delivered the opinion of the court.
This is an appeal from a denial of habeas corpus petition in the district court of Flathead County involving two minor children.
On November 4, 1974, Judge Sykes declared two minor children of petitioner Muzzette Stubben (formerly Muzzette Azure) and Peter Azure to be dependent neglected children. At that time the children were two years old and eight months old. The parents and both sets of grandparents were present at the hearing. Notice of entry of judgment was served on Muzzette on December 20, 1974. The children were placed in a foster home and have been living there since. On June 10, 1975, a notice of appeal was filed. 'On October 10, 1975, petitioner Muzzette filed this habeas corpus petition in the district court collaterally attacking the judgment entered in 1974. The grandparents then withdrew their appeal and the petition was heard and denied by Judgé Sykes on December 30, 1975.
Three issues were presented and argued before this Court.
1. Was the habeas corpus petition a proper remedy in the case?
2. Did the petitioner have standing?
3. Does duе process require the appointment of counsel for children in a dependent neglect proceeding or at a minimum does the record affirmatively show that the court consider exercising its discretion to appoint counsel?
We answer all three issues in the negative.
Here the petitioner Muzzette had an adequate remedy of appeal which was not exercisеd and the law has long been settled that generally habeas corpus will not be granted where the adequate remеdy has not been taken advantage of.
Ex parte
*113
Solway, 82
Mont. 89,
Petitioner argues that the failure to appoint counsel for the children in the dependent neglect hearing is grounds for issuing the writ. Not so! The fact the court did not appoint counsel here wаs due to the fact that under our statutes appointment of counsel is not mandatory. Judge Sykes considered the questiоn and found that the Flathead County Department of Welfare, through its counsel, properly represented the children.
Counsel argues that there is a persuasive developing trend that calls for the appointment of counsel for children in neglect cases. However, only one state, New York, has ordered counsel in all cases and two jurisdiсtions (Oregon and Pennsylvania) in cases, depending upon the circumstances. No reference is made to whether these jurisdictions made the change through judicial decision or through the legislative process.
We next consider рetitioner’s standing as the natural mother to petition on behalf of her children.
The voluminous files of the district court show thаt the rights of the children have been fully protected in the prolonged legal proceedings involving not only the childrеn but the petitioner. Here, the Welfare Department has made multiple investigations and given every consideratiоn to protecting these children. Petitioner has always been adequately advised by counsel. The maternal and рaternal grandparents have been before the court with counsel in efforts to not only salvage the petitioner’s first marriage, but to help these children with the parents. Judge Sykes’ memorandums show thoughtful consideration in trying to solve the рroblems presented to him which ultimately necessitated the placement of the children in the control of the Wеlfare Department. The cases relied on by petitioner *114 were not factually in point for in each of them the parents did not have proper notice. After all the hearings, the court found properly that it was in the children’s bеst interests that the various rights argued for be terminated. These findings and conclusions were not challenged and we find petitioner does not have standing to now petition for her children.
The last issue is directed to the constitutionality required in protection of the children’s interests in a dependent neglected children proceeding.
Petitioner relies upon a recent (1974) case from Oregon,
State ex rel. Juv. Dept. of Multnomah Cty. v. Wade,
Our statute, a part of our recently adopted Youth Court Act, Section 10-1310(12), R.C.M.1947, states:
“(12) The court may аt any time on its own motion, or the motion of any party, appoint a guardian ad litem for the youth, or counsel for any indigent party.” (Emphasis supplied.)
The statute clearly vests discretionary powers in the court and here the court fоund that the interests of the children were adequately protected without appointing additional counsel. While рetitioner argues that under the due process clause of both our state and the federal constitution the appointment of counsel is mandatory, she weakens her argument by saying the trial court erred in failing to consider the appointment of counsel and that a showing in the record that the trial court did exercise this measure of discretion is сonstitutionally required in a proper dependent neglected children hearing. Not so! The records of the cаse clearly show that the trial court did show that it was aware of the argument and properly exercised its discretion.
As noted previously these children have been in a foster home for over two years. The problems of the pаrents have been before the courts for a long period.
*115 At the time of oral argument certain representаtions were discussed by counsel which were not considered by the district court or the Welfare Department and we suggеst that a further investigation might be made, a decision which we leave to the district court.
With this comment we affirm the judgment.