Matter of M.W.AH., YINC

ORIGINAL 11/07/2024

IN THE S UPREME COURT OF THE STATE OF MONTANA Case Number: DA 24-0634

DA 24-0634 FILED IN THE MATTER OF: NOV 0 7 2024 Bowen Greerrwood Cierk of Supreme Court State of 'Montano M.W.A.H., ORDER Youth in Need of Care.

The Office of Appellate Defender (OAD) has filed a request, supported by affidavit, to be allowed to file an out-of-time notice of appeal on behalf of the mother in the above-entitled matter. OAD avers that although the mother requested to file an appeal, this matter was inadvertently not referred to the Appellate Defender Division by assigned counsel until the deadline for appeal had expired. OAD reports that the State of Montana has no objection to this motion.

Mont. R. App. P. 4(6), provides: In the infrequent harsh case and under extraordinary circumstances amounting to a gross miscarriage of justice, the supreme court may grant an out-of-time appeal. An out-of-time appeal must be requested by verified petition supported by affidavits, records, and other evidence establishing the existence of the extraordinary circumstances claimed. Extraordinary circumstances do not include mere mistake, inadvertence, or excusable neglect.

As OAD points out, this is a dependent/neglect matter involving the mother's fundamental constitutional right to care and custody of her child. OAD argues that not permitting the mother to pursue her appeal due to issues with OPD's internal referral process would constitute a gross miscarriage of justice and would harshly punish the mother for a mistake that was not hers. We agree that the mother's appeal should not be disqualified as a result.

IT IS THEREFORE ORDERED that the petition for leave to file an out-of-time appeal is GRANTED.

IT IS FURTHER ORDERED that the Appellate Defender shall have ten days from the date of this Order within which to file a Notice of Appeal. The Appellate Defender shall immediately order the appropriate transcripts, if they have not been already ordered.

The Clerk is dirTIT1 to provide copies of this order to all counsel of record.

DATED this 3 day of November, 2024.

Chief Justice

Justices