INTHE SUPREME COURT OF THE STATE OF MONTANA

INTHE MATTER OF THE APPLICATION OF MELVIN CONLEY and RUBY F PERSHALL, Petitioners, for a Writof Habeas Corpus to Inquire into the Cause of Detention of CHRISTINA MAE CONLEY (INNIS), EDGAR MELVIN CONLEY (INNIS) and DALE WAYNE COMLEY (INNIS), Petitioners,-vsLOIS INNIS WALDEN, Defendant.

Appeal from: District Court of the SixthJudicialDistrict, Honorable Jack

### D Shanstrom, Judge Presiding. Counsel of Record: For Appellant

### : Kent R Douglass, Livingston, Montana. Harrison, Loendorf and Poston, Helena, Montana. 

### James T Harrison, 

### Jr argued, Helena, Montana. For Respondent: JosephT Swindlehurst argued, Livingston, Montana.

Submitted: March 

### 6, 1975

Decided

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# APR

# -71975

Filed

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### APR

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# 3wd

### Mr. JusticeJohn Conway Harrison delivered the Opinion of the Court.

This 

### is an appeal from an order of the district court, Park County, denying a petition for the possession and custody of three minor children in a habeas corpus proceeding. Petitioners Melvin Conley and Ruby F. Pershall are the natural parents of Christina Mae, born July 

### 3, 1960; Edgar Melvin, born January 15, 1965; and Dale Wayne, born October 

### 8, 1962. Respondent is Lois InnisWalden the maternal stepgrandmother of the children and thewidow of Jesse Innis, father of Ruby F. Pershall, petitioner herein. Petitioners testified they aremembers of a religious group headed by Alfred F. Pershall, the present husband of petitioner Ruby. The question of the antiquity of the religion

### was raised atthe hearing and petitioner Melvin Conley testified his grandfather had "started allthings in common way back". The group now makes 

### its headquarters in a trailer court inYuma, Arizona, and the male members

are in the masonry business together. Respondent Lois InnisWalden 

### is the sisterof Alfred, Robert and Charley Pershall and the aunt of petitioner Melvin. From petitioners' testimony it appears that allthe male members of the group have exchanged wives during the last eight years. At the time of the hearing the family groupings were: a) Alfred F. Pershall 

### ismarried topetitioner Ruby, ex-wife of petitioner Melvin Conley

# . b) Charles Pershall ismarried toDonna, Alfred's ex-wife. c) Robert Pershall ismarried to Catherine, Charley's ex-wife. d) Petitioner Melvin Conley is married toJohn Powell's (another group member) ex-wife Jessie. This marriage 

### is the most recent within the group and took place inAugust 1972.

### Sometime prior to 1966 petitioner Ruby,while stillmarried to Melvin, began livingwith Alfred Pershall and became pregnant by him. Melvin testified: That he and Rubywere not getting along and he discussed the situationwith his Uncle Alfred and as a result Ruby went to livewith Alfred, That he,Melvin, obtained a divorce from Ruby on the grounds of incompatibility,not adultery,and he was given custody of their three children. Melvin then left California, where he had obtained the divorce, and went to Plattsburg, Missouri where his Uncle Robert lived. There he lived with Catherine Pershall, Charley's ex-wife and ~obert'spresent wife. He took the family to Kansas Citywhere they moved inwith in-laws. About this time, June 1967,respondent and her then husband Jesse Innis became concerned about the children's welfare and reported the situation to the Missouri welfare department,of Clinton County. That office had the children picked up in Kansas City and delivered into the custody of their grandparents, Jesse and Lois Innis. On 

### June 6, 1967, the circuit court of Clinton County,Missouri, issued an order granting temporary custody of the children to the countywelfare department and that department placed the children in the care and custody of respondent and her husband, Jesse Innis. PetitionerMelvin Conley had notice of the hearing held by the court before it granted custody of the children to thewelfare department of Clinton County and was actually present, though later in 1972, he 

### told another judge inMissouri that he did not have notice, nor was he present. On or about that same time petitioner Melvin moved into the Innis home and lived there for about a 

### year. He paid $30 a 

### week for support of the children until February or 14arch 1968. The Innis' purchased a truck from Melvin with the understanding that the support payments would go to the payments on the truck. Petitioner Melvin did somework about the Innis farm and in the house. In June 1968,petitioner Melvin moved to Kansas City leaving the children at the 1nnis'. 

### A month later he left Kansas City, removedthe truck from the Innis garage during the night, and departed for destinations unknown. From that date, until the middle of 1973, he made no attempt to support the children or visit them, or to advise the Innis' of hiswhereabouts. From the fall of 1967, petitioner Ruby Pershall, the children's "devoted mother" knew her childrenwere wards of the Missouri court and

were living and being cared forby her father and stepmother. From that time to the time of thehabeas corpus hearing, she knew where her childrenwere but made no serious attempt tocontact, correspond with, telephone, visit, nor support her three children. She testified that letters she sent were returned but respondent denied such letters

were received and that that shehad nothing todo with returning them, if sent. Testimony given atthehearing indicated that petitioner's father, Jesse Innis, did not approve of the religious group and the alleged fact that fornication and adulterywere practiced by the group. Testimony given by Christina, the oldest child, indicated the group practiced cruel and unusual punishments upon the childrenwhen they were of tender years. She testified she was put ina gunny sack, by either Catherine or Donna, and swung around; that the children

were put into garbage pits atnight and told there were snakes in it. Other punishments consisted of putting a child's head under water forwhat seemed 

### a long period; Christina testified that her mother, petitioner Ruby, did this. Pc

### ai.h3,r-- 

### Mfired Pershall testified: That the name of the religious group was 

### he Church of the First ~orn" and it originated in Amsterdam, Idaho, where the elderbrothern lived. That he went down toYuma to seewhat kind of a minister hisuncle Alfred was and to find out more orlesswhat was going on, attheurging of his mother and because of the Ifyapping" 

### of his wife Catherine. That he went to find out if the charges of child abuse, fornication and adulterywere true and being practiced by 

### men claiming tobe ministers of the gospel.That he moved into the group's trailer court and lived there for about sixmonths, On direct examination he testified he found no child abuse, fornicationmr adultery among themembers of the religious group living atthe trailer court, yet on cross-examination he admitted filingcharges against hisbrothers on those various charges. He wrote to a brother in Oregon that itwas interesting toget up early inthemorning "to seewhich chicken came out of which hen house". He further testified that those chargeswere dropped because he did not actually see anything to substantiate the charges. In November 1971Jesse Innis, the children's natural grandfather, died inMissouri. Some sixmonths laterrespondent, thewidow of Jesse Innis, moved toWilsall, Montana, where she now resides. Since coming toMontana, she has remarried toone Arthur Walden. Before moving toMontana respondent received an order dated March 20, 1972, from the circuit court of Clinton County, juvenile division, givingher custody and grantingher permission toremove the children from Missouri toMontana. On May 15, 1972, that same court entered 

### its order granting respondent permission to instituteadoption proceedings inMontana for the three minor children. A petition for adoption was filedby respondent in Park County, Montana, June 

### 6, 1972, and a decree of adoptionwas issued on June 27, 1972. The Park County district court found that petitioners' consent for the adoption was not necessary since the childrenwere declared dependent and neglected childrenby the state of Missouri and that Missouri had granted care, custody and control torespondent. Three months later, on September 25, 1972, the circuit court of Clinton County, Missouri, juvenile division, entered an order settingaside asvoid, ab initio, allprevious orders entered by it concerning the children for the reason that notice-hadnot been given the parents, petitioners here. While respondent was notified of the hearing on the petition to set aside the Missouri court's orders, shedid not have funds toretainMissouri counsel and she failed to appear pro sedue to a failure togivehernotice of a postponed hearing date. In 

### its conclusions of 

### law the trialcourt here found that it

was not bound by the action of the Missouri court; that the Montana court had fulljurisdiction over the adoption and was entitled to rely on the consent of the Missouri court, the proper authority togrant consent atthe time; that the courtwas not compelled to honor the later order retracting the consent; and, further, that the laterMissouri proceedings were uncontested and based upon the false allegations of petitioner Melvin Conley that he did not have notice, when in fact he was before the court when custodywas lodged with the ~nnis'.The court went further in 

### its conclusions and found abandonment by reason of petitioners' failure to do anything for the children forover five years. Appellant petitioners statethe issues tobe: 1) Whether they were ever "judicially deprived of the 

# (11 custody'' within the meaning of section 61-205(c)

## ,R.C .M. 1947? 2) If not, were they entitled tonotice of the adoption? Respondent argues that this 

### is a habeas corpus proceeding and appellants areattempting touse habeas corpus tocollaterally attack the adoption decree. We agree and 

### willtreat the matter

asitwas brought by appellants, asone of habeas corpus seeking the custody of the children. Habeas corpus being equitable innature the paramount consideration 

### is thewelfare of the children. In an Oklahoma child custody case, Mathews 

### v. Grant, (Okla. 1958), 326 P.2d 1043, the court held that itwas not bound to deliver the custody of a child to

### a particular claimant but must leave it in such custody as thewelfare of the child appears torequire atthe time.Here, the trialcourt found thenatural parents unfit to havemstady of the children and that theirwelfare and bess interests would be best servedby leaving them with respondent. such finding 

### is convincingly establishedby the record and we note with interest that on appeal petitioners do not allege that the welfare of the children would best be servedby the transfer of custody to them. Thewelfare of the children 

### is the rule inMontana recently stated inRiley v. Byrne, 145Mont. 138, 145, 399 P.2d 980, a case where the Court considered the welfare of children inrefusing to set aside a decree of adoption brought on the basis that the parents' consent was obtained by fraud. There the Court said

# "* * that the adoption was for thewelfare and best interests of the two minor children. 11 Whether the action 

### is treated 

### as habeas corpus or a petition to set asidean adoption, thewelfare of the child 

### is the paramount factor. In 

### a recent case before the Supreme Court of Oklahoma, In reAdoption of Graves, (O34.a. 1971), 481 P.2d 136, 138, the Court said the "welfare of the child 

### isnot tobe ignored in considering the validity of the adoption proceedings." In an Arizona case, In reAdoption of Hammer, 15Ariz.App. 196, 487 P.2d, 417, 419, itwas 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. This strain 

### isparticularly acute to the adoptive child itself, who may have established strongbonds of affection and love for the adoptive parents, and to the adoptive parents who must sufferthe spectre of losing their child. Also, sound reasons of public policy demand that orders of adoption have finality so astoencourage adoption of children who might otherwise be homeless.

11

However, once a judicial determination ismade giving 

### rise toa final order of adoption, and thatnew relationship 

### is allowed tomature, then the courts of this 

### state should onlynullify that new relationship for the most cogent reasons. 11Considering the record in the instant case, there arenumerous grounds upon which the adoption itself could have been sustained without the consent of petitioners. A period of sixyears of absolute abandonment of the three childrenwith no support, no contact, and no visitsby either parent 

### is the most basic ground. While petitioners argue that the district court made no specific finding of abandonment and nonsupport atthe time of the adoption, the matter 

### isone in equity and no specific finding of fact and conclusion of law arerequired--just a decree. The general obligations of parenthood include these minimum standards: 1) Express love and affection for the child. 2) Express personal concern over the health, education and general welfare of the child. 

### 3) The duty tosupply the necessary food, clothing and medical care. 4) The duty toprovide an adequate home. 

### 5)A duty togive social and religious guidance, Here, petitioners fall far short of these minimum standards. See: Ottley v. Hill, 21 Utah 2d 396, 446 P.2d 301; Van Orman v. Van Orman, 30 Colo.App. 177, 492 P.2d 81; Neasham v. McNair, 103 Iowa 695, 72 N.W. 773; 59 Am Jur 2d, Parent and Child, 

### 5s 50-60; 47 A.L.R. 110. The Supreme Court of Idaho in Finn v. Rees, 65 Idaho 181, 141 P.2d 976, 980, a case very similar in facts, in 

### a habeas corpus petition noted therewas ample evidence of abandonment to support the trialcourt's findings and refused tovacate a decree of adoption merely because the trialcourt had premised 

### its adoption upon the consent of the great grandparents. Of particular import 

### is the court's holding, citing an Oregon case, that:

11 J; $; 

# * Proceedings inhabeas corpus are in the nature of a collateralattack, and consequently errors or irregularitieswhich might render a 'udgment voidable cannot be reached by habeas corpus. 

## 4 See also: Conville v. Bakke, (Okla.1964), 400 P.2d 179; In re ~oermann's Estate, 108 Mont. 386, 91 P.2d 394; Wells 

### v. Stanger, 123Mont. 26, 207 P.2d 549; In rePepin's Estate, 53 Mont. 240, 

### 163 P. 104.The district court's order denying the petition for

### writ of habeas corpus 

### was correct. No prejudical error having been shown, the order of that court 

### is affirmed.



### We concur: 8
ustice

Hon. ~lfu E. Coate, District Judge, sitting for Chief Justice James T. Harrison.Mr, Justice Frank I. Haswell, speciallyconcurring: I concur inaffirming the district court's dismissal of the habeas corpus petition. The reason for this special concurrence 

### is that 

### I do not understand the basis of themajority holding. 

### Is it based on the prior custody orders of theMissouri court? On theMontana adoption proceedings? On an independent adjudication of custody inthe habeas corpus proceeding? In thiscaseneither theMissouri court nor theMontana court in the adoption proceedings had jurisdiction over the mother. She 

### was permanently deprived of her parental rights and her childrenwere adopted by another, allwithout giving her notice of the proceedings and affordingher an opportunity tobe heard. The ultimate merits of the case cannot correctjurisdictional defects. For this reason I would hold the Missouri custody awards and the Montana adoption proceedings void. I would hold the independent custody adjudication of the Montana court inthehabeas corpus proceeding correct and fully supported by the evidence, On thisbasis I would deny the petition forhabeas corpus.

Justice.