IN THE COURT OF APPEALS OF IOWA
No. 19-0413 Filed July 24, 2019
IN THE INTEREST OF W.C., Minor Child,
J.B., Intervenor, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Allamakee County, Linnea M.N.
Nicol, District Associate Judge.
An applicant appeals the juvenile court’s order denying his request to
intervene in child in need of assistance proceedings. AFFIRMED.
J.B., Luana, pro se appellant.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Whitney L. Gessner of Gessner Law Office, Decorah, attorney and guardian
ad litem for minor child.
Considered by Mullins, P.J., Bower, J., and Gamble, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019). 2
GAMBLE, Senior Judge.
J.B. appeals the juvenile court’s decision denying his request to intervene
in child-in-need-of-assistance (CINA) proceedings. J.B. did not preserve error on
his claims regarding discovery or the recusal of the judge. We determine the
juvenile court did not err in denying J.B.’s application to intervene. We affirm.
I. Background Facts & Proceedings
On July 25, 2018, the State initiated CINA proceedings for W.C., born in
2015. The father was listed as J.R. and the mother as P.C. The child was removed
from the mother’s care and placed with the maternal grandparents. The mother
was reportedly living with D.H., a convicted felon, at the time of the removal. The
child was adjudicated to be in need of assistance.
On October 4, J.B., who formerly lived with the mother and child, filed a pro
se application to intervene in the CINA proceedings. J.B. is not the biological father
of the child. J.B. stated the child saw him as a father figure and he believed it
would be in the child’s best interest for him to be involved in the child’s life. The
juvenile court entered an order on October 11, 2018, denying the application to
intervene:
On October 4, 2018, [J.B.] filed a Petition to Intervene in the case of [W.C.]. [J.B.] appeared at the hearing scheduled for October 4, 2018. [J.B.] was given an opportunity to be heard on the content of his motion. All parties were given an opportunity to be heard. All the named parties resisted the intervention of [J.B.]. The court finds that [J.B.] does not fit into one of the categories of persons who are mandatory intervenors. The court does not find a connection between [J.B.] and the child that justifies intervention in this action.
On November 20, J.B. filed a new application to intervene through counsel,
stating he had resided with the child for a period of time and they had a close 3
relationship. J.B. stated he wanted to be considered as a potential placement
option for the child in the event the mother was not able to regain custody. In the
order setting the application for hearing, the court requested legal authority for the
intervention of a non-relative. The mother filed a resistance to the application to
intervene, noting J.B. did not have a biological relationship with the child and had
not been involved with the child for a substantial period of time.
A hearing on the matter was held on January 31, 2019. J.B. testified he
and the mother “were together for a couple months, living together,” in late 2017
to early 2018. He stated even after the mother moved, he kept relations with the
child “for some time after that.” J.B. testified, “I feel I became like a father figure to
him, and I see him as, you know, not my biological son, but as my son.” He stated
he wanted to resume regular visitation and potentially be considered as a
placement option. J.B. submitted an affidavit from his aunt, stating J.B. had a close
relationship with the child. J.B. also presented photographs of his home. The
juvenile court denied J.B.’s request to intervene. J.B. appealed the juvenile court’s
decision.
II. Standard of Review
“Our review of a denial of a motion to intervene is for the correction of errors
at law.” In re H.N.B., 619 N.W.2d 340, 342 (Iowa 2000). “Although our review is
on error, we accord some discretion to the district court.” Id. “The district court
exercises this discretion when determining whether an applicant intervenor is
‘interested’ in the litigation before the court.” Id. at 342–43. In CINA proceedings,
our primary concern is the best interests of the child. In re J.S., 846 N.W.2d 36,
40 (Iowa 2014). 4
III. Merits
A. Discovery.
J.B. claims the juvenile court should have permitted him to conduct
discovery prior to making its decision concerning whether he could intervene in the
case. He states the mother did not testify at the hearing on his application to
intervene. The record does not show any discovery requests made by J.B. Also,
the issue of discovery was not discussed at the hearing on his application held on
January 31, 2019. We conclude J.B. has not preserved this issue for our review.
See In re A.B., 815 N.W.2d 764, 773 (Iowa 2012) (“[T]he general rule that appellate
arguments must first be raised in the trial court applies to CINA and termination of
parental rights cases.”).
B. Judicial Neutrality.
J.B. also claims there was a lack of judicial neutrality. The juvenile court
record does not contain any indication J.B. asked the judge to recuse herself.
Additionally, the issue was not raised at the hearing on the application to intervene.
Because the issue was not raised before the juvenile court, we determine it has
not been preserved for our review. See id.
C. Intervention.
J.B. asserts the juvenile court should have granted his application to
intervene. J.B. claimed he could intervene in the case because he was a “suitable
person” to assume the care of the child if the child was not returned to the mother.
After a dispositional hearing, an option for placement of a child is with a relative “or
other suitable person.” Iowa Code § 232.102(1)(a)(1) (2018). A person who has
a statutory right “to be considered for custody in the dispositional phase of a CINA 5
proceeding,” may be able to intervene. In re A.G., 558 N.W.2d 400, 402 (Iowa
1997).
The criteria for intervening in a CINA proceeding is found in Iowa Rule of
Civil Procedure 1.407. In re D.E., No. 13-0554, 2013 WL 4769378, at *2 (Iowa Ct.
App. Sept. 5, 2013) (citing A.G., 558 N.W.2d at 402). Under rule 1.407(1)(b), a
person may intervene,
[w]hen 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.
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IN THE COURT OF APPEALS OF IOWA
No. 19-0413 Filed July 24, 2019
IN THE INTEREST OF W.C., Minor Child,
J.B., Intervenor, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Allamakee County, Linnea M.N.
Nicol, District Associate Judge.
An applicant appeals the juvenile court’s order denying his request to
intervene in child in need of assistance proceedings. AFFIRMED.
J.B., Luana, pro se appellant.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Whitney L. Gessner of Gessner Law Office, Decorah, attorney and guardian
ad litem for minor child.
Considered by Mullins, P.J., Bower, J., and Gamble, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019). 2
GAMBLE, Senior Judge.
J.B. appeals the juvenile court’s decision denying his request to intervene
in child-in-need-of-assistance (CINA) proceedings. J.B. did not preserve error on
his claims regarding discovery or the recusal of the judge. We determine the
juvenile court did not err in denying J.B.’s application to intervene. We affirm.
I. Background Facts & Proceedings
On July 25, 2018, the State initiated CINA proceedings for W.C., born in
2015. The father was listed as J.R. and the mother as P.C. The child was removed
from the mother’s care and placed with the maternal grandparents. The mother
was reportedly living with D.H., a convicted felon, at the time of the removal. The
child was adjudicated to be in need of assistance.
On October 4, J.B., who formerly lived with the mother and child, filed a pro
se application to intervene in the CINA proceedings. J.B. is not the biological father
of the child. J.B. stated the child saw him as a father figure and he believed it
would be in the child’s best interest for him to be involved in the child’s life. The
juvenile court entered an order on October 11, 2018, denying the application to
intervene:
On October 4, 2018, [J.B.] filed a Petition to Intervene in the case of [W.C.]. [J.B.] appeared at the hearing scheduled for October 4, 2018. [J.B.] was given an opportunity to be heard on the content of his motion. All parties were given an opportunity to be heard. All the named parties resisted the intervention of [J.B.]. The court finds that [J.B.] does not fit into one of the categories of persons who are mandatory intervenors. The court does not find a connection between [J.B.] and the child that justifies intervention in this action.
On November 20, J.B. filed a new application to intervene through counsel,
stating he had resided with the child for a period of time and they had a close 3
relationship. J.B. stated he wanted to be considered as a potential placement
option for the child in the event the mother was not able to regain custody. In the
order setting the application for hearing, the court requested legal authority for the
intervention of a non-relative. The mother filed a resistance to the application to
intervene, noting J.B. did not have a biological relationship with the child and had
not been involved with the child for a substantial period of time.
A hearing on the matter was held on January 31, 2019. J.B. testified he
and the mother “were together for a couple months, living together,” in late 2017
to early 2018. He stated even after the mother moved, he kept relations with the
child “for some time after that.” J.B. testified, “I feel I became like a father figure to
him, and I see him as, you know, not my biological son, but as my son.” He stated
he wanted to resume regular visitation and potentially be considered as a
placement option. J.B. submitted an affidavit from his aunt, stating J.B. had a close
relationship with the child. J.B. also presented photographs of his home. The
juvenile court denied J.B.’s request to intervene. J.B. appealed the juvenile court’s
decision.
II. Standard of Review
“Our review of a denial of a motion to intervene is for the correction of errors
at law.” In re H.N.B., 619 N.W.2d 340, 342 (Iowa 2000). “Although our review is
on error, we accord some discretion to the district court.” Id. “The district court
exercises this discretion when determining whether an applicant intervenor is
‘interested’ in the litigation before the court.” Id. at 342–43. In CINA proceedings,
our primary concern is the best interests of the child. In re J.S., 846 N.W.2d 36,
40 (Iowa 2014). 4
III. Merits
A. Discovery.
J.B. claims the juvenile court should have permitted him to conduct
discovery prior to making its decision concerning whether he could intervene in the
case. He states the mother did not testify at the hearing on his application to
intervene. The record does not show any discovery requests made by J.B. Also,
the issue of discovery was not discussed at the hearing on his application held on
January 31, 2019. We conclude J.B. has not preserved this issue for our review.
See In re A.B., 815 N.W.2d 764, 773 (Iowa 2012) (“[T]he general rule that appellate
arguments must first be raised in the trial court applies to CINA and termination of
parental rights cases.”).
B. Judicial Neutrality.
J.B. also claims there was a lack of judicial neutrality. The juvenile court
record does not contain any indication J.B. asked the judge to recuse herself.
Additionally, the issue was not raised at the hearing on the application to intervene.
Because the issue was not raised before the juvenile court, we determine it has
not been preserved for our review. See id.
C. Intervention.
J.B. asserts the juvenile court should have granted his application to
intervene. J.B. claimed he could intervene in the case because he was a “suitable
person” to assume the care of the child if the child was not returned to the mother.
After a dispositional hearing, an option for placement of a child is with a relative “or
other suitable person.” Iowa Code § 232.102(1)(a)(1) (2018). A person who has
a statutory right “to be considered for custody in the dispositional phase of a CINA 5
proceeding,” may be able to intervene. In re A.G., 558 N.W.2d 400, 402 (Iowa
1997).
The criteria for intervening in a CINA proceeding is found in Iowa Rule of
Civil Procedure 1.407. In re D.E., No. 13-0554, 2013 WL 4769378, at *2 (Iowa Ct.
App. Sept. 5, 2013) (citing A.G., 558 N.W.2d at 402). Under rule 1.407(1)(b), a
person may intervene,
[w]hen 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.
A person “is ‘interested’ if the legal proceeding will directly affect a legal right.” Id.
(citing A.G., 558 N.W.2d at 403).
“Although we are to liberally construe the rule of intervention, we must be
certain that the applicant has asserted a legal right or liability that will be directly
affected by the litigation.” H.N.B., 619 N.W.2d at 343. A “suitable person” who
could assume custody of a child and should be afforded the right to intervene may
include “interested persons who have provided financial support, routine care of a
child, [and] shared their love and care for a child.” D.E., 2013 WL 4769378, at *2.
“However, an ‘indirect, speculative or remote interest’ is not sufficient to ‘provide
one a right to intervene.’” Id. (quoting H.N.B., 619 N.W.2d at 343). “For instance,
‘the mere interest or desire to adopt a child will not qualify as a sufficient interest.’”
Id. (quoting H.N.B., 619 N.W.2d at 343). “The sufficiency of the interest asserted
by the intervenor under the ‘suitable person’ provision is considered in light of the
nature of the proceeding and surrounding facts and circumstances.” Id. (quoting
H.N.B., 619 N.W.2d at 343). 6
The juvenile court “may exercise discretion in evaluating the sufficiency of
the interest asserted by the intervenor.” A.G., 558 N.W.2d at 404. The court has
the “responsibility to exercise its discretion in determining” who are “suitable
persons.” In re C.L.C., 479 N.W.2d 340, 344 (Iowa Ct. App. 1991). At the hearing,
the juvenile court stated, “I am going to deny [J.B.’s] request for intervention. I
don’t believe his contact with the child is substantial. I don’t believe he qualifies
as a suitable person in the intention of the statute.” This finding was well within
the discretion of the juvenile court.
We conclude the juvenile court did not err in concluding J.B. was not a
“suitable person” under section 232.102(1)(a)(1). J.B. had lived with the mother
for about two months and had not seen the child for about a year at the time of the
hearing on the application to intervene. Due to the finding J.B. was not a “suitable
person,” he did not have the legal right to intervene in the CINA proceedings. See
id.
We affirm the decision of the juvenile court.
AFFIRMED.