No. 95-129 INTHESUPREME

COURTOFTHESTATEOFMONTANA 1995

IN THEMATTEROF A.Z.G., a/k/a A.Z.Y., AYouth Under the Ageof Eighteen.

APPEALFROM: District Court of the Fourth Judicial District,

In andfor the County of Missoula, TheHonorable Edward P. McLean, Judge presiding.

COUNSELOFRECORD:

For Appellant: Holly JOFranz, 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 onBriefs: September 28, 1995

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

This is an appeal of anorder 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 acondition of his probation. FACTS AZY is a minor, sixteen years of age. He committed the offense of criminal mischief which, if committed by anadult, 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 adisposition 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 DFSand placed AZYonprobation under the supervision of the Youth Court Probation Department with the condition that AZY

2moveto Seattle, Washington, andreside with his father. Fromthis

disposition, AZYandhis mother appeal. DISCUSSION Did the Youth Court err in ordering the placement of AZYwith his father acondition of his probation? AZYand his mother argue that the Youth Court exceeded its authority in placing AZYoutside 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 ownhome. 41-5-523.

. . . (1) If a youth is found to be a delinquent youth or ayouth in need of supervision, the youth court mayenter its judgment making any of the following dispositions: (a) place the youth onprobation; (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 ownhome, provided that: (i) the court shall determine whether continuation in the homewould becontrary to the welfare of the youth andwhether reasonable efforts havebeenmadeto prevent or eliminate the needfor removal of the youth from the youth's home. Thecourt shall include adetermination in the order committing the youth to the department. AZY and his mother contend § 41-5-523(l) (b), MCA (1993), provides DFSwith the sole authority to place ayouth outside of his ownhomein all circumstances except whenayouth is committed to a mental health facility. See also § 41-5-523(1)(j), MCA (1993). AZYandhis mother argue that the Youth Court improperly removed AZYfrom his mother's homeandher sole legal custody and placed him in the care of his father, anoncustodial parent.

3TheState agrees that if the Youth Court hadcommitted AZYto

DFS,the court could not haveordered specific placement. However, the State argues that the Youth Court placed AZYon probation pursuant to 5541-5-523(l) (a), -703, MCA(1993), and placed him with his father as a condition of that probation. The State stresses that there are nostatutory restrictions to conditions on probation. The State references anArizona case where the court upheld probation that required the youth to spendweekends at adetention center while otherwise onprobation 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. AZYand his mother dispute that case's applicability here because Arizona's statutes provide for adisposition by the court where the youth may be placed with his parents subject to the supervision of the probation officer. SeeAriz. Rev. Stat. Ann. 58-241(A) (2)(a) (1994). In that case, the youth remained under the custody of his parents but was under the probation officer's supervision onweekends. Under Montana law such adisposition is not available and the case cited is inapplicable to the issue presented here.

4The State further argues AZYhas "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, homeis "[tlhat place inwhich onein fact resides with the intention of residence

. . . .'I Black's LawDictionary 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 AZYhadnot spent any length of time with his father and their contact had been inconsistent. AZY's father did not have custody of the youth andhadnot seen him for over ayear prior to this action. In addition, wenote AZYhas been afull-time student in Montana's schools while residing with his mother. Therefore, weconclude that AZY's father's homeis not "the youth's ownhome"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 afamily 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). TheYouth Court concluded it hadthe authority to place AZY with his father. Wereview a District Court's conclusion of law

5for 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 DFSwhile 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 adetermination requires the court's committal of AZY to DFS for placement. Section 41-5-523(l) (b) (i), MCA (1993).

6In deciding the youth's placement, DFS must review

recommendations madeby 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 mayrecommendto DFSthe youth's placement with his parent or other family memberasanalternative to placement in alicensed facility
or with a guardian. Fromthis provision, wedetermine that the legislature intended placement with anon-custodial parent to beno different than anyother alternative placement sites outside of the youth's ownhome. Weconclude that the placement of AZYoutside of his mother's homewasunder the authority of DFS. Therefore, wehold that the Youth Court erred in ordering the placement of AZYwith his father
asacondition of his probation. It is important to note that the legislature revised the Youth Court Act again in 1995andamended 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

7we concur: ,,A

JusticesJustice 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 LawDictionary for its definition of "home", Black's also defines "home" as "the habitual abode of one's family." Black's LawDictionary 374 (6th ed. 1990). The habitual abode of half of A.Z.G.'s family is in Seattle, andthat is also his homewhenheis with his father. Thefacts of this casesupport abroader definition of "home." Apsychologist's examination found A.Z.G. to havea"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 ahistory of unproductive conflict, which onat least one occasion resulted in law enforcement being dispatched to the mother's house. While A.Z.G. undeniably must beheld responsible for his ownbehavior, reports to the court indicate aneedfor 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 needto change her ownbehavior. Meanwhile, A.Z.G.'s father stands ready to take his son home to anenvironment free from the cycle of conflict that A.Z.G. and his mother apparently cannot escape. Thefather hasasteady job,
astable home,andawarmandrespectful relationship with his son.
9In 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 anabuse of discretion. I also disagree with the majority's declaration that "the legislature intended placement with anon-custodial parent to beno different than anyother alternative placement sites outside of the youth's ownhome." I amnot persuaded the legislature intended the advantages and disadvantages of parental placement to beweighed equally against the advantages anddisadvantages 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 achild that have been repeatedly recognized, both by this Court andby the Supreme Court of the United States: TheCourt hasfrequently emphasized the importance of the family. The rights to conceive and to raise one's children have been deemedessential, 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 canneither supply nor hinder. Stanley v. Illinois (1972), 405 U.S. 645, 654, 92S.Ct. 1208, 1212, 31L.Ed.2d 551, 558 (citations omitted). When,ashere, the rights of aparent are potentially to beweighed against the rights of a third party, "it has long beenthe law in Montana that the right of the natural parent prevails until ashowing of aforfeiture of this right." Henderson v. Henderson (1977), 174Mont. 1, 10, 568P.2d 177, 182 (citations omitted). Despite this settled law, the 10majority opinion maybeinterpreted to excuse the State from giving

greater deference to a parent than it does to a facility or institution. This case therefore sets atroubling precedent. A.Z.G.'s mother has madea legitimate attempt to parent her
son. Though laudable, her attempt apparently has not been completely successful. It wasnot anabuse of discretion for the Youth Court to let the father haveatry. 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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