No. 13453 IN THE SUPREMECOURT OF THE STATE OF MONTANA 1977

IN THE MATTER OF ZIP GEARY, A Youth

Appeal from: District Court of the Tenth Judicial District, Honorable LeRoy L. McKinnon, Judge presiding. Counsel of Record: ForAppellant: 

### K. Robert Foster argued, Lewistown,Montana For Respondent: Hon. Michael Greely,Attorney General,Helena, Montana J. Mayo Ashley argued,Assistant Attorney General,

Helena,Montana William A. Spoja, County Attorney, Lewistown,Montana Timothy J. O'Kare argued, Deputy County Attorney,

Lewistown, llontana

Submitted: March 14, 1977 Decided:

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Filed:

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# .s 19nMr. Chief Justice Paul G. Hatfield delivered the Opinion of the Court. This appeal arises from a dispositionalhearing in the youth court, tenth judicial district,County of Fergus, conducted without a record. The facts leading up to the dispositional hearing were as follows: Prior to September 22, 1975, Zip Geary was apprehended with anotheryouth while they were removing the lug nuts from

an automobile on a Lewistown car lot. As a result of this offense Zip Geary and his father, appellant, entered into an informal consent adjustment, without petition,placing Zip Geary on probation with the youth division for one year. On February 6, 1976, Zip and another youth committed felony-theft of an automobile and felony-burglary of the Lewistown Eagles Club. On February 13, 1976, the deputy county attorney for Fergus County filed a petition inyouth court charging Zip Geary with theft and burglary. On February 25, 1976,

a hearingwas held,wherein Zip admitted the allegations in the petition. A social studywas prepared and submitted to the court

onMay 17, 1976. A dispositional hearing was held without a record on June 7, 1976, wherein the court ordered that Zip be placed in a fosterhome. The father appeals from that order and raises two issues for our review. 1)Whether the absence of a stenographic record requires this case to be reversed and remanded to the district court? 2) Whether the district court must make a finding of parental unfitness before the youth is placed in the custody of a foster home? A reading of the applicable statutes is determinative of the first issue. It is clear that there is a statutory mandate to record the dispositional hearing verbatim, and theabsence of such requires this case to be reversed and remanded to the youth court. Section 10-1221(4), R.C.M. 1947, states: "Thedispositional hearing shall be conducted in themanner set forth in section 10-1220, subsections (3), (4), and (5)

# . The court shall hear all evidence relevant to a proper disposition of the case best serving the interests of the youth and the public. Such evidence shall include,but not be limited to, the social summary and predisposition reportprovided for in subsection (2) of this section." (Emphasis supplied.) Section 10-1220(3) in turn states: "Anadjudicatory hearing shallbe recorded verbatim by whatever means the court deems appropriate." (Emphasissupplied.) Furthermore,this statutory requirement of a stenographic record is neither a constitutional nor a statutory right of any party~capable of being waivedas contended by the State. Nor is the youth court given discretion to waive this statutory requirement. This is a legislative requirement imposed upon the youth court to insure an orderly judicial process and preserve the integrity of that process. If the legislaturehad intended that a stenographic record need not be kept in each youth court disposition hearing, the following language of Section 24(c), Uniform Juvenile CourtAct (1968),could have been used: "Ifrequested by a party or ordered by the court the proceedings shallbe recorded by stenographic notes or by electronic,mechanical, or other appropriatemeans. If not so recorded fullminutes of the proceedings shall be keptby the court.

### " This requirement of a stenographic record is complimentary to the right of appeal in all youth court actions given by section 10-1225(1)

## ,as follows: "Anyparty other than the statemay appeal from a judgment of the court to the supreme court in the manner provided by law. The appeal shall be heard by the supreme court upon the files, records,and transcript of the evidence of the juvenile court." (Emphasis supplied.)Without a transcript, this Court isplaced in the position of attempting to reconstruct a record on appeal. Such a task being often impossible and unnecessary, the right to appeal becomes illusory,a rightwithout substance. This discussion is applicable to the second issue. The absence in the record of any findings or reasoning for the youth court'sdisposition order would require this Court to speculate

on the reasons for the order. We are cognizant of the fact that section 10-1221,R.C.M. 1947,places no specific duty upon the youth court to render its findings on all issues as required under section 10-1220,R.C.M. 1947. However, the parties do have a right to appeal from dispositional hearings, aswell as from adjudication hearings. Section 10-1225, R.C.M. 1947. Therefore, specific findings shall be made by the youth court in all disposition caseswhich will set forth the basis of its order. As stated in the Report of the Advisory Committee to the Administrator on Standards for the Administration of Juvenile Justice,p. 169 (1976): "Therecommendation that the judge explain the terms of the disposition and the facts and reasons onwhich the disposition is based follows the lead to the National Advisory Commission on Criminal Justice Standards and ~oals, supra; theABA, StandardsRelatinq to Sentencing Procedures and Alternatives, supra; as well as the standards adopted by the IJA/ABA Joint Commission and the Standards and Goals Task Force on Juvenile Justice. It is anticipated that articulation of the reasons underlying the choice of dispositionwill not only avoid misunderstandings of the terms imposed,but alsowill help to improve dispositional decisionmaking through the development of written dispositional and correctional policy and by providing a basis for appellate review. To assist the respondent in understanding the disposition imposed, the judge should indicate the more severe and less severe alternatives, if any, that were rejected." However,we do not agree with appellant's contention that these findingsmust showparental unfitness in order to place a delinquentyouth in a foster home. The cases cited by appellantdiscuss "dependent"and "neglected" children, not delinquent youths. The dispositional hearing held pursuant to section 10- 1221,R.C.M. 1947, concerns two types of youths: "delinquent youths" and "youths in need of supervision". The lattermay present the issue of parental unfitness, since one definition of a youth in need of supervision, section 10-1203(13), R.C.M. 1947, states: "'Youth in need of supervision'means a youth who commits an offenseprohibited by lawwhich, if committed by an adult,would not constitute a criminal offense, includingbut not limited to a youth who:

"(b) habitually disobeys the reasonableand lawful demands of his parents or guardian, or is ungovernable and beyond their control

## * * *." However,when the youth court is concerned with a delinquent youth, as in the present case,parental unfitness is not necessarily at issue. The fact that he has been adjudged a delinquent youth, as defined in section 10-1203(12), R.C.M. 1947, usually demonstrates the need for stronger and wiser authority than has been exercised by the parents, regardless of whether they have been adjudged to be unfit or not. This is not to say that the youth courtpossesses unlimited discretion at the disposition stage as feared by appellant. Section 10-1202,R.C.M. 1947, states: "TheMontana Youth CourtAct shall be interpreted and construed to effectuate the following express legislativepurposes: "(1) to preserve the unity and welfare of the familywhenever possible, and to provide for the care,protection and wholesome mental and physical development of a youth coming within the provisions of the Montana Youth Court Act; "(2) to remove fromyouth committing violations of the law the element of retribution and to substitute therefor a program of supervision, care and rehabilitation; 

### " (3) to achieve the purposes of (1) and (2) ofthis section in a family environment whenever possible, separating the youth fromhis parents onlywhen necessary for the welfare of the youth or for the safety and protection of the community; 

### "(4) to provide judicial procedures inwhich the parties are assured a fair hearing and recognition and enforcement of their constitutional and statutory rights."

Subsection (3) sets forth specific criteria to be applied when the youth court is considering separating the youth from his parents. Subsection (2)of section 10-1202 also expresses that thisAct is concernedwith the supervision,care,and rehabilitation of the youth. At the dispositional stage the concern for the youth's welfare and the safety and protection of the community are paramount and not secondary to the interests of the parents. For these reasons,we hold that the fitness of the parents did not require specific attention in the findings of the youth court. For the foregoing reasons this case is reversed and remanded to the youth court to conduct a dispositional hearing in accordancewith this decision.

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We concur: Chief Justice

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