In Re the Adoption of a Child Known as D.M.

2006 SD 15, 710 N.W.2d 441, 2006 S.D. LEXIS 19, 2005 WL 3747715

• Court: South Dakota Supreme Court
• Decided: February 8, 2006
• Docket: 23434
• Status: Published

Opinions

MEIERHENRY, Justice (on reassignment).

[¶ 1.] Faye and Kelly Degen (Degens) sought to intervene in the adoption proceedings of their grandniece, D.M. The trial court denied Degens’ motion to intervene and entered an order and decree of adoption. Degens appeal. We affirm.

FACTS

[¶ 2.] Degens originally sought to intervene in the abuse and neglect proceedings in which parental rights to D.M. were terminated. The Department of Social Services (DSS) had approved Degens as an adoptive family along with two other families but ultimately recommended adoptive placement with a nonrelative family.¹ After being denied a right to intervene in the abuse and neglect proceeding, the Degens sought relief from this Court. See In re D.M., 2004 SD 34, 677 N.W.2d 578. On appeal, we held that the rules of civil procedure did not give Degens the right to intervene in the dispositional phase of the abuse and neglect proceeding. Id. ¶ 11. Subsequently, the foster family with whom DSS had placed D.M. filed a petition to adopt the child. Degens then sought to intervene in the adoption proceeding. Again, Degens’ motion to intervene was denied. Degens appeal and raise the following issue.

ISSUE

Whether a relative approved by DSS for placement can intervene as a matter of right and challenge the agency’s proposed adoptive placement with unrelated foster parents.

DECISION

Right to Intervene Pursuant to SDCL 15-6-2I(a)

[¶ 3.] The trial court held that because Degens do not have an independent legal right to adopt D.M., they do not have standing to intervene in the adoption proceeding. On appeal, Degens assert that they have a legally protected interest in D.M. making them real parties in interest. They assert that intervention is necessary to enable the trial court to determine the best adoptive placement for D.M. Since the issue involves a question of law, our review is de novo. Id. ¶ 4.

[¶ 4.] Degens base their right to intervene on SDCL 15-6-24(a)(2), which provides:

Upon timely application anyone shall be permitted to intervene in an action: ...

(2) When the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.

This is a court rule the purpose of which is “to obviate delay and multiplicity of suits by creating an opportunity to persons directly interested in the subject matter to join in an action or proceeding already instituted.” Mergen v. N. States Power Co., 2001 SD 14, ¶ 5, 621 N.W.2d 620, 622. We have emphasized that intervention is strictly procedural and “that intervention standards are flexible, allowing for some tailoring of decisions to the facts of each case.” Southard v. Hansen, 342 N.W.2d 231, 233-34 (S.D.1984) (citing Kozak v. Wells, 278 F.2d 104 (8thCir.1960)).

[¶5.] South Dakota’s court rule SDCL 15-6-24(a)(2) is almost identical to Federal Rule of Civil Procedure 24(a)(2).² The Eighth Circuit Court of Appeals construes Rule 24 liberally in favor of the intervenor. United States v. Union Elec. Co., 64 F.3d 1152, 1158 (8thCir.1995). Citing to numerous Eighth Circuit cases, the federal court explained:

In our review, Rule 24 is construed liberally, and we resolve all doubts in favor of the proposed intervenors. Kansas Pub. Employees Retirement Sys. [v. Reimer Koger Assocs., Inc.], 60 F.3d [1304,] 1307 [(8th Cir.1995)]; Sierra Club v. Robertson, 960 F.2d 83, 86 (8th Cir.1992) (doubts resolved in favor of proposed intervenor); Arkansas Elec. Energy Consumers v. Middle S. Energy, Inc., 772 F.2d 401, 404 (8th Cir.1985) (Rule 24 is to be liberally construed); Corby Recreation, Inc. v. General Electric Co., 581 F.2d 175, 177 (8th Cir.1978) (doubts should be resolved in favor of proposed intervenor); Kozak v. Wells, 278 F.2d 104, 111-12 (8th Cir.1960) (Rule 24 is to be liberally construed).

Id. The Eighth Circuit requires the applicant to “satisfy a tripartite test in order to intervene.” Id. at 1160. The tripartite test is as follows:

1) the party must have a recognized interest in the subject matter of the litigation; 2) that interest must be one that might be impaired by the disposition of the litigation; and 3) the interest must not be adequately protected by the existing parties.

Id. 1160-61 (citation omitted). We adopt this tripartite test and apply it to the instant case.

Whether Degens have a Recognized Interest in D.M. ’s Adoption

[¶ 6.] Applying the tripartite test in this case, we must first determine if Degens have a recognized interest in the subject matter of the litigation. The Eighth Circuit, in analyzing what constitutes a “recognized interest” sufficient to satisfy the rule, said:

Although ... this court defined an interest sufficient to support intervention as “a recognized interest in the subject matter of the litigation,” the courts of appeals of other circuits have stated that intervention requires that the intervenor have an interest in the proceedings that is “direct, substantial, and legally pro-tectable.” These standards are not contradictory. The applicant for intervention must have an interest in the subject matter of the litigation, i.e., an interest that is “direct,” as opposed to tangential or collateral. Furthermore, that interest must be “recognized,” ie., both “substantial” and “legally protectable.”

Id. at 1161 (citations omitted). We have applied a similar test to determine the sufficiency of an interest. We stated in Jackson v. Board of County Commissioners for Pennington County.

“While the intervention statutes of the states differ, there is a general concurrence in the decisions that the interest which entitles a person to intervene in a suit between other parties must be in the matter in litigation and of such direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment. • The interest must be one arising from a claim to the subject matter of the action or some part thereof, or a lien upon the property or some part thereof; one whose interest in the matter of litigation is not a direct or substantial interest, but, is an indirect, inconsequential, or contingent one, cannot intervene.”

76 S.D. 495, 500, 81 N.W.2d 686, 689 (1957) (quoting 39 Am.Jur. Parties § 61). It therefore follows that before Degens can intervene, they must be able to show that they have a recognized interest in the litigation. Their interest must be “of such direct and immediate character that [they] will either gain or lose by the direct legal operation and effect of the [adoption order].” Id. Their interest, must also “arise[ ] from a claim to the subject matter of the action,” id., and it must be “direct, substantial, and legally protectable.” Union Electric, 64 F.3d at 1161.

[¶ 7.] Degens claim that their legally protectable interest stems from a provision in DSS’s Child Protection Services Procedures Manual, 06-03. - The manual is given ,to case workers to guide and assist them in making appropriate assessments of children and their circumstances and in making recommendations regarding foster care and adoption placement. The manual provides in relevant part:

The order of preferences-for a perma- ■ nent family is:

1. Birth Family

Father, mother, grandparents, uncles, aunts, cousins, and other persons identified by the child’s family as significant others should be sought out as permanent families to provide care for the child.

Furthermore, the manual provides that “[w]hen it is impossible for a child to live with birth family members who may, or

may not adopt, the Department attempts to place the child with a non-related adoptive family.” Degens argue that since DSS placed the child with non-related foster parents for adoption, no one is representing D.M.’s birth family. They contend that it is in the child’s best interest to be adopted by family members. Unless they are allowed to intervene, they claim that the court will be unable to weigh the importance of familial ties when determining D.M.’s best interests. Degens further argue that leaving the adoption selection entirely within the discretion of. DSS “runs afoul of the court’s statutory duty to do what is in the child’s best interest.”

[¶ 8.] The South Dakota Legislature agreed that family members of abused and neglected children wishing to adopt should have a right to intervene. That right was established, however, as part of the abuse and neglect proceedings. The 2005 Legislature amended the abuse and neglect statutes to require DSS to give placement preference to relatives in both temporary and permanent placement of abused and neglected children. See 2005 SD Laws ch 140 §§ 1-2; see also SDCL 26-7A-19; SDCL 26-7A-19.1. As amended, the law defines the term “relative” as “an adult who is related to the child by blood, adoption, or marriage, and who is the child’s grandparent, aunt, uncle, sibling, brother-in-law, sister-in-law, niece, nephew, great grandparent, great uncle, great aunt, first cousin, second cousin, stepparent, or step-sibling.” SDCL 26A-7A-19. Additionally, the Legislature enacted a new provision specifically giving relatives who were denied adoptive placement the right to intervene. See 2005 SD Laws ch 140, § 3; see also SDCL 26-8A-29.1. The law now provides that “any relative who has been denied " adoptive placement by the Department. of Social Services may request a hearing to determine if the placement was an abuse of discretion.” SDCL 26-8A-29.1.

[¶ 9.] Unfortunately for Degens, the legislation came too late. All abuse and neglect proceedings involving D.M. had been completed prior to the new law taking effect. Consequently, the only avenue of challenge left for Degens was through the adoption proceedings. The adoption statutes, however, do not specifically give family members the right to intervene. When the Legislature added the right to challenge adoptive placement, it did so only as part of the abuse and neglect proceedings.³

[¶ 10.] We have long recognized that “adoption is a creature of statute.” Calhoun v. Bryant, 28 S.D. 266, 133 N.W. 266, 270 (1911). Consequently, the rights and procedures for adoption are governed by statute. Challenges to adoptions are likewise controlled by statute. The language of SDCL 25-6-2 appears to contemplate challenges but does not indicate who the challengers might be. It provides:

In an adoption proceeding or in any proceeding that challenges an order of adoption or order terminating parental rights, the court shall give due consideration to the interests of the parties to the proceedings, but shall give paramount consideration to the best interests of the child.

Id. The only persons identified as participants or parties to an adoption are the persons adopting the child, the child, DSS, and other persons whose consent is necessary. See SDCL 25-6-3; SDCL 25-6-4; SDCL 25-6-10; SDCL 25-6-11; SDCL 25-6-12. Beyond these identified parties and participants, the statutes do not specifically recognize any other possible inter-venors. Further, the statutes do not address familial preference of any sort.

[¶ 11.] Courts from other jurisdictions have addressed this issue with varying results. The cases, however, offer little guidance because of their dependence on their own state statutes. See, e.g., Baker v. Webb, 127 S.W.3d 622, 626 (Ky.2004) (holding that biological relatives had the right to intervene in an adoption proceeding); In re BC, 1988 OK 4, 749 P.2d 542, 545 (concluding that foster parents had standing “to intervene and to assert their justiciable interest” in an adoption proceeding because they stood “in loco par-entis”); In re Adoption of B.T., 150 Wash.2d 409, 78 P.3d 634, 639 (2003) (concluding that a paternal grandmother and step-grandfather had standing to petition for adoption by broadly interpreting the standing requirement of Washington’s adoption statutes). But see, e.g., In re Adoption of C.C.L.B., 2001 MT 66, ¶¶ 19-20, 305 Mont. 22, 22 P.3d 646, 650 (concluding that second cousins had no “direct, substantial, legally protectable interest” in adoption despite legislative and departmental policies that favored adoptive placement with extended family members because second cousin was not “ ‘extended family members’ as that term is employed in Montana adoption law”); In re Adoption of J.C.G., 177 Wis.2d 424, 428, 501 N.W.2d 908, 910 (1993) (concluding that grandparents did not have standing to intervene in the adoption of their grandchildren because only those who were qualified to petition for adoption under Wisconsin law had a “legally, protect-able interest in the adoption”).

[1f 12.] As with the cases from other jurisdictions, our decision is controlled by our own state statutes. Although the Legislature amended the abuse and neglect statutes to give certain family members standing to intervene, it did not afford the same rights in the adoption statutes. Neither do we find that the policies espoused in the DSS manual give, Degens a legally protectable interest. We are sympathetic to Degens’ plight and their commendable efforts to enlist the assistance of the court in the adoption of their grandniece. Nevertheless, we cannot stretch the definition of a legally protectable interest to include an internal policy statement in an employee manual written by DSS. Adoption rights and procedures are created by the Legislature. At this point, the Legislature has only recognized the right to intervene as part of the abuse and neglect proceedings. These are policy decisions best left to the Legislature. Unfortunately, we must again decline Degens’ request to participate in proceedings involving D.M.

[¶ 13.] We hold that Degens do' not have a right to intervene under SDCL 15-6 — 24(a)(2) in the adoption of D.M. We. affirm.

[¶ 14.] KONENKAMP, Justice, concurs. [¶ 15.] GILBERTSON, Chief Justice and ZINTER, Justice, concur with a writing. [¶ 16.] SABERS, Justice, dissents.,

1 . D.M. became eligible for adoption through DSS after the parental rights to the child were involuntarily terminated. Through the process of finding adoptive placement, DSS approved three adoptive families. Two of the families were relatives of D.M., the other was a non-related foster family. DSS rejected both of the family placements and selected the foster family for D.M.'s adoption.

2 . The Federal rule provides:

Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

Fed. R. Civ. P. 24(a).

3 . The concurrence correctly points out that the Legislature specifically foreclosed intervention in an adoption proceeding under the abuse and neglect statutes. SDCL 26-8A-29.1 specifically states that ”[n]o intervention may be allowed in a proceeding involving an apparent, alleged, or adjudicated ’ abused or neglected child, including an adoption or guardianship proceeding for a child placed in the custody of the Department of Social Services pursuant to 26-8A-27, except as provided by this chapter and under the Indian Child Welfare Act, (25 U.S.C. §§ 1901 to 1963, inclusive), as amended to January 1, 2005.” That provision, however, was enacted in 2005. See 2005 SD Laws ch. 140, § 3. Therefore, it does not apply to the Degens' case, which was filed and determined in 2004.