No. 12287 INTHE SUPREME COURT OF THE STATE OF MONTANA



### BARBARA-.BONSEq, 

### Formerly Barbara Sanders, Appellant,



### COUNTY OF CASCADE and 

### STATE OF MONTANA, Respondents.

Appeal from: 

### District Court of the Eighth Judicial District, Honorable Truman G. Bradford, Judge presiding. Counsel of Record: For Appellant: Barney Reagan, Helena, Montana Richard Shors argued, Cut Bank, Montana For Respondent: Hon. Robert L. Woodahl, Attorney General, Helena,

Montana Thomas Mahan, SpecialAssistant Attorney General,

appeared, Helena, Montana J. Fred Bourtleau, County Attorney, Great Falls, Montana Michael J. Greely, Deputy CountyAttorney, Great Falls Montana James Walsh argued, Deputy County Attorney, Great Fa

### 11s

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Montana

Submitted: February 27, 1973Mr, JusticeWesley Castles delivered the Opinion of the Court.

This isan appeal from an order granting permanent custody with the right toconsent to adoption tothe StateWelfare Department of Montana. The order was made concerning three named childrenby the district court of the eighthjudicial district, Cascade County, the Hon. Truman G. Bradford, presiding. The appeal isby the mother. The single issue iswhether the district court had jurisdiction to enter an order dated February 9, 1972, granting permanent custody to the state. A petition dated June 

### 11, 1971, requesting custody of five of appellant's childrenwas filedJuly 9, 1971, by the state. A district court order dated July 9, 1971, set a hearing forJuly 21, 1971, on the petition for custody and ordered a citationbe issued and served on the natural parents. The sheriff's return showed service of the citation on appellant on July 10, 1971, and on the father of one of the children on July 12, 1971, The district court record forJuly 21, 1971, indicates the court granted a motion by the state's attorney tocontinue the matter for three months with temporary custody inthe state, and the matter was continued to October 20, 1971. 

### On November 9, 1971, the state filed a petition dated November 1, 1971, forpermanent custody and the right to consent to adoption for three of appellant's children. A document entitled "Admission of Service" and dated November 

### 4, 1971,

was filed on November 

### 11, 1971. This document stated:

IIService of the Petition for Permanent Custody in the above entitledmatter, and receipt of a true copy thereof, ishereby admitted and acknowledged this 4th day of November, 1971." The document showed the signature of Gregory H. Warner, Subpoenas where issued to severalwitnesses fora hearing on November 18, 1971. Appellant and her attorney, Gregory 13. Warner, were presentatthehearing. Testimony was presented to the court by respondent and appellant. Appellant urges a lack of jurisdiction by the trial court inthat no formal citationwas issued for the petition seeking permanent custody filedNovember 

### 9, 1971. In this connection appellant urges that service of the petition for permanent custody on appellant's attorney, orher appearance with her attorney forhearing and going forward with thehearing,

was not effective for anyjurisdictional purposes, The record isclear that appellant voluntarily appeared with her attorney, brought up thejurisdiction question, was offered a postponement of a week, and then agreed toproceed with a hearing on the merits of the petition, Just the foregoing statement of the situation answers the issue, Clearly any objection tojurisdiction was waived; and just as clearly the court alreadyhad jurisdiction over the children and the mother. But, to clarify further, the followi.ng record is quoted: 

### "MR. WALSH: For the record, the father of the children involved inthis hearing is dead. The father of [one child] 

### is a patient atthe Veterans Administration Hospital atFort Harrison, He has given a written consent and waiver of notice and consent to adoption already so he isnot present. For the record the mother of the children 

### is Barbara Bonser Lang, who 

### is not in Court.

'ITHE COURT: 

### A11right, 

### "MR.WARNER: I have one preliminary matter. Has a citationbeen served on )lrs. Bonser? 

## "fa. WALSH: I'm sure itwas, "MR. WARNER: Pfrs, Bonser Lang, "THE COURT: She seems tobe here incourt, "b~.WALSH: She is incourt inany event, "MR. FIARNER: For the record I would like tomake an objection. There are two petitions as I understand itwhich have been filed, One was filed July 

### 9, 197J, which isan open petition. It doesn't specify permanent or temporary custody, As I understand it, prior to this time the childrenwere picked up. Secondly, on November 1st 

### a second petition for permanent custody was filed seeking permanent custody."THE COURT: It appears tobe November 9th, "14R. WARNER: Excuse me, It is dated November lst, The petition sets forth their proceeding pursuant to Section 10-504 which 

### is the statute governing a dependent and neglected proceeding. That section does specify inmandatory language that 

### a citation shallbe issued upon the parents of the children involved who are present inthe County. I would like tomake an objection atleast to the second petition, that this citationhas not been served upon the mother and that such a defect 

### isa jurisdictional defect and I would refer toHenry Young, which held that thejudgment was void when the citationwas not served and Stateex rel. Cowan, 312 Pac.2d 119, which specificallyheld that citation fixing the date and the time of hearing must be issued and served upon the parents as a jurisdictional prerequisite to the court determining custody pursuant to any petition that is filed,

" THE COURT: In those cases, did anybody appear? "IB, WARNER: Yes. "tfR. FTALSH: If I may, your IJonor. The original petition inthis casewas filed on the 11th day of June, 1971. I am sure the record and the minutes, minute entries in this case, willshow that the mother of allfive of these childrenhave appeared previously to this and has appeared inthe company of counsel and has been represented by counsel. The record 

### willalso show, the filewill show, that on the4th day of November, 1971, a copy of the petition for permanent custodywas served on counsel for the mother and that the hearing on the original petition had been postponed until---at least twice with the consent of counsel who represented 

### Mrs. Bonser, Mrs. Bonser has appeared previously with counsel and, if the Court please, the original petition was served upon her and the Court assumed jurisdiction atthat time, Since that time itwould be a useless and meaningless act toreserve her since she

### was represented by counsel. "MR. WARNER: Your Honor, we do not deny we have notice of the original petition, and I admitted service on the second petition, The only objection I am raising is the one that 

### is set forth in the statute that requires that a citation fixing the day and time of the hearing of such petition shall be served upon one orboth of the parents and to the extent that that is a jurisdictional requirement, we do raise that objection. And itrelates particularly to the subsequent peti&n that was filed for permanent custody. Now on the original petition ---you say itwas filedJuly--June 111 "MR, WALSH: 1'mnot sure of the date of the filing, "THE COURT: The originalpetitionwas filed on July the 9th. "MR. WARNER: July the 9th, Secondly, I would like tomake a second objection that it 

### is my understandingof the facts that the childrenwere picked up without process on approximately June llth, or June 15th sf 1971, and that the statuterequires that the officer so proceeding pursuant to Section 10-503, it states: '1t shallbe the duty of said officer within 

### 48 hours thereafter to filea petition and proceed asherein provided for.' To that extent, we would make the objection to the original petition that itwas not filedwithin

### 48 hours of the time the childrenwere picked up. "MR. WALSH: If I may, your Honor, the State contends any such objection was waived by any party who may raise the objection atallby virtue of the fact that she again did appear incourt pursuant to the citation on the 21st day of July. At that time, inthe presence of counsel, and I think the minutes willshow this, therewas a stipulation that the children could be kept in the custody of theWelfare Department until the 20th of October, atwhich time on the 20th of October the matter was again continued with the consent of counsel and with the consent of the mother. And again contained untiltoday, both by stipulation of counsel and the mother. "MR. WARNER: Your Honor, we recognize that we have stipulated to that temporary custody, but the objectionwe aremaking is purely jurisdictional. And jurisdiction has tobe determined atthe time of the commencement of the action. If itwas lacking atthe time the petition was filed then the court would be without power to exercise any determination pursuant to that petition. "THE COURT: Let me ask you, do you want tohear thisnext week or do you want tohear it today? I can continue the matter untilnext Thursday. She ishere and we will let her lcnow so that she has had--- thatwilltake the place of the citation I would hope. She ishere and present and would know. If you want tohear itnext week, we could come back next week and do it, If you want tohear itnow, we canhear itnow. "MR. WARNER: I 

### amnot going towaive any rights she may have to thejurisdiction if there 

### is any defect inthe record as it stands now, "THE COURT: Allright, She knows now shewillbe here next Thursday. "MR. WARNER: I don't know if that 

### is the solution to the problem. "THE COURT: It certainly does it. The only purpose of the citation is to give them notice tobe here so they know when the hearing 

### is. That is the purpose of the citation, If she knows, why does she know. "MR. WARNER: We arewilling toproceed atthis time, but 1'mnot going towaive any objection thatwe may have to the service of the citation. "THE COURT: How did she get notice tobe here today?"MR. WARNER: After considerable discussion we were prepared tocome here at 10:30 and itwas postponed until 2:00, "THE COURT: How did she know itwas today? "MR. WARNER: I personally went toher house 

### at 5:30 yesterday and toldher the hearing was tobe held today 

### at 10:30. "THE COURT: Do you need any further time toprepare for thehearing? How longhave you known about it? "MR.. WARNER: We areready to proceed with the hearing if the Court wants toproceed. "THE COURT: Allright, let's go. II ~p~ellant's argument hinges entirely on the formality of issuance and service of a citation. However, appellant's argument overlooks the clear fact that the court alreadyhad jurisdiction and appellant's actions were a waiver as toprocedural rights, Appellant cites section 10-504, R.C,M. 1947, which specifies the issuance of citation and service of notice for the obvious purpose of due process of law and fairness, It provides fortwo days notice, It 

### is designed togivenotice forpreparation of facts or defenses. It provides for temporary, expedient measures with subsequent formal proceedings. Just

ashere, under the record heretofore set forth, once jurisdi.ction 

### ishad interested parties may waive theirrights. Appellant also cites Stateex rel. Cowan v. District Court, 131Mont, 502, 312 P.2d 119, for the principle that a citation must issue asa jurisdictional prerequisite. Cowan does stand for the proposition that ifanyone other than the welfare department brings the action, it 

### ismandatory that a citation issue and be served on thewelfare department, as section 10-504 provides. In the instant case, as previously stated, jurisdiction was had atalltimes. The mother was represented by counsel atall times. She had a series of hearings and postponements and finally appeared voluntarily. Ifnothing else, the court's order and direction on the day of hearing 

### is, under these circumstances,a citation sufficient to comply with the statute. The appellant, through counsel, clearlywaived the other procedural rights. We find no error, Appellant has not urged nor argued the merits, but we have studied the transcript and find the best interests of the children, inview of the evidence presented atthehearing, show that the district court judge's order was proper.

I

>'c i'r Jc 9; Mr. Justice Gene B. Daly and Mr..Justice Frank I, Haswell dissenting: We dissent. We do not quarrel with the district court's findings on the merit as it concerns the health and welfare of the children. The problem here iswhether the district court had jurisdiction inthis case, that 

### is, the right tohear and determine the matter atall, Here the Stateof Montana filed a petition on June 11, 1971, seeking temporary custody of five children; had a proper citation issued; a hearing date set; and the parties served as directedby section 10-504, R.C.M. 1947, and thereby acquiredjurisdiction for that purpose. The hearing was continued for three months, with temporary custody in the State, until October 20, 1971. That hearing was

never held. On November 9, 1971, the Stateof Montana filed a new petition seeking permanent custody and the right to consent to adoption for only three of the fivechildren. A proper citationwas never issued or served on the parents. The State served the attorney for the parents under the amended complaint theory,with the petition. The State argues that the purpose of the citation and service 

### is for "notice" and therefore ithas met the requirements of the statute. This isa new action, not affecting allof the children inthe original petition for temporary custody, asking to extinguish

# - allparental rights as opposed to merely custody as

was asked for originally. The issuance and service of citation 

### isjurisdictional and failure to comply leaves the courtwithout authority toact. This Court previously so held in the following decision: In theMatter of Declaring Georgia Arlene Young a Dependent and Neglected Child, 143Mont. 230, 232,

Associate Justices.