
    IN THE MATTER OF THE ADOPTION OF PHYLLIS ANN TSOSIE
    Decided on January 11, 1977
    Donald Benaiiy, D.N. A., Shiprock, New Mexico, for Appellant Ann B. T sosie
    Louis Denetsosie, Window Rock, Arizona, for Appellees Ellison D. & Marjorie Tsosie
    Before KIRK, Chief Justice, JOHN and NESWOOD, Associate Justices
   KIRK, Chief Justice

This is an appeal from a Decree of Adoption, issued on December 4, I974, by the Trial Court of the Navajo Nation, Shiprock Judicial District, awarding custody of Phyllis Ann Tsosie to the Appellees, Ellison and Marjorie Tsosie.

Title 9, Section 309, states that upon filing of a petition for adoption, the Court shall order an investigation to determine the history of the child, whether the proposed home is a suitable one for the child, and any other circumstances which may have a bearing on the adoption,

Thl investigation is to be conducted by the Agency Branch of Welfare, and that Agency is to make a definite recommendation for or against the proposed adoption. The Agency report and recommendation shall be part of the file.

The Trial Court failed to comply with Title 9, Section 309 in that no investigation was conducted. In the absence of such an investigative report and recommendation, the adoption decree cannot be upheld.

The Trial Court also failed to comply with Title 9, Section 509 in that the Court did not direct that a summons be issued to the Appellants notifying them of the hearing. In the absence of a summons affording the Appellants the opportunity to participate in a decision affecting their rights to their natural child, this Court cannot uphold the adoption decree.

The case is remanded to the Trial Court of the Navajo Nation, Judicial District of Shiprock, for a determination on the merits, the hearing to be held within thirty (30) days of the date of this order.

Custody of the child, Phyllis Ann Tsosie, shall remain as ordered by the Trial Court on August 23, I97S, until a new decision is rendered by the Trial Court.

JOHN, Associate Justice, and NESWOOD, Associate Justice, concur.  