No. 13242 INTHE SUPREME COURT OF THE STATE OF MONTANA 1976

INTHE MATTER OF THE ADOPTION OF CHRISTINA MAE CONLEY, EDGAR MELVIN CONLEY AND DALE WAYNE CONLEY, Minor Children, Petitioner and Appellant,

LOIS INNIS WALDEN, Respondent and Respondent.
Appeal from: District Court of the Sixth Judicial District, Honorable C. B. Sande, Judge presiding. Counsel of Record: For Appellant: Harrison, Loendorf and Poston, Helena, Montana James T. Harrison 

### Jr. argued, Helena, Montana For Respondent: Huppert and Swindlehurst, Livingston, Montana Joseph T. Swindlehurst argued, Livingston, Montana

Submitted: September 

### 2, 1976 Decided :Mr. JusticeWesley Castles delivered the Opinion of the Court. This 

### is an appeal from the refusal of the district court, Park County, to vacate an order granting a maternal grandmother's petition to adopt three minor children. This matter commenced in 1973when petitioners Melvin Conley and Ruby Pershall, the natural parents of the children petitioned for a "Writ of Habeas Corpusf' claiming the district court did not have jurisdiction to grant the adoption petition of the respondent. The district court denied the petition for the 

### writ and the holding was sustainedby this Court inApplication of Conley v. Walden, 166 Mont. 369, 375, 533 P.2d 955. That opinion sets out the facts pertinent to this appeal, therefore it 

### is not necessary to repeat in detail the fact situation. InJune 1975, two months after the decision was rendered by this Court, petitioner Ruby F, Pershall, natural mother of the three children, brought this action to void the adoption. Petitioner claimed, once again, the district court lacked jurisdiction to grant the adoption. A motion todismiss on the basis the prior decision in thismatter was resjudicata was granted by the distr.ict court which again determined the adoption decree was valid and no notice of the adoption topetitioner was required. The prior action in thismatter, although denominated as an application for a writ,ofhabeas corpus, resulted in a determination of the merits of allclaims raised by petitioners intheir pleadings and raised once again in the instant case. Petitioners'
own brief inApplication of Conley stated:

'I* 

# ** we submit that the Supreme Court should treat the suit as one seeking tovoid the adoption decreeinstead of merely an action inhabeas corpus. The substance of the suit 

### is certainly in that vein, although the formmay be denominated 

### as habeas corpus." This Court, inApplication of Conley stated: "Whether the action 

### is treated as habeas corpus or a petition to set aside an adoption, the welfare of the child 

### is the paramount factor.

# *

# **

"Considering the record in the instant case, there arenumerous grounds upon which the adoption itself could have been sustained without the consent of the petitioners. 

# ** *" Clark, Law of Domestic Relations, Ch. 

### 17, 517.3, p. 579, discusses the use of thewritof habeas corpus inchild custody matters: 

### "*

# * * In the firstplace, the writ in custody cases 

### is generally considered equitable rather than legal. Second, the court 

### isby no means limited to an inquiry into the legal right by which the child 

### isheld, but must determine the broad question of what disposition willbest serve the child's interest.

# ** Third, usual rules of resjudicata apply inhabeas corpus involving custody, at least to the extent that thejudgment is final 

# *

# *

# *." (Emphasis added)

# . Atthe request of petitioners, this Court fully disposed of the issues raised here inconnectionwith the validity of the adoption in the prior habeas corpus decision, and that decision 

### is res judicata tomatters raised by the instant petition. Section 61-205(1), R.C.M. 1947, provides:

It* 

# ** that consent [toadopt] shallnot be required from a father ormother,
"(c) who has been judicially deprived of the custody of the child on account of cruelty orneglect toward the child; or "(d) who has, in the stateof Montana, or inany other state of the United States, willfully 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:

11

### Service of process

# *** need not be made

# *** 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 childrenwas removed from the parents by order of the Missouri district court and the childrenwere placed in the care of respondent where they have remained for the past 9 years. For the last 

### 4years, 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 consentwas given by that court inMay 1972upon 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.I1The only exception isupon a finding by the court that the best interests of the child would be served by allowing revocation of consent. Application of Hendrickson, 159Mont. 217, 222, 496 P.2d 1115. We findno evidence inthe record before us indicating any benefit would accrue from such a holding. Finally, the objects of the instant litigation are the three small childrenwhose well-being must be the primary consideration of the Court indisposition of thismatter. Riley v. Byrne, 145Mont. 138, 399 P.2d 980; InreAdoption of Graves, (Okla.1971), 481 P.2d 136; Application of Conley v. Walden, 166 Mont. 369, 533 P.2d 955. Recently, the Arizona Supreme Court in In reAdoption of Hammer, 15Ariz.App. 196, 487 P.2d 417, 419, said:

# "**

# * Moreover, from a strictlyhumanitarian standpoint, there must be an end to the emotional stress and strain that 

### is involved in the natural parents' attempt togain custody of their child." Clark, Law of Domestic Relations, 

### 1 17.5, p. 593, in an analysis of 

### a situation similar to the instant case, states: "Many of the cases involving this problem arise when the parent leaves the child with a friend or relativewho laterrefuses to return him on request. The crucial issue here 

### iswhether the child willbe harmed by a shift in custody back to the parent. This depends upon the length of his staywith the foster parents, the nature of his relationship to them, and the degree of contact maintained with the parent." (Emphasis added)

# . A consideration of the findings of the trialcourt, clearly supported by the record of the natural parents' lack of fitness tohave custody of these three children, indicaes this Court should uphold the district court's refusal to vacate the adoption order.The judgment of the district court 

### is affirmed.

We Concur:

Justice

### Mr. Justice Frank I. Haswell dissenting: I dissent. Inmy view the adoption decree is void. The naturalmother was not given notice of the adoption proceeding 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 adoptionproceeding. 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 statedby a prominent authority: "The clearest justification for setting an adoption asice at the instance of a natural parent is that the parent was not givennotice 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, 

### 14L ed 2d 62;Leonard v. Leonard, 88 Idaho 485,401P.2d 541. Respondent claims that the consent 'ofthe natural mother is not required in this case under section 61-205,R.C.M. 1947, and consequently notice of the adoptionproceeding 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 shewas 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 reAdoption of Biery, 164Mont. 353, 359,

"While the best interests of the child are of utmost concern inboth custody and adoption cases,we have required strict compliancewith section 61-205,

### R.C.M. 1947,because of the harshness of permanently terminating parental rights." I see no reason to abandon this salutaryprinciple in this
case. Whatever the ultimate merits of the case may be, they cannot satisfy jurisdictional requirements.

Justice.