11/10/2020
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: DA 20-0487
DA 20-0487
FILED
NOV 1 0 2020
Bovven Greenwoocl
Clerk of Supreme Court
IN THE MATTER OF: 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 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 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 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.
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 ofAdoption—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 ofrape ofa child with aggravaling circumstances, child molestation with aggravating
circumstances, and distribution ofa contrdlled substance. He was sentenced on February 3,2017
to an indeterminate sentence of312 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 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 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 ofLaw 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 ofthe 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 ofFather'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 ofthis Court is directed to provide copies ofthis Order to all counsel ofrecord.
'T"`"%
DATED this —day of November, 2020.
Chief Justice
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