ORIGIN L 11/10/2020
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: DA 20-0489
DA 20-0489
FILED
NOV 1 0 2020
Bowen Greenvvood
IN THE MATTER OF: Clerk of Suprerne Court
nf Montana
K.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 Strike and Deny the
Amended Petition for Out-of-Time Appeal together with supporting exhibits 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 of his parental rights. An
I 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-of-
time appeal request.
evidentiary hearing was held on August 19, 2020. On August 25, 2020, a document
entitled,"Petitioner's Proposed Findings ofFact, Conclusions ofLaw and Ordee'was filed.
In its heading, this docurnent containeJ 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 Deicree of Adoption—containing Judge Marks' name
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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 ofthe 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 Adoptive 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 f rape of a child with aggravating circumstances,
child molestation with aggravating ircumstances, 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 other rape offense, 116 months
on the child molestation offense, and 102 months on the distribution offense, all
consecutive imprisomnent 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
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Hearing specifically noted the purpose of the hearing was to enter an Order of Adoption
Decree. Father's counsel had notice mild opportunity to appear at the September 15, 2020
hearing and cannot reasonably claim clrnfusion 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
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mistakenly thought the document entitled "Petitioner's Proposed Findings of Fact,
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 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 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 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-of-
time appeal is DENIED.
The Clerk of this Court is directed to provide copies of this Order to all counsel of
record.
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DATED this C> day of November, 2020.
Chief Justice
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