No. 85-276 INTHE SUPREME COURT OF THE STATEOF MONTANA 1986

INTHEMATTER OF DECLARING 

### M.L.H., H.M.H., and R.H., Youths inNeed of Ca-re.

APPEAL FROM: The DistrictCourt of the Twentieth JudicialDistrict, In and for the County of Lake, The Honorable C.B. McNeil,Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: 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,CountyAttorney, Polson,Monta.na LarryNistler,Deputy CountyAtty., Polson

ForArnicus/Gua.rdianAd 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

## 1986Mr. Justice William E. Hunt, Sr., delivered the Opinion 

### of the Court.

Following an adjud.icatoryhearing the Twentieth Judicial District, Lake County District Court declaredM.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. Theparents present these issues for review: 1. Whether the District Court committed reversible

error 

### in failing tomake 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 Rehabilitationand 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.dmissiblehearsay. 2. Whether the District Court erred in placing the three children in two separate fosterhomes. The appellant parents areboth disabledby 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

### permonth. 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 femalesand amale 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 sleepingaswell. 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 hasmade 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.esare 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 controlthe 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.ndwrong, respect for others and their rights,or toprovide 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 childrenwere healthy and bright. No evidence demonstrated problems in school. Therefore,of the factspresented,not all areneqztive.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 childrenwas 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 childrenwere 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 curiaebrief. 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 inspectionand an in-chambers interview of the children. However, there is no record of, or reference to, the in chambers interviewbeyond 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 itwas conducted. The appellants, in their argument that the District Court erred innot making a record of the interview,refer to S 40-4-214(1), MCA, contained in the statutes on child custody matters inmarriage dissolution,which reads:The court may interview the child in chambers to ascertain the child's wishes as to his custodian and as tovisitation. The courtmay 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 supportof their argument the appellantscite 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 interviewwith.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 interviewwasmandated 

### 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.din 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 andwaiver. 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 statutesrequiring and interviewtobe 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 inspectionand the in-chambers interview. The respond.entalleges that the appellants freely consented to the interviewbetween the Distrj-ctCourt and the children when itwas clear the interviewwould notbe 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 intervieweither. Whether dealing with child custody in a dissolution proceeding,or in an abuse,neglect,ordependencyproceeding which may result in removing custody of a child from the parents, the same legal reason.ingapplies to any in-chambers interview conducted. That reasoning isbest set forth in the commissioner'snote to 5 

### 40-4-214,MCA,whichprovid-es: This section 

# . . . [is] designed to permit the court tomake custodialandvisitation decisionsas informallyand non-contentiously as possible,based on as much relevant informationas canbe 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,buthemust make some kind of record of the interview (usinga 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 ofyouths in need of care. The nature ofthe 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 hearinghave 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 Courtmay have relied inmaking 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 knowwith any degree of certainty the basis for the District Court's conclusionon custodyma.tters. In re Marriage of Brown (1978)

## , 179Mont. 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.scussionbetween the court and the parties regarding the interview,nomention was made of a record and it was reasonable of the appellants to

assume that a record would bemad-e. The second issuepresented by theparents iswhether the District Court's findings of fact and conclusions of law are supportedby sufficientevidence. Fordiscussion,we combine this issue with the children's second issue of whether certain reports should be disregarded by this Court because theywere inadmissibleas hearsay. The findings of a d.istrictcourt in an abuse or neglect action enjoy a presumption of correctness a.n.d.will not beoverturned 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 ofMoyer (1977), 173 Mont. 208, 211, 567 P.2d 47, 49. The parents1 attorney objected to the presence in the court file of any statementsnot supportedby testimony. We have cautioned that "[t] he possibility of error would be great where a trial court relied on reports not supportedby 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),173Mont. 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 DistrictCourt. 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 substanceof the in-chambers interviewwe cannot say that there was substantial credible evidence to support the adjudicatoryorder. The parents also contend the District Court erred in indicating its intention to transfer custody from theparentsto 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 dispositionalhearing. 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 thereforewas 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: