No. 14285 

IN THE SUPREME (3IUKt' OF THE STm OF IWNTANA 

1978 

THE STATE aF I'KINTANA, ex rel. C.M.J., 

Relator, 

THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT 

OFTHESTATEOFMONTANA, INANDFORTHECOUNIYOF 

MISSOULA, THE HON. E. GARDNER BROWNLEE, JUDGE THEREQF, 

Respondent. 

ORIGINAL PmcEEDm: 

Counsel of Record: 

For Relator: 

Klaus Sitte, Legal Services, Missoula, bbntana 

For Respordent: 

Fbbert Deschamps, 111, County Attorney, Missoula, mntana 

Karen 'IWmend, Deputy County Attorney, Missoula, mntana 

Dennis Lind, Missoula, bbntana 

Filed : !?t\'t E3B 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

Relator has petitioned this Court for a writ of supervisory control or other appropriate writ directing the 

District Court of the Fourth Judicial District, Missoula 

County, the Honorable E. Gardner Brownlee, to grant visitation privileges with the minor 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 in District 

Court there, seeking a determination that the minor child 

J.L.B. is a youth in need of care and that permanent custody 

of the child and authority to consent to her 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 to arrange and consent to her 

adoption. Relator filed notice of appeal from the District 

Court determinations on April 10, 1978, and at the same time, 

moved for, inter alia, "Visitation Pending Appeal" and "Stay 

of Adoptive Proceedings Pending Appeal". Those motions were 

entertained at hearing on April 13, 1978, and were denied. 

In her petition for writ of supervisory control, relator 

asks, in effect, 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, the 
child would suffer detriment. She claims that her 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 in child custody matters, In re J.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 to preserve the status quo here, that itself 

would be harmful to the child. Of considerable significance 

is that the guardian ad litem of the child likewise contends 

that preservation 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, in effect, uphold the District 

Court, whose discretion has not been shown to have been 

abused. 

Writs of supervisory control are issued in circumstances 

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 trial court, other than by appeal, is deemed 

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

otherwise, a writ of supervisory control will issue in those 

circumstances in which the facts show that a party has no 

plain, speedy or adequate remedy at law, in which there is 

no right of appeal from a District Court's order, or in which 

the District Court has so abused its discretion as to justify 

intervention by this Court. State ex rel. Woodahl v. District Court (1975), 166 Mont. 31, 38-39, 530 P.2d 780, 785, 

and cases cited therein. Too, a writ of supervisory control 

is properly issued to prevent a party's participation in 
needless 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, in order to prevail, 

must show that the District Court, which has a superior advantage in ruling 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 discretion by denying her motion for visitation 

pending outcome of the appeal; consequently, her petition for 

a writ directing the court to allow such visitation is denied. 

The ~istrict Court, however, erred in denying the motion 

to stay the adoptive proceedings pending the outcome of the 

appeal. This Court is empowered to issue a writ in 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 writ thus will issue 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 in part and denied in part. 

We Concur: