No. 12740 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

FLATHEAD COUNTY WELFARE DEPARTMENT, 

Plaintiff and Respondent, 

MELISSA E14DRES and PETER JASON ENDRES, 

Dependent and neglected children, 

Defendants and Appellants. 

Appeal from: District Court of the Eleventh Judicial District, 

Honorable Robert Sykes , Judge presiding. 

Counsel of Record : 

For Appellants : 

McGarvey, Morrison, Hedman & Moore, Kalispell, 

Montana 

James D. Moore argued, Kalispell, Montana 

Leonard Kaufman, Ka lispell, Montana 

For Respondent: 

H. James Oleson argued, Kalispell, Montana 

Submitted: January 21, 1975 

Decided : APR - 8 1975 

Filed:A~~ = 8 1975 

Clerk 
Mr. Chief Justice James T. Harrison delivered the Opinion of 

the Court. 

This is an appeal from the district court, Flathead 

County. From the record it appears that on August 19, 1972, 

Melissa and Peter Endres, then aged four and one-half years 

and nine months respectively, were taken by their mother, Mrs. 

Sherrie Endres, to the home of their great uncle and aunt, Mr. 

and Mrs. Thomas Torgerson of Olney. At this time the parents, 

William and Sherrie Endres, were experiencing a period of 

marital instability. In addition, the father had been disabled 

in an industrial accident and was experiencing difficulty in 

supporting his family, since he had not yet received compensation from his pending Workmen's Compensation claim. Sherrie 

made three subsequent attempts to retrieve the children from 

the Torgerson home. This apparently prompted the Torgersons to 

contact the Flathead County Welfare Department as a step toward 

institution of the present action. 

A petition for "temporary custody" was filed on December 

7, 1972, by Reuben Wilbur, a social worker with the Flathead 

County Welfare Department. The petition alleged the children 

were dependent and neglected as to Sherrie Endres. No mention 

was made in the petition regarding permanent custody, nor of the 

father, William Endres. On the same 2ate, the district court, 

without notice to the parents or an opportunity for them to be 

heard, issued an order awarding temporary custody of the children 

to the Welfare Department and an order to show cause, directed 

to Sherrie, why the children should not be declared dependent 

and neglected. 

At the show cause hearing on January 23, 1973, the father, 

Killiam Endres, did not appear. The petition did not name him 

and he, therefore, had not been served. Thereafter, William Endres 
was served with a citation directing him to appear to show 

cause why the children should not be declared dependent and 

neglected. 

The next hearing took place on April 11, 1973. Both 

parents were present, although without assistance of counsel. 

By order dated April 11, 1973, the district court ordered 

the hearing continued to November 13, 1973; ordered the Division 

of Child Welfare Services to investigate the parents and submit 

a report prior to November 1, 1973, with power to recommend adoption; and further ordered the Children to remain for the next 

six months in the custody of the Division of Child Welfare Services. 

The Missoula County Department of Public Welfare filed 

its "Report to the Court" on October 31, 1973. The report stated 

the results of the investigation of the parents. It did not 

recomnend adoption nor a permanent custody arrangement, but merely stated that the children not be returned to their parents at 

this time. The hearing scheduled for iqovember 13, 1973, was 

continued until November 29, 1373, because the parents had not 

been served with the "Report to the Court". 

At the final hearing on November 29, 1973, the court 

stated the issues to be resolved were whether the request of the 

Welfare Department for permanent custody should be granted and 

whether William Endres should be found to have neglected the 

children. At this hearing, the court continually referred to 

it as one for the resolution of permanent custody of the children. 

William Endres was not present at this hearing although he was 

represented by counsel. Based upon all the evidence presented, 

the court found William Endres guilty of neglecting his children. 

At the conclusion of the hearing, the court awarded permanent 

custody of the children to the Welfare Department with full 
authority to adopt. 

William and Sherrie Endres present many issues on 

appeal. This opinion will primarily be directed to the resolution of the issue which we find to be determinative of this 

appeal: Whether the district court erred in granting permanent 

custody to the Welfare Department although no petition for 

permanent custody of the children had ever been filed by the 

Welfare Department? We hold the district court erred. 

The petition filed in the district court, which prayed 

that the district court make an order declaring Melissa and 

Peter Endres dependent and neglected children, was a printed 

form. Typed in one of the blanks of the form was the statement: 

"We request temporary custody * * *." Section 93-401-19, R.C.M. 

1947, directs that written words control those of a printed form. 

Therefore, the petition was for temporary custody. On several 

occasions at the April 11 hearing, the district court told the 

parents that this was a matter respecting temporary custody and 

that the Welfare Department had not filed a petition for permanent custody. In its final "Report to the Court", the Welfare 

Department did not ask for permanent custody, but merely that 

the children not be returned to the parents at that time. 

In Crenshaw v. Crenshaw, 120 Mont. 190, 202, 182 P.2d 

477, the complaint sought a decree of separate maintenance. 

The district court, however, granted a decree of divorce without ever amending the complaint. This Court reversed stating: 

"It is elementary that proof without pleadings will not sustain 

a decree." That case is analogous to the instant one. 

William Endres contends there was error in that his name 

was never placed upon the petition. The petition refers to the 

parents as "Sherrie Endres and unknown". In light of the fact 
that William Endres was served with a citation to appear for 

the April 11 hearing, the failure to physically inscribe his 

name on the petition was harmless error. 

The Endres' allege error in that the Welfare Department did not comply with the provisions of section 10-506, R.C.M. 

1974, since repealed, which required the Welfare Department to 

file with the court a report of the financial ability of the 

parents. This failure to file a report of the parents' financial ability is harmless error. The purpose of the financial 

report required by section 10-506 was to determine the ability 

of the parents to pay the cost of taking care of such child in 

a foster home. Here, no order was made respecting the cost of 

taking care of the children in a foster home. 

The Endres' further contend the district court erred in 

failing to comply with section 10-508, R.C.M. 1947, since repealed, which provided: 

"On such hearing or examination, the child shall 

be brought before said court, whereupon it shall 

be the duty of said court to investigate the facts 

and ascertain whether said child is a dependent 

child, its residence, and, as far as possible, 

the whereabouts of the parents, guardian, or 

nearest adult relatives; when and how long the child 

has been maintained, in whole or in part, by public 

or private charity; the occupation of the parents, 

if living; whether they are supported by the public, 

or have abandoned their child; and to ascertain, 

as far as possible, if the child is found dependent, 

the cause thereof. * * *" 

We find no error. True, the children were not brought before 

the court, however, no objection to this was ever made. Failure 

to object constitutes waiver. The district court specifically 

found the parents guilty of neglecting their children, not that 

the children were dependent or abandoned. While the district 

court made no specific findings with respect to the remaining 

facts to be investigated, those facts appear in the record. 

Because of the lack of due process the court was without 
jurisdiction to make and enter its order dated November 29, 1973. 

The cause is reversed and remanded for further proceedings 

. . not inconsistent with this 

Chief Justice 

We concur: 

J tices 0