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In re M.L.

Supreme Court of Montana

October 29, 2019

IN THE MATTER OF: M.L. and E.M.L., Youths in Need of Care.

          Submitted on Briefs: October 9, 2019

          APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause Nos. DN 17-347 and DN 17-348 Honorable Michael G. Moses, Presiding Judge

          For Appellant Gregory D. Birdsong, Birdsong Law Office, PC, Santa Fe, New Mexico For Appellee:

          For Appellee Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana

          Scott D. Twito, Yellowstone County Attorney, Corbit Harrington, Deputy County Attorney, Billings, Montana

          Laurie McKinnon Justice

         ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

         ¶2 M.L. (born in 2007) and E.M.L. (born in 2009) are the biological children of M.M.L. (Mother). On March 6, 2019, the Thirteenth Judicial District Court, Yellowstone County, conducted a hearing on the State's petition to terminate Mother's rights. Mother was not present. However, Mother knew of the hearing because the District Court found she was present at a previously scheduled termination hearing on January 9, 2019, which was continued and the new March 6, 2019 date and time scheduled. The District Court issued its order terminating Mother's parental rights on March 19, 2019. Notice of entry of judgment was issued the next day.

         ¶3 Thirty-five days later, on April 10, 2019, Mother's counsel filed a motion for relief from final judgment pursuant to M. R. Civ. P. 60(b). Mother's counsel requested the court set aside its order terminating Mother's rights because Mother was unable to participate in the hearing due to pain and discomfort from an infection in her hand. A copy of Mother's March 5, 2019 discharge summary from Billings Clinic Emergency Department was attached to the motion.

         ¶4 The discharge summary reveals that Mother went to the emergency room at 11:39 p.m. on March 4, 2019, and was given an antibiotic at 1:24 a.m. on March 5, 2019. She was discharged 30 minutes later.

         ¶5 The District Court did not rule on Mother's motion. Mother alleges that it was an abuse of discretion when the court "implicitly denied" her motion for relief from judgment. Mother does not raise any other issue concerning the court's order terminating her parental rights. Accordingly, we consider only whether the District Court abused its discretion in "implicitly" denying her motion for relief from judgment.

         ¶6 This Court reviews a district court's order on a motion for relief from final judgment pursuant to M. R. Civ. P. 60(b)(1) or (b)(6) for an abuse of discretion. In re Marriage of Remitz, 2018 MT 298, ¶ 8, 393 Mont. 423, 431 P.3d 338. A district court abuses its discretion if it acts arbitrarily without employment of conscientious judgment or exceeds the bounds of reason resulting in substantial injustice. Essex Ins. Co. v. Moose's Saloon, Inc., 2007 MT 202, ¶ 19, 338 Mont. 423, 166 P.3d 451. A motion filed pursuant to Rule 60(b) must be filed within a "reasonable time" of the date of the order or proceeding, and for 60(b)(1) no more than a year after the entry of judgment or order or date of the proceeding. M. R. Civ. P. 60(c)(1).

         ¶7 Here, Mother filed her motion 35 days after the termination hearing, although she knew of her health problem at the time of the hearing. Mother's motion must be considered untimely and was not made within a reasonable time of the hearing for purposes of 60(b)(6). Additionally, based upon this Court's review of Mother's discharge summary, Mother did not establish that her health issue constituted a circumstance which would satisfy the requirements of 60(b)(1). Mother has not demonstrated she is entitled to relief for reasons of mistake, inadvertence, surprise, or excusable neglect. Mother was not incapacitated and presented no reasonable explanation why she could not appear for the hearing and, if in pain and discomfort, seek a continuance. Accordingly, the denial of Mother's motion for relief from judgment was not an abuse of discretion.

         ¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. This appeal presents no constitutional issues, no issues of first impression, ...


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