In re Declaring M.L.H.

715 P.2d 32, 220 Mont. 288, 1986 Mont. LEXIS 827
CourtMontana Supreme Court
DecidedFebruary 25, 1986
DocketNo. 85-276
StatusPublished
Cited by13 cases

This text of 715 P.2d 32 (In re Declaring M.L.H.) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Declaring M.L.H., 715 P.2d 32, 220 Mont. 288, 1986 Mont. LEXIS 827 (Mo. 1986).

Opinion

MR. JUSTICE HUNT

delivered the Opinion of the Court.

Following an adjudicatory hearing the Twentieth Judicial District, Lake County District Court declared M.L.H., H.M.H. and R.H. youths in need of care. Their parents appeal the adjudicatory order and the dispositional order of the District Court placing the children in two separate foster homes.

We reverse and remand for proceedings consistent with this opinion.

The parents present these issues for review:

1. Whether the District Court committed reversible error in failing to make a record of an in-chambers interview of the children.

2. Whether the District Court’s findings of fact and conclusions of law are supported by sufficient evidence.

3. Whether the District Court erred by indicating at the adjudicatory hearing that it intended to transfer custody of the children from the parents to the Department of Social Rehabilitation and Services.

The children, through their guardian ad litem, present the following questions in their brief as amicus curiae:

[290]*2901. Whether certain documentary evidence should be disregarded as inadmissible hearsay.

2. Whether the District Court erred in placing the three children in two separate foster homes.

The appellant parents are both disabled by illness. The father, a retired dairy farm worker, is 67 years old and suffers from emphysema. The mother is 46 years old and suffers from obesity, high blood pressure, diabetes, and an old back injury. Their sole support is from social security payments which total approximately $775 per month.

The appellants have six children. Three are concerned in this proceeding: M.L.H., a female, age 13; H.M.H., a female, age 12; and R.H., a male, age 11. The record contains little reference to the other three children. They are two females and a male in their late teens.

The appellants own a small house and an adjoining lot. This house has two bedrooms, a living room, a kitchen, and a bathroom. The six children share one bed room and also use the living room for sleeping as well.

The nature of the physical environment of the children may be set forth by a quote from a report of a social caseworker:

“On every visit social worker has made to the home, there have been clothes strewn all over the floors of every room. The clothes have to be stepped on when walking through the rooms. Junk is piled everywhere and leftover food sits out on the kitchen table and counter tops. Dirty dishes are everywhere. A foul smell is everywhere and permeates everything.”

The same report contains statements that set forth the nature of the parental attitude and ability to control the children:

“Children literally run the streets, engage in illegal behavior and get themselves involved in potentially physically and emotionally damaging situations.
“Neither parent is motivated to instill in their children the difference between right and wrong, respect for others and their rights, or to provide an adequate physical and emotional environment.”

However, although the evidence shows that the home environment and discipline is poor, the witnesses testified predominately that the children were healthy and bright. No evidence demonstrated problems in school. Therefore, of the facts presented, not all are negative.

In 1980, the Montana Department of Social and Rehabilitative [291]*291Services was granted temporary investigative authority of the appellants’ children. In 1984, a petition for temporary legal custody of the three children was filed. An adjudicatory hearing was held in March of 1985 and the children were adjudicated youths in need of care. A dispositional hearing in April of 1985 resulted in an order that custody be granted to the Lake County Office of Human Services for foster home placement. The three children were placed in two separate homes for an initial period of one year. The appellants filed this appeal after the dispositional order. The appeal is from both the adjudication and disposition. The guardian ad litem was granted leave to file an amicus curiae brief.

The first issue presented for review is whether the District Court committed reversible error in failing to make a record on its in-chambers interview with the children. Near the conclusion of the adjudicatory hearing there was discussion concerning the District Court’s intention to conduct an in-home inspection and an in-chambers interview of the children. However, there is no record of, or reference to, the in-chambers interview beyond the discussion of intent to conduct such an interview. Absent a record or a reference, we do not know if the interview was conducted; however both parties treat the matter as if it was. The remaining discussion on this issue will be based on the assumption that it was conducted.

The appellants, in their argument that the District Court erred in not making a record of the interview, refer to Section 40-4-214(1), MCA, contained in the statutes on child custody matters in marriage dissolution, which reads:

“The court may interview the child in-chambers to ascertain the child’s wishes as to his custodian and as to visitation. The court may permit counsel to be present at the interview. The court shall cause a record of the interview to be made and to be part of the record in the case.”

In further support of their argument the appellants cite In re Marriage of Brown (1978), 179 Mont. 417, 587 P.2d 361, wherein a District Court did not make a record of the in-chambers interview with the children in a dissolution of marriage custody proceeding. We remanded in Brown for reconsideration of the property division and also on the basis that a record of the in-chambers interview was mandated by statute. Brown, 587 P.2d at 336. The appellants point out that the rationale in Brown was reiterated in Wilson v. Wilson (1979), 180 Mont. 377, 590 P.2d 1136. We did not remand in Wilson, however, because the District Court had entered findings as to the [292]*292child’s wishes and, also, a witness had testified as to what occurred during the interview. Wilson, 590 P.2d at 140. We note that no findings were made concerning the in-chambers interview in the instant case.

The respondent, State, attempts to counter the appellants’ argument on this issue by pointing out two problems: nonapplicability of the cited law and waiver. The respondent argues that Section 40-4-214(1), MCA, is part of the Uniform Marriage and Divorce Act. It deals only with child custody in a dissolution proceeding, and there is no provision in the child abuse, neglect, and dependency statutes requiring an interview to be recorded. If correct, this same reasoning would apply to the Brown and Wilson case law, as it dealt with child custody in dissolution proceedings also. As to waiver, the respondent relies heavily on the transcript setting forth the discussion in the District Court concerning the District Court’s intentions to conduct the in-home inspection and the in-chambers interview.

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Bluebook (online)
715 P.2d 32, 220 Mont. 288, 1986 Mont. LEXIS 827, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-declaring-mlh-mont-1986.