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 

Filed: 

Ff B .4 ;'s 1986 
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 ~.2d 361, 

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: