In re E.F., DA 22-0631

CitationDA 22-0631
Case DateNovember 22, 2022
CourtUnited States State Supreme Court of Montana

IN THE MATTER OF: E.F., A Youth in Need of Care.

No. DA 22-0631

Supreme Court of Montana

November 22, 2022


Biological Father, D.F.F. (Father), has filed a verified Petition for an Out-of-Time Appeal, along with a Motion for Dismissal of Counsel, a Motion for Appointment of Counsel, and a Motion for Special Consideration. Father states that he is currently incarcerated in Arizona and that he has been there during the pendency of a dependent neglect case in the Third Judicial District Court, Powell County, from 2019 to 2022. Father explains that he had limited, written communication with his appointed counsel and that after he received notice of his parental rights' termination, he submitted a timely motion to appeal the judgment to the District Court.

M. R. App. P. 4(6) allows this Court to grant an out-of-time appeal "[i]n the infrequent harsh case and under extraordinary' circumstances amounting to a gross miscarriage of justice[.]"

On March 25,2022, the District Court entered its Order Terminating Parental Rights of D.F.F. The Powell County Attorney, on behalf of the Department of Public Health and Human Services, filed a Notice of Entry of Judgment on March 30, 2022, as included in Father's attachments. Father served a copy of his verified Petition on the County Attorney.

We conclude that Father has presented extraordinary circumstances. He also indicates that he is without counsel. Section 46-8-104. MCA. Therefore,



1. Father's Petition for an Out-of-Time Appeal is GRANTED:

2, Father's Motion for Appointment of Counsel is GRANTED and the Appellate Defender Division is APPOINTED to represent D.F.F. The Appellate Defender Division shall have fifteen (15) days from the date of this Order within which either to file a Notice of Appeal or a Motion to Rescind this Order Appointing Counsel. When D.F.F. qualifies for appointed counsel, the Appellate Defender Division shall immediately order the appropriate transcripts, if they have not been already ordered;

3. Father's Motion for Removal of Counsel is DENIED, as moot; and

4. Father's Motion for Special Consideration is DISMISSED, as improper.

The Clerk of the Supreme Court is directed to provide a copy of this Order to: the Appellate Defender Division; Austin Knudsen, Attorney General and Kathry n Fey Schultz, Assistant Attorney General, along with a copy of the Petition and Motions; Kathryn McEnery, Powell County Attorney; and to D.F.F....

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