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No. 88-182
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988

IN THE MATTER OF THE APPJJICATION OF ROBERT PETERSON ON BEHALF OF B.S.M, a youth.
ORIGINAL PROCEEDING:
COUNSEL OF RECORD: For Petitioner: Robert M. Peterson argued, Helena, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Clay Smith argued, Asst. Atty. General, Helena David G. Rice, County Attorney, Havre, Montana
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Submitted: September 8, 1988 Decided: January 6, 1989
ED SMITH
Li.
* 1. -_
-a .
Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.

This petition for writ of habeas corpus arises from the

Youth Court of the Twelfth Judicial District. The Youth
Court determined that B.S.M. was a delinquent youth. The
Youth Court committed B.S.M. to the Department of Family
Services, Linda K. Walker, Regional Administrator, for place-
ment in an appropriate facility. The petitioner alleges that
the Department of Family Services does not have the authority
to place delinquent youths, but that placement lies with the
judiciary.

The petition for writ of habeas corpus is denied.

The following issues are presented:

1. Whether the decision by the Department of Family
Services to place the delinquent youth in the Pine Hills
School for Boys was a violation of the Separation of Powers
Clause, Art. 111, Sec. 1, 1972 Mont. Const.

2. Whether the youth was denied due process of law
when the Department of Family Services placed him in the Pine
Hills School for Boys without an adversarial hearing to
decide proper placement.

The following facts are uncontested. B.S.M. was six-
teen years old at the time of commitment to the Department of
Family Services (Department). On May 7, 1987, B.S.M. was

charged with burglary, theft, and possession of drugs. In
addition, he was charged with the unauthorized use of a motor
vehicle, and refusal to obey the reasonable and lawful de-
mands of his parents. The allegations were admitted by the
youth on May 21, 1987. Thereafter, the judge ordered exten-
sive psychological evaluation for B.S.M., pursuant to
S41-5-523(2), MCA, including forty-five days at the Youth
Evaluation Proqram in Great Falls. A consent decree was
proposed to the Youth Court by both parties requesting that

the youth be placed on probation for one year in the custody
of his mother. The decree was approved on November 3, 1987.

A second petition was filed on February 1, 1988, by the
deputy county attorney from Hill County, alleging that B.S.M.
had committed fifteen counts of theft, burglary, criminal
trespass, unlawful possession of an intoxicating substance
and of being a runaway between December 31, 1987, and January
17, 1988. The allegations were admitted by the youth on
February 2, 1988, and by order of the Youth Court on February
3, 1988, B.S.M. was committed to the Department's care until
the age of eighteen.

Upon entry of the Youth Court commitment order, the chief probation officer for the Twelfth Judicial District issued a referral under ARM

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Montana Law