Nu. 12360
IN 1'Ha 2UPKCiYlE COURT OF THE STATE OF MONTANA
1973
LN THE xATTEK dF D E C W K I N G
J U L I A ANN BAD YELLOM HAIR,
VIRGINIA TALE, DONALD CHRIS
TALE, J R . and RONALD CHARLES TALE,
Dependent and Neglected C h i l d r e n .
A p p e a l from: D i s t r i c t Court o f t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
Honorable A . B. M a r t i n , J u d g e p r e s i d i n g .
Counsel o f Record :
For Appellant :
Harold F. Hanser, County A t t o r n e y , B i l l i n g s , Montana.
C. W . J o n e s , Deputy County A t t o r n e y , a r g u e d , B i l l i n g s ,
Montana.
Thomas H. Mahan a r g u e d , Helena, Montana.
For Respondent :
Harwood, G a l l e s , Gunderson and Beiswanger, B i l l i n g s ,
Montana.
Gary L. Beiswanger a r g u e d , B i l l i n g s , Montana.
Submitted: March 28, 1973
Decided : &PR 2 3 1973
PER CURTAM:
In a dependent and neglected child proceeding, the
district court of Yellowstone County entered a judgment awarding
the state welfare department permanent custody of four minor
children with authority to consent to their adoption. Approx-
imately a year later the same court,with a different judge pre-
siding, set aside this judgment on the ground of undue influence
on the natural mother and fraud upon the court. The county and
state welfare departments now appeal from this order setting
aside the prior judgment.
Ida Joyce Ferguson, formerly Ida Joyce Tale, is the
natural mother of the four minor children here involved. She
is the respondent in the instant case. Appellants are the
county and state welfare departments.
On March 20, 1969 the district court of Yellowstone
County declared the four minor children to be dependent and
neglected and awarded their temporary custody to the welfare
department. Their natural mother was committed to the state
hospital at Warm Springs for alcoholism where she remained for
about a month. A few months after her release, she was declared
insane and recommitted to the state hospital as a result of an
attempt to commit suicide by taking an overdose of tranquilizers.
She remained in the state hospital about a year and was eventu-
ally released in September, 1970. About a year later on August
27, 1971 the district court entered an order of restoration to
capacity of the natural mother.
On September 14, 1971 the natural mother signed the
affidavits of waiver of notice of hearing and consent to adoption
of each of the four minor children. About two weeks later the
welfare department petitioned the court for an order granting it
permanent custody of the four minor children with authority to
consent to their adoption. On October 22, 1971 a hearing was
held on this petition in the district court of Yellowstone
County. The natural mother did not appear. On November 8,
1971 the district court, apparently in reliance on the affidavits
and consents of the natural mother, entered judgment declaring
the four minor children to be "dependent and neglected", grant-
ing their permanent custody to the welfare department and author-
izing the welfare department to consent to their adoption.
The minor children have been in the custody of the wel-
fare department since early 1969 and have resided in foster
homes provided by the welfare department.
On July 31, 1972 the four minor children left the State
of Montana and went to the State of Michigan for purposes of
adoption.
On August 2, 1972 the natural mother filed a petition
in the district court of Yellowstone County, Montana seeking to
set aside the November 8, 1971 judgment of that court awarding
the welfare department the permanent custody of the four minor
children with the right to consent to their adoption.
A hearing was held on this petition and on October 26,
1972 the district court entered findings of fact, conclusions
of law, and judgment setting aside the prior judgment of Novem-
ber 8, 1971. The gist of the findings and judgment was as
follows: (1) the waivers and consents executed by the natural
mother were induced by undue influence, (2) the failure of the
welfare department to disclose the then existing fitness of the
natural mother for custody constituted fraud upon the court,
(3) that the natural mother is now a fit person capable of pro-
viding for her children. We note additionally that the evidence
disclosed that the natural mother had remarried in November,
1971 and now resides with her husband who is gainfully employed,
providing an adequate home, and has shown a desire to care for
the children and the district court so found.
The county and state welfare departmentsnow appeal from
the judgment of October 26, 1972 on numerous grounds. They seek
review of the district court findings relating to the competency
of the natural mother when she signed the affidavits of waiver
and consent, the sufficiency of the evidence to support a find-
ing that the children were "dependent and neglected", and the
jurisdiction of the district court.
In our view, the determinative issue in this appeal is
the jurisdiction of the district court to set aside its perma-
nent custody award to the welfare department and award custody
to the natural mother.
At the outset we note that the prior judgment was set
aside on two grounds: (1) fraud upon the court consisting of
nondisclosure of the existing fitness of the mother for custody
with regard to her emotional stability, and (2) undue influence
by the welfare department in inducing the natural mother to sign
the affidavits and consent to permanent custody in the welfare
department with right of adoption.
Directing our attention initially to the matter of fraud
upon the court, we agree with respondent that such ground author-
izes setting aside a prior judgment. Such fraud may consist of
affirmatively misrepresenting facts to the court or of conceal-
ment of material facts by a person who is under a legal duty to
make a full disclosure to the court. Selway v. Burns, 150 Mont.
1, 429 P.2d 640.
The power of the court to set aside a judgment on the
basis of fraud upon the court is inherent and independent of
statute, and the timeliness of proceedings to set aside a prior
judgment so obtained is not subject to the six months time
limitation in Rule 60(b), M.R.Civ.P., but must ultimately depend
upon equitable principles and the sound discretion of the court.
Selway v. Burns, supra.
In the instant case respondent contends and the district
court found that fraud was committed on the court when the wel-
fare department failed to present all the facts concerning the
emotional stability of the natural mother at the October 22,
1971 hearing.
We do not agree. That hearing involved two basic issues:
(1) whether the four minor children were in fact "dependent and
neglected" within the meaning of section 10-501, R.C.M. 1947,
and (2) if so, whether the children's best interests and welfare
would be served by awarding their permanent custody with right
of adoption to the welfare department.
The facts clearly establish that the children were "de-
pendent and neglected". They had been so declared almost three
years previously by a valid order of the district court. They
had been continuously in the care and custody of the welfare
department since that time. Their necessities of life had been
continuously provided at public expense for almost three years.
Their natural mother had at least acquiesced and permitted this
state of affiars to continue for more than a year following her
release from the state hospital at Warm Springs.
These same facts and their resulting effects on the four
children also support the district court's order awarding perm-
anent custody with the right of adoption to the welfare depart-
ment. The childrens' best interest and welfare, not that of the
natural mother, is the paramount consideration. In the Matter
of Vikse, 147 Mont. 417, 413 P.2d 876; Hurly v. Hurly, 147 Mont.
118, 411 P.2d 359; In re Holman's Adoption, 80 Ariz. 201, 295
P.2d 372; Moreau v. Buchholz, 124 Colo. 302, 236 P.2d 540; Stalder
v. Stone, 412 Ill. 488, 107 N.E.2d 696. We are mindful that
ordinarily a child's interests and welfare will best be served
by retaining custody in the natural parents. However, the cir-
cumstances of the individual case may require a different
result.
In the instant case the children had been separated from
the natural mother and subjected to public care in foster homes
for almost three years. During that period, the children had
only the barest minimal contact with her. The unsatisfactory
character of this temporary status, the increasing needs of the
children as they grow older, and the increasing difficulty of
adoption as the agesof the children progress all demand a more
permanent solution, the emotional stability of the mother not-
withstanding. Under such circumstances it was not incumbent
on the welfare department to assume the burden of proving every
fact relating to the natural mother's emotional stability at
the time of the hearing where, as here, she had apparently
consented to permanent custody with right of adoption in the
welfare department. This is not such fraud upon the court as will
support setting aside the prior judgment.
Proceeding to the issue of undue influence, we note that
it is a species of fraud that constitutes a ground for setting
aside a prior judgment. Riley v. Byrne, 145 Mont. 138, 399 P.2d
980. The district court found that the waivers and consents
signed by the natural mother had been induced by undue influence
and this finding is supported by substantial, though conflicting,
evidence. Ordinarily this would be sufficient to authorize the
court to set aside its prior judgment and readjudicate custody
rights.
But here we must consider intervening events prior to
the natural mother's application for relief from the prior judgment.
Custody of the four minor children had been transferred to the
adoptive parents. They had taken the children to their home
in Michigan. The children were no longer domiciled in Montana
nor physically present within Montana's borders. Prior to the
Montana hearing on the natural mother's application for relief
from prior judgment, the Michigan court had assumed jurisdiction
over their adoption. Unlike custody awards involving minor
children in divorce actions, there is no continuing jurisdic-
tion in dependent and neglected child proceedings to alter or
modify a permanent custody award with right of adoption. Here
the Montana district court had lost jurisdiction over the persons
of the four minor children at the time of the natural mother's
application for relief from the prior judgment irrespective of
its jurisdiction over the subject matter of the prior judgment.
The natural mother's application for relief in the Montana dis-
trict court was not timely as Montana had previously lost juris-
diction over the persons of the four minor children.
The order of the district court of Yellowstone County
dated October 26, 1972 is vacated and set aside.
Honorable Edward T. Dussault, District Judge, sat in
place of Mr. Chief Justice James T. Harrison who did not
participate in the cause.