                                 No. 13242

       I N T E SUPREME C U T O T E STATE O M N A A
            H           OR    F H         F OTN

                                    1976



I N THE M T E OF THE ADOPTION O
         ATR                   F
CHRISTINA MAE CONLEY, EDGAR MELVIN
CONLEY AND D L WAYNE CONLEY,
             AE
Minor Children,

                        P e t i t i o n e r and A p p e l l a n t ,



LOIS INNIS WALDEN,

                        Respondent and Respondent.



Appeal from:   D i s t r i c t Court of t h e S i x t h J u d i c i a l D i s t r i c t ,
               Honorable C. B. Sande, Judge p r e s i d i n g .

Counsel of Record:

     For Appellant :

          Harrison, Loendorf and Poston, Helena, Montana
          James T. Harrison Jr. argued, Helena, Montana

     For Respondent:

          Huppert and Swindlehurst, L i v i n g s t o n , Montana
          Joseph T. Swindlehurst argued, Livingston, Montana



                                              Submitted : September 2 , 1976

                                                 Decided :
M r . J u s t i c e Wesley C a s t l e s delivered t h e Opinion of t h e Court.

       This i s an appeal from t h e r e f u s a l of t h e d i s t r i c t c o u r t ,

Park County, t o vacate an order g r a n t i n g a maternal grandmother's

p e t i t i o n t o adopt t h r e e minor c h i l d r e n .     This matter commenced

i n 1973 when p e t i t i o n e r s Melvin Conley and Ruby P e r s h a l l , t h e

n a t u r a l p a r e n t s of t h e c h i l d r e n p e t i t i o n e d f o r a " W r i t of Habeas

Corpusf' claiming t h e d i s t r i c t c o u r t d i d not have j u r i s d i c t i o n t o

g r a n t t h e adoption p e t i t i o n of t h e respondent.              The d i s t r i c t c o u r t

denied t h e p e t i t i o n f o r t h e w r i t and t h e holding was s u s t a i n e d by

t h i s Court i n Application of Conley v. Walden, 166 Mont. 369, 375,

533 P.2d 955.          That opinion s e t s out t h e f a c t s p e r t i n e n t t o t h i s

appeal, t h e r e f o r e i t i s n o t necessary t o r e p e a t i n d e t a i l t h e f a c t

situation.

       I n June 1975, two months a f t e r t h e d e c i s i o n was rendered by

t h i s Court, p e t i t i o n e r Ruby F, P e r s h a l l , n a t u r a l mother of t h e

t h r e e c h i l d r e n , brought t h i s a c t i o n t o void t h e adoption.            Petitioner

claimed, once a g a i n , t h e d i s t r i c t c o u r t lacked j u r i s d i c t i o n t o

g r a n t t h e adoption.       A motion t o dismiss on t h e b a s i s t h e p r i o r

d e c i s i o n i n t h i s matter was r e s j u d i c a t a was granted by t h e d i s t r . i c t

c o u r t which again determined t h e adoption decree was v a l i d and no

n o t i c e of t h e adoption t o p e t i t i o n e r was required.

       The p r i o r a c t i o n i n t h i s m a t t e r , although denominated a s an

a p p l i c a t i o n f o r a w r i t , o f habeas corpus, r e s u l t e d i n a determin-

a t i o n of t h e m e r i t s of a l l claims r a i s e d by p e t i t i o n e r s i n t h e i r

pleadings and r a i s e d once again i n t h e i n s t a n t case.                  Petitioners'

own b r i e f i n Application of Conley s t a t e d :

       'I*   **    we submit t h a t t h e Supreme Court should t r e a t
        t h e s u i t a s one seeking t o void t h e adoption decree
        i n s t e a d of merely an a c t i o n i n habeas corpus. The
        substance of t h e s u i t i s c e r t a i n l y i n t h a t v e i n ,
        although t h e form may be denominated as habeas corpus."

       This Court, i n Application of Conley s t a t e d :

       "Whether the a c t i o n i s t r e a t e d a s habeas corpus o r a
       p e t i t i o n t o s e t a s i d e an adoption, t h e welfare of
       t h e c h i l d i s t h e paramount f a c t o r .       ***

       "Considering t h e record i n the i n s t a n t c a s e , t h e r e
       a r e numerous grounds upon which t h e adoption i t s e l f could
       have been sustained without t h e consent of t h e p e t i t i o n e r s .
       **      *"
       Clark, Law of Domestic Relations, Ch. 1 7 , 517.3, p. 579,

discusses t h e use of t h e w r i t of habeas corpus i n c h i l d custody

matters :

       "*     **   I n t h e f i r s t p l a c e , t h e w r i t i n custody c a s e s
       i s g e n e r a l l y considered e q u i t a b l e r a t h e r than l e g a l .
       Second, t h e c o u r t i s by no means l i m i t e d t o an inquiry
       i n t o t h e l e g a l r i g h t by which t h e c h i l d i s h e l d , b u t
       must determine t h e broad question of what d i s p o s i t i o n
       w i l l b e s t serve t h e c h i l d ' s i n t e r e s t .  **    Third,
       u s u a l r u l e s of r e s j u d i c a t a apply i n habeas corpus involving
       custody, a t l e a s t t o t h e e x t e n t t h a t t h e judgment i s f i n a l
       * * *.    "     (Emphasis added)         .
A t t h e request of p e t i t i o n e r s , t h i s Court f u l l y disposed of t h e

i s s u e s r a i s e d here i n connection with t h e v a l i d i t y of t h e adoption

i n t h e p r i o r habeas corpus d e c i s i o n , and t h a t d e c i s i o n i s r e s

j u d i c a t a t o matters r a i s e d by t h e i n s t a n t p e t i t i o n .

        Section 61-205(1), R.C.M.                1947, provides:

       It*    **
               t h a t consent [ t o adopt] s h a l l n o t be required
        from a f a t h e r o r mother,



             " ( c ) who has been j u d i c i a l l y deprived of t h e custody
                 of t h e c h i l d on account of c r u e l t y o r n e g l e c t toward
                 the child; or

             "(d) who h a s , i n t h e s t a t e of Montana, o r i n any o t h e r
             s t a t e of t h e United S t a t e s , w i l l f u l l y abandoned such
             child; or
     " (f)    if it is proven to the satisfaction of the court
          that said father or mother, if able, has not contributed
          to the support of such child during a period of one (1)
          year before the filing of a petition for adoption * * *."

     Section 61-211, 1947, provides in pertinent part:

      Service of process * * * need not be made
     11
                                                   **
                                                    *
     on any parent whose consent to the adoption is not
     required under the provisions of section 61-205 * *    *."
     Therefore, no service of process need be made on parents, such

as petitioners, who have abandoned their children, failed to

support them, or lost them to the custody of state agencies through

neglect or cruelty.      Here the custody of the children was removed
from the parents by order of the Missouri district court and the
children were placed in the care of respondent where they have

remained for the past 9 years.    For the last 4 years, respondent

has had full legal custody of these children, based on an order from

the same Missouri court. This Court, in the prior opinion, noted
"A period of six years of absolute abandonment of the three children

with no support, no contact, and no visits by either parent       * * *."
as being the primary reason the parents were not entitled to notice

of the adoption proceedings, and were not required to give their

consent to its execution.

     The proper party to give consent to this adoption was the
Missouri court having custody of the children, which consent was
given by that court in May 1972 upon petition of respondent.
Although this consent was later voided by the Missouri court, under
questionable circumstances, Montana law section 61-206, R.C.M.
1947, provides the "entry of the [adoption] decree renders any
consent irrevocable.I1
        The only exception i s upon a f i n d i n g by t h e c o u r t t h a t

t h e b e s t i n t e r e s t s of t h e c h i l d would be served by allowing revo-

c a t i o n of consent.          Application of Hendrickson, 159 Mont. 217, 222,

496 P.2d 1115.            W f i n d no evidence i n t h e record before us
                           e

i n d i c a t i n g any b e n e f i t would accrue from such a holding.

        F i n a l l y , t h e o b j e c t s of t h e i n s t a n t l i t i g a t i o n a r e t h e

t h r e e small c h i l d r e n whose well-being must be t h e primary con-

s i d e r a t i o n of t h e Court i n d i s p o s i t i o n of t h i s matter.              Riley v.

Byrne, 145 Mont. 138, 399 P.2d 980; I n r e Adoption of Graves,

(Okla.1971), 481 P.2d 136; Application of Conley v. Walden, 166

Mont. 369, 533 P.2d 955.                   Recently, t h e Arizona Supreme Court i n

I n r e Adoption of Hammer, 15 Ariz.App.                         196, 487 P.2d 417, 419,

said:

        "* * * Moreover,               from a s t r i c t l y humanitarian
        s t a n d p o i n t , t h e r e must be an end t o t h e emotional
        s t r e s s and s t r a i n t h a t i s involved i n t h e n a t u r a l
        p a r e n t s ' attempt t o g a i n custody of t h e i r child."

        Clark, Law of Domestic Relations, 1 17.5, p. 593, i n                                        an

a n a l y s i s of a s i t u a t i o n s i m i l a r t o t h e i n s t a n t c a s e , s t a t e s :

           "Many of t h e cases involving t h i s problem a r i s e
        when t h e parent leaves t h e c h i l d with a f r i e n d o r
        r e l a t i v e who l a t e r r e f u s e s t o r e t u r n him on r e q u e s t .
        The c r u c i a l i s s u e here i s whether t h e c h i l d w i l l be
        harmed by a s h i f t i n custody back t o t h e parent.
        This depends upon t h e length of h i s s t a y with t h e
        f o s t e r p a r e n t s , t h e n a t u r e of h i s r e l a t i o n s h i p t o
        them, and t h e degree of contact maintained with t h e
        parent." (Emphasis added)                 .
        A c o n s i d e r a t i o n of t h e f i n d i n g s of t h e t r i a l c o u r t , c l e a r l y

supported by t h e record of t h e n a t u r a l p a r e n t s ' l a c k of f i t n e s s

t o have custody of t h e s e t h r e e c h i l d r e n , i n d i c a e s t h i s Court

should uphold t h e d i s t r i c t c o u r t ' s r e f u s a l t o vacate t h e adoption

order.
    The judgment of t h e d i s t r i c t c o u r t i s affirmed.




W Concur:
 e




                                Justice
Mr. Justice Frank I. Haswell dissenting:
     I dissent.    In my view the adoption decree is void.

The natural mother was not given notice of the adoption pro-

ceeding and afforded an opportunity to be heard.    Instead her
parental rights were permanently and irrevocably terminated

without an opportunity to resist.

     The issue on appeal is not res judicata. The prior case,

Application of Conley v. Walden, 166 Mont. 369, 533 P.2d 955,958,

was a custody case, not an adoption proceeding. The issue there

was the right to custody of the minor children, not the right

to adopt them. The opinion of this Court in that prior case

expressly points this out at page 958 of 533 P,2d:
    "Respondent argues that this is a habeas corpus
    proceeding and appellants are attempting to use
    habeas corpus to collaterally attack the adoption
    decree. We agree and will treat the matter as it
    was brought by appellants, as one of habeas corpus
    seeking the custody of the children.
     Lacking an identity of issues, the principle of res judicata

is inapplicable.
     The issue on appeal in this case is one of jurisdiction,
Here the Court granted the adoption and permanently terminated

the parental rights of the natural mother without notice.    This

cannot be done. As stated by a prominent authority:

     "The clearest justification for setting an adoption
     asice at the instance of a natural parent is that the
     parent was not given notice of the adoption proceeding.
     -Ic * *." Clark, Law of Domestic Relations, 518.10, p. 668.


In accord: Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187,

14 L ed 2d 62; Leonard v. Leonard, 88 Idaho 485, 401 P.2d 541.
     Respondent claims that the consent 'of the natural mother is

not required in this case under section 61-205, R.C.M. 1947, and

consequently notice of the adoption proceeding need not be given
her under section 61-211, R.C.M. 1947.   Inanyview there is a

substantial question concerning whether the natural mother falls

under one of the statute's exceptions. Here she was deprived of

an opportunity to show that she did not fall within one of the

statutory exceptions by failure to give her notice of the adoption
proceeding.

    As we said in In re Adoption of Biery, 164 Mont. 353, 359,



     "While the best interests of the child are of utmost
     concern in both custody and adoption cases, we have
     required strict compliance with section 61-205, R.C.M.
     1947, because of the harshness of permanently terminating
     parental rights."
     I see no reason to abandon this salutary principle in this

case. Whatever the ultimate merits of the case may be, they

cannot satisfy jurisdictional requirements.




                                Justice.
