No. 95-129 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

IN THE MATTER OF 

A.Z.G., a/k/a A.Z.Y., 

A Youth Under the Age of Eighteen. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Edward P. McLean, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Holly JO Franz, Gough, Shanahan, Johnson 

& Waterman, Helena, Montana 

For Respondent: 

Hon. Joseph P. Mazurek, Attorney General, 

Barbara C. Harris, Assistant Attorney General, 

Helena, Montana 

Robert L. "Dusty" Deschamps III, Missoula 

County Attorney; Robert L. Zimmerman, 

Deputy County Attorney, Missoula, Montana 

Submitted on Briefs: September 28, 1995 

Decided: November 9, 1995 
Justice Charles E. Erdmann delivered the opinion of the Court. 

This is an appeal of an order of the Youth Court in the Fourth 

Judicial District Court, Missoula County, suspending AZY's prior 

commitment to the Department of Family Services (DFS) and placing 

AZY on probation subject to AZY residing with his father. We 

reverse and remand for proceedings consistent with this opinion. 

The dispositive issue on appeal is whether the Youth Court 

erred in ordering AZY's placement with his father as a condition of 

his probation. 

FACTS 

AZY is a minor, sixteen years of age. He committed the 

offense of criminal mischief which, if committed by an adult, is in 

violation of 5 45-6-101, MCA (1993), and was found to be a 

delinquent youth within the meaning of 5 41-5-103(7) (a), MCA 

(1993). The Youth Court placed AZY on probation under the 

jurisdiction of DFS and released him into the custody of his 

mother. AZY's mother had been his sole custodian for the previous 

thirteen years. A subsequent petition was filed alleging AZY 

violated the conditions of his probation. 

The Youth Court held a disposition hearing on the petition to 

revoke and committed AZY to the custody of DFS with placement at 

Pine Hills School for boys. The court then suspended the 

commitment to DFS and placed AZY on probation under the supervision 

of the Youth Court Probation Department with the condition that AZY 

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move to Seattle, Washington, and reside with his father. From this 

disposition, AZY and his mother appeal. 

DISCUSSION 

Did the Youth Court err in ordering the placement of AZY with 

his father a condition of his probation? 

AZY and his mother argue that the Youth Court exceeded its 

authority in placing AZY outside his home. They contend that 

§ 41-5-523, MCA (1993), limits the Youth Court's dispositional 

authority if the court determines that the youth is in need of a 

placement other than the youth's own home. 

41-5-523. . . . (1) If a youth is found to be a 

delinquent youth or a youth in need of supervision, the 

youth court may enter its judgment making any of the 

following dispositions: 

(a) place the youth on probation; 

(b) commit the youth to the department if the court 

determines that the youth is in need of placement in 

other than the youth's own home, provided that: 

(i) the court shall determine whether continuation 

in the home would be contrary to the welfare of the youth 

and whether reasonable efforts have been made to prevent 

or eliminate the need for removal of the youth from the 

youth's home. The court shall include a determination in 

the order committing the youth to the department. 

AZY and his mother contend § 41-5-523(l) (b), MCA (1993), 

provides DFS with the sole authority to place a youth outside of 

his own home in all circumstances except when a youth is committed 

to a mental health facility. See also § 41-5-523(1)(j), MCA 

(1993). AZY and his mother argue that the Youth Court improperly 

removed AZY from his mother's home and her sole legal custody and 

placed him in the care of his father, a noncustodial parent. 

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The State agrees that if the Youth Court had committed AZY to 

DFS, the court could not have ordered specific placement. However, 

the State argues that the Youth Court placed AZY on probation 

pursuant to 55 41-5-523(l) (a), -703, MCA (1993), and placed him 

with his father as a condition of that probation. The State 

stresses that there are no statutory restrictions to conditions on 

probation. 

The State references an Arizona case where the court upheld 

probation that required the youth to spend weekends at a detention 

center while otherwise on probation and living with his parents. 

The Arizona court concluded that the youth court's "ability to 

impose conditions of probation exists even though it is not 

specifically set forth in the statute." In re the Appeal in Pima 

County Juvenile Action No. J-20705-3 (Ariz. Ct. App. 1982), 650 

P.2d 1278, 1279. 

AZY and his mother dispute that case's applicability here 

because Arizona's statutes provide for a disposition by the court 

where the youth may be placed with his parents subject to the 

supervision of the probation officer. See Ariz. Rev. Stat. Ann. 

5 8-241(A) (2) (a) (1994). In that case, the youth remained under 

the custody of his parents but was under the probation officer's 

supervision on weekends. Under Montana law such a disposition is 

not available and the case cited is inapplicable to the issue 

presented here. 

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The State further argues AZY has "a home" with his father. 

The Youth Court Act does not define "a youth's own home" as 

referred to in § 41-5-523(l) (b), MCA (1993). In Black's Law 

Dictionary, home is " [tlhat place in which one in fact resides with 

the intention of residence . . . .'I Black's Law Dictionary 374 

cab. 5th ed. 1983) . An unmarried minor child's residence is 

defined in 5 l-1-215(4), MCA (1993), as "the residence of the 

parent having legal custody or, if neither parent has legal 

custody, the residence of the parent with whom he customarily 

resides . . . .'I 

DFS's report to the court noted AZY had not spent any length 

of time with his father and their contact had been inconsistent. 

AZY's father did not have custody of the youth and had not seen him 

for over a year prior to this action. In addition, we note AZY has 

been a full-time student in Montana's schools while residing with 

his mother. Therefore, we conclude that AZY's father's home is not 

"the youth's own home" within the meaning of § 41-5-523(1)(b), MCA 

(1993). Nevertheless, the State asserts that the Youth Court 

properly considered AZY's best interests while maintaining a family 

environment. In doing so, the State argues the court fulfilled the 

purposes of the Youth Court Act as stated in 5 41-s-102, MCA 

(1993). 

The Youth Court concluded it had the authority to place AZY 

with his father. We review a District Court's conclusion of law 

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for its correctness. Carbon County v. Union Reserve Coal Co., Inc. 

(Mont. 1995), 898 P.2d 680, 686, 52 St. Rep. 529, 533. 

The 1987 amendments to the Youth Court Act, 55 41-5-101 to 

-1008, MCA, expanded the role of DFS while it diminished the role 

of the youth courts. In the Matter of B.L.T. (1993), 258 Mont. 

468, 471, 853 P.2d 1226, 1228. Prior to those amendments, the 

youth court had full authority over placement of youths. Section 

41-5-523, MCA (1985). The amendments preserved the youth court's 

power to sentence the youth but granted to DFS control over the 

placement of the youth. In the Matter of the Application of 

Peterson (1989), 235 Mont. 313, 316, 767 P.2d 319, 321. In 

Peterson, we upheld that transfer of authority and ruled the 

legislature had the power to make placement of youths an 

administrative power. Peterson, 767 P.2d at 321. 

Section 41-5-523(l) (b), MCA (1993), provides that the youth 

court shall "commit the youth to [DFSI if the court determines that 

the youth is in need of placement in other than the youth's own 

home . . . .'I The court stated, in the record, that AZY's mother 

"does not have the parenting skills necessary to keep LAZY] at her 

residence at the present time." The court then found it was in 

AZY's best interest to reside with his father instead of with his 

mother. Thus, the court determined continuation in the home would 

be contrary to AZY's welfare and such a determination requires the 

court's committal of AZY to DFS for placement. Section 

41-5-523(l) (b) (i), MCA (1993). 

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In deciding the youth's placement, DFS must review 

recommendations made by the youth placement committee. Section 

41-5-527(l), MCA (1993). The legislature, in § 41-5-526(4), MCA 

(1993), specifically provided that the youth placement committee 

may recommend to DFS the youth's placement with his parent or other 

family member as an alternative to placement in a licensed facility 

or with a guardian. From this provision, we determine that the 

legislature intended placement with a non-custodial parent to be no 

different than any other alternative placement sites outside of the 

youth's own home. 

We conclude that the placement of AZY outside of his mother's 

home was under the authority of DFS. Therefore, we hold that the 

Youth Court erred in ordering the placement of AZY with his father 

as a condition of his probation. It is important to note that the 

legislature revised the Youth Court Act again in 1995 and amended 

the language of § 41-5-523, MCA (1993), though the question of how 

those revisions would affect the facts of this case is not before 

us. 

Because of our holding in this issue, we do not find it 

necessary to discuss the other issues raised by appellant. We 

reverse and remand for proceedings consistent with this opinion. 

Justice 

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we concur: ,,A 

Justices 
Justice William E. Hunt, Sr. dissenting. 

"Home" is a word with innumerable definitions, meaning 

different things to different people. For example, while the 

majority correctly quoted Black's Law Dictionary for its definition 

of "home", Black's also defines "home" as "the habitual abode of 

one's family." Black's Law Dictionary 374 (6th ed. 1990). The 

habitual abode of half of A.Z.G.'s family is in Seattle, and that 

is also his home when he is with his father. 

The facts of this case support a broader definition of "home." 

A psychologist's examination found A.Z.G. to have a "normal amount 

of rebelliousness", with much of his involvement in the legal 

system stemming from "family conflict." court reports from 

A.Z.G.'s therapists at Mountain View School indicate his problems 

center around the deteriorating relationship with his mother. The 

two have a history of unproductive conflict, which on at least one 

occasion resulted in law enforcement being dispatched to the 

mother's house. While A.Z.G. undeniably must be held responsible 

for his own behavior, reports to the court indicate a need for his 

mother to work on parenting skills and her tendency to be overcontrolling. These same reports indicate the mother continually 

denies any involvement in her son's difficulties and refuses to 

recognize any need to change her own behavior. 

Meanwhile, A.Z.G.'s father stands ready to take his son home 

to an environment free from the cycle of conflict that A.Z.G. and 

his mother apparently cannot escape. The father has a steady job, 

a stable home, and a warm and respectful relationship with his son. 

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In ordering probation, the Youth Court allowed the family to work 

on solving A.Z.G.'s difficulties without the drastic step of 

transferring custody of him to the State. This decision was 

reasonable, warranted under the specific facts of this case, and 

certainly did not constitute an abuse of discretion. 

I also disagree with the majority's declaration that "the 

legislature intended placement with a non-custodial parent to be no 

different than any other alternative placement sites outside of the 

youth's own home." I am not persuaded the legislature intended the 

advantages and disadvantages of parental placement to be weighed 

equally against the advantages and disadvantages of placement with 

the State, as represented by an institution or a foster home. 

Unlike the State, a parent has constitutional rights and 

responsibilities to a child that have been repeatedly recognized, 

both by this Court and by the Supreme Court of the United States: 

The Court has frequently emphasized the importance of the 

family. The rights to conceive and to raise one's 

children have been deemed essential, basic civil rights 

of man, and rights far more precious than property 

rights. It is cardinal with us that the custody, care 

and nurture of the child reside first in the parents, 

whose primary function and freedom include preparation 

for obligations the state can neither supply nor hinder. 

Stanley v. Illinois (1972), 405 U.S. 645, 654, 92 S.Ct. 1208, 1212, 

31 L.Ed.2d 551, 558 (citations omitted). When, as here, the rights 

of a parent are potentially to be weighed against the rights of a 

third party, "it has long been the law in Montana that the right of 

the natural parent prevails until a showing of a forfeiture of this 

right." Henderson v. Henderson (1977), 174 Mont. 1, 10, 568 P.2d 

177, 182 (citations omitted). Despite this settled law, the 

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majority opinion may be interpreted to excuse the State from giving 

greater deference to a parent than it does to a facility or 

institution. This case therefore sets a troubling precedent. 

A.Z.G.'s mother has made a legitimate attempt to parent her 

son. Though laudable, her attempt apparently has not been 

completely successful. It was not an abuse of discretion for the 

Youth Court to let the father have a try. For this reason, I would 

affirm the judgment of the Youth Court. 

Justice Terry N. Trieweiler concurs in the foregoing dissent. 

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