No. 14285 INTHE SUPREME (3IUKt' OF THE STmOFIWNTANA 1978

THE STATE 

### aF I'KINTANA, 

### ex rel. C.M.J., Relator,

THE DISTRICT

### COURT OF 

### THEFOURTH JUDICIAL DISTRICT OFTHESTATEOFMONTANA, INANDFORTHECOUNIYOF MISSOULA, THE HON. E. GARDNER

### BROWNLEE,JUDGE THEREQF, Respondent.

ORIGINAL PmcEEDm:
Counselof Record: For Relator: Klaus Sitte, Legal Services, 

### Missoula, 

### bbntana For Respordent: Fbbert Deschamps, 111, CountyAttorney, Missoula, 

### mntana Karen 'IWmend,Deputy County Attorney, Missoula, 

### mntana Dennis Lind, 

### Missoula, 

### bbntana

Filed: 

# !?t\'t

# E3BMr. Justice John Conway Harrison delivered the Opinion of the Court.
Relator has petitioned this Court for a 

### writof supervisory control or other appropriate 

### writdirecting the DistrictCourt of the Fourth Judicial District, Missoula County, the Honorable E. Gardner Brownlee, to grant visitationprivileges with theminor child J.L.B. and to stay adoptive proceedings of J.L.B. pending outcome of relator's appeal of the District Court's termination of C.M.J.'s custody of the child. On October 27, 1977, the Department of Social and Rehabilitation Services (SRS), by and through the County Attorney of Missoula County, filed an action inDistrict Court there, seeking a determination that the minor child J.L.B. 

### is a youth inneed of care and that permanent custody of the child and authority toconsent toher adoption be granted SRS. A hearing on the petition extended over four days, February 23 and 27, and March 6 and 7, 1978. Judge Brownlee, on March 29, 1978, issued findings and conclusions, and a judgment awarding permanent custody of J.L.B. to SRS and authorizing the Department toarrange and consent toher adoption. Relator filed notice of appeal from the District Court determinations on April 10, 1978, and atthe same 

### time, moved for, inter alia, "VisitationPending Appeal" and "Stay of Adoptive Proceedings Pending Appeal". Those motions were entertained athearing on April 13, 1978, and were denied. In her petition for

### writof supervisory control, relator asks, ineffect, that this Court now grant the motions which


### were denied below. In support of the petition, she alleges that there 

### is no adequate remedy by appeal and that, unless relief 

### is granted by issuance of an appropriate 

### writ, thechild would suffer detriment. She claims thather motions


### are designed to insure that the status

## quo be maintained, and contends that only when serious evil threatens the 

### welfare of the child should the relief she requests be denied. Reminding us that it 

### is the best interest of the child which guides us inchild custody matters, In reJ.J.S. (1978), Mont. 

## , 577 P.2d 378, 381, 35 St.Rep. 394, 397, and
cases cited therein, counsel for SRS contend that, even 

### were it possible topreserve the status

### quo here, that itself would be harmful tothe child. Of considerable significance 

### is that the guardian ad litem of the child likewise contends thatpreservation of the status

### quo would be harmful to the child. In his brief amicus curiae, he urges that

### we deny the relief requested and thus, ineffect, uphold the 

### District Court, whose discretion has not been shown tohave been abused. Writsof supervisory control are issued incircumstances of an emergency nature, making consideration of a cause of action or right in the 

### trial courts and due appeal to this Court an inadequate remedy, or in those circumstances when supervision of a trialcourt, other than by appeal, 

### is deemed necessary or proper. Rule 17(a),M0nt.R.App.Civ.P. Phrased otherwise, a 

### writof supervisory control

### willissue inthose circumstances inwhich the facts show that a party has no plain, speedy or adequate remedy atlaw, inwhich there 

### is
no right of appeal from a District Court's order, 

### or inwhich theDistrictCourt has so abused its discretion as tojustify intervention by this Court. State ex rel. Woodahl v. DistrictCourt (1975), 166Mont. 31, 38-39, 530 P.2d 780, 785, and cases cited therein. Too, a 

### writof supervisory control 

### isproperly issued toprevent a party's participation inneedless litigation. State ex rel. Buttrey Foods, Inc. v. District Court (1966), 148 Mont. 350, 354, 420 P.2d 845, 847. In a case such as this, petitioner, inorder toprevail, must show that the District Court, which has a superior advantage inruling on such matters, clearly abused 

### its discretion. See In

### re Adoption of Biery (1974), 164 Mont. 353, 357, 522 P.2d 1377, 1379. Relator has failed to show that the District Court abused its discretionby denying her motion for visitation pending outcome of the appeal; consequently, her petition for
a 

### writdirecting the court to allow such visitation 

### is denied. The 

### ~istrict Court, however, erred indenying themotion to stay the adoptive proceedings pending the outcome of the appeal. This Court 

### is empowered to issue a 

### writin aid of
an appeal which would otherwise be ineffectual. See Bennett


### v. Dowdall (1971), 157 Mont. 

### 11, 13, 482 P.2d 572, 573. In the instant case, relator's appeal would be ineffectual if the child J.L.B. were adopted during the pendency of the proceedings. A 

### writthus 

### willissue directing the District Court to stay proceedings concerning the adoption of J.L.B. pending outcome of the appeal to this Court. Petition for relief granted inpart and denied inpart.

WeConcur: