No. 13922 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

IN THE MATTER OF INQUIRY INTO 

J.J.S., Youth In Need of Care. 

Appeal from: District Court of the Seventh Judicial District, 

Honorable M. James Sorte, Judge presiding. 

Counsel of Record: 

For Appellant: 

John R. Prater argued, Terry, Montana 

For Respondent : 

V. G. Koch, County Attorney, Sidney, Montana 

Richard G. Phillips, Deputy County Attorney, argued, 

Sidney, Montana 

Thomas Mahan, Helena, Montana 

Submitted: March 7, 1978 

Decided. .APR --3 1978 . .:-- T? -" - Filed: - L1 J 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

This is an appeal by the natural parents of a minor 

child from a judgment of the District Court, Richland County. 

In the judgment, permanent custody of the child with the 

right to consent to adoption was awarded to the Department 

of Social & Rehabilitation Services (SRS) of the State of 

Montana. 

The minor child was born to appellants on July 9, 1975, 

in Dickinson, North Dakota. At the time of his birth, his 

father was 26 years old and his mother was 16 years old. 

In 1976, the family moved to Wolf Point, Montana. On 

or about March 24, 1976, the father was in jail for drunkenness. It was at this time that appellants first came into 

contact with SRS, through the Roosevelt County Welfare 

Department. The welfare department enrolled the father in 

an alcohol treatment program in Havre, which he attended for 

about a week. On April 19, 1976, he was arrested for driving 

while intoxicated. From March until July 1976, the appellants 

and their minor child were being assisted by the Roosevelt 

County Welfare Department. 

In July 1976, appellants, with their child, moved to 

Sidney, Montana. The Roosevelt County Welfare Department 

referred appellants' case to the Richland County Welfare 

Department. It first made contact with appellants, in their 

home, on or about July 23, 1976. The social worker who made 

the initial contact in Sidney, described appellantsf home as 

"filthy". A follow-up was made on July 27, 1976, and the 

same filthy conditions existed. The welfare department 

arranged homemaker services for appellants. Throughout 

August and September, 1976, these filthy conditions continued. 

When the social worker made a visit on September 29, 1976, 
she found the minor child was crawling around on the floor 

which was covered with ashes and cigarette remains, and he 

was eating bread crumbs off the floor. In October 1976, 

conditions in appellants' home had not improved. There was 

garbage on the kitchen floor, the child was in wet diapers, 

soaked and physically filthy. Besides providing homemaker 

services, welfare arranged for day care assistance for the 

child. The day care worker testified that when the child 

was brought in, he was filthy, his hair smelled of urine, 

and the tops of his feet were black. 

The Richland County Welfare Department also got the 

father into two alcohol treatment programs. He did not 

finish either one. 

On November 19, 1976, the Richland County Welfare 

Department petitioned the District Court for temporary 

custody of the minor child. On November 24, 1976, the court 

granted the petition and the child was placed in a foster 

home. The welfare department informed appellants that 

certain improvements would have to be made in their home or 

their child would be taken from them permanently. The 

improvements SRS requested were: (1) Full-time employment; 

(2) abstention from alcohol; (3) effective budgeting to see 

that expenses for all necessities were met; (4) maintenance 

of good housekeeping and personal cleanliness; and (5) 

weekly menu planning and preparation of nutritionally 

balanced meals. Appellants were given three months to make 

these improvements. 

On February 23, 1977, SRS petitioned for permanent 

custody. A hearing was held on April 20, 1977. On May 3, 

1977, findings of fact and conclusions of law were entered 

granting permanent custody to SRS. Appellants moved for a 
new hearing, which was denied. On July 20, 1977, amended 

findings of fact and conclusions of law were entered. The 

custody award was unchanged in the amended findings of fact 

and conclusions of law. This appeal then ensued. 

Two issues are raised on appeal: 

1. Did the District Court abuse its discretion by not 

appointing independent counsel for the child? 

2. Did the District Court abuse its discretion in 

determining that permanent placement with SRS was in the 

best interest of the child? 

In its amended findings of fact and conclusions of law, 

the District Court specifically found that the appointment 

of independent counsel for the minor child was unnecessary 

to insure the development of an adequately complete record 

of the child's best interests. Appellants argue the District 

Court abused its discretion in so finding. 

This Court has held that the appointment of counsel to 

represent a minor child in dependency proceedings is not 

mandatory. The court "may" appoint counsel for the child. 

Stubben v. Flathead County Dept. of Public Welfare, (19761, 

Mont . 556 P.2d 904, 33 St.Rep. 1082. The decision in Stubben was based on section 10-1310(12), R.C.M. 

1947, which provides that appointment of counsel for the 

child is within the discretion of the court. 

On July 8, 1977, this Court interpreted section 10- 

1310(12), R.C.M. 1947, again. Still refusing to make the 

appointment of counsel for a minor child mandatory, we held 

that where custody is in serious dispute, the trial court 

shall appoint counsel for the child or make a finding stating 

the reasons such appointment was unnecessary. In the Matter 

of the Guardianship of Gullette, (19771, Mont. I 
566 P.2d 396, 34 St.Rep. 277. Appellants argue that the 

findings of fact here were amended on July 20, 1977, to 

bring this case into conformity with Gullette. That may be 

so, but we fail to see how the District Court abused its 

discretion in not appointing counsel for the child. 

First, since this case was heard and decided prior to 

our decision in Gullette, the District Court was not required 

to make any finding on the appointment of counsel for the 

minor child. It is only in those cases heard and decided 

after Gullette that such a finding is necessary. Further, 

the rule is that the appointment of counsel is only necessary when the child needs an advocate to represent his 

position as to the issues in dispute or to ensure the 

development of an adequately complete record concerning the 

best interests of the child. In the Matter of Dl (1976), 24 

0r.App. 601, 547 P.2d 175. Neither of those situations are 

present here. The minor child was too young to have any 

position on the issues and the record of the hearing is 

adequate to determine the best interests of the child. The 

District Court did not abuse its discretion in not appointing 

counsel for the child. 

Next, appellants contend the District Court abused its 

discretion in awarding permanent custody to SRS. They claim 

they presented the court with a viable alternative to a 

permanent taking of the child from them. This alternative 

was to have the child placed in the joint custody of appellants and the child's grandparents, with whom they were 

living at the time of the hearing. They argue the legislative intent in section 10-1300, R.C.M. 1947, was to preserve 

the unity and welfare of the family whenever possible. 

Thus, appellants maintain the court's decision was contrary 
to the legislative intent, as they presented the court with 

an alternative that could preserve the unity of the family. 

We find no abuse of discretion by the District Court in 

awarding permanent custody to SRS. In determining the 

custody issue, the best interest of the child is the paramount concern. In the Matter of Henderson, (1975), 168 

Mont. 329, 542 P.2d 1204. This Court has said: 

"What is, or what is not in the best 

interests of the child depends upon the 

facts and circumstances of each case. 

The responsibility of deciding custody 

is a delicate one which is lodged with 

the district court. The judge hearing 

oral testimony in such a controversy has 

a superior advantage in determining the 

same, and his decision ought not to be 

disturbed except upon a clear showing of 

abuse of discretion." Adoption of Biery, 

(1974), 164 Mont. 353, 356, 522 P.2d 1377. 

Here, there has been no clear showing of an abuse of 

discretion. 

Our summary of the facts shows that the child was 

neglected prior to the temporary custody award to SRS. 

Appellants admit they did neglect the child at that time. 

Between the time of the temporary custody order and the 

hearing on permanent custody, the evidence shows that 

appellants had not made the improvements SRS requested. 

The father had entered another alcohol treatment program, but he again failed to finish it. He testified that 

he still drank and had gotten drunk since the child was 

removed from the home. The testimony indicates the father 

was working on his stepfather's farm. But, he testified 

that he went to work there on January 17, 1977. Thus, the 

father had not had full employment very long prior to the 

hearing and the evidence shows he had changed jobs 14 or 15 

times since appellants were married in 1974. The evidence 

reveals the mother still needed help in maintaining a clean 
house and preparing nutritional meals, even though she had 

been receiving such help from July to November, 1976 through 

SRS. Finally, the doctor for the child informed the court, 

in his report, that the child was emotionally deprived and 

he would not recommend returning the child to the family, as 

the child was progressing in the foster home. All this 

evidence indicates the child was neglected and the improvements needed in the family home had not been met. 

Since the proof shows this minor child was neglected, 

it would not be possible to preserve family unity. It is 

when there is a failure of proof that the legislative policy 

to preserve the unity and welfare of the family must prevail. 

Division of Child Welfare Services v. Fisher, (1976), 169 

Mont. 254, 545 P.2d 654. Therefore, the judgment of the 

District Court awarding permanent custody to SRS was proper. 

Family unity need not be preserved at the expense of the 

child's best interests. In Re G., Youths in Need of Care, 

(1977) I Mont. , 570 P.2d 1110, 34 St.Rep. 1179. 

The judgment of the District Court is affirmed. 

4"nd b4)%Wt.&y 

Chief Justice 

We Concur: