### No. 12740 INTHE 

### 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 theEleventh 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, Kalispell, Montana ForRespondent: H. 

### James Oleson argued, Kalispell, Montana

Submitted: January 21, 

### 1975 Decided:

# APR

# -8

## 1975 Filed:A~~ =

## 8

## 1975

ClerkMr. 

### 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. 

### SherrieEndres, tothe home of their great uncle and aunt, Mr. 

### and Mrs. 

### Thomas Torgerson of Olney. At

### this 

### timethe parents, William

### and SherrieEndres, were experiencing a period of marital instability. In addition, the father had been disabled inan industrial accident and was experiencing difficultyin supportinghis family, since he had not yet received compensation from hispending Workmen's Compensation claim. Sherrie made three subsequent attempts toretrieve the children from the Torgerson home. This apparentlyprompted the Torgersons to contact theFlathead County Welfare Department as a steptoward institution of thepresent 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
weredependent and neglected astoSherrieEndres. No mention
was made inthe petition regarding permanent custody, nor of the father, William Endres. On the same 2ate, the districtcourt, without notice tothe parents or an opportunity for them tobe heard, issued an order awarding temporary custody of the children totheWelfare Department and an order to show cause, directed toSherrie, 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 Endreswas served with a citationdirecting him toappear to show
cause why thechildren should not be declared dependent and neglected. The next hearing took place on April 11, 1973. Both parents 

### were present, althoughwithout assistance of counsel. By order dated April 11, 1973, the district court ordered thehearing continued toNovember 13, 1973; ordered the Division of Child Welfare Services to investigate theparents and submit
a report prior toNovember 1, 1973, with power torecommend adoption; and further ordered the Children toremain for the next sixmonths inthe custody of the Division of Child Welfare Services. The Missoula County Department of Public Welfare filed 

### its "Report tothe Court" on October 31, 1973. The report stated the results of the investigation of theparents. It did not recomnend adoption nor a permanent custody arrangement, but 

### merely stated that the children not be returned totheir parents at this 

### time. The hearing scheduled foriqovember 13, 1973, was continued untilNovember 29, 1373, because theparents had not been served with the "Report to the Court". At the final hearing on November 29, 1973, the court stated the issues tobe resolved 

### were whether the request of the Welfare Department for permanent custody should be granted and whether William Endres should be found tohave neglected the children. At thishearing, the court continuallyreferred to it as one for theresolution of permanent custody of the children. William Endres was not present atthis hearing although he 

### was represented 

### by counsel. Based upon allthe evidence presented, the court found William Endres guilty of neglecting hischildren. Atthe conclusion of the hearing, the court awarded permanent custody of the children totheWelfare Department with fullauthority toadopt. William and Sherrie Endres present many issues on appeal. This opinion 

### willprimarily be directed tothe resolution of the issue which we find tobe determinative of this appeal: Whether the district court erred ingranting 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 districtcourt 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 inone 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 tothe parents atthat 

### time. In Crenshaw v. Crenshaw, 120Mont. 190, 202, 182 P.2d 477, the complaint sought a decree of separatemaintenance. The district court, however, granted a decree of divorce without ever amending the complaint. This Court reversed stating: "It

### iselementary that proof without pleadings 

### willnot sustain


### a decree." That case 

### is analogous tothe instant one. William Endres contends there was error inthat his name
was never placed upon the petition. The petition refers tothe parents as "Sherrie Endres and unknown". In light of the factthat 

### WilliamEndres was served with a citation to appear for the April 

### 11 hearing, the failure tophysically inscribe his
name on the petition was harmless error. The Endres' allege error inthat the Welfare Department did not comply with the provisions of section 10-506, R.C.M. 1974, sincerepealed, which required the Welfare Department to filewith the court a report of the financial abilityof the parents. This failure to file a report of the parents' financialability 

### is harmless error. The purpose of the financial report required by section 10-506 was todetermine the ability of the parents topay 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 failingto 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 ascertainwhether said child 

### is a dependent child, 

### its residence, and, as far aspossible, the whereabouts of the parents, guardian, or nearest adult relatives; when and how long the child has been maintained, inwhole or inpart, by public orprivate charity; the occupation of the parents, if living; whether they are supported by the public, or have abandoned their child; and toascertain, as far aspossible, 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 tothiswas ever made. Failure toobject 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 tothe remaining facts tobe investigated, those facts appear inthe record. Because of the lack of due process the court was without

### jurisdiction tomake and enter 

### its order dated November 29, 1973. 

### The cause is 

### reversed and remanded for further proceedings



## . . not inconsistentwith this

Chief Justice

We concur:

J 

### tices 

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