IN THE SUPREME COURT OF THE STATE OF MONTANA 

IN THE MATTER OF THE APPLICATION OF MELVIN CONLEY and 

RUBY F PERSHALL, Petitioners, for a Writ of 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 Sixth Judicial District, 

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: 

Joseph T Swindlehurst argued, Livingston, Montana. 

Submitted: March 6, 1975 

Decided : APR - 7 1975 

Filed : APR - 7 3wd 
Mr. Justice John 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 Innis Walden the maternal stepgrandmother of the children 

and the widow of Jesse Innis, father of Ruby F. Pershall, petitioner 

herein. 

Petitioners testified they are members 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 at the 

hearing and petitioner Melvin Conley testified his grandfather had 

"started all things in common way back". The group now makes its 

headquarters in a trailer court in Yuma, Arizona, and the male members 

are in the masonry business together. 

Respondent Lois Innis Walden is the sister of Alfred, Robert 

and Charley Pershall and the aunt of petitioner Melvin. 

From petitioners' testimony it appears that all the 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 is married to petitioner Ruby, ex-wife 

of petitioner Melvin Conley . 

b) Charles Pershall is married to Donna, Alfred's ex-wife. 

c) Robert Pershall is married to Catherine, Charley's ex-wife. 

d) Petitioner Melvin Conley is married to John Powell's (another 

group member) ex-wife Jessie. This marriage is the most recent within 

the group and took place in August 1972. 
Sometime prior to 1966 petitioner Ruby, while still married to 

Melvin, began living with Alfred Pershall and became pregnant by him. 

Melvin testified: That he and Ruby were not getting along and he 

discussed the situation with his Uncle Alfred and as a result Ruby 

went to live with 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's present wife. He took the family to 

Kansas City where they moved in with 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 

county welfare department and that department placed the children 

in the care and custody of respondent and her husband, Jesse Innis. 

Petitioner Melvin Conley had notice of the hearing held by the court 

before it granted custody of the children to the welfare department of 

Clinton County and was actually present, though later in 1972, he 

told another judge in Missouri 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 some work 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, removed 
the 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 his whereabouts. 

From the fall of 1967, petitioner Ruby Pershall, the children's 

"devoted mother" knew her children were wards of the Missouri court and 

were living and being cared for by her father and stepmother. From 

that time to the time of the habeas corpus hearing, she knew where 

her children were but made no serious attempt to contact, 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 she had nothing to do with returning them, 

if sent. Testimony given at the hearing indicated that petitioner's 

father, Jesse Innis, did not approve of the religious group and the 

alleged fact that fornication and adultery were practiced by the 

group. 

Testimony given by Christina, the oldest child, indicated the 

group practiced cruel and unusual punishments upon the children when 

they were of tender years. She testified she was put in a gunny sack, 

by either Catherine or Donna, and swung around; that the children 

were put into garbage pits at night and told there were snakes in it. 

Other punishments consisted of putting a child's head under water 

for what seemed a long period; Christina testified that her mother, 

petitioner Ruby, did this. 

Pc a i.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 elder brothern lived. That he went down 

to Yuma to see what kind of a minister his uncle Alfred was and to find 

out more or less what was going on, at the urging 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 adultery were 

true and being practiced by men claiming to be ministers of the gospel. 
That he moved into the group's trailer court and lived there for 

about six months, 

On direct examination he testified he found no child abuse, 

fornicationmr adultery among the members of the religious group 

living at the trailer court, yet on cross-examination he admitted 

filing charges against his brothers on those various charges. He 

wrote to a brother in Oregon that it was interesting to get up 

early in the morning "to see which chicken came out of which hen 

house". He further testified that those charges were dropped because 

he did not actually see anything to substantiate the charges. 

In November 1971 Jesse Innis, the children's natural grandfather, 

died in Missouri. Some six months later respondent, the widow of 

Jesse Innis, moved to Wilsall, Montana, where she now resides. Since 

coming to Montana, she has remarried to one Arthur Walden. 

Before moving to Montana respondent received an order dated 

March 20, 1972, from the circuit court of Clinton County, juvenile 

division, giving her custody and granting her permission to remove the 

children from Missouri to Montana. On May 15, 1972, that same court 

entered its order granting respondent permission to institute adoption 

proceedings in Montana for the three minor children. A petition 

for adoption was filed by respondent in Park County, Montana, June 6, 

1972, and a decree of adoption was issued on June 27, 1972. The 

Park County district court found that petitioners' consent for the 

adoption was not necessary since the children were declared dependent 

and neglected children by the state of Missouri and that Missouri had 

granted care, custody and control to respondent. 

Three months later, on September 25, 1972, the circuit court 

of Clinton County, Missouri, juvenile division, entered an order 

setting aside as void, ab initio, all previous orders entered by it 

concerning the children for the reason that notice-had not been given 

the parents, petitioners here. While respondent was notified of the 

hearing on the petition to set aside the Missouri court's orders, she 
did not have funds to retain Missouri counsel and she failed to 

appear pro se due to a failure to give her notice of a postponed 

hearing date. 

In its conclusions of law the trial court here found that it 

was not bound by the action of the Missouri court; that the Montana 

court had full jurisdiction over the adoption and was entitled to 

rely on the consent of the Missouri court, the proper authority 

to grant consent at the time; that the court was not compelled to 

honor the later order retracting the consent; and, further, that the 

later Missouri 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 custody was 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 for over five years. 

Appellant petitioners state the issues to be: 

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 to notice of the adoption? 

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. 

Habeas corpus being equitable in nature the paramount consideration is the welfare of the children. In an Oklahoma child custody 

case, Mathews v. Grant, (Okla. 1958), 326 P.2d 1043, the court held 

that it was not bound to deliver the custody of a child to a particular 

claimant but must leave it in such custody as the welfare of the 

child appears to require at the time. 
Here, the trial court found the natural parents unfit to 

havemstady of the children and that their welfare and bess interests 

would be best served by leaving them with respondent. such finding is 

convincingly established by the record and we note with interest 

that on appeal petitioners do not allege that the welfare of the 

children would best be served by the transfer of custody to them. 

Thewelfare of the children is the rule in Montana recently 

stated in Riley v. Byrne, 145 Mont. 138, 145, 399 P.2d 980, a case 

where the Court considered the welfare of children in refusing 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 the welfare and best interests of the two 

minor children. 11 

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. In a recent case before the Supreme Court of Oklahoma, 

In re Adoption of Graves, (O34.a. 1971), 481 P.2d 136, 138, the 

Court said the "welfare of the child is not to be ignored in considering the validity of the adoption proceedings." 

In an Arizona case, In re Adoption of Hammer, 15 Ariz.App. 

196, 487 P.2d, 417, 419, it was 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. This strain 

is particularly acute to the adoptive child itself, who 

may have established strong bonds of affection and love 

for the adoptive parents, and to the adoptive parents who 

must suffer the spectre of losing their child. Also, 

sound reasons of public policy demand that orders of 

adoption have finality so as to encourage adoption of 

children who might otherwise be homeless. 

11 However, once a judicial determination is made giving 

rise to a final order of adoption, and that new relationship is allowed to mature, then the courts of this state 

should only nullify that new relationship for the most 

cogent reasons. 11 
Considering the record in the instant case, there are numerous 

grounds upon which the adoption itself could have been sustained 

without the consent of petitioners. A period of six years of 

absolute abandonment of the three children with no support, no 

contact, and no visits by either parent is the most basic ground. 

While petitioners argue that the district court made no specific 

finding of abandonment and nonsupport at the time of the adoption, 

the matter is one in equity and no specific finding of fact and 

conclusion of law are required--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 to supply the necessary food, clothing 

and medical care. 4) The duty to provide an adequate home. 5) A 

duty to give 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 there was ample evidence of abandonment to support 

the trial court's findings and refused to vacate a decree of adoption 

merely because the trial court 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 in habeas corpus are in the nature 

of a collateral attack, and consequently errors or 

irregularities which 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, 

123 Mont. 26, 207 P.2d 549; In re Pepin'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, specially concurring: 

I concur in affirming 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 the majority holding. Is it based on 

the prior custody orders of the Missouri court? On the Montana 

adoption proceedings? On an independent adjudication of custody 

in the habeas corpus proceeding? 

In this case neither the Missouri court nor the Montana 

court in the adoption proceedings had jurisdiction over the 

mother. She was permanently deprived of her parental rights and 

her children were adopted by another, all without giving her notice 

of the proceedings and affording her an opportunity to be heard. 

The ultimate merits of the case cannot correct jurisdictional 

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 in the habeas corpus proceeding correct and fully 

supported by the evidence, On this basis I would deny the petition 

for habeas corpus. 

Justice.