatin                County            District                Court         on September                          23,        1994.

DFS was            not       represented                   at        the      hearing,               nor        was         the         guardian                  ad


                                                                              3
litem       represented               at     the         hearing.                Oral         testimony                       was submitted                    by
the      petitioners,                 which         included                the       testimony                     of         Becky             Berglund,
who does           therapeutic                foster              care          for     Youth                Dynamics.                       Both          Betty
Chase and Larry                  Chase testified.                           Dr.       David             King          testified                   by video
deposition.                  The record             of      that         deposition                     reflected                     that        a notice
of       the       deposition                had          been           served              on         the           DFS             but         that         no

representative                  of    DFS had chosen                        to participate                            at       the          deposition.

Following              the     hearing,              the         District               Court            entered                     its         Decree        of

Adoption           dated        September                 23,      1994,          which           concluded                        that          there        was

overwhelming,                   substantial,                       credible                  evidence                         to           support            the
conclusion              that     the        best         interests               of     the        child              would                be served           by

placing          F.H.        permanently                 with      Larry          and Elizabeth                            Chase.                The order

further           provided           that         F.H.      was declared                      adopted                 by Larry                   Chase and

Elizabeth              Chase,        the      six-month                interlocutory                          period               was waived                 and

the      child         thereafter            was to be treated                           in       all          respects                    as the          child

of      Larry      Chase        and Elizabeth                      Chase.               It     further                   provided                 that        the

DFS should               see     that        F.H.         was physically                          placed                 in        the       Chase          home

immediately.                   We note            that      following                 the      entry                of        this          order,          F.H.

was abruptly                 removed          from         the      Yearous             household                     and transferred                              to

the      Larry         and Elizabeth                 Chase             household.

           Without           detailing             the      findings              and conclusions                                  of the         District

Court          we point         out        that      the         court          stated            in         its      Decree                of    Adoption

that       DFS had been                 granted             custody              on June                2,         1994,           subject            to      the

requirement               of    permanently                     placing           the        child             within                180 days.                The

court           took     DFS to          task        for         not      placing              the            child            within             the        time
parameters                required            and         admonished                  the          County                  Attorney                  for      not


                                                                            4
filing          criminal                 charges              against             the natural                   father.             The court                also
found          fault          with            DFS for              not     appearing                 in        person         at        the       September

23,       1994              hearing.                       The           court             concluded                  that          "overwhelming,
substantial,                      credible                evidence"                 existed           that           the     best        interests               of

the       child               would                be       served               by        placing              F.H.          with             his          great

grandparents,                          the        Chases.            The court               further             concluded                that         DFS did

not      act      in         the        best            interests             of      F.H.

           In     connection                       with        the        hearing             before            the        District                 Court,       we

note       there             were             over        twenty            trial           exhibits                 from         the       DFS records

which       were            admitted                by the           court.               These       established                     the      extent           and
nature          of          the        investigation                      by various                 DFS personnel.

          DFS filed                     its         Motion           to Vacate                Decree            or     Re-hear                Petition           on

October                5,         1994.                 The        motion             was       supported                    by       the           following

materials:                   the         affidavit                  of     the        chief           deputy               county           attorney             of

Gallatin                County;                   the      affidavit                  of      Eugenia                Bellante,                 a licensed

professional                           counselor,                    in          which              she          emphasized                       that          she

recommended                       against               permanent                placement                of     F.H.         with            the      Chases,

the      great              grandparents;                       and        the        affidavit                 of     Christie                Ruckwardt,

family           resource                    specialist                  above        mentioned,                  who described                        how she

was unsure                   how to                proceed           in     conducting                    the        investigation                     because

DFS had custody                              of     the       child--that                    she consulted                    with            counsel           for

the      DFS and other                             personnel               and also                 consulted                with        Jim         Moe,       the

Fergus           County                 social             worker           in        charge          of        recommending                        permanent

placement--that                              she delivered                    her          report         on September                      14,       1994,      to

the       office                  of         the        district              judge            and         recommended                      against             the

adoptive               placement                     of     F.H.          with        the      Chases.                 She stated                    that       she


                                                                                      5
was advised                 by one of               the        persons             in       the         judge's            office           that         her
presence             at         the        hearing              was         not           required.                    In        addition                the
affidavit            of Hank Hudson,                          Director            of DFS,               in which            he   specifically

stated        that         he had not               consented                nor        did    he consent                   to    the       adoption

of F.H.        by Larry                 and Betty              Chase,         and the              affidavit                of    Steven              Ware,

Treatment                 Manager            for         Youth             Dynamics                in      Bozeman               in        which              he

recommended                 that         F.H.'s           best           interests                 would         be        served           by        being

adopted        by Dave and Jane                           Yearous,                due to F.H.'s                   therapeutic                     needs,

including                 issues            regarding                    abandonment,                      sex         abuse,               lack              of

socialization                     skills            and         medication.                        He      also         emphasized                      that
continued            visitation                   with        his     great         grandparents,                      the       Chases,              would

be in F.H.'s                best         interests.                   Also        the       affidavit              of Jim Moe,                       social

worker        with         DFS in           Fergus            County,             wherein            he recommended                        that         F.H.

be permanently                        placed         with           the       Yearous               family            and        not       with          the

Chases.              Glenna             Kurns,           guardian               ad litem                 for      F.H.,          also           filed           a

Motion         for         Reconsideration                          on October                3,        1994.              The        motions             for

reconsideration                       were         denied           by      the         District               Court         by order                 dated

November             2,     1994.           DFS appealed                     the          court's          ruling.

                                                                     Issue          I

            Does          the      failure               to     notify             the        guardian                ad      litem             of      F.H.

constitute                reversible                error?

            Because             the     action           taken         by the             District              Court         was based                 upon

its      interpretation                      of     the        law,        we      will       review             the        court's             actions

as a legal                question.                 We review                a District                   Court's             interpretation

of    the      law         as      to      whether             it     is      correct.                   Steer         Inc.           v.    Dept.             of

Revenue            (1990),              245 Mont.              470,         803 P.2d               601.

                                                                              6
         Glenna             Kurns           (Kurns)         was appointed                        guardian             ad litem                in    the
Tenth           Judicial                District                   court,               Fergus             county,               during             the
termination                of       parental            rights           hearing               for      the     biological                parents

of     F.H.          Kurns          filed        an affidavit                     and request                  for     reconsideration

with          the        District              Court          of        the        Eighteenth                  Judicial                District,

Gallatin             County,           when she discovered                              that         she had not                been        noticed

for     F.H.'s            adoption             proceedings.

           Kurns           argues             that       as        the        child's                guardian              ad      litem,           her

responsibilities                       last      until          the      child           is permanently                    placed.             While

the      Chases            argue        that           Kurns        was appointed                       only         for        the     parental

termination                 proceeding,                  that         fact         alone         will         not     divest            Kurns         of

responsibility.

           Our statutory                    scheme is very                    explicit               when directing                    guardians
ad litem             concerning                their       responsibilities                             and how long                   they        must

remain          responsible                   within        the         situation.                    Therefore,                we need            look

no further                than       the       statute          under             which        the      court         appointed               Kurns:

           Petition       for      termination          --separate        hearing--right           to
           counsel--no         jury     trial.         (3)    A guardian       ad litem      shall
           be appointed          to represent           the child's        best interests          in
           any hearing          determining          the involuntary           termination         of
           the parent-child              legal      relationship.            The guardian          ad
           litem    shall       continue         to represent         the child        until    the
           child     is     returned           home or placed            in an approoriate
           permanent       olacement.             (Emphasis       added.)

Section             41-3-607,               MCA.         Further,                 our     statutes              require               a court         to

appoint             a guardian                ad litem             in    every            case        in      which        child         abuse        or

neglect             is     suspected:

            (2)      The  guardian    ad litem          is     charged    with                                                           the
           representation     of the child's      interests.        The guardian                                                           ad
           litem   has the following      general      duties:
            . . .
            (e) to appear and participate           in all proceedinas         to                                                        the
                                                                              7
            degree necessary     to adequately   represent    the child     and
            make recommendation     to the court   concerning    the child's
            welfare.   (Emphasis    added.)
Section           41-3-303,             MCA.

            The        Chases           argue            that           Black's              Law         Dictionary                defines            a

guardian               ad      litem         as        an     attorney                   appointed              for      a    child           at      a
particular                  hearing.               While           that            may be          so,        our     legislature                  has

decided              differently                  and         it         is        the       statute            we      must          address.

            The court             was required                     to     notify           Kurns         because          the       child          had

not        been        permanently                 placed               and,        therefore,                 Kurns         had     not       been

released               from      her        responsibilities                             regarding             F.H.          We hold           that

failure           to         notify         the         child's               guardian             ad     litem         was        reversible

error.

                                                                    Issue           II
            Did        the       District               Court            err        by      issuing             an     adoption               order

without           notification                    to     and consent                     from      the        Department            of      Family

Services?
            DFS contends                that           the    Conclusions                   of Law by the               District              Court

fail        to    recognize             certain              legal            requirements                which        were        not      met by

the        petitioners                in this           case.            In our           review         of conclusions                  of    law,

this         Court          determines             whether               the       lower        court's             interpretation                  of

the        law    is        correct.              Estate           of     Alcorn            (1994),            263 Mont.            353,       355,

868 P.Zd               629,      630.
             Section           40-E-108,               MCA, provides                     as follows             as to who may place

a child           for         adoption:

             Who may place       a child       for adoption.                                                  A child         may        be
             placed    for adoption      only by:
              (1)   the department        lDFS1;
              (2)   a licensed    child-placing      agency;                                             or

                                                                               8




       -
          (3)     the child's              parents.

        With regard            to the required                  consent           for     adoption,        § 40-8-11 1.
MCA, provides               in pertinent             part:
        Consent required    for adoption.    (1) An adontion of a
        child mav be decreed Ibv a court1 when there have been
        filed  written  consents to adoption executed by:
        (c) the'exedutive    head of an agency if the child has been
        relinquished    for adoption to such agency or if the rights
        of the parents have been judicially      terminated  .   . .
Under the         specific         statutes,              it     is     the DFS which                is    granted        the
statutory         right       to place          the child             for    adoption.          In addition,              the
statute         provides        that        an adoption               may be decreed             by a court           when
the written            consent         to adoption              executed           by the executive                head of
an     agency         has     been         filed.              No such            consent       was       filed      here.
Further,         as demonstrated                by the above mentioned                         affidavit           of Hank
Hudson, the executive                      head of DFS stated                     that     he had not consented
and did         not     consent         to     the     adoption              of    F.H.     by Larry           and Betty
Chase.
          On the       specific         question             of whether             or not a district                 court
can place             a child        for      adoption,               this        Court     stated        in      Lewis    v.
Catholic         Services         (L992),           253 Mont.           369, 372, 833 P.2d 1023,                      1025:
          Section 40-8-108, MCA restricts  who may place a child for
          adoption and does not include courts in its list     of who
          may place a child for adoption.     Therefore  it is clear
          that the courts   could not place Baby Girl W. with the
          Lewises.
          In a similar            proceeding            to the present                    one, where a district
court       failed        to obtain           consent          of the appropriate                  legal       custodian
of a child,            this     Court        l'voidedi'         the adoption              decree      because of the
lack      of notice           and therefore,              lack        of consent.             Matter       of Adoption
                                                                9
of     Hall        (1977),         173 Mont.                 142,         566 P.2d         401.

           We hold         that         §§ 40-S-108                     and 40-E-111,                  MCA, are          binding          upon
the     District           Court          in        this      case         and that            the     order       of    adoption           was

improper           in     the      absence             of a placement                    for         adoption          by the      DFS and

the     written           consent              to     adoption             executed             by the          executive          head      of

DFS.

           We reverse               the         decree             of      adoption             entered           by    the      District
Court         and        remand           the          case          to     the        District               Court        for     further

consideration                   following              the        service         of     appropriate               notice        upon       the

guardian            ad     litem          of        F.H.          and      DFS and             the         consideration             of     all
evidence            submitted             by the             parties.

           The record              is   replete               with        problems         which            have been raised                for

F.H.       by the         shifts          in        custody             from      one set             of     parties        to   another.

As a result,               we conclude                     that      the    custody            of     F.H.      shall       remain        with

Larry         and        Elizabeth                  Chase         until        further               specific           order       of      the

District            Court.
           Reversed             and remanded.
