IN THE SUPREME COURT OF THE STATE OF MONTANA DA 20-0488

IN THE MATTER OF: 

# FILED NOV 1 0 2020

Bowen Greenwooa Clerk of Supreme Court c - ItritEN rif Montana B.H., ORDER A Youth in Need ofCare.

On October 9, 2020, the Appellate Defender Division (ADD), on behalf of Appellant Father K.P.H., petitioned for leave to file an out-of-time appeal on Father's behalf in the above-titled matter,pursuant to M.R.App.P.4(6). No objection was noted and late afternoon on October 20, 2020, we granted Father's request for an out-of-time appeal based primarily on there being no indication ofany objection and the untimeliness of the appeal occurred through no fault of Father. On October 22, 2020, ADD filed an Amended Petition for Out-of-Time Appeal requesting this Court reconsider the matter based on the Adoptive Father's position that he was not given time to file a written objection to the Petition.' In response, Adoptive Father has now filed a Motion to Strikc and Deny the Amended Petition for Out-of-Time Appeal together with supporting exhibit objecting to permitting Father's out oftime appeal. As previously outlined in Father's original request for an out-of-time appeal,Father was involved in a private adoption action seeking termination ofhis parental rights. An evidentiary hearing was held on August 19, 2020. On August 25, 2020, a document

It appears from this amended request, Father's counsel was attempting to advise this Court that he had not indicated in his original request for an out-of-time appeal that the Adoptive Father objected rather than Adoptive Father not being given any time to file a written response. Our original Order granting the out-of-time appeal was issued on the llth day following service ofthe initial petition. M.R. App. P. 16 requires response "within 11 days after service" ofthe out-oftime appeal request. 11/10/2020

Case Number: DA 20-0488

### entitled,"Petitioner'sProposed Findings ofFact,Conclusions of Law and Orderwas filed. In its heading,this document contained the name and contact information for petitioner's attorney who prepared and submitted the document to the court for consideration. This proposed document was signed and dated by District Court Judge Marks. On September 16,2020 the District Court issued a Decree ofAdoption—containing Judge Marks'name and contact information in the heading. In the Decree ofAdoption, the prior "proposed findings" were referenced as an actual court order, not merely a proposed document, terminating Father'sparental rights. Uponreceiptofthe Decree ofAdoption,Father's trial counsel contacted ADD to attempt to preserve Father's right to appeal. ADD advised Petitioner's counsel was contacted but,did not respond as to Petitioner's position on the out-of-time appeal request. In addition to not noting Adopt ve Father's objection,Father's rendition ofevents in his original request for an out-of-time appeal lacked some important detail. Prior to filing the private adoption action, Father was convicted in the State of Washington of several offenses including two counts ofrape ofa child with aggravating circumstances, child molestation with aggravating circumstances, and distribution of a controlled substance. He was sentenced on February 3, 2017 to an indeterminate sentence of 312 months to life on one ofthe rape offenses,60 months on the otherrape offense, 116months on the child molestation offense, and 102 months on the distribution offense, all consecutive imprisonment sentences Prior to receiving the Decree of Adoption referencing the proposed findings as an actual order,Adoptive Father had filed a Motion to Schedule a hearing and on September 3,2020,Judge Marks issued an Order,which was provided to Father's counsel,setting hearing on September 15,2020. The Order Granting Hearing specifically noted .the purpose ofthe hearing was to enter an Order ofAdoption Decree. Father's counsel had notice and opportunity to appear at the September 15,2020 hearing and cannot reasonably claim confusion that a Decree ofAdoption was entered on the day following the hearing where the sole purpose ofthe hearing was to enter an order ofadoption. Father's trial counsel asserts there was confusion on his part in that counsel mistakenly thought the document entitled "Petitioner's Proposed• Findings of Fact, 2Conclusions of Law and Order" was merely a document proposed by petitioner, not an

actual order terminating Father's parental rights. While perhaps counsel had some confusion in this regard, counsel was aware of the September 15, 2020 hearing and its purpose and aware on September 16, 2020 ofthe Decree ofAdoption and did not file an appeal within 30 days ofthe Decree ofAdoption. We grant out-of-time appeals under M.R.App.P.4(6)in the "infrequent harsh case and under extraordinary circumstances amounting to a gross miscarriage ofjustice." But,"[e]xtraordinary circumstances do not include mere mistake, inadvertence,or excusable neglect." M.R.App.P.4(6). After receiving additional information,we conclude that although the untimeliness ofFather's appeal is through no fault ofhis own, counsel's failure to timely file the appeal was based on mere mistake or inadvertence and denial ofFather's request for an out-of-time appeal will notresult in a gross miscarriage ofjustice. IT IS THEREFORE ORDERED that this Court's October 20, 2020 Order is VACATED. IT IS FURTHER ORDERED that the amended petition for leave to file an out-oftime appeal is DENIED. The Clerk ofthis Court is directed to provide copies ofthis Order to all counsel of record.DATED this I 6

- day ofNovember,2020.

:3 ChiefJusticeI

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