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 of Care.

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 of any 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 of time 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 of his 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 of the

initial petition. M. R. App. P. 16 requires response "within 11 days after service" of the out-oftime appeal request.

11/10/2020

Case Number: DA 20-0488
entitled, "Petitioner's Proposed Findings of Fact, Conclusions of Law and Order was 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 of Adoption—containing Judge Marks' name

and contact information in the heading. In the Decree of Adoption, the prior "proposed

findings" were referenced as an actual court order, not merely a proposed document,

terminating Father's parental rights. Upon receipt of the Decree of Adoption, 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 of events

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 of rape of a 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 of the rape offenses, 60 months on the other rape offense, 116 months

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 of the hearing was to enter an Order of Adoption

Decree. Father's counsel had notice and opportunity to appear at the September 15, 2020

hearing and cannot reasonably claim confusion that a Decree of Adoption was entered on

the day following the hearing where the sole purpose of the hearing was to enter an order

of adoption. 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,

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Conclusions 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 of the Decree of Adoption and did not file an

appeal within 30 days of the Decree of Adoption.

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 of justice."

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 of Father's appeal is through no fault of his own,

counsel's failure to timely file the appeal was based on mere mistake or inadvertence and

denial of Father's request for an out-of-time appeal will not result in a gross miscarriage

of justice.

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 of this Court is directed to provide copies of this Order to all counsel of

record.

DATED this I 6 -day of November, 2020.

:3

Chief Justice
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