No. 13453 

IN THE SUPREME COURT 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: 

For Appellant: 

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: RP~ - 6 1977 

Filed: TflR .s 19n 
Mr. Chief Justice Paul G. Hatfield delivered the Opinion of 

the Court. 

This appeal arises from a dispositional hearing 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 another youth 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 in youth court 

charging Zip Geary with theft and burglary. On February 25, 1976, 

a hearing was held, wherein Zip admitted the allegations in the 

petition. A social study was prepared and submitted to the court 

on May 17, 1976. A dispositional hearing was held without a 

record on June 7, 1976, wherein the court ordered that Zip be 

placed in a foster home. 

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 the 
absence of such requires this case to be reversed and remanded 

to the youth court. Section 10-1221(4), R.C.M. 1947, states: 

"The dispositional hearing shall be conducted 

in the manner 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 report provided for 

in subsection (2) of this section." (Emphasis 

supplied.) 

Section 10-1220(3) in turn states: 

"An adjudicatory hearing shall be recorded 

verbatim by whatever means the court deems 

appropriate." (Emphasis supplied.) 

Furthermore, this statutory requirement of a stenographic 

record is neither a constitutional nor a statutory right of any 

party~capable of being waived as 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 legislature had intended 

that a stenographic record need not be kept in each youth court 

disposition hearing, the following language of Section 24(c), 

Uniform Juvenile Court Act (1968), could have been used: 

"If requested by a party or ordered by the 

court the proceedings shall be recorded by 

stenographic notes or by electronic, mechanical, or other appropriate means. If not so 

recorded full minutes of the proceedings shall 

be kept by 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: 

"Any party other than the state may 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 is placed 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 right without substance. 

This discussion is applicable to the second issue. The 

absence in the record of any findings or reasoning for the youth 

court's disposition 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, as well as from adjudication hearings. Section 10-1225, R.C.M. 1947. Therefore, specific findings shall 

be made by the youth court in all disposition cases which 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): 

"The recommendation that the judge explain the 

terms of the disposition and the facts and reasons 

on which the disposition is based follows the lead 

to the National Advisory Commission on Criminal 

Justice Standards and ~oals, supra; the ABA, 

Standards Relatinq 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 disposition will not only 

avoid misunderstandings of the terms imposed, but 

also will 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 findings must show parental unfitness in order to place 

a delinquent youth in a foster home. The cases cited by appellant 
discuss "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 latter may 

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 offense prohibited by law which, 

if committed by an adult, would not constitute 

a criminal offense, including but not limited 

to a youth who: 

"(b) habitually disobeys the reasonable and 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 court possesses unlimited discretion at the disposition stage as feared by appellant. Section 10-1202, R.C.M. 

1947, states: 

"The Montana Youth Court Act shall be interpreted and construed to effectuate the following express legislative purposes: 

"(1) to preserve the unity and welfare of the 

family whenever 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 from youth 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) of 
this section in a family environment whenever 

possible, separating the youth from his parents 

only when necessary for the welfare of the youth 

or for the safety and protection of the community; 

"(4) to provide judicial procedures in which 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 

this Act is concerned with 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 accordance with this decision. 

6 ,I 0- 

We concur: 

Chief Justice Il