                               NO. 82-496
                IN TBE SUPREME COURT OF THE STATE OF MONTANA
                                   1983



IN THE MATTER OF THE APPLICATION OF
KATHERINE IRENE PETERSON on behalf of
AUDREY ANN PETERSON for a writ of Habeas Corpus.




Appeal from:    District Court of the Thirteenth Judicial District,
                In and for the County of Yellowstone,
                The Honorable Robert H. Wilson, Judge presiding.


Counsel of Record:
         For Appellant:
                Michael Sol; Sol & Wolfe, Missoula, Montana
                Rosemary Boschert, co-counsel, Billings, Montana

         For Respondent:
                Michael G. Eiselien, Billings, Montana



                               Submitted:   March 2, 1983
                                 Decided:   April 1, 1983


          APR 1 - 1983
Filed:
Mr. Justice John C.              Sheehy delivered the Opinion of the
Court.


       This is an appeal by KIP, the natural mother of AAP,
from    an   order     issued by         the District Court, Thirteenth
Judicial District, Yellowstone County, deferring jurisdiction
of a habeas corpus proceedings in Montana to an adoption
proceedings pending in a Wyoming District Court.
       AAP was born to KIP on March 15, 1980, in Park County,
Wyoming.     At the time of the child's birth, KIP was 20 years
old and unemployed.             In August 1980, the mother relinquished
custody of the child to PB and AB, husband and wife, who were
then living in Wyoming.            Thereafter, KIP moved to Montana to
find employment.
       On    October       7,    1980,    KIP   executed   a   handwritten
instrument in which she stated that she wanted her daughter
adopted by PB and AB, which instrument was notarized by a
notary public residing in Joliet, Montana.
       On the same day, before the same notary, KIP executed a
written "child custody relinquishment and special power of
attorney" whereby she placed custody of the minor child with
PB and AB "for a term of not less than one year and so long
thereafter     as    and    until    such time     as   temporary custody
granting hereby        shall be       terminated by     the undersigned."
       On November 21, 1980, before a notary public residing in
Powell, Wyoming, KIP executed another written instrument in
which she swore that the father of her daughter AAP was
unknown to her and in which she prayed the court to grant a
very speedy adoption.
       An affidavit of Mark L. Reynolds, an attorney residing
in Big Horn County, Montana, reveals that PB and AB filed an
adoption petition in the Fifth Judicial District Court of
Wyoming, Big Horn County.          The Wyoming equivalent of the
Montana Department of Social Rehabilitation Services is the
Wyoming Department of Public Assistance and Social Services.
From the attorney's affidavit it appears that the Wyoming
department has investigated the adoption petition and has
raised questions as to whether PB and AB would be able to
provide adequately for the child.           It is clear that the
adoption proceedings in Wyoming are still pending.
     PB had his leg amputated in September 1981, in Billings,
Montana.   He has since been attending Eastern Montana College
in Billings, Montana.     He and his wife are residing with AAP
in Billings, Montana.         At the time of the filing of the
petition by KIP for a writ of habeas corpus, the affidavit of
Mark L. Reynolds indicates that it is the intention of PB and
AB to complete the adoption proceedings and to provide a
permanent home for AAP.
     On March 19, 1982, before a notary public residing in
Missoula, Montana, KIP executed a revocation of the temporary
custody of the minor child previously given by her on October
7, 1980, to PB and AB.        An affidavit of a party notarized in
Missoula, Montana, indicates personal delivery of the written
revocation   to    PB   and   AB   in   Billings, Montana,   and   a
subsequent information from AB that the revocation had been
received, and that PB and AB would not relinquish control of
the minor child.
     On October 12, 1982, KIP filed in the District Court,
Thirteenth Judicial District, Yellowstone County, Montana,
her petition for writ of habeas corpus.        In her petition she
recites that she is the legal mother of AAP, that the father
of the child "has never been judicially identified nor his
parental rights terminated;" that no court proceedings have
been initiated to terminate her natural parental rights, and
in    her     petition    she   contends    that     she   executed        the
instruments above referred to under circumstances that would
amount to fraud and duress.
       There are other facts contended for by the parties in
briefs and in oral argument, but the foregoing facts reflect
the state of the court record.
       The District Court, after hearing, made findings of fact
and conclusions of law.         In effect, the District Court found
that "primary jurisdiction in this case is with the Wyoming
Adoptive Court," that it was for that court to determine the
legality and the sufficiency of the documents signed by KIP
and that if the Wyoming court determined that the documents
were proper and that KIP had surrendered her parental rights
in    the    child, the     decision   of   the Wyoming     court would
determine the custody rights between the parties as a matter
of    law.     Thereupon, the Montana District Court deferred
jurisdiction of the controversy to the Wyoming court in the
adoption proceedings.
       KIP has appealed the deferral of jurisdiction by the
Montana District Court to the Wyoming District Court.                 There
are    no    Montana     statutes   which   permit    an   appeal     by    a
petitioner for writ of habeas corpus from the District Court
to this Court.         This Court holds, however, that an appeal
lies from an order of the District Court denying a writ of
habeas corpus in a case involving the custody of a minor
child.       State v. Booth (1958), 134 Mont. 235, 239, 328 P.2d
1104; State ex rel. Veach v. Veach (1948), 122 Mont. 47, 53,
195 P.2d 697; Ex parte Reinhardt (1930), 88 Mont. 282, 286,
287, 292 P.      582; In Re      Thompson    (1926), 77 Mont.         466,
469-470, 251 P. 163.
      KIP contends before this Court that jurisdiction is in
the   Montana. District Court        since   all    parties    were   now
residing in Montana; that before the District Court refused
the   writ,    it   should    have   found   that    Montana    was    an
"inconvenient forum," or applied the "substantial conformity"
test under the Uniform Child Custody Jurisdiction Act; that
the documents before the Montana District Court created a
presumption that KIP had the right to the custody of the
child and that custody jurisdiction was in Montana; that the
Wyoming adoption proceedings were void because PB and AB had
failed to comply with Wyoming statutes requiring the adoption
to be filed when the child enters the prospective adoptive
home, the hearing to be set when the petition is filed, and
the petition be filed by persons residing in Wyoming; that
the adoption proceedings should have been filed in Montana;
and   that    PB and AB      violated the Interstate Compact for
Placement of Children Act by bringing AAP to Montana without
placement authorization from the Wyoming authorities.
      There can be no question that jurisdiction of the habeas
corpus proceedings is properly in the District Court sitting
in Yellowstone County.        That is where the child is presently
located, within the jurisdiction of the Yellowstone County
District Court.     Section 46-22-202, MCA.
      It appears equally certain that the Wyoming District
Court has custody of the adoption proceedings.           The petition
filed therein recites that the proposed adoptive parents and
the minor child. are residents of Deaver, in the County of Big
Horn, Wyoming; it alleges the execution of the consent to
adoption by KIP, filed with the petition, and KIP'S further
affidavit that the father of the child is unknown to her.                  In
Wyoming, any adult persons residing in Wyoming and found by
the Wyoming court to be fit and competent, may petition for
adoption.        W.S.    1-22-103.     The petition is to be filed by
persons residing in Wyoming.                W.S.   1-22-103.     Under W.S.
1-22-111, the Wyoming District Court may defer the entry of
an interlocutory decree of adoption and order the Division of
Public Assistance and Social Services to investigate and
report to the court.               Thereafter, it is the duty of the
Wyoming District Court to determine the best interest and
welfare     of     the     child     with   respect    to      the   adoption
proceedings.       Under W.S. 1-22-114, a final decree of adoption
by   the Wyoming District Court deprives a parent of the
control and custody of the child.
     Wyoming statutes further provide that a written consent
to adoption by the parent of a minor filed with an adoption
petition is irrevocable unless the court determines that it
was obtained by fraud or duress.             W.S. 1-22-109.
     Under the state of the record here, the Yellowstone
County District Court has jurisdiction of the habeas corpus
proceeding concerning the custody of a child.                   At the same
time the Wyoming District Court also has jurisdiction of a
proceeding concerning the custody of the same minor child.
In that situation, the Montana District Court is controlled
by the provisions of section 40-7-107(1), MCA, (Uniform Child
Custody Jurisdiction Act), in following effect:
     "A court of this state may not exercise its
     jurisdiction under this chapter if at the time of
     filing the petition a proceeding concerning the
     custody of the child was pending in a court of
     another state exercising jurisdiction substantially
     in conformity with this chapter unless the
     proceeding is stayed by the court of the other
     state because this state is a more appropriate
     forum or for other reasons."
The   issues      on    which    KIP     relies    in        the     habeas    corpus
proceedings in Monta-na,namely, that the instruments executed
by her were executed under fraud and duress, are issues that
are   equally     triable       in    the adoption proceedings                in   the
Wyoming    District       Court.         Custody        proceedings "includes
proceedings     in which        a     custody   determination is one of
several issues         . . .    and includes issues of custody in an
adoption proceeding."           Section 40-7-103(3), MCA.
      Counsel for KIP misconstrue the application of section
40-7-108, MCA (Uniform Child Custody Jurisdiction Act) with
respect to an inconvenient forum.               That statute applies when
the court in which the proceedings are pending                              (here the
Yellowstone County District Court) determines that - is an
                                                   it
inconvenient       forum,       not     that      the        court     of     another
jurisdiction or of another state is an inconvenient forum.
Moreover, the duty of the Montana District Court not to
exercise    its        jurisdiction      because        of    the     pendency     of
proceedings in another forum under section 40-7-107, MCA, is
not made statutorily dependent upon a further finding of
inconvenient forum under section 40-7-108, MCA.
      The Montana District Court here properly made no attempt
to determine the merits of the issues raised by KIP in the
habeas corpus proceedings nor do we on this appeal.                                The
determination of those issues is properly left to a trier of
fact in a proper jurisdiction.
      Section 40-7-107, MCA, further provides in subsection
(3) of that statute:
      " (3) If the court is informed during the course of
      the proceeding that a proceeding concerning the
      custody of the child was pending in another state
      before the court assumed jurisdiction, it shall
      stay the proceeding and communicate with the court
      in which the other proceeding is pending to the end
      that the issue may be litigated in the more
       appropriate forum and that information be exchanged
       in accordance with 40-7-120 through 40-7-123             . . ."
       In cases of simultaneous proceedings, the provisions of
section 40-7-107 (3), MCA, should be followed.                 In this case
we have a child of tender years, and it is most appropriate
that a decision be made in a proper forum to determine the
custodial rights to AAP.          In furtherance of that objective,
we have expedited the proceedings on this appeal.
       It was   revealed       at oral argument that it has been
difficult for counsel for both parties to obtain information
respecting the Wyoming adoption proceedings because they are
out of state attorneys, and because W.S. 1-22-105, requires
that    all   hearings     in    Wyoming      adoption      proceedings    be
confidential and held in closed court.
       We   therefore affirm the decision of the Yellowstone
County District Court to stay proceedings and to defer its
jurisdiction in the habeas corpus action to the jurisdiction
of the Wyoming District Court in the adoption proceedings.
We   order    the presiding      judge      of    the District Court       in
Yellowstone     County    in    the    habeas     corpus    proceedings    to
communicate with the District Court in Wyoming handling the
adoption proceedings by forwarding to the Wyoming District
Court forthwith a copy of its findings, conclusions and order
deferring juri-sdiction to the Wyoming court and a copy of
this   opinion.     The    stay       of   proceedings      in the Montana
District Court shall be and remain in effect until written
notice is received by the Montana District Court of a final
determination     of     the     Wyoming         District    Court    as   to
jurisdiction or custody.                    n



                                                            Justice
                                             i/
We Concur:




        Justices


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