                          No. 12155
        IN THE SUPREME COURT OF THE STATE OF MONTANA
                            1972


IN THE MATTER OF THE APPLICATION OF
DEBORAH LYNN HENDRZCKSON ON A WRIT
OF HABEAS CORPUS.



Appeal from: District Court of the Seventeenth Judicial District,
             Honorable Thomas~Dignan,Judgepresiding.
Counsel of Recofd:
      For Appellant:
           Dzivi, Conklin, Johnson and Nybo, Great Falls,
            Montana.
           William Conklin argued, Great Falls, Montana.
      Far Respondent:
           Thomas M Mahan argued, Helena, Montana.
                   .
           Gordon White, Glasgow, Montana.
           AMICUS CURIAE
           Paul F. Reynoabs, Helena, Montana
           Ward Shanahan, Helena, Montana.
           George T Bennett appeared, Helena, Montana.
                   .


                                   Submitted: March 1, 1972

                                      DecidedMAY 2   1972
Filed :@PX 2   I%?
Hon. Gordon R. Bennett,-DistrictJudge, sitting for Chief
Justice James T. Harrison, delivered the Opinion of the Court.

     This is an appeal from dismissal of proceedings for a writ
of habeas corpus and denial of relief sought therein.
     Appellant gave birth to a child March 20, 1971, in Great
Falls, Montana.   Two days later she executed the following form
presented to her by a Cascade County Welfare Department case
worker.
                       "Affidavit of Waiver
                              and
                        Consent to Adoption
     "State of Montana
     "County of Cascade
         "The undersigned parent, being first duly
    sworn on oath, deposes and says: That she is the
    natural mother of Baby Girl Hendrickson whose date
    and place of birth is follows, 3-20-71-Great Falls,
    Montana
         "The said undersigned parent irrevocably de-
    clares and unqualifiedly states and represents that
    she is unable to care for said child or cannot pro-
    vide the proper parental care or guardianship, and
    cannot perform the duties and obligations of a
    parent or sustain the relation of parent to said
    child, and
             he said undersigned parent fully understands
    that when this affidavit of relinquishment is
    signed, all of the rights to the custody, services,
    and earnings of said minor child and any responsi-
    bility for the care and support of said minor child
    will be terminated and that said child cannot be re-
    claimed by the undersigned.
         I INow, the undersigned parent knowingly, freely

    and voluntarily gives consent to have any court,
    having jurisdiction over such matters, declare the
    said child a dependent and neglected child, and
    award the care, custody and control of the said
    child to the Department of Public Welfare of the
    State of Montana, and duly and legally authorize a
    representative of said Department of Public Welfare
    to appear in any court where adoption proceedings
    are pending and assent to the adoption of the said
    minor child.
         "And that the undersigned parent hereby ex-
    pressly waives any and all notice of or for any
    process of citation from any Court declaring said
    child a dependent and neglected child, and awarding
        said child to the care, custody, and control
        of the Department of Public Welfare of the
        State of Montana, and hereby expressly consents
        to a hearing thereof at any time. And, that the
        undersigned parent hereby expressly waives,any
        and all notice of or for any process or citation
        from any Court in any adoption proceeding which
        may be had, and consents that such adoption
        proceeding may be heard at any time.
             "Dated this 23rd day of March, 1971.
                              "/s/    Deborah Lynn Hendrickson
        "State of Montana )   ss
        "County of Cascade)
             "On this 23rd day of March, 1911, before me,
        the undersigned, a notary public for the State of
        Montana, personally appeared Deborah Hendrickson,
        known to me to be the person whose name is sub-
        scribed to the within instrument and acknowledged
        to me that she executed the same.
             II
              In Witness Whereof, I have hereunto set my
        hand and affixed my official seal the day and year
        in this certificate first above written.
                                     "s/s Helen R. Dial
                                     "Notary Public for the
                                      State of Montana, Residing
                                      at Great Falls, Montana.
                                      My commission expires
                                      3-31-72"
        On April 8, 1971, the district court in Cascade County
adjudicated the child dependent and neglected, awarded custody
to the State Welfare Department and authorized it to assent
to adoption in any court where adoption proceedings might be
had.    The court's order was based on the aforementioned waiver
and consent.
        On May 17, 1971, the district court in Valley County issued
its final order of adoption upon the petition of the adoptive
parents and consent of the State Welfare Department, given May


        Appellant petitioned the district court in Cascade County
for a writ of habeas corpus on May 21, 1971, and on June 3, 1971
that court, holding it lacked jurisdiction, refused to grant the
writ.
     On   June 7, 1971, appellant petitioned the district court
in Valley County for a writ of habeas corpus and that court on
June 10, 1971, issued its writ, returnable June 21, 1971, later
changed to July 22, 1971. Hearing was had and judgment was
filed September 7, 1971. Appellant's motion to amend findings
of fact and to make additional findings of fact was denied
September 23, 1971. Appellant now appeals from the judgment.
     Appellant contends that her consent and waiver were with-
drawn by a letter dated May 12, 1971, signed by her, addressed
to the Cascade County Department of Public Welfare in Great
Falls and mailed at Great Falls through the United States mail
on the day it was dated.
     There is no evidence that appellant's intention or desire
to revoke was communicated in any way to the district court in
Cascade County prior to the time the district court in Valley
County issued its final adoption decree on May 17, 1971. The
record contains the declaration of the district judge in Valley
County that he had not been informed of any such intention or
desire on the part of appellant until after he issued the decree.
     Section 61-206, R.C.M.     1947, provides in pertinent part:
      h he entry of the interlocutory or final decree
     of adoption renders any consent irrevocable.1 1
Thus the entry of the final adoption decree by the district
court in Valley County on May 17, 1971, made the consent pre-
viously given by the appellant irrevocable unless it had been
revoked prior to that time.     The question becomes, then, whether
the May 12, 1971, letter was an effective revocation.
     In addition to the portion heretofore quoted, Section 61-
206, R.C.M.   1947, provides:
     "Withdrawal of any consent filed in connection with
     a petition for adoption hereunder, shall not be per-
     mitted, except that the court, after notice and
     opportunity to be heard is given to the peti-
     tioner, to the person seeking to withdraw
     consent, and to any agency participating in
     the adoption proceedings, may, if it finds
     that the best interest of the child will be
     furthered thereby, issue a written order
     permitting the withdrawal of such consent."
     It will be noted that withdrawals of consent are not
generally permitted.   There is, however, a single exception,
The court may permit withdrawal by written order upon a
finding that the best interest of the child will be furthered
thereby. This can be done only after notice to the petitioner
in an adoption proceeding, to the person seeking to withdraw
the consent, and to any agency participating in the adoption
proceeding.
     The statute thus sets forth a clear procedural requirement
for withdrawal of consent. That procedural requirement was not
met in this case before a final decree of adoption was entered.
It follows that the district courts in both Valley and Cascade
Counties were without legal authority to grant permission for
the withdrawal of the consent at the time appellant filed her
petition for writ of habeas corpus.
     Appellant attacks the validity of the given consent and
waiver on several grounds.   Admitting that she executed the
document, she maintains that her intent was solely to consent
to adoption; that she did not understand she was consenting to
a declaration that the child was dependent and neglected; that
the form was dated and notarized the day following the execu-
tion; and, that she was unaware at the time she signed the
document that her parents were willing to assist in the up-
bringing of the child.
     At the time appellant signed the document she was eighteen
years old, a high school senior, a "B" student, could and did
read the document she signed without difficulty, and had been
negotiating with the Cascade County Welfare Department for
seven months previous for the adoption of the child.     She
testified she had been taking codeine and empirin to kill pain
at the time she executed the document and that she was "really
relaxed" but she knew what she was talking about and what was
going on.     She was discharged from the hospital the following
day.     There is no allegation or proof of fraud, deceit, undue
influence or misrepresentation on the part of the case worker
with whom she discussed the document at the time she signed it.
Whatever her understanding of the term "dependent and neglected" ,
it is clear that she understood what adoption was and that she
knowingly and intentionally consented to it.
       The error in dating and notarizing the document is clerical
only and does not impair its essential validity, nor should her
misapprehension as to the availability of her parents' assistance
in raising the child.    This was her misapprehension, which she
had an opportunity to correct for months before the signing.
We find no defect in the document itself or in the circumstances
of its execution sufficient to set it aside on any grounds.
       Appellant maintains the order of the district court in
Cascade County finding the child dependent and neglected and
granting the State Welfare Department the power to consent to
adoption was invalid because no hearing was had as required by
Section 10-501, R.C.M. 1947, et seq., and the child was not
physically before the court as required by section 10-508,
R.C.M.   1947.
       The waiver and consent document signed by the appellant
is the standard form used in such cases by the State Welfare
Department (now the Department of Social and Rehabilitation
Services).    It does not clearly and specifically give consent
to adoption. It could under the authority of section 61-205,
R.C.M.   1947, but it does not.   It states instead that the
consenting parent understands that his or her rights to the
custody, services and earnings of the child will be terminated
and that the child cannot be reclaimed.      It then goes on to
give express consent to any court having jurisdiction, without
notice to the consenting parent, to (1) declare the child de-
pendent and neglected, (2) award the custody to the State
Welfare Department, and (3) authorize the Department to appear
in court and assent to adoption.     It also specifically waives
notice of adoption proceedings and consents to the holding of
such proceedings at any time.
         This masterpiece of obfuscation never gets around to
stating in a simple declaratory sentence what it clearly pur-
ports to do---grant the consent of the parent to the adoption
of the child. Nevertheless, we hold that the waiver and con-
sent signed by the appellant has the effect of being an unequi-
vocal relinquishment of the child for adoption through the
agency of the State Welfare Department.
         The child having been adopted through the agency of the
State Welfare Department, authorized by appellant, appellant
now has no standing to collaterally attack the procedure in
the district court of Cascade County by which this was, in part,
accomplished.
     Appellant asks that the judgment of the district court
of Cascade County finding the child dependent and neglected
be set aside because the child did not meet the statutory de-
finition of a dependent and neglected child.     Section 10-501,
R.C.M.     1947. We believe the statutory requirement was fully
met by the declaration of the appellant in her waiver and con-
sent that she was unable to care for the child, could not
provide parental care or guidance, and could not perform the
duties of a parent.
    Appellant urges finally that if the district court in
Valley County was not apprised of her revocation at the time
   granted its final adoption decree, the concealment of the
revocation "may" amount to fraud upon the court.          A district
court decree should not be setasi8.eon such an infirm allegation
nor upon the kind of proof of "fraud", if any, that the record
in this case reveals.
     It is doubtless true, as argued by appellant's counsel,
that notice to responsible officials in the Cascade County
Welfare Department would be constructive notice to the State
Welfare Department in general, and to its supervisor of
welfare services, who gave his consent to the adoption on
May 7, 1971.   It may be true that some responsible official
in the Cascade County Welfare Department received the letter
of revocation prior to May 17, 1971, the day the Valley County
district court granted its final decree          adoption, but the
record in this case establishes neither when the revocation
letter was receivednm by whom.
     Section 93-1301-7(24),    R.C.M. 1947, urged by counsel, helps
not at all in determining these facts.       It simply establishes a
presumption that the letter was received in due course.            It does
not tell us when or by whom.    The district court made no finding
in regard to either matter.    The allegation of fraud fails for
failure of proof.
     The orders of the district courts are affirmed.



                                 --------rr-------------------d-----

                                   Hon. Gordon R Bennett, sitting
                                                .
                                   for Chief Justice James T. Harrison.
        We Concur:




                  Associate Justiices
         i
                  ..
                  ,
              #

        ,/"       Hon. Jack Shanstrom, District
                  Judge, sitting for Justice
                  Wesley Castles.
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