IN RE: D.J.L. and R.J.M. (2026)

ORDER

On July 21, 2026, this Court affirmed the termination of the parental rights of D.L., birthfather of D.J.L., one of the two subject youths of this consolidated appeal. In re D.J.L., 2026 MT 160N, ___ Mont. ___, ____ P.3d ___. The Court concurrently dismissed the appeal of P.L., birthmother of D.J.L. and R.J.M., upon the motion of Mother's appellate attorney filed pursuant to § 46-8-103(2), MCA, and Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967).

On July 28, 2026, Father's appellate counsel petitioned this Court for rehearing; Appellee Montana Department of Public Health and Human Services filed a notice of petition and response to the petition for rehearing, stating it would leave the rehearing determination to this Court's discretion.

Father's appellate counsel informed us that on July 6, 2026, counsel for the Department, Father, and Mother attempted to file a stipulation to dismiss these consolidated appeals without prejudice and remand the matter to the District Court for further proceedings on the basis that the Department had recently received information that caused it to re-evaluate whether D.J.L. and R.J.M. may be Indian children subject to the Indian Child Welfare Act (ICWA). The parties recognized this new information could affect the District Court's previous determination ICWA did not apply in these dependent-neglect proceedings. The parties asked this Court to instruct the District Court, upon remand, to determine if ICWA applies and, if so, to hold further proceedings as necessary to meet ICWA's evidentiary burdens. An Assistant Attorney General, representing the Department on appeal, and appellate counsel for Father and Mother signed the stipulation.

However, the Clerk of this Court rejected the filing. The Clerk's Office incorrectly advised the parties that Mother and Father were required to personally sign the stipulation. Mother and Father were not required to personally sign the stipulation. M. R. App. P. 16(5) (“A cause, appeal, or cross-appeal may be dismissed by the supreme court upon stipulation signed by counsel of record and parties not represented by counsel.”). Since the stipulation was signed and served, the Clerk should have accepted the filing; if this Court later determined the signatures were inadequate, we could have asked the parties to cure any deficiency. Because the Clerk instead incorrectly rejected the filing, we proceeded to disposition unaware the parties had stipulated to remand the matter for further proceedings and have the appeal dismissed without prejudice.

Father's counsel advises us that once the Clerk rejected the stipulation, the parties immediately set out to obtain Mother's and Father's signatures and refile the stipulation, but this Court disposed of the case before the parties were able to accomplish refiling. Father's counsel asks us to rehear the case, explaining that the parties believe this Court would not have issued its dispositions of Father's and Mother's appeals had it known the parties had stipulated to remand the case to the District Court to comply with ICWA.

Mother's appellate counsel has also petitioned for rehearing. Counsel notes this Court granted his motion to withdraw and he requests reappointment to clarify his status as appellate counsel of record.

M. R. App. P. 20(1)(a) provides the very limited grounds upon which this Court will consider a petition for rehearing: (i) it overlooked some fact material to the decision; (ii) it overlooked some question presented by counsel that would have proven decisive to the case; or (iii) its decision conflicts with a statute or controlling decision not addressed by the supreme court. In the present case, we conclude rehearing is warranted under Rule 20(1)(a)(i) and (ii) because the Court “overlooked” the stipulation for remand in the sense that the parties attempted to bring the stipulation before the Court only to be turned away by the Clerk of this Court.

IT IS THEREFORE ORDERED that the petition for rehearing is GRANTED.

IT IS FURTHER ORDERED that this Court's Opinion 2026 MT 160N is VACATED.

IT IS FURTHER ORDERED that this Court's Order dismissing Mother's appeal is VACATED. Mother's appellate counsel Daniel Eakin is hereby REAPPOINTED.

IT IS FURTHER ORDERED that the parties’ Joint Stipulation for Remand and Motion to Dismiss Appeal without Prejudice shall be FILED WITH THE COURT as of this date.

IT IS FURTHER ORDERED that this appeal is DISMISSED WITHOUT PREJUDICE.

IT IS FURTHER ORDERED that this matter is REMANDED to the District Court. The District Court is directed to determine if ICWA applies to either or both children and, if so, to hold further proceedings as necessary to comply with ICWA and with the Montana Indian Child Welfare Act (MICWA).

IT IS FURTHER ORDERED that REMITTITUR shall issue IMMEDIATELY UPON REMAND.

The Clerk is directed to file the Joint Stipulation for Remand and Motion to Dismiss Appeal without Prejudice. The Clerk is further directed to provide a copy of this Order to all counsel of record, Father D.L. personally, Mother P.L. personally, counsel for D.J.L. and R.J.M., the Cascade County Clerk of Court, the Cascade County Attorney, the Office of Public Defender, and Hon. John W. Parker.

DATED this 4th day of August, 2026.