IN THE SUPREME COURT OF THE STATE OF MONTANA

DA 20-0487

IN THE MATTER OF:

FILED

NOV 1 0 2020

Bovven Greenwoocl

Clerk of Supreme Court

State of Montana

J.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 abovetitled 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 Strike and Deny the Amended

Petition for Out-of-Time Appeal together with supporting exhibits 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 entitled, "Petitioner's

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 tather

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 11 th day following service of the initial petition. M. R. App.

P. 16 requires response "within 11 days after service of the out-of-time appeal request.

11/10/2020

Case Number: DA 20-0487
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 1\2arks' 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 Adopdve 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 aggravaling circumstances, child molestation with aggravating

circumstances, and distribution of a contrdlled 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, Conclusions of Law and Ordee 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

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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 outof-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-of-time

appeal is DENIED.

The Clerk of this Court is directed to provide copies of this Order to all counsel of record.

'T"`"%

DATED this —day of November, 2020.

Chief Justice

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