No. 13452 IN THE SUPREIgE COURT OF THE STATE OF MONTANA 1977

IN THE MATTER OF THE ADOPTION OF BABY GIRL HALL, a Minor Child

DONNA HALL NAGY, Appellant,

GLEN E. WILLIAMS and DOLORES LORRAINE WILLIAMS, Respondents.
Appeal from: District Court of the Eighth Judicial District, Honorable Paul G. Hatfield, Judge presiding. Counsel of Record: For Appellant: Smith, Emmons, Baillie and Walsh, Great Falls,

Montana Robert J. Emmons argued, Great Falls, Montana For Respondents: James W. Zion argued, Helena, Montana Thomas E. Boland argued for Baby Girl Hall, Helena,

Montana

Submitted: January 13, 1977 Decided:

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Filed:

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### Hon. Gordon Bennett,District Judge, sitting for Chief Justice Paul

### G. Hatfield,delivered the Opinion of the Court.
This is an appeal froma final order of the district court, Cascade County,denying a petition for annulment of an adoption decree and, in the alternative, for a writ ofhabeas corpus. Petitionerwas born January 21, 1954,and gave birth to the child involved in this litigation on June 18, 1970. On July 17, 1970, the district court decreed the adoption of the child by respondents,having found the childwas abandoned by its natural parents. 

### InJune 1975,petitioner discovered her child had purportedly been adopted by respondents andwas living in their home. She filedher petition November 

### 4,1975. Respondentsmoved to quash. Pursuant to a written stipulation filed by the parties, the district court onNovember 14, 1975, issued its order determining, inter alia, that the adoption decree was invalid. It found a lack of due process because no noticewas given the natural parents, and that consenthad not beenwaived by abandonment for the required period of one year, in view of the fact the childwas only 24days old at the time of the adoption, In the same order,and againby stipulationof the parties, the court directed the local welfare office to investigate the living circumstancesand parental qualifications ofpetitioner and respondents and make its recommendationas to where the child should best be placed. The reportwas to be made to the courtwith counsel for both parties present and allowed to cross-examineas to its contents. After the filing of the report and an adversary hearing on the question of the best interests of the child, the court onMarch

### 29, 1976, issued its findings of fact,conclusion of law and order, wherein it confirmed its previous conclusion that the adoption decree was invalid for lack ofnotice and the absence of consent by abandonment. The court then concluded petitioner was guilty of laches and was estopped from maintaining her petition because she could have commenced her action upon reaching majority on July 1, 1973,under the provisions ofArt. 11,Section 14, 1972Montana Constitution. It also concluded it was in the best interests of the child to remain in respondents' home. The court denied the petition and granted the motion to quash. We would not disturb the stipulationof the parties and the conclusion of the district court pursuant thereto that the adoption decree is invalid, as there is no request or basis presented for doing so. The decree is,however, not only invalid, it is void for allpurposes. It is conceded no notice was given the natural parents. More than fiftyyears ago, this Court recitedwith approval the universallyaccepted general rule that notice to natural parents in these cases is indispensableto jurisdiction; if jurisdiction is not thus obtained there can be no judicial determination,and any suchpurported determination is void. State
ex 

### rel. Thompsonv. District Court, 75 Mont. 147, 151, 242 P. 959. This Court has not deviated from this rule. See: Bascomv. Carpenter, 126Mont. 129, 136, 246 P.2d 223,recently reinforcedby the United States Supreme Court inArmstrong v. Manzo, 380 

### U.S. 545, 85 Sect.1187, 14L ed 2d 62. Nothing appears in this case that would remove it from the application of the rule. In 1921 this Court in Lamont v. Vinger, 61Mont. 530, 546, 202P. 769,adopted from the landmark case of Pennoyerv. Neff, 95

### U.S. 714, 728, 24

### L Ed 565, the fundamentalprinciple that:IIA judgment void when rendered 

### willalways remain void. The validity of everyjudgment depends upon thejurisdiction of the court before it 

### is rendered, not upon what may occur subsequently

# ."
This principle remains undisturbed, here and elsewhere. It requires that we give a void decree no effectwhatever atany time and view it as 

### a nullity for allpurposes. Thus it 

### is the limited function of this Court todeclare there never was 

### a legally cognizable adoption decree inthis case. That being so, the equitable doctrines of laches and estoppel cannot be applied to
save the non-existent decree or.to implement it inany way. It 

### isalso conceded that no consent was given by the natural parents, nor was there a valid exception to the consent requirement of ~ontana's statute, section 61-205, R.C.M. 1947. We have required strict compliance with that statute (Adoption of Biery, 164Mont. 353, 522 P.2d 1377), but have not yet found failure to comply with itjurisdictional, ashave courts inotherjurisdictions. See for example: Franklin v. Biggs, 14 Or.App.450, 513 P.2d 1216,1217; 2 C.J.S. Adoption of Persom, 551, p. 470, and cases cited therein. We see no reason for relaxation of the standard in this case and would set aside the decree, aswe did inBiery, if it had any validity inthe firstplace. Petitioner sought not only annulment of the adoption decree but the return of her child upon a 

### writ of habeas corpus. Apparentlypursuant to the latterpetition, and upon stipulation of the parties, a fullhearing was provided inthe district court on the question of the "best interests of the child". This being the basic criterionby which custody 

### isdetermined the hearing may be considered
a cugtody hearing, held with the consent of both parties. On the basis of thishearing, the court concluded as a matter of law that itwas inthe best interests of the child toleave it with respondents. Having so concluded, the court granted responsents' motionto quash and, ineffect, granted custody to them. We cannot quarrelwith the court's conclusion as to thebest interests of the child. The transcript reveals the casewas thoroughly investigatedby the county welfare department and 

### its report was airedwith equal thoroughness atthe hearing. There 

### isan abundance of substantial credible evidence to support the court's conclusion. Thus we find no abuse of discretion by the district court and must affirm 

### its conclusion. Adoption of Biery, supra, and cases cPted therein. For the above reasons, the adoption decree involved herein should be annulled and permanent custody of the child decreed in respondents. The cause 

### is remanded to the district court for entry of 

### its decrees inaccordance with this opinion.

Judge.

We Concu 

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Justices.Mr. Justice Daniel J. Shea concurring in part and dissenting in part:
I concur with that portion of the majority decision voiding the adoption decree, but I dissent on its decision granting permanent custody tothe adoptive parents. For allpractical purposes this decision forecloses the naturalmother from ever successfully petitioning toobtain custody of her daughter. She can have no consolation in winning her case but losingher child. I do not believe that the result would have been the same in the district court ifthe district court had voided the adoption decree, for in that case the adoptive parents would not have had any legal claim tothe child. While the court would not have been bound toimmediately give custody tothe natural mother, the adoptive parents would have had no legalbasis for then obtaining permanent custody of the child. It is clear however, that the district court recognized this problem for 

### it held that although the adoption decree was void, 

### it reallywas not void. The reason was that the naturalmother was guilty of laches and therefore had no legalbasis toset the adoption aside. However, by upholding the adoptive parents1claim of laches the court did not have toreach a decision on the "best interests" of the child, for

### at that point the natural mother had no legal right tobe heard. She was standing before the court as 

### a stranger trying toobtain custody of 

### a child that was no longer hers. Certainly the court was not going toaward permanent custody toa stranger. But this Court by overrulingthe claim of laches as applied toa void adoption decree, held the;natural mother was not a stranger, and she was wronged by the adoptive parents participating in the filingof a falseadoption petitkon. But in the same breath the Court has deprived the natural motherfrom ever obtaining legal custody of her daughter. The provisions of the Uniform Marriage and Divorce Act, applicable to further district court proceedings in this case<,place an impossible burden on the naturalmother. The Uniform Marriage and Divorce Act went into effect
on January 1, 1976 and pursuant tosection 48-341(4) R.C.M. 1947, any further district court proceedings in this case must be under this Act. Section 48-341(4) provides: "In any action or proceeding in which an appeal was pending or a new trialwas ordered prior to the effective date of this act, the law in effect atthe time of the order sustaining the appeal or the new trialgoverns the appeal, the new trial, and any subsequent trial or appeal." Here, the trial took place in March, 

### 1976 and an appeal was filed
on April 27, 

### 1976. Therefore, further proceedings in this case must be under this Act. Under Section 48-339(1), R.C.M. 1947, a petition toobtain custody of a child (absent extenuating and emergency situations)
can be filed only once in a two year period. Th,ismeans the mother must endure a substantialwaiting period before she can file a custody petition. But even if she later filed a petitkon, her efforts would most likelybe doomed tofailurebecause she must overcome the heavy burden of proof placed on her by the Act. To be entitled toa hearing under section 48-339, R.C.M. 1947, the naturalmother must filean affidavit or sworn petition alleging evidentiary facts (section 48-340, R.C.M. 

### 1947) that the child's "physical, mental, moral, or emotional health" is being harmed inher present home. Because allagree that the adoptive parents have been good parents, 

### it would indeed take a creative mind toallege sufficient evidentiary facts that would entitle the natural mother toa hearing. Moreover, since the trial court has already determined the "best interests'' of the child arewiththe adoptive parents, upon another hearing the court would be required toretain them as custodians unless "the child's present environment endangers seriously his physical, mental, moral, or emotional health, and the harm likely tobe caused by
a change of environment is outweighed by its advantages tohim." Section 48-339{2)(c). Thus we have 

### a situation where the stated purpose of theUniform Marriage and Divorce Act of keeping the child ina stable, permanent environment is depriving the natural mother from ever obtaining custody of her child. 

## his is not a just result, nor is 

### it necessarily, the long run, the right decision for the child. The naturalmother lives only a few blocks from her child, but only knew of her whereabouts just 

### a short period before filing the petition indistrict court toannul the adoption decree. The child does not know she has been adopted. However,
even assuming the adoptive parents have been granted permanent custody 

### it would appear the natural mother now has a right to petition forreasonable visitation rights pursuant tosection 48- 337(1), R.C.M. 1947, which provides: "A parent not granted custody of the chi is entitled toreasonable visitation rights unless the court finds, aftera hearing, that visitation would endanger seriouslythe child physical, mental, moral, oremotional health. It would seem most likely the child

### willnow find out she has

, -,- been adopted and the identity of her naturalmother. Yet the mother willnever have a meaningful opportunity toobtain the custody of her daughter. In settingaside the adoption decree but stillleaving permanent custody in the adoptive parents, the Court relies on Adoption Of Biery, 164Mont. 

### 353, 522 P.2d 

### 1377, but I feel that reliance is misplaced. In Biery the naturalmother was served with process before the adoption and participatedfullhearing todetermine the "best interests" of the child. Also, the adoptive parents inBiery had actual custody of the child before the adoption. The reason for settingaside the adoption inBiery was because there was no findingby the district court that the mother had abandoned the child for a period of one year. A statuterequired the adoptive parents toprove the mother did not support the child for a one year period and she had the ability tosupport the child during that period. Section 61-205, R.C.M. 

### 1947. The adoption was setasidewithout prejudice. The facts are very different in the instant case. The natural mother was a minor when she signed a consent form tohave her child adopted. No guardian ad litem was appointed 

### torepresent her interests. She was not served with process in the guardianship proceedings. The petition toadopt was false on 

### its face. It alleged abandonment, inwhich case the abandonment must have existed for a period of atleast one year. Section 61- 205,R.C.M. 

### 1947. However, the petition alleged the child was born on June 

### 18, 1970, and the petition was filed on July 

### 17, 1970, just 24 days after the child's birth. Stillthe court approved the adoption. The entire proceedings were devoid of even the rudiments of due process. The effect of the Court's decision 

### is that due process when applied tochild custody cases ismeaningless, for 

### it is custody of the child that is important. If a couple, however well intentioned, can acquire permanent custody of a child in the
manner done in this case, then parental rights aremeaningless. In effect, this Court is holding that permanent custody of a child can be acquired by a hybrid form of adverse possession and 

### it does not matter that the initialpossession was acquired by illegal
means.

### I ~~oulcl 

### vo~u the entire pr?ocezdin&sdrld allow the adoptive
uarents temporary custody until such time as satisfactory arrangements could be worked out for the transfer of permanent custody
so the natural mother.