### 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 

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# 1978 Decided.

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### Filed: - L1 JMr. 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 toconsent toadoption was awarded to the Department of Social & Rehabilitation Services (SRS) of the Stateof Montana. The minor childwas born toappellants on July 9, 1975, inDickinson, North Dakota. Atthe time of his birth, his father was 26 years old and his mother was 16years old. In 1976, the family moved toWolf Point, Montana. On

or about March 24, 1976, the father was injail for drunkenness. Itwas atthis 

### timethat appellants firstcame into contact with SRS, through the Roosevelt County Welfare Department. The welfare department enrolled the father in

an alcohol treatment program inHavre, which he attended for about a week. On April 19, 1976, he was arrested for driving while intoxicated. From March untilJuly 1976, the appellants and their minor childwere 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 firstmade contactwith appellants, intheir home, on or about July 23, 1976. The social worker who made the initialcontact in Sidney, described appellantsf home as "filthy". A follow-up was made on July 27, 1976, and the

same filthyconditions existed. The welfare department arranged homemaker services for appellants. Throughout August and September, 1976, these filthyconditions continued. When the social worker made a visiton September 29, 1976,she found theminor child was crawling around on the floor which was covered with ashes and cigaretteremains, and he

was eating bread crumbs off the floor. In October 1976, conditions inappellants' home had not improved. There was garbage on the kitchen floor, the child was in

### wetdiapers, soaked and physically filthy. Besides providing homemaker services, welfare arranged for day care assistance for the child. The day careworker testified thatwhen the child

was brought in, he 

### was filthy, his hair smelled of urine, and the tops of his feetwere 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 theminor child. On November 24, 1976, the court granted the petition and the child 

### was placed ina foster home. The welfare department informed appellants that certain improvements would have tobe made intheir home or their childwould be taken from them permanently. The improvements SRS requested were: (1)Full-time employment; (2) abstention from alcohol; (3) effectivebudgeting to see that expenses for allnecessities

### 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 tomake these improvements. On February 23, 1977, SRS petitioned forpermanent 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 toSRS. Appellants moved for

### anew hearing, which 

### was denied. On July 20, 1977, amended findings of factand conclusions of law 

### were entered. The custody award was unchanged inthe amended findings of fact and conclusions of law. This appeal then ensued. Two issues areraised on appeal: 1. Did the District Court abuse 

### its discretion by not appointing independent counsel for the child? 2. Did the DistrictCourt abuse 

### its discretion in determining thatpermanent placement with SRS was inthe best interestof the child? In 

### its amended findings of factand conclusions of law, the District Court specifically found that the appointment of independent counsel for theminor child

### was unnecessary toinsure thedevelopment of an adequately complete record of the child's best interests. Appellants argue the District Court abused 

### itsdiscretion in sofinding. This Court has held that the appointment of counsel to represent a minor child independency 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 inStubben was based on section 10-1310(12), R.C.M. 1947, which provides that appointment of counsel for the child 

### iswithin the discretion of the court. On July 8, 1977, this Court interpreted section 10- 1310(12), R.C.M. 1947, again. Stillrefusing tomake the appointment of counsel for 

### a minor childmandatory, 

### we held thatwhere custody 

### is inserious dispute, the trialcourt shall appoint counsel for the child ormake a finding stating the reasons such appointment was unnecessary. In theMatter of the Guardianship of Gullette, (19771, Mont. I566 P.2d 396, 34 St.Rep. 277. Appellants argue that the findings of factherewere amended on July 20, 1977, to bring this case intoconformity with Gullette. That may be so, but 

### we failto 

### see how the District Court abused 

### its discretion innot appointing counsel for the child. First, since this casewas heard and decided prior to

our decision inGullette, the District Court was not required tomake any finding on the appointment of counsel for the minor child. It isonly inthose cases heard and decided after Gullette that such a finding 

### is necessary. Further, the rule is that the appointment of counsel 

### isonly necessarywhen the child needs an advocate to represent his position as to the issues indispute or to ensure the development of an adequately complete record concerning the best interests of the child. In theMatter of Dl (1976), 24 0r.App. 601, 547 P.2d 175. Neither of those situations are present here. The minor childwas too young tohave any position on the issues and the record of the hearing 

### is adequate todetermine the best interests of the child. The DistrictCourt did not abuse 

### itsdiscretion innot appointing counsel for the child. Next, appellants contend the District Court abused 

### its discretion inawarding permanent custody toSRS. They claim they presented the courtwith a viable alternative to

### a permanent taking of the child from them. This alternative

was tohave the child placed in the joint custody of appellants and the child's grandparents, with whom they were living atthe 

### timeof the hearing. They argue the legislative intent in section 10-1300, R.C.M. 1947, was topreserve the unity and welfare of the family whenever possible. Thus, appellants maintain the court's decisionwas contraryto the legislative intent, as they presented the court with

an alternative that could preserve the unity of the family. We find no abuse of discretionby the DistrictCourt in awarding permanent custody to SRS. In determining the custody issue, the best interest of the child is the paramount concern. In theMatter of Henderson, (1975), 168 Mont. 329, 542 P.2d 1204. This Court has said: "What 

### is, orwhat 

### is not inthe best interests of the child depends upon the facts and circumstances of each 

### case. The responsibility of deciding custody 

### is a delicateone which 

### is lodged with the districtcourt. The judge hearing oral testimony in such 

### a controversy has a superior advantage indetermining the same, and his decision ought not tobe 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 tothe temporary custody award to SRS. Appellants admit they did neglect the child atthat 

### time. Between the 

### timeof the temporary custody order and the hearing on permanent custody, the evidence shows that appellants had notmade the improvements SRS requested. The father had entered another alcohol treatment program, but he again failed tofinish 

### 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 thathe went towork there on January 17, 1977. Thus, the father had not had fullemployment very long prior to the hearing and the evidence shows he had changed jobs 14or 15 

### times since appellants

### weremarried in 1974. The evidence reveals themother 

### still needed help inmaintaining a cleanhouse and preparing nutritionalmeals, even though she had been receiving such help from July toNovember, 1976 through SRS. Finally, the doctor for the child informed the court, inhis report, that the child 

### was emotionally deprived and he would not recommend returning the child to the family, as the child was progressing inthe foster home. Allthis evidence indicates the child was neglected and the improvements needed inthe family home had not been met. Since the proof shows thisminor child 

### was neglected, 

### it would not be possible topreserve family unity. It 

### is when there is a failureof proof that the legislativepolicy topreserve 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 DistrictCourt awarding permanent custody to SRS 

### was proper. Family unity need not be preserved atthe expense of the child's best interests. In Re G., Youths inNeed of Care, (1977)I Mont. 

## , 570 P.2d 1110, 34 St.Rep. 1179. The judgment of the District Court is affirmed. 

# 4"ndb4)%Wt.&y Chief Justice WeConcur: