No. 12155 

### INTHE SUPREME COURT OF THE STATE OF MONTANA 1972

INTHEMATTER OF THE APPLICATION OF DEBORAH 

### LYNNHENDRZCKSONON A WRIT OF 

### HABEAS CORPUS.

Appeal from: District Court of the SeventeenthJudicial District, Honorable Thomas~Dignan,Judge presiding. Counsel of Recofd: ForAppellant: Dzivi, Conklin, Johnson and Nybo, Great Falls,

Montana. William Conklin argued,Great Falls,Montana. Far Respondent: Thomas M. Mahan argued,Helena,Montana. GordonWhite,Glasgow,Montana. AMICUS CURIAE Paul 

### F. Reynoabs,Helena,Montana Ward Shanahan,Helena,Montana. George T. Bennett appeared,Helena,Montana.

Submitted: March 1, 1972 DecidedMAY

### 2 1972 Filed

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### I%?Hon. Gordon R. Bennett,-District Judge, sitting for Chief Justice James T. Harrison, delivered the Opinion of the Court.

This is an appeal from dismissal of proceedings for awrit of habeas corpus and denial of relief sought therein. Appellant gave birth to a child March 20, 1971, in Great Falls,Montana. Two days later she executed the following form presented to her by a Cascade CountyWelfare Department case worker. "Affidavit of Waiver and Consent to Adoption "State of Montana "County of Cascade "The undersigned parent, being first duly sworn on oath, deposes and says: That she is the naturalmother of Baby Girl Hendricksonwhose date and place of birth is follows, 3-20-71-GreatFalls, Montana "The said undersigned parent irrevocablydeclares and unqualifiedly states and represents that she is unable to care for said child or cannot provide the proper parental care or guardianship, and cannot perform the duties and obligations of a parent or sustain the relation of parent to said child, and 

### he said undersignedparent fullyunderstands that when this affidavit of relinquishment is signed,all of the rights to the custody, services, and earnings of saidminor child and any responsibility for the care and support of saidminor child will be terminated and that said child cannot be reclaimed by the undersigned.

II

Now, the undersigned parent knowingly, freely and voluntarily gives consent to have any court, having jurisdiction over suchmatters, declare the said child a dependent and neglected child, and award the care, custody and control of the said child to the Department of Public Welfare of the State of Montana, and duly and legally authorize a representative of said Department of PublicWelfare to appear in any court where adoption proceedings are pending and assent to the adoption of the said minor child. "And that the undersignedparent hereby expressly waives any and all notice of or for any process of citation fromany Court declaring said child a dependent and neglected child,and awardingsaid child to the care, custody,and control of the Department of Public Welfare of the State of Montana, and hereby expressly consents to a hearing thereof at any time. And, that the undersigned parent hereby expressly waives,any and all notice of or for any process or citation from any Court in any adoption proceeding which may be had, and consents that such adoption proceeding may be heard at any time. "Dated this 23rd day ofMarch, 1971. "/s/ Deborah Lynn Hendrickson "State of Montana ) ss "County of Cascade) "On this 23rd day of March, 1911,before me, the undersigned, a notary public for the State of Montana,personally appeared Deborah Hendrickson, known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that she executed the same.

I IInWitness Whereof, 

### Ihave hereunto setmy hand and affixed my official seal the day and year in this certificate first abovewritten. "s/s Helen R. Dial "Notary Public for the

State of Montana, Residing at Great Falls,Montana. My commission expires 3-31-72" On April 8,1971, the district court in Cascade County adjudicated the child dependent and neglected, awarded custody to the State Welfare Department and authorized it to assent to adoption in any court where adoption proceedings might be had. The court's orderwas based on the aforementionedwaiver and consent. On May 17, 1971, the district court inValley County issued its final order of adoption upon the petition of the adoptive parents and consent of the State Welfare Department,given May

Appellant petitioned the district court in Cascade County for a writ of habeas corpus on May 21, 1971, and on June 3, 1971 that court,holding it lacked jurisdiction,refused to grant the writ.On June 7, 1971, appellant petitioned the district court inValley County for a writ of habeas corpus and that court on June 10, 1971, issued itswrit, returnableJune 21, 1971, later changed to July 22, 1971. Hearingwas had and judgment was filed September 7, 1971. Appellant's motion to amend findings of fact and to make additional findings of factwas denied September 

### 23, 1971. Appellant now appeals from the judgment. Appellant contends that her consent andwaiver were withdrawnby a letter dated May 12, 1971, signedby her, addressed to the Cascade County Department of Public Welfare in Great Falls andmailed at Great Falls through the United States mail on the day it was dated. There is no evidence that appellant's intention or desire to revoke was communicated in anyway to the district court in Cascade County prior to the time the district court in Valley County issued its final adoption decree on May 17, 1971. The record contains the declarationof the district judge inValley County that he had not been informed of any such intention or desire on the part of appellant until after he issued the decree. Section 61-206,R.C.M. 1947,provides inpertinent part: 

### h he entry of the interlocutoryor final decree of adoption renders any consent irrevocable.11 Thus the entry of the final adoption decree by the district court in Valley County on May 17, 1971,made the consent previously given by the appellant irrevocable unless it had been revoked prior to that time. The question becomes, then, whether the May 12, 1971, letterwas an effective revocation. In addition to the portion heretofore quoted, Section 61- 206,R.C.M. 1947,provides: "Withdrawal of any consent filed in connectionwith a petition for adoption hereunder, shall not be permitted, except that the court,after notice andopportunity to be heard is given to the petitioner, to the person seeking to withdraw consent,and to any agency participating in the adoption proceedings,may, if it finds that the best interest of the childwill be furthered thereby, issue a written order permitting the withdrawal of such consent." Itwill be noted that withdrawals of consent are not generallypermitted. There is,however, a single exception, The courtmay permit withdrawal by written order upon 

### a finding that the best interest of the child willbe furthered thereby. This canbe done only afternotice to the petitioner in an adoption proceeding, to the person seeking to withdraw the consent,and to any agencyparticipating in the adoption proceeding. The statute thus sets forth a clear procedural requirement forwithdrawal of consent. That procedural requirementwas not met in this casebefore a final decree of adoptionwas entered. It follows that the district courtsin both Valley and Cascade Countieswere without legal authority to grant permission for the withdrawal of the consent at the time appellant filedher petition forwrit of habeas corpus. Appellant attacks the validity of the given consent and waiver on several grounds. Admitting that she executed the document, shemaintains that her intentwas solely to consent to adoption; that she did not understand she was consenting to

a declaration that the childwas dependent andneglected; that the formwas dated and notarized the day following the execution; and, that shewas unaware at the time she signed the document that her parents were willing to assist in the upbringing of the child. At the time appellant signed the document she was eighteen years old, a high school senior, a 

### "B" student, could and did read the document she signedwithout difficulty, and had beennegotiatingwith the Cascade County Welfare Department for seven months previous for the adoption of the child. She testified she had been taking codeine and empirin to killpain at the time she executed the document and that shewas "really relaxed" but she knewwhat shewas talking about and what was going on. Shewas discharged from the hospital the following day. There is no allegation or proof of fraud,deceit, undue influence or misrepresentation on the part of the case worker with whom she discussed the document at the time she signed it. Whatever her understanding of the term "dependent and neglected"

## , it is clear that she understood what adoptionwas and that she knowingly and intentionally consented to it. The error in dating and notarizing the document is clerical only and does not impair its essentialvalidity,nor shouldher misapprehension as to the availability of her parents' assistance in raising the child. This was her misapprehension, which she had an opportunity to correct formonths before the signing. We find no defect in the document itself or in the circumstances of its execution sufficient to set it aside on any grounds. Appellant maintains the order of the district court in Cascade County finding the child dependent and neglected and granting the State Welfare Department the power to consent to adoptionwas invalid because no hearingwas had as required by Section 10-501,R.C.M. 1947, et seq., and the childwas not physically before the court as requiredby section 10-508, R.C.M. 1947. The waiver and consent document signed by the appellant is the standard form used in such casesby the State Welfare Department (now the Department of Social and Rehabilitation Services). It does not clearlyand specifically give consent to adoption. It could under the authority of section 61-205, R.C.M. 1947,but it does not. It states instead that theconsenting parent understands that his or her rights to the custody, services and earnings of the child will be terminated and that the child cannot be reclaimed. 

### It then goes on to give express consent to any court having jurisdiction, without notice to the consenting parent, to (1) declare the child dependent and neglected, (2) award the custody to the State Welfare Department,and (3) authorize the Department to appear in court and assent to adoption. It also specificallywaives notice of adoptionproceedings and consents to the holding of such proceedings at any time. This masterpiece of obfuscationnever gets around to stating in a simple declaratory sentence what it clearlypurports to do---grantthe consent of the parent to the adoption of the child. Nevertheless,we hold that the waiver and consent signedby the appellant has the effect of being an unequivocal relinquishment of the child for adoption through the agency of the State Welfare Department. The child having been adopted through the agency of the State Welfare Department,authorized by appellant, appellant

nowhas no standing to collaterally attack the procedure in the district court of Cascade County by which this was, in part, accomplished. Appellant asks that the judgment of the district court of Cascade County finding the child dependent and neglected be set aside because the child did not meet the statutorydefinition of a dependent and neglected child. Section 10-501, R.C.M. 1947. We believe the statutory requirementwas fully met by the declaration of the appellant in her waiver and consent that shewas unable to care for the child, could not provide parental care or guidance,and could not perform the duties of a parent.Appellant urges finally that if the district court in Valley Countywas not apprised of her revocation at the time granted its final adoption decree, the concealment of the revocation "may" amount to fraud upon the court. 

### A district court decree shouldnot be setasi8.eon such an infirm allegation

nor upon the kind of proof of "fraud", if any, that the record in this case reveals. It is doubtless true, as argued by appellant's counsel, that notice to responsible officials in the Cascade County Welfare Departmentwould be constructivenotice to the State Welfare Department in general,and to its supervisor of welfare services,who gave his consent to the adoption on May 7, 1971. Itmay be true that some responsible official in the Cascade County Welfare Department received the letter of revocation prior to May 17,1971, the day the Valley County district court granted its final decree adoption,but the record in this case establishesneitherwhen the revocation letter was receivednmby whom. Section 93-1301-7(24), R.C.M. 1947,urged by counsel,helps not at all in determining these facts. It simply establishes a presumption that the letterwas received in due course. It does not tell us when or by whom. The district court made no finding in regard to eithermatter. The allegation of fraud fails for failure of proof. The orders of the district courts are affirmed.

--------rr-------------------d----- Hon. Gordon R. Bennett, sitting for Chief Justice James T. Harrison.We Concur:

Associate Justiices i

.,.

# ,/" Hon. Jack Shanstrom, District Judge, sitting for Justice Wesley Castles.

t I J