No. 12287 

IN THE 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, Special Assistant Attorney General, 

appeared, Helena, Montana 

J. Fred Bourtleau, County Attorney, Great Falls, Montana 

Michael J. Greely, Deputy County Attorney, Great Falls 

Montana 

James Walsh argued, Deputy County Attorney, Great Fa 11s , 

Montana 

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

This is an appeal from an order granting permanent custody 

with the right to consent to adoption to the State Welfare Department of Montana. The order was made concerning three named 

children by the district court of the eighth judicial district, 

Cascade County, the Hon. Truman G. Bradford, presiding. The 

appeal is by the mother. 

The single issue is whether 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 children was filed July 9, 1971, by the 

state. A district court order dated July 9, 1971, set a hearing 

for July 21, 1971, on the petition for custody and ordered a 

citation be 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 for July 21, 1971, 

indicates the court granted a motion by the state's attorney 

to continue the matter for three months with temporary custody 

in the state, and the matter was continued to October 20, 1971. 

On November 9, 1971, the state filed a petition dated 

November 1, 1971, for permanent 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: 

I I Service of the Petition for Permanent Custody 

in the above entitled matter, and receipt of a 

true copy thereof, is hereby admitted and acknowledged this 4th day of November, 1971." 

The document showed the signature of Gregory H. Warner, Subpoenas 

where issued to several witnesses for a hearing on November 18, 

1971. Appellant and her attorney, Gregory 13. Warner, were present 
at the hearing. Testimony was presented to the court by 

respondent and appellant. 

Appellant urges a lack of jurisdiction by the trial 

court in that no formal citation was issued for the petition 

seeking permanent custody filed November 9, 1971. In this 

connection appellant urges that service of the petition for 

permanent custody on appellant's attorney, or her appearance 

with her attorney for hearing and going forward with the hearing, 

was not effective for any jurisdictional purposes, The record 

is clear that appellant voluntarily appeared with her attorney, 

brought up the jurisdiction question, was offered a postponement 

of a week, and then agreed to proceed with a hearing on the 

merits of the petition, 

Just the foregoing statement of the situation answers 

the issue, Clearly any objection to jurisdiction was waived; 

and just as clearly the court already had 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 in this hearing is dead. The 

father of [one child] is a patient at the Veterans 

Administration Hospital at Fort Harrison, He has 

given a written consent and waiver of notice and 

consent to adoption already so he is not present. 

For the record the mother of the children is Barbara 

Bonser Lang, who is not in Court. 

'ITHE COURT: A11 right, 

"MR. WARNER: I have one preliminary matter. Has 

a citation been served on )lrs. Bonser? 

"fa. WALSH: I'm sure it was, 

"MR. WARNER: Pfrs, Bonser Lang, 

"THE COURT: She seems to be here in court, 

"b~. WALSH: She is in court in any event, 

"MR. FIARNER: For the record I would like to make 

an objection. There are two petitions as I understand it which have been filed, One was filed July 

9, 197J, which is an open petition. It doesn't specify 

permanent or temporary custody, As I understand it, 

prior to this time the children were picked up. 

Secondly, on November 1st a second petition for permanent custody was filed seeking permanent custody. 
"THE COURT: It appears to be 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 in mandatory language that a citation 

shall be issued upon the parents of the children 

involved who are present in the County. I would like 

to make an objection at least to the second petition, 

that this citation has not been served upon the 

mother and that such a defect is a jurisdictional 

defect and I would refer to Henry Young, which held 

that the judgment was void when the citation was 

not served and State ex rel. Cowan, 312 Pac.2d 119, 

which specifically held 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 in this case was filed on the 11th day of 

June, 1971. I am sure the record and the minutes, 

minute entries in this case, will show that the 

mother of all five of these children have appeared 

previously to this and has appeared in the company 

of counsel and has been represented by counsel. 

The record will also show, the file will show, that 

on the 4th day of November, 1971, a copy of the 

petition for permanent custody was 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 at that time, Since that time it would 

be a useless and meaningless act to reserve 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 or both of the parents and to the 

extent that that is a jurisdictional requirement, 

we do raise that objection. And it relates particularly to the subsequent peti&n that was filed 

for permanent custody. Now on the original petition 

---you say it was filed July--June 111 

"MR, WALSH: 1'm not sure of the date of the filing, 

"THE COURT: The original petition was filed on July 

the 9th. 

"MR. WARNER: July the 9th, Secondly, I would like 

to make a second objection that it is my understanding 
of the facts that the children were picked up 

without process on approximately June llth, or 

June 15th sf 1971, and that the statute requires 

that the officer so proceeding pursuant to 

Section 10-503, it states: '1t shall be the duty of 

said officer within 48 hours thereafter to file a 

petition and proceed as herein provided for.' To 

that extent, we would make the objection to the 

original petition that it was not filed within 48 

hours of the time the children were 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 at all by virtue of 

the fact that she again did appear in court pursuant 

to the citation on the 21st day of July. At that 

time, in the presence of counsel, and I think the 

minutes will show this, there was a stipulation 

that the children could be kept in the custody of 

the Welfare Department until the 20th of October, 

at which 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 

until today, both by stipulation of counsel and the 

mother. 

"MR. WARNER: Your Honor, we recognize that we have 

stipulated to that temporary custody, but the objection we are making is purely jurisdictional. And 

jurisdiction has to be determined at the time of the 

commencement of the action. If it was lacking at the 

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 to hear 

this next week or do you want to hear it today? I 

can continue the matter until next Thursday. She 

is here and we will let her lcnow so that she has had--- 

that will take the place of the citation I would hope. 

She is here and present and would know. If you want 

to hear it next week, we could come back next week and 

do it, If you want to hear it now, we can hear it now. 

"MR. WARNER: I am not going to waive any rights she 

may have to the jurisdiction if there is any defect 

in the record as it stands now, 

"THE COURT: All right, She knows now she will be 

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 to be 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 are willing to proceed at this time, 

but 1'm not going to waive any objection that we may 

have to the service of the citation. 

"THE COURT: How did she get notice to be here today? 
"MR. WARNER: After considerable discussion we 

were prepared to come here at 10:30 and it was 

postponed until 2:00, 

"THE COURT: How did she know it was today? 

"MR. WARNER: I personally went to her house at 

5:30 yesterday and told her the hearing was to be 

held today at 10:30. 

"THE COURT: Do you need any further time to prepare 

for the hearing? How long have you known about it? 

"MR.. WARNER: We are ready to proceed with the hearing 

if the Court wants to proceed. 

"THE COURT: All right, let's go. I I 

~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 already had 

jurisdiction and appellant's actions were a waiver as to procedural 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 for two days notice, It is designed to give notice 

for preparation of facts or defenses. It provides for temporary, 

expedient measures with subsequent formal proceedings. Just 

as here, under the record heretofore set forth, once jurisdi.ction is had interested parties may waive their rights. 

Appellant also cites State ex rel. Cowan v. District Court, 

131 Mont, 502, 312 P.2d 119, for the principle that a citation 

must issue as a jurisdictional prerequisite. Cowan does stand 

for the proposition that if anyone other than the welfare department brings the action, it is mandatory that a citation issue 

and be served on the welfare department, as section 10-504 provides. 

In the instant case, as previously stated, jurisdiction was had 

at all times. The mother was represented by counsel at all 

times. She had a series of hearings and postponements and finally 

appeared voluntarily. If nothing 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, clearly waived 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, in view of the evidence presented at the hearing, 

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 is whether the district court had jurisdiction in this case, that is, the right to hear and determine 

the matter at all, 

Here the State of 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 directed 
by section 10-504, R.C.M. 1947, and thereby acquired jurisdiction 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 State of Montana filed a new 

petition seeking permanent custody and the right to consent 

to adoption for only three of the five children. A proper 

citation was 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 it has 

met the requirements of the statute. 

This is a new action, not affecting all of the children 

in the original petition for temporary custody, asking to 

extinguish - all parental rights as opposed to merely custody as 

was asked for originally. The issuance and service of citation 

is jurisdictional and failure to comply leaves the court without 

authority to act. This Court previously so held in the following 

decision: 

In the Matter of Declaring Georgia Arlene Young a 

Dependent and Neglected Child, 143 Mont. 230, 232, 

Associate Justices.