No. 12155 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1972 

IN THE MATTER OF THE APPLICATION OF 

DEBORAH LYNN HENDRZCKSON ON A WRIT 

OF HABEAS CORPUS. 

Appeal from: District Court of the Seventeenth Judicial District, 

Honorable Thomas~Dignan,Judge presiding. 

Counsel of Recofd: 

For Appellant: 

Dzivi, Conklin, Johnson and Nybo, Great Falls, 

Montana. 

William Conklin argued, Great Falls, Montana. 

Far Respondent: 

Thomas M. Mahan argued, Helena, Montana. 

Gordon White, 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 :@PX 2 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 a writ 

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 County Welfare 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 

natural mother of Baby Girl Hendrickson whose date 

and place of birth is follows, 3-20-71-Great Falls, 

Montana 

"The said undersigned parent irrevocably declares 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 undersigned parent fully understands 

that when this affidavit of relinquishment is 

signed, all of the rights to the custody, services, 

and earnings of said minor child and any responsibility for the care and support of said minor child 

will be terminated and that said child cannot be reclaimed by the undersigned. 

I I Now, the undersigned parent knowingly, freely 

and voluntarily gives consent to have any court, 

having jurisdiction over such matters, 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 Public Welfare 

to appear in any court where adoption proceedings 

are pending and assent to the adoption of the said 

minor child. 

"And that the undersigned parent hereby expressly waives any and all notice of or for any 

process of citation from any Court declaring said 

child a dependent and neglected child, and awarding 
said 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 of March, 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 I In Witness Whereof, I have hereunto set my 

hand and affixed my official seal the day and year 

in this certificate first above written. 

"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 order was based on the aforementioned waiver 

and consent. 

On May 17, 1971, the district court in Valley 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 

in Valley County for a writ of habeas corpus and that court on 

June 10, 1971, issued its writ, returnable June 21, 1971, later 

changed to July 22, 1971. Hearing was had and judgment was 

filed September 7, 1971. Appellant's motion to amend findings 

of fact and to make additional findings of fact was denied 

September 23, 1971. Appellant now appeals from the judgment. 

Appellant contends that her consent and waiver were withdrawn by a letter dated May 12, 1971, signed by her, addressed 

to the Cascade County Department of Public Welfare in Great 

Falls and mailed 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 any way 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 declaration of the district judge in Valley 

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 in pertinent part: 

 h he entry of the interlocutory or 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, letter was an effective revocation. 

In addition to the portion heretofore quoted, Section 61- 

206, R.C.M. 1947, provides: 

"Withdrawal of any consent filed in connection with 

a petition for adoption hereunder, shall not be permitted, except that the court, after notice and 
opportunity 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 child will be 

furthered thereby, issue a written order 

permitting the withdrawal of such consent." 

It will be noted that withdrawals of consent are not 

generally permitted. There is, however, a single exception, 

The court may permit withdrawal by written order upon a 

finding that the best interest of the child will be furthered 

thereby. This can be done only after notice to the petitioner 

in an adoption proceeding, to the person seeking to withdraw 

the consent, and to any agency participating in the adoption 

proceeding. 

The statute thus sets forth a clear procedural requirement 

for withdrawal of consent. That procedural requirement was not 

met in this case before a final decree of adoption was entered. 

It follows that the district courts in both Valley and Cascade 

Counties were without legal authority to grant permission for 

the withdrawal of the consent at the time appellant filed her 

petition for writ of habeas corpus. 

Appellant attacks the validity of the given consent and 

waiver on several grounds. Admitting that she executed the 

document, she maintains that her intent was solely to consent 

to adoption; that she did not understand she was consenting to 

a declaration that the child was dependent and neglected; that 

the form was dated and notarized the day following the execution; and, that she was 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 signed without difficulty, and had been 
negotiating with 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 kill pain 

at the time she executed the document and that she was "really 

relaxed" but she knew what she was talking about and what was 

going on. She was 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 adoption was 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 essential validity, nor should her 

misapprehension as to the availability of her parents' assistance 

in raising the child. This was her misapprehension, which she 

had an opportunity to correct for months 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 

adoption was invalid because no hearing was had as required by 

Section 10-501, R.C.M. 1947, et seq., and the child was not 

physically before the court as required by section 10-508, 

R.C.M. 1947. 

The waiver and consent document signed by the appellant 

is the standard form used in such cases by the State Welfare 

Department (now the Department of Social and Rehabilitation 

Services). It does not clearly and 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 the 
consenting 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 specifically waives 

notice of adoption proceedings and consents to the holding of 

such proceedings at any time. 

This masterpiece of obfuscation never gets around to 

stating in a simple declaratory sentence what it clearly purports to do---grant the consent of the parent to the adoption 

of the child. Nevertheless, we hold that the waiver and consent signed by 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 

now has 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 statutory definition of a dependent and neglected child. Section 10-501, 

R.C.M. 1947. We believe the statutory requirement was fully 

met by the declaration of the appellant in her waiver and consent that she was 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 County was 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 should not be setasi8.e on 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 Department would be constructive notice 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. It may 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 establishes neither when the revocation 

letter was receivednm by 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 letter was received in due course. It does 

not tell us when or by whom. The district court made no finding 

in regard to either matter. 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