No. 13242 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1976 

IN THE 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. Justice Wesley 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 1973 when 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 sustained by 

this Court in Application 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. 

In June 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 to dismiss on the basis the prior 

decision in this matter was res judicata was granted by the distr.ict 

court which again determined the adoption decree was valid and no 

notice of the adoption to petitioner was required. 

The prior action in this matter, although denominated as an 

application for a writ,of habeas corpus, resulted in a determination of the merits of all claims raised by petitioners in their 

pleadings and raised once again in the instant case. Petitioners' 

own brief in Application of Conley stated: 

'I* * * we submit that the Supreme Court should treat 

the suit as one seeking to void the adoption decree 
instead of merely an action in habeas corpus. The 

substance of the suit is certainly in that vein, 

although the form may be denominated as habeas corpus." 

This Court, in Application 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 

are numerous 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 the writ of habeas corpus in child custody 

matters : 

"* * * In the first place, the writ in custody cases 

is generally considered equitable rather than legal. 

Second, the court is by no means limited to an inquiry 

into the legal right by which the child is held, but 

must determine the broad question of what disposition 

will best serve the child's interest. * * Third, 

usual rules of res judicata apply in habeas corpus involving 

custody, at least to the extent that the judgment is final * * *. " (Emphasis added) . 

At the request of petitioners, this Court fully disposed of the 

issues raised here in connection with the validity of the adoption 

in the prior habeas corpus decision, and that decision is res 

judicata to matters raised by the instant petition. 

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

It* * * that consent [to adopt] shall not be required 

from a father or mother, 

"(c) who has been judicially deprived of the custody 

of the child on account of cruelty or neglect toward 

the child; or 

"(d) who has, in the state of Montana, or in any 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 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 is upon a finding by the court that 

the best interests of the child would be served by allowing revocation of consent. Application of Hendrickson, 159 Mont. 217, 222, 

496 P.2d 1115. We find no evidence in the record before us 

indicating any benefit would accrue from such a holding. 

Finally, the objects of the instant litigation are the 

three small children whose well-being must be the primary consideration of the Court in disposition of this matter. Riley v. 

Byrne, 145 Mont. 138, 399 P.2d 980; In re Adoption 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 re Adoption of Hammer, 15 Ariz.App. 196, 487 P.2d 417, 419, 

said: 

"* * * Moreover, from a strictly humanitarian 

standpoint, there must be an end to the emotional 

stress and strain that is involved in the natural 

parents' attempt to gain 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 

relative who later refuses to return him on request. 

The crucial issue here is whether the child will be 

harmed by a shift in custody back to the parent. 

This depends upon the length of his stay with 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 trial court, clearly 

supported by the record of the natural parents' lack of fitness 

to have 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. In my view the adoption decree is void. 

The natural mother 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 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.