No. 13833 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977

IN RE: EUGENE H. MARTEN

ORIGINAL PROCEEDING:

Counsel of Record: For Appellant: William Hutchison argued, Helena, Montana William J. Miele, Miles City, Montana For Respondent: Honorable A. B. Martin argued, District Judge,

Miles City, Montana

Submitted: June 10, 1977

41t71, Filed:Mr. Justice Gene B. Daly delivered the Opinion of the Court:

This 

### is an originalproceeding by a 17 year old male youth seeking a writof habeas corpus, supervisory control,

or other appropriate relief to test the legality of proceedings leading tohis detention over a weekend inMay 1977, in thejuvenile part of the Custer County jail inMiles City, Montana. The thrust of the youth's petition is that he was unlawfully incarcerated in that: (1) He was denied the assistance of counsel, and (2) he was incarcerated injailby failure of the Youth Court judge to follow the statutory procedures and requirements of theMontana Youth Court Act. The principal facts concerning the youth are contained in the report of Donald P. Wright, youth probation officer of the SixteenthJudicial~istrict, to the districtcourt and set out verbatimhere: "At approximately 12:00 Noon, on the 20th day of May, 1977, Gene Marten, a 9outh under the age of eighteen years, was referred to me charged with being inpossession of stolenproperty, 94-6-302(3C), of the Revised Code of Montana, 1947 asamended, by the Rosebud County Sheriff's Department.

11Gene 

### is a seventeen year oldyouth who is living with the Lovells inForsyth. This home 

### isnot a licensed fosterhome. 

### Hisfather, Eugene Marten, whose last'known residence was inGreat Falls, Montana, 

### is unavailable and I have not been able tocontact him to date. I contacted the Cascade County Probation Office and they were unable tocontactMr. Marten, however, they did talk to the boy's grandparents, who stated that they believed that Mr. Marten had leftGreat Falls. "Mr. Dan Lovell stated that Gene's father was going tobe coming through the town of Forsyth sometime over thisweekend, and thatMr. Marten was going to stopby the Lovell residence while inForsyth.11 Gene Marten was under the supervision of the Children's Services Office inRosebud County until approximately one month ago. Presently, he has no legal guardian inForsyth and thewhereabouts of his father areunknown. "I believe and it 

### is my opinion that it is in Gene Marten's best interests tobe held in custody until such time as a hearing can be held before the District Judge of the 16thJudicialDistrict Youth Court. "At noon today, when Gene was referred tomy office, therewas no available space in thejuvenile portion of the Rosebud County jail. The county attorney, John Forsyth, and District Judge A.B. Coate were tiedup ina jury trialand I transported Gene Marten toMiles City, Montana under the authority of theMontana Youth Court Act, Section 10-1212, tobe placed in the juvenile portion of the Custer County jail pending a petitionbeing filedand a subsequent hearing before the District Youth Court Judge." Following the youth's transfer toMiles City, the Youth Courtjudge, the Hon. A.B. Martin, held a hearing, a transcript of which 

### isbefore thisCourt. In the middle of this hearing,

an attorney fromMontana Legal Services appeared and requested the right "to say something". The following 

### is a verbatim transcript of what occurred following the appearance of the Legal Services attorney atthe hearing: "MR. MIELE: Your Honor, if I could say something please. "THE COURT: Well, I'm going tomake an order and then 

### 1'11letyou say it. "MR. PIIELE: I'd like to say itbefore the order, because I'm sure 

### it's relevant. "THE COURT: I'm going to runthis and then you can saywhatever you want to. Now you prepare this order, Jim, and itwillbe to this effect. "The Honorable Alfred B. Coate, presiding Youth Court Judge of Rosebud County, being elsewhere occupied on judicial business, the written report and sworn testimony of Don Wright, Juvenile Probation Officer of Rosebud County, has submitted tothe undersigned Youth Court Judge of the SixteenthJudicialDistrict of MilesCity, Montana, and it appearing from said report that the

# -- and the testimony submitted, that 

### "1. There 

### isprobable cause tobelieve that said juvenile has committed the offense of being inpossession of stolenproperty. "2. That the parents of said childcannot be reached atthe present time, and that there 

### isno home or institution inwhich said youth can temporarily be detained pending further proceedings, "Now Therefore it 

### is Ordered thatDonald P. Wright, a Juvenile Officer, may take custody of saidjuvenile and detainhim in the Custer County jail, pending the filing of a formal petition by the County Attorney of Rosebud County. Such detentionnot to exceed five days, and the County Attorney shall forthwith file said formal petition. "It 

### IsFurther Ordered, that J. Dennis Corbin, attorney of Miles City, Montana, be appointed as said youth's attorney, who willas soon as reasonably possible, contact said youth and attend to theprotection of his legalrights. "MR. MIELE: May I make a statement on the record? "THE COURT: Allright. "MR. MIELE: First of all, Gene contacted my office yesterday in regard tothe representation of Gene, and I have stated tohim that I would represent him. Second of all, inregard tothe statement that there 

### isno availablehome, I don't think that 

### is entirely accurate. We have a worker here from the Child Abuse Project in Rosebud County, who could state that the childhas been living in a family home, that the childhas been there for some period of time, and that the person who 

### is in charge of that home, 

### is ready, willing and able tocome forward and give assurances inaccordancewith RCM 10-1213, that the child

### willbe present in court on Monday, or whatever time 

### is set for thehearing. Another matter which I don't know if it's legal, but I question the ethics of it, 

### is the fact that I talked toMr. Wright this morning, or this afternoon and told him that I was looking into the fact that the boy was injail, and that I would be in touch with him this afternoon, and that there isa good chance that I would bring a habeas corpus petitionbefore thiscourt tohave theboy letout, and I just question the ethics of him coming up herewithout notifying me when he knows that I was representing the boy. "THE COURT: He advised me that you had talked with him, so I know about that, and I have appointed an attorney forhim, and if you want totalk tohis attorney go ahead."MR. MIELE: 

### Is the Court interested inhearing any of the testimony thatwe can offer? "THE COURT: No, I'm not. That's it, the order 

### is signed. You prepare that order forthwith and you willsee that he gets a copy. "MR. WRIGHT: Yes, Your Honor. "THE COURT: And you make a copy of the minutes and send it over, if you can, with Don Wright when he returns, and then we'll letJudge Coate handle this thing, and I imagine it 

### willbe handled Monday. "MR. WRIGHT: Yes, Your Honor. "THE COURT:And if anyone elsewants to appear, we'll letJudge Coate handle it. "MR. WRIGHT: Your Honor, the home that the boy has been staying in, 

### isnot a licensed foster home, and the same portion of the youth court statute statedby Mr. Miele, also states that the boy shallor

### willbe held in a home authorized by the Court, if there 

### isno parents or guardian present, and thiswas not a licensed fosterhome. "MR. MIELE: I might point out 10-1212, where it states that if the childhas no parent, guardian or other person able toprovide supervision and care for him and return him to the court when required, and I don't see any requirement of a licensed home. "THE COURT: Well you seem to overlook the fact that the Juvenile Court and the Juvenile Officers are attending to the interest of this child, aswell as that of society. Furthermore, the Court has taken the necessary action to protect the legal rights of thisboy, and I think that 

### isallthat isnecessary." On May 23, 1977, Montana Legal Services Association filed

an originalproceeding in this Court for a 

### writof habeas corpus, supervisory control or other appropriate relief accompanied by affidavits of Daniel Lovell, Eugene Herman Marten, the youth involved, Marsha McDede and William J. Miele, the Legal Services attorney, together with a brief in support of the petition. This Court ordered an adversary hearing. Prior to the adversary hearing, Judge Martin filed his response tothe petition which we set forthverbatim:"The response ordered by the Supreme Court to the petition forwritof habeas corpus or other appropriate relief filed in the above entitledmatter 

### isherewith submitted innarrative formwithout argument. What 

### is said 

### ismy recollection of events leading up to the peremptory order for temporary detention of the youth. "Mr. Donald Wright who is the resident juvenile officer of Rosebud County came tomy office on Friday afternoon, May 

### 20, 1977, explaining that he had a problem which Judge Coate or the County Attorney could not act upon because they were presently occupied with a jury trial. To thebest of my recollectionMr. Wright gave the followingbackground. 

### he father and mather of theMarten boy had been divorced inIdaho. The fatherhad been awarded custody of the childrenbut had subsequentlybeen deprived by court order of the two younger childrenbecause of abuse and neglect. In some manner not clear tome, Eugene Marten was taken under thewing of a federal agency which Mr. Wright referred to as 'Childrens Service.' I had never heard of this agency and was advised that itwas a federally funded agency which was being tested in selected communities throughout the United States

# . Apparently it duplicates or augments the service provided by the State of Montana for abused and neglected children, but acts independently from theMontana Department of Social and Rehabilitation Services. I note from affidavits of petitioner that the officialtitle of the agency 

### is '~osebud County Northern Cheyenne Child Abuse and Neglect Project

# .' "The Marten youth was placed in a fosterhome by the Agency inForsyth, Montana, but declined to follow the rules and regulations imposed by that home. Because of the differenceshe was having with his foster parents, he moved intoa home of a friendby the name of Dan Lovell. This move was given the after the fact blessing of the agency. It was during this period of his residency that the stolen tires and wheels were found inhispossession. Mr. Wright, inmy opinion, rightfully took the position that with the apparent criminal violation, the juvenile probation department should take control of the situation. It was alsohis position that the Lovell home was not a licensed fosterhome and under the circumstances described by him, was not a suitablehome for detention of theboy pending further investigation and hearing on the youth's detention. It was to thishome thatMr. Miele believed the youth should be returned. "Mr. Wright made an effort tocontact the youth's father. He had called thejuvenile probation office in Great Falls, who in turn contacted the youth's grandparents who did not know where the fatherwas, but believed he had gone 'somewhere east' looking for ajob."With this information I directed Mr. Wright to filea written report stating in substance what he had related, together with a request to filea petition allegingjuvenile delinquency. He was then toreturnwith the youth and give oral testimony. This was done but during the course of the testimony, Mr. Miele came striding into the office with a train of attendantswho stood in the doorway while Mr. Miele gave the appearance of wanting to interrupt. I saidnothing and asMr. Miele listened he started shakinghishead, pulling hisbeard, turning one direction, then the other, and looking back atthe people behind him whose smiles implied they understood Mr. Miele

## 's dilemma. "My irritationwith this display was aggravated by accounts of previous confrontations thatMr. Miele had had with the juvenile probation officers. As related by Mr. Butz, Mr. Miele, on one occasion stormed uninvited into thejuvenile probation office and in an imperious manner issued ultimatums as to what the officers could or could not do. This confrontation reached the point that they were ready to bodily ejectMr. Miele from the office. "On another occasionMr. Wright was attempting to explain toMr. Miele, Mr. Wright's handling of a certainjuvenile. Mr. Miele insolently swung around and satwithhisback toMr. Wright. "I have the greatest confidence inMr. Wright. He 

### isnot combative and goes about hiswork in a quiet and thorough manner. IfMr. Miele would appear as a friend, rather than a dictator, the court and 

### its juvenile officers would respond accordingly. "I observed when theMarten youth appeared that he was a mature 17year old youth. The juvenile detention quarters of the Custer County Jailwas constructed about three years ago and adequate quarters are available for the detention and supervision of juveniles. After ordering thathe be confined, I directed Mr. Wright to see that the court appointed counsel was immediately put intouch with the boy, which I am advised was prmptly done. "Considering the totality of the circumstances, the court and itsjuvenile officers actedwithin the spirit and the letter of the law." Accompanying the district court's response was the affidavit of the youth probation officer, with a copy of his report to the court attached. Another affidavit of the youth, together with a copy of Judge Coate's order transferring the case toLewis and Clark County was attached.Petitioner sets forth two issues for thisCourt's consideration: 

### 1. Did theYouth Court errindenying the assistance of available counsel to the youth in the predetention hearing before Judge Martin? 2. Did theYouth Court failto follow the statutory requirements and procedures of the Montana Youth Court Act inordering the prehearing detention of Eugene Marten in the Custer County jail? Atthe outset, we are confronted with a contention the issues raised in this proceeding are moot as the youth isno longer incarcerated and is livingwith the Love11 family in Forsyth. While itmay be true a writof habeas corpus 

### isno longer available to test the legality of the youth's confinement, the application for supervisory control to test the legalityof theproceedings leading to such confinement 

### isby

no means moot. To deny review 

### is tantamount todepriving petitioner of the rfght toany relief. Inhis first issue petitioner alleges the Youth Court erred in denying the assistance of available counsel tohim ina predetention hearing. He directs our attention toone of the express purposes of theMontana Youth Court Act: 

## "(4) toprovide judicial procedures inwhich the parties are assured a fairhearing and recognition and enforcement of their constitutional and statutory rights." Section 10-1202(4), R.C.M. 

### 1947. We hold the facts of this case do not demonstrate a violation of this statute. Initially, there 

### isconsiderable doubt as to the status of William J. Miele, the Legal Servicesattorney, in representing the youth atthe time he appeared during the progress of the hearing before the Youth Court judge. The affidavit of the youth probation officer indicates that upon taking the youth intocustody, the youth stated thathe was not represented by counsel inresponse to

a question by the youth probation officer. The affidavit of 

### Mr. Miele indicates that on the day before the youth was taken into custody, the youth contacted him and asked him to represent him if criminal charges were filedagainst him for possession of stolenproperty and "I told Eugene that I would do so ifhe was unable toobtain another attorney." (Emphasis added.) It appears from the affidavit of Daniel Love11 thathe was the moving forcebehind securing Mr. Miele's services in representing the youth. While it is true there are other affidavits and statements that indicate Mr. Miele was representing the youth, they do no more than create some doubt as toMr. Miele's status atthe time he entered thehearing then inprogress. Under the facts here, 

### wehold therewas no proven violation of theMontana Youth Court Act. We perceive no requirement intheAct that a predetention hearing be held under allcircumstances. The Act simply requires the following circumstances to exist to authorize detention: "A youth taken into custody shallnot be detained prior tothe hearing on the petition except when: hisdetention or care isrequired toprotect the person orproperty of others or of the youth; he may abscond orbe removed from thejurisdiction of the court; he has no parent, guardian, or other person able toprovide supervision and care forhim and returnhim tothe courtwhen required; or an order forhis detention has been made by the court pursuant to this act." Section 10-1212, R.C.M. 1947.These requirements were clearlymet by information developed from the youth probation officerunder oath and hiswritten report to the court followed by an order of the Youth Court for the youth's detention. The second issue for review iswhether the Youth Court failed to follow the statutoryprocedures and requirements of theMontana Youth Court Act inholding the youth indetention

over theweekend prior tohearing the charges against him. Petitioner points out the declared purpose of the Youth Court Act 

### is to retain the youth in a family environment whenever possible, separating the youth fromhisparents only for thewelfare of the youth or the safety and protection of the community. Section 10-1202(3), R.C.M. 1947. Petitioner alsopoints out that this Court has heretofore set out the following criteria for separating a youth from his family enviranmnt: (1) necessary for thewelfare of the youth, or (2) the safety

orprotection of the community. In theMatter of Zip Geary, Mont

# . ,562 P.2d 821, 

### 34 St.Rep. 218 (1977). Inour view, Geary 

### is distinguishable and inapplicable

on thebasis that there, unlike here, the youthwas being separated fromhis parents. Additionally, here the district court made

an express finding "there 

### isnohome or institution inwhich said youth can be temporarily detained pending furtherproceedings" and the youth probation officer

## 's report indicated the youth, inhis opinion, might abscond if not detained. In summary, we are of the opinion theMontana Youth Court Act does not require a judge tohold a predetention hearing in every case; that thejudge did sohere is a matter within his discretion. While it can be argued that theYouth Courtjudge should have listened toMiele prior toentry of the order forprehearing detention, it appears that inview of 

### Mr. Miele's questionable status as the youth's attorney theYouth Court judge was not compelled todo so. The predetention hearing developed a strong factualbasis for detention of the youth inthejuvenile facility in the Custer County jail under section 10-1212, R.C.M. 1947. We hold the Youth Court judge didnot violate the provisions of theMontana Youth Court Act inordering detention of the youth under the circumstances involved inthis case. This opinion shall

## cats::a declaratoryjudgment concerning the rights and remedies of the petitioner under the circumstances of this case.

We Concur: 

# -

&ie f Jus ti

Justices.Mr. Justice Daniel J. Shea dissenting:

As an abstract conclusion, I agree with the basic conclusion of the majority that the Youth Court is not required to give a youth

a predetention hearing under all circumstances. But I cannot accept this conclusion applying to the facts of this case. In this case the Youth Court did hold a predetention hearing. However, it was devoid of those procedural rights which usually go with a hearing. In essence, all the Youth Court did was accept the affidavit of the probation officer and his testimony concerning the youth and used this as a basis for jailing the youth for a period of not to exceed five days pending further juvenile proceedings. The probation officer was not cross-examined, the youth was denied the right to have anyone testify in his behalf, and he was effectively denied the right to an attorney at the hearing. The effect of this Court's decision is two-fold. First, a Youth Court is not required to hold a hearing. Second, even if a Youth Court does hold a hearing, there are no procedural requirements to make it a meaningful hearing.Once the Youth Court judge chose to hold a predetention hearing, he committed himself, I believe, to holding a meaningful hearing. This would include the right of the youth to call witnesses in his behalf, to cross-examine witnesses, and to have a lawyer represent him. Concerning the right to an attorney, the majority opinion makes much of the fact that the status of Mr. Miele as the youth's attorney was in doubt. The majority states the youth told the probation officer he did not have an attorney and that attorney Miele himself never directly represented to the court that he represented the Marten youth. If there was doubt, it was doubt caused by the probation officer and the court.The probation officer knew attorney Miele was involved in the case and could well be representing the Marten youth. While still in Forsyth (Rosebud County), attorney Miele called the probation officer and told him he might be filing a habeas corpus petition in an attempt to get the youth released. Shortly thereafter, without notifying the attorney, the probation officer took the youth to Miles City (CusterCounty) some 45 miles from Forsyth. The probation officer might have had the best of intentions toward the youth in taking him to Miles City, but he should have notified the attorney of his intentions. When the attorney learned that the youth had been taken to Miles City, he was understandably concerned, and he, along with a socialworker, immediately drove to Miles City. When they arrived they met an antagonistic judge and probation officer who had no intention of letting the attorney or social worker participate in the hearing. The record clearly shows the court was not interested in what attorney Miele or the social worker had to say concerning whether the Marten youth could safely be released from custody pending the filing of a juvenile delinquency petition. These people traveled more than 45 miles, absolutely to no avail. When attorney Miele asked to be heard the least the Youth Court could have done was to stop proceedings to allow a determination of whether attorney Miele was authorized to and did in fact represent the Marten youth. Furthermore, the Youth Court could then also have been informed that the social worker was available to testify to the home situation of the Marten youth and that there

was a home where the youth could stay pending further proceedings

on a delinquency petition. Concerning the attitude of attorney Miele, this Court relies on the response filed in this Court to the youth'spetition for a writ of supervisory control. I fail to see that it has any valuein proving that Miele's attitude was wrong. The trial judge's statements in this regard show that any information he had concerning attorney Miele was hearsay evidence related to him through the probation officers. While the record shows that attorney Miele and the probation officers have had previous confrontations, there is no way we can conclude that attorney Miele was in the wrong. Is it possible that the real problem is the attitude not of attorney Miele but that of the Youth Court and probation officer? Could it be that the court and probation officers would allow attorney Miele to represent youths only if he did it their way? In summary I do not feel that this Court should put its stamp of approval on the hearing that was conducted in this case.