No. 12135 INTHE SUPREME COURT OF THE STATE OF MONTANA 1972

INTHE MATTER OF DECLARING MERLE EARLWIN CbNTRELL (alsoknown asMerle Earlwin Savior) A DEPENDENT AND NEGLECTED CHILD.

Appeal from: District Court of the Seventeenth Judicial District, Honorable Thomas Dignan, Judge presiding

# . Counsel of Record: For Appellant: Robert L. LaRoche argued, Wolf Point, Montana. For Respondent: Hon. Robert L. Woodahl, Attorney General, Helena,

Montana. Gordon White, County Attorney, Glasgow, Montana. Thomas Mahan argued, Helena, Montana.

Submitted: March 13, 1972 Decided

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### Mr. JusticeWesley Castles delivered the Opinion of the Court.

This 

### is an appeal from an order dated May 21, 1971, by the district court of the seventeenthjudicial district, Valley County, the Hon. Thomas Dignan, presiding. The appellant is a 22 year old unwed mother of an illegitimatechild. The order appealed from reads: "This matter coming on to be heard January 25, 1971, upon the petition of Joseph H. Roe, the duly appointed, aualified, and actingDirector of the Division of Child Welfare Services of the Department of Public Welfare of the State of Montana, for and on behalf df the above named child, atwhich time thereappeared inCourt Marveen Savior, mother of said child, with Robert LaRoche, her counsel, and Wayne James Cantrell, father of said child, toshow cause, if any they had, why the saidMerle Earlwin Cantrell (alsoknown as Merle Earlwin Savior) should not be declared a dependent and neglected child, and awarded to the care, custody, and control of theDivision of Child Welfare Services of the Department of PublicWelfare of the Stateof Montana, as prayed for in said petition; "Whereupon, witnesses were duly sworn and examined on behalf of the petitioner, and testimony being $iven by the parents of said child, the Court took said matter under advisement, and continued saidmatter from time totime todetermine whether saidMarveen Savior, mother of said child, could make arrangements for a suitablehome and adequate careand supervision of said child; and upon a further hearing of said matter before the Court on May 21, 1971, additional testimony was offered inbehalf of the Petitioner, and the Court being advised in thepremises and upon due proof finds: 

### hat the saidMerle Earlwin Cantrell (alsoknown asMerle Earlwin Savior) 

### is a minor child, who was born January 26, 1969, atPoplar, Montana, and 

### is a dependent and neglected child within the meaning of Section 10-501, Revised Codes of Montana, 1947, and he is a child of the saidMarveen Savior and Wayne James Cantrell, and that his best interests willbe served by declaring him tobe a dependent and neglected child under the laws of the State of Montana and awarding him to the care, custody, and control of the Division of ChildWelfare Services of the Department of Public Welfare of the State of Montana, and the Director or any worker thereof, with lawful authority toappear inCourt and consent tohis adoption."WHEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED, that the saidMerle Earlwin Cantrell (also known as Merle Earlwin Savior) is a dependent and neglected child and that he be and he 

### is hereby awarded to the care, custody, and control of the Division of the Child Welfare Services of the Department oiPublic Welfare ot the State of Montana, or the director or any worker thereof; "IT IS FURTHER ORDERED, that the said Director or any worker of the said Division of Child Welfare Services of the Department ot Public Welfare of the State of Montana 

### is hereby authorized toappear in any court where adoption proceedings arepending, and assent tothe adoption of the saidMerle Earlwin Cantrell (alsoknown asMerle Earlwin Savior)

# ." The foregoing order of May 21, 1971, recites some of the facts and particularly refers to the period from January 25, 1971, toMay 21, 1971, during which time a further determination of arrangements for care by the mother was examined. Atthehearing on May 21, 1971, the mother did not appear in court, although shehad notice, Her counsel did appear. A year previous, on May 18, 1970, the same court made an order for temporary custody which recited:

IIIt appearing tothe Court that Merle Earlwin Savior, a male child born January 26, 1969, at Poplar, Montana, is a dependent and neglected child within the meaning or the Revised Codes of Montana, 1947, inthat the childwas found wandering around on the Burlington Northern Empire Builder west bound train atGlasgow, Valley County, Montana, on May 18, 1970, without any supervision or care, and that said childwas then and there suffering from neglect by the putative father, Wayne James Cantrell, in that saidWayne James Cantrell was ina drunken stupor; that in consequence whereof, the Department of Public Welfare of Valley County, Montana, was called toassume the careand control of said minor child; that said childhas a very serious cleft palate, and is suffering from a slight cold; that the mother of said child, whose given name 

### is unknown, but whose surname is believed tobe Savior (or Xavier) and is believed toreside atWolf Point, Montana; that by reason of neglect, abuse, and inability on the part of the child's parents to care properly and adequately for the said child as towarrant theDepartment of Public Welfare of Valley County, Montana, in the interest of the said child, toassume immediate temporary care, custody, and control of the saidminor child, and it furtherappearing to the Court that a petition todeclare said child dependent and neglected within the meaning of Section 10-501, R.C.M., may be filed shortlyherein and that the Court deems it tobe in the best interest of said child that the Department of Public Welfare of ValleyCounty, Montana, take immediate temporary care, and custody of said child pending the hearing as provided by law; "NOW, THEREFORE, ITIS ORDERED that immediate temporary careand custody of said child be given to the Department of Public Welfare, Valley County, Montana, until the further order of the Court." On that same day, May 18, 1970, Wayne James Cantrell, the putative fatherwas charged injustice court inValley County with willfulneglect of a minor child, a misdemeanor. On May 19, 1970, Cantrell pleaded guilty and received a suspended sentence. The child was found abandoned and helpless inValley County, not on an Indian reservation. Section 10-503, R.C.M. 1947, provides for procedure in this situation. The child had been placed by 

### its mother in the care of

a babysitter on May 15, 1970. Prior tothemother's return, the putative father took the child. Some three days later, on May 18, 1970, the father took the child from the reservation with the intention of going toIdaho by train. The journey was shortlived. The Valley County Welfare Department took the child from itshelpless position with its intoxicated father and placed it ina foster home. Prior tothese events, in 1969, the same child had been taken from the mother's custody by order of the Tribal Court of the Fort Peck Indian Reservation on the grounds of parenta1neglect, and sometime in early 1970, had been returned to 

### itsmother. In the period of time from May 1970, toJanuary 1971, and

on toMay 1971, themother made almost no effort toretrieve, ifwe may use that term, her child. In this'time, she did ask for the child but had no home totake him to. The childneeded and received corrective surgery for cleft palate, arranged for by theWelfare Department. In lateOctober 1970, the mother wrote to the Valley County authorities to this effect: 

# "** *'Iwas supposed tohave gotten in touch with theWelfare Department in Glasgow soon afterhe was taken fromWayne J. Cantrell. I failed todo so.

## '" From a rather dismal record of arrests, livingwith men unmarried, and general inattention, the mother continued her way of living on the reservation while the childwas being cared for off the reservation. Appellant here bases her appeal on what she calls the

1'fact" that there 

### is no evidence of acts of neglect attributable toher occurring outside the exterior boundaries of the reservation. Thus, she reasons, the statecourts have no jurisdiction under the rationale of Williams 

### v. Lee, 358 U.S. 217, 79 S.Ct.269, 3 L ed 2d 251; Kennerly v. District Court of Montana, 400 

### U.S. 423, 91S.Ct. 480, 

### 27 L ed 2d 507; and, Crow Tribe of Indians v. Deernose, Mont, 

## , 487 P.2d 1133, 28 St.Rep. 754. However, the '"act1' of neglect, that of abandonment of a helpless infant, occurred off the reservation and continued for

over a year off the reservation. The mother's only effort, to allpractical purposes, was toremain in the sanctuary of the reservation, oblivious to the needs of her child. This fact alone

removes the case from theheretofore cited Indianjurisdiction

cases. The district court ruled that it had jurisdiction because the childwas physically in the county and off the reservation when the petitionwas filed. That 

### is the sole issuehere.Section 10-516, R.C.M. 1947, states inpart: "This act shallbe liberally construed, to the end that its purposes may be carried out, to-wit :That proper guardianshipmay be provided for in order that the child may be educated and cared for

# * **." Section 10-503, R.C.M. 1947, states inpart: "Any officer of the statebureau of child and animal protection

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# * having knowledge of a child inhis county who appears tobe a dependent or neglected child, may file with the clerk of the district court a petition

# * *

# *." That 

### is exactly the procedure in this case, and the district court had jurisdiction over this child. Accordingly, finding no error, the order of the district court is affirmed.

~ssocate Justice 

# /fly Chpf Justice c

Associate Justices.