IN THE MATTER OF: M.L. and E.M.L., Youths in Need of Care.
Submitted on Briefs: October 9, 2019
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
Appellant Gregory D. Birdsong, Birdsong Law Office, PC, Santa
Fe, New Mexico For Appellee:
Appellee Timothy C. Fox, Montana Attorney General, Katie F.
Schulz, Assistant Attorney General, Helena, Montana
D. Twito, Yellowstone County Attorney, Corbit Harrington,
Deputy County Attorney, Billings, Montana
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
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.
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.
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.
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.
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).
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.
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, ...