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: ~istrict Court 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 

rBY: qn L -, L.&i,' 

Deputy