Cantrell, In re, 12135

• Decision Date: 05 April 1972
• Docket Number: No. 12135,12135
• Citation: 495 P.2d 179,159 Mont. 66
• Parties: In the Matter of Declaring Merle Earlwin CANTRELL, also known as Merle Earlwin Savior, a Dependent and Neglected Child.
• Court: Montana Supreme Court

Page 179

495 P.2d 179

159 Mont. 66

In the Matter of Declaring Merle Earlwin CANTRELL, also known as Merle Earlwin Savior, a Dependent and Neglected Child.

No. 12135.

Supreme Court of Montana.

Submitted March 13, 1972.

Decided March 21, 1972.

Rehearing Denied April 5, 1972.

Robert L. LaRoche, Wolf Point, argued, for appellant.

Gordon White, County Atty., Glasgow, Thomas Mahan, Helena, argued, Robert L. Woodahl, County Atty., Glasgow, for respondent.

CASTLES, Justice.

This is an appeal from an order dated May 21, 1971, by the district court of the seventeenth judicial district, Valley County, the Hon. Thomas Dignan, presiding. The appellant is a 22 year old unwed mother of an illegitimate child.

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, qualified, and acting Director of the Division of Child Welfare Services of the Department of Public Welfare of the State of Montana, for and on behalf of the above named child, at which time there appeared in Court Marveen Savior, mother of said child, with Robert LaRoche, her counsel, and Wayne James Cantrell, father of said child, to show cause, if any they had, why the said Merle Earlwin Cantrell (also known as Merle Earlwin Savior) should not be declared a dependent and neglected child, and awarded to the care, custody, and control of the Division of Child Welfare Services of the Department of Public Welfare of the State of Montana, as prayed for in said petition;

'Whereupon, witnesses were duly sworn and examined on behalf of the petitioner, and testimony being given by the parents of said child, the Court took said matter under advisement, and continued said matter from time to time to determine whether said Marveen Savior, mother of said child, could make arrangements for a suitable home and adequate care and supervision of said child; and upon a further hearing of said matter before the Court on May 21, 1971, additional testimony was offered in behalf of the Petitioner, and the Court being advised in the premises and upon due proof finds:

'That the said Merle Earlwin Cantrell (also known as Merle Earlwin Savior) is a minor child, who was born January 26, 1969, at Poplar, 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 said Marveen Savior and Wayne James Cantrell, and that his best interests will be served by declaring him to be 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 Child Welfare Services of the Department of Public Welfare of the State of Montana, and the Director or any worker thereof, with lawful authority to appear in Court and consent to his adoption.

'WHEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED, that the said Merle 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 of Public Welfare of 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 of Public Welfare of the State of Montana is hereby authorized to appear in any court where adoption proceedings are pending and assent to the adoption of the said Merle Earlwin Cantrell (also known as Merle Earlwin Savior).'

The foregoing order of May 21, 1971, recites some of the facts and particularly refers to the period from January 25, 1971, to May 21, 1971, during which time a further determination of arrangements for care by the mother was examined. At the hearing on May 21, 1971, the mother did not appear in court, although she had notice. Her counsel did appear.

A year previous, on May 18, 1970, the same court made an order for temporary custody which recited:

'It appearing to the Court that Merle Earlwin Savior, a male child born January 26, 1969, at Poplar, Montana, is a dependent and neglected child within the meaning of the Revised Codes of Montana, 1947, in that the child was found wandering around on the Burlington Northern Empire Builder west bound train at Glasgow, Valley County Montana, on May 18, 1970, without any supervision or care, and that said child was then and there suffering from neglect by the putative father, Wayne James Cantrell, in that said Wayne James Cantrell was in a drunken stupor; that in consequence whereof, the Department of Public Welfare of Valley County, Montana, was called to assume the care and control of said minor child; that said child has 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 to be Savior (or Xavier) and is believed to reside at Wolf Point, Montana; tht by reason of neglect, abuse, and inability on the part of the child's parents to care properly and adequately for...