10/20/2020
IN THE SUPREME COURT OF THE STATE OF MOIMED
Case Number: DA 20-0488
DA 20-0488
OCT 20 2020
Bowen Greenvvooci
Clerk of Supreme Court
IN RE THE ADOPTION OF: State of Montana
B.H., ORDER
A Minor Child.
The Appellate Defender Division(ADD),on behalfof Appellant Father K.P.H., has
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). ADD states that 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 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. Oddly,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 advises Petitioner's counsel was
contacted but did not respond as to Petitioner's position on the out-of-time appeal request.
grant out-of-time appeals under M.R. App.P.4(6)in the "infrequent harsh case
r
and under extraordinary circumstances amounting to a gross miscarriage ofjustice." ADD
argues that such would occur here if Father were denied his right to appeal when it was
unclear the district court had issued a termination order entitled "Proposed Findings ..."
We agree.
Under the facts of this case, the untimeliness of K.P.H.'s appeal is through no fault
ofhis own. Further, there was confusion on the part ofFather's trial counsel in that counsel
thought the document entitled "Petitioner's Proposed Findings ofFact, Conclusions ofLaw
and Order" was merely a document proposed by petitioner, not an actual order terminating
Father's parental rights. Given the importance ofthe interests at stake for Father,
IT IS ORDERED that the petition for leave to file an out-of-time appeal is
GRANTED.
IT IS FURTHER ORDERED that ADD shall promptly order the necessary
transcripts for the appeal.
The Clerk of this Court is directed to provide copies of this Order to all counsel of
record.
DATED this ?--tt) day of October, 2020.
Chief Justice