04/13/2021
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 20-0520
DA 20-0520
IN THE MATTER OF:
G.H., ORDER
A Youth in Need of Care. FiiLED
APR 1 3 2021'
Bowen Greenwood
Clerk of Supreme Coutt
State of Rilontana
This matter comes before the Court on the joint motion of Appellants (Parents) to
strike three documents appended to the Appellee's response brief that the District Court
submitted to the Clerk of this Court after Parents filed their opening brief. The three
documents are records from a prior parental rights termination proceeding in the State of
Utah. The State opposes the motion.
Parents contend that the State improperly secured transmittal of the documents,
purportedly "found loose in the file" at the District Court. They claim that the documents
bear no file stamp on them, were not made part ofthe record in the trial court, and were not
provided to Parents in preparation oftheir opening arguments, despite the fact that Parents'
counsel had made inquiry of the Clerk of the Second Judicial District Court about any
additional records. Parents argue that, because it is "clear" these appendices were not part of
the District Court record,the State improperly introduced the evidence in its briefon appeal,
and altering the record on appeal after the Parents prepared and filed their opening
arguments would be a violation oftheir due process rights.
The State counters that it has not improperly attempted to place non-record evidence
before this Court on appeal, representing that the exhibits were referenced in but not included
with the file that was transmitted to this Court upon filing of the notice of appeal and that
they were discussed during the terrnination hearing in this case. Counsel for the State
represents that, upon discovering that the exhibits were not included, she contacted the
District Court to ascertain whether there were any records that had been missed when the
electronic record was compiled for transmission on appeal; the clerk reported finding the
three documents loose in the court file and thereupon transmitted the additional documents to
this Court.
This Court's record confirms that the additional documents from the Utah court
proceeding were transmitted by the Clerk of District Court and received by the Clerk ofthis
Court on March 16,2021,approximately a month after both ofthe Parents' briefs on appeal
were filed. As the documents were discovered in the court file and filed by the District Court
Clerk, the Court finds no impropriety in the State's inclusion of them as appendices to its
brief. The Parents may address the Utah court documents in their reply briefs.
IT IS THEREFORE ORDERED that the Motion to Strike is DENIED.
The Clerk is directed to give notice of this order to all counsel of record.
Dated this /3 day of April, 2021.