NO. 82-496 INTBE SUPREME COURT OF THE STATE OF MONTANA 1983

INTHEMATTER OF THEAPPLICATION OF KATHERINE IRENE PETERSONon behalf of AUDREY ANN PETERSON for a writ of Habeas Corpus.

Appeal from: District Court of the Thirteenth JudicialDistrict, Inand for the County of Yellowstone, The Honorable RobertH. Wilson, Judgepresiding.

Counsel of Record: ForAppellant: Michael Sol; Sol & Wolfe, Missoula,Montana Rosemary Boschert,co-counsel, Billings,Montana

For Respondent: Michael G. Eiselien,Billings,Montana

Submitted: March 2,1983 Decided: April 1,1983 

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# -1983 Filed:Mr. Justice John C. Sheehy delivered the Opinion of the Court.

This is an appeal by KIP, the natural mother of AAP, from an order issued by the District Court, Thirteenth Judicial District,YellowstoneCounty,deferring jurisdiction of a habeas corpus proceedings in Montana to an adoption proceedingspending in aWyoming DistrictCourt. AAP was born to KIP on March 15, 1980, in Park County, Wyoming. At the time of the child's birth,KIP was 20 years old and unemployed. In August 1980,the mother relinquished custody of the child to PB andAB,husband andwife, who were then living inWyoming. Thereafter,KIP moved to Montana to find employment. On October 7, 1980, KIP executed a handwritten instrument in which she stated that she wanted her daughter adopted by PB and AB, which instrument was notarized by a notary public residing inJoliet,Montana. On the same day,before the samenotary,KIP executed a written "child custody relinquishment and special power of attorney"whereby she placed custody of theminor child with PB and AB "for a term of not less than one year and so long thereafter as and until such time as temporary custody granting hereby shall be terminated by the undersigned." On November 21, 1980,before a notary public residing in Powell, Wyoming, KIP executed another written instrument in which she swore that the father of her daughter AAP was unknown to her and in which sheprayed the court to grant a very speedy adoption. An affidavit of Mark L. Reynolds, an attorney residing in Big Horn County, Montana, reveals that PB and AB filed anadoption petition in the Fifth Judicial District Court of Wyoming, Big Horn County. The Wyoming equivalent of the Montana Department of Social Rehabilitation Services is the Wyoming Department of Public Assistance and Social Services. From the attorney's affidavit it appears that the Wyoming department has investigated the adoption petition and has raised questions as to whether PB and AB would be able to provide adequately for the child. It is clear that the adoption proceedings inWyoming are stillpending. PBhad his leg amputated in September 1981,in Billings, Montana. Hehas sincebeen attending Eastern Montana College in Billings,Montana. He and his wife are residing with AAP in Billings, Montana. At the time of the filing of the petition by KIP fora writ of habeas corpus,the affidavit of Mark L. Reynolds indicatesthat it is the intention of PB and AB to complete the adoption proceedings and to provide a permanenthome forAAP. On March 19, 1982, before a notary public residing in Missoula,Montana, KIP executed a revocationof the temporary custodyof theminor child previously givenby her onOctober 7,1980, to PB and AB. An affidavit of a party notarized in Missoula,Montana, indicatespersonal delivery of the written revocation to PB and AB in Billings, Montana, and a subsequent information from AB that the revocation had been received,and that PB and AB would not relinquish control of theminor child. On October 12, 1982, KIP filed in the District Court, Thirteenth Judicial District, Yellowstone County, Montana, her petition forwrit of habeas corpus. In her petition she recites that she is the legal mother of AAP, that the father of the child "has never been judicially identified nor hisparental rights terminated;" that no court proceedings have been initiated to terminate her natural parental rights,and in her petition she contends that she executed the instruments above referred to under circumstances that would amount to fraud and duress. There are other facts contended for by the parties in briefs and in oral argument,but the foregoing facts reflect the stateof the courtrecord. The District Court,after hearing, made findingsof fact and conclusions of law. In effect, the District Court found that "primary jurisdiction in this case iswith the Wyoming Adoptive Court," that itwas for that court to determine the legality and the sufficiency of the documents signed by KIP and that if the Wyoming court determined that the documents

were proper and that KIP had surrendered her parental rights in the child, the decision of the Wyoming court would determine the custody rights between theparties as amatter of law. Thereupon, the Montana District Court deferred jurisdiction of the controversy to the Wyoming court in the adoptionproceedings. KIP has appealed the deferral of jurisdiction by the Montana District Court to the Wyoming DistrictCourt. There

are no Montana statutes which permit an appeal by a petitioner forwrit of habeas corpus from the District Court to this Court. This Court holds, however, that an appeal lies from an order of the District Court denying a writ of habeas corpus in a case involving the custody of a minor child. State v. Booth (1958), 134 Mont. 235, 239, 328 P.2d 1104; State ex rel. Veach v. Veach (1948), 122Mont. 47, 53, 195 P.2d 697; Ex parte Reinhardt (1930), 88 Mont. 282, 286,287, 292 P. 582; In Re Thompson (1926), 77 Mont. 466, 469-470, 251P. 163. KIP contends before this Court that jurisdiction is in the Montana. District Court since all parties were now residing in Montana; that before the District Court refused the writ, it should have found that Montana was an "inconvenient forum,"or applied the "substantial conformity" test under the Uniform Child Custody Jurisdiction Act; that the documents before the Montana District Court created a presumption that KIP had the right to the custody of the child and that custody jurisdictionwas in Montana; that the Wyoming adoption proceedings were void because PB and AB had failed to comply with Wyoming statutes requiring the adoption to be filed when the child enters the prospective adoptive home, the hearing to be set when the petition is filed, and the petition be filed by persons residing in Wyoming; that the adoption proceedings should have been filed in Montana; and that PB and AB violated the Interstate Compact for Placement of Children Act by bringingAAP to Montana without placement authorization from the Wyoming authorities. There canbe no question that jurisdiction of the habeas corpus proceedings is properly in the DistrictCourt sitting in Yellowstone County. That iswhere the child is presently located, within the jurisdiction of the Yellowstone County DistrictCourt. Section 46-22-202,MCA. It appears equally certain that the Wyoming District Court has custody of the adoptionproceedings. The petition filed therein recites that the proposed adoptive parents and theminor child.are residents of Deaver, in the County of Big Horn, Wyoming; it alleges the execution of the consent to adoption by KIP, filed with the petition, and KIP'S furtheraffidavit that the father of the child isunknown to her. In Wyoming, any adult persons residing in Wyoming and found by the Wyoming court to be fit and competent,may petition for adoption. W.S. 1-22-103. The petition is to be filed by persons residing in Wyoming. W.S. 1-22-103. Under W.S. 1-22-111, the Wyoming District Court may defer the entry of

an interlocutorydecree of adoption and order theDivisionof Public Assistance and Social Services to investigate and report to the court. Thereafter, it is the duty of the Wyoming District Court to determine the best interest and welfare of the child with respect to the adoption proceedings. Under W.S. 1-22-114,a final decree of adoption by the Wyoming District Court deprives a parent of the controland custody of the child. Wyoming statutes further provide that awritten consent to adoption by the parent of a minor filed with an adoption petition is irrevocable unless the court determines that it

was obtainedby fraud orduress. W.S. 1-22-109. Under the state of the record here, the Yellowstone County District Court has jurisdiction of the habeas corpus proceeding concerning the custody of a child. At the same time the Wyoming District Court also has jurisdiction of a proceeding concerning the custody of the same minor child. In that situation, the Montana District Court is controlled by the provisions of section 40-7-107(1), MCA, (UniformChild Custody JurisdictionAct), in followingeffect: "A court of this state may not exercise its jurisdiction under this chapter if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this chapter unless the proceeding is stayed by the court of the other state because this state is a more appropriate forum or for other reasons."The issues on which KIP relies in the habeas corpus proceedings inMonta-na, namely, that the instrumentsexecuted by her were executed under fraud and duress, are issues that

are equally triable in the adoption proceedings in the Wyoming District Court. Custody proceedings "includes proceedings in which a custody determination is one of several issues 

# . . . and includes issues of custody in an adoptionproceeding." Section 40-7-103(3),MCA. Counsel for KIP misconstrue the application of section 40-7-108, MCA (UniformChild Custody Jurisdiction Act) with respect to an inconvenient forum. That statute applies when the court in which the proceedings are pending (here the Yellowstone County District Court) determines that 

### - it is an inconvenient forum, not that the court of another jurisdiction or of another state is an inconvenient forum. Moreover, the duty of the Montana District Court not to exercise its jurisdiction because of the pendency of proceedings in another forum under section 40-7-107,MCA, is not made statutorily dependent upon a further finding of inconvenient forumunder section 40-7-108,MCA. TheMontana DistrictCourt here properly made no attempt to determine the merits of the issues raised by KIP in the habeas corpus proceedings nor do we on this appeal. The determination of those issues is properly left to a trier of fact in aproper jurisdiction. Section 40-7-107, MCA, further provides in subsection (3)of that statute: 

### "(3) If the court is informedduring the course of the proceeding that a proceeding concerning the custody of the child was pending in another state before the court assumed jurisdiction, it shall stay the proceeding and communicate with the court inwhich the otherproceeding ispending to the end that the issue may be litigated in the moreappropriate forum and that informationbe exchanged in accordance with 40-7-120 through 40-7-123

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In cases of simultaneous proceedings, the provisions of section 40-7-107(3)

## ,MCA, should be followed. In this case

we have a child of tender years, and it ismost appropriate that a decision be made in a proper forum to determine the custodial rights to AAP. In furtherance of that objective,

we have expedited theproceedings on this appeal. It was revealed at oral argument that it has been difficult for counsel for both parties to obtain information respecting the Wyoming adoption proceedings because they are out of state attorneys, and because W.S. 1-22-105, requires that all hearings in Wyoming adoption proceedings be confidentialand held in closed court. We therefore affirm the decision of the Yellowstone County District Court to stay proceedings and to defer its jurisdiction in the habeas corpus action to the jurisdiction of the Wyoming District Court in the adoption proceedings. We order the presiding judge of the District Court in Yellowstone County in the habeas corpus proceedings to communicate with the District Court in Wyoming handling the adoption proceedings by forwarding to the Wyoming District Court forthwith a copy of its findings, conclusionsand order deferring juri-sdictionto the Wyoming court and a copy of this opinion. The stay of proceedings in the Montana District Court shall be and remain in effect until written notice is received by the Montana District Court of a final determination of the Wyoming District Court as to jurisdiction or custody. n 

# i/ JusticeWe Concur:

Justices

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