Dependency of J.H., In re

• Citation: 117 Wn.2d 460,815 P.2d 1380
• Parties: In re the Dependency of J.H., DOB
• Decision Date: 09 September 1985
• Court: Washington Supreme Court

Page 460

117 Wn.2d 460

815 P.2d 1380

In re the Dependency of J.H., DOB 9-9-85 and C.H., DOB 7-25-87 Ethan SCHWEBKE and Karen Sullivan, husband and wife, Appellants, v. LUTHERAN SOCIAL SERVICES OF WASHINGTON; the Department of Social and Health Services; Alice Humphrey Mother; and Richard Goetz aka Joseph Gilbert, Father, Respondents.

No. 57638-6.

Supreme Court of Washington,

En Banc.

Sept. 19, 1991.

Talmadge, Friedman & Cutler, Philip A. Talmadge, Robert G. Nylander, Mikkelborg, Broz, Fryer & Wells, Margaret Doyle Fitzpatrick, Seattle, for appellants.

Law Office of Linn & Schisel, Brian J. Linn, Seattle, Kenneth O. Eikenberry, Atty. Gen., Kimberly A. Loranz, Asst. Atty. Gen., Yakima, Carey & Burman, Linda Passey, Arlington, for respondents.

FACTS OF CASE

ANDERSEN, Justice.

The foster parents of two children sought to intervene in juvenile court dependency actions in order to challenge the removal of the children from their home to another foster home. The juvenile court denied the foster parents' motion to intervene. We granted direct review and affirm.

The children involved in this action are J.H., who is 6 years old, and C.H., who is 4.

The children's mother has a history of serious drug abuse. This resulted in the placement of J.H. and C.H. in foster care on February 23, 1989.

Foster care is a child welfare service which offers substitute family care for children whose legal parents are unable or unwilling to provide day-to-day care. ¹ Generally foster parents contract with a child placing agency to care Between February 23, 1989, and October 27, 1989, the Department of Social and Health Services (DSHS) placed J.H. and C.H. in four different foster homes. The children were determined to be dependent in May of 1989.

for children on a temporary basis while a more permanent plan, such as return to the care of the legal parents or adoption, is developed. ²

On October 17, 1989, the children's mother indicated that she intended to begin a drug treatment program and wanted to work toward having the children returned to her care. At that time the juvenile court made DSHS and Lutheran Social Services jointly responsible for the care and supervision of the children.

Lutheran Social Services ³ placed the children in their fifth foster home on October 27, 1989. That foster home was the home of appellants (hereafter referred to as the foster parents). The foster parents accepted the children pursuant to a written agreement entitled "Permanency Planning Placement Agreement". The placement agreement, set forth in the margin, ⁴ states that the agency The foster parents were initially told that the mother of the children had a serious drug problem, that there was little chance of rehabilitation and that an adoption by the foster parents was likely. It was not until the children had been with the foster parents for 3 weeks, that the foster parents were told of the mother's intent to receive drug Not surprisingly, both children had emotional and developmental problems when they were placed in the foster parents' home, and were in need of therapy and special care. Both progressed extremely well with these foster parents and the children and foster parents apparently developed an attachment for each other.

                intended to develop a permanent placement plan for the children within 1 year.   That plan would be either a return of the children to the home of their birth mother, placement with a relative or adoption by the foster parents.   Under the agreement the agency retained final authority for placement decisions regarding the children
                treatment and of her stated desire to ultimately have the children returned to her care
                

During the first 8 months that the children were in the home of the foster parents, the mother's contact with them was limited. She saw the children during supervised visits once a week. In June 1990, the juvenile court, satisfied with the mother's progress, determined that the mother's contact with the children should be increased. Unsupervised visits between the children and their mother, who was apparently still residing at the drug treatment center, were ordered. Overnight visits were to begin, subject to the approval of the mother's and children's therapists.

As the mother's contact with the children increased, the foster parents' cooperation with the children's therapist, school and the agencies apparently decreased. The foster father allegedly told the children to call their mother "Auntie Alice" and encouraged the children to telephone the foster parents during visits with the mother. The foster parents also allegedly made inappropriate remarks about the mother in the presence of the children and began making independent decisions about the children's therapy and schooling, contrary to the agencies' direction. The agencies' efforts to work toward the permanent placement of the children in the home of the mother caused considerable stress, particularly to the foster mother. The foster parents challenged agency decisions regarding the children and eventually hired an attorney. They believed the agency took offense at those actions. The agencies claimed that the foster parents were impeding their efforts to reunite the children with their mother, so in October of 1990, the agencies decided to move the children to yet another foster The foster parents were given only a week's notice that the children were to be removed from their foster home. They immediately attempted to challenge the agencies' action. The foster parents argued that they had a legally recognized right to participate in the dependency proceedings. They also claimed that they had a constitutional right to challenge the removal of the children from their home. Their attempted intervention was unsuccessful and this appeal followed.

home (their sixth) pending their potential return to the care of their mother. ⁵

The evolving rights of foster parents is a subject of importance and, as the case before us amply demonstrates, one that tends to evoke strong emotions on the part of all involved. It also is an area of law which is in the midst of change. Contemporaneously with this case, or perhaps as a result of it, both the State Legislature and the Department of Social and Health Services made (or considered) significant changes in the rights and treatment of foster parents. ⁶ These matters and relationships are within the Legislature's power to study, consider and change where considered appropriate.

Three issues are presented for our consideration.

ISSUES

ISSUE ONE. Do foster parents, who claim to be the "psychological" or de facto parents of foster children, have a right to intervene in dependency proceedings involving such children?

ISSUE TWO. Are foster parents who claim to be the "psychological" parents of foster children entitled to procedural due process before the children can be removed from the foster home?

ISSUE THREE. Are foster children entitled to due process before they can be removed from the home of foster parents who claim to be their "psychological" parents?

DECISION

ISSUE ONE.

CONCLUSION. Foster parents do not have a right, based on statute or case law, to intervene in dependency proceedings. Permissive intervention, however, may be granted in the proper case at the informed discretion of the trial court.

The foster parents moved to intervene in the dependency action pursuant to the Superior Court Civil Rules, specifically CR 24, which provides in pertinent part:

(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute confers an unconditional right to intervene; or (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.

(b) Permissive Intervention. Upon timely application, anyone may be permitted to intervene in an action:

(1) When a statute confers a conditional right to intervene; or

(2) When an applicant's claim or defense and the main action have a question of law or fact in common.... In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

At the time the foster parents attempted to intervene in the juvenile court actions, no statute existed which conferred an unconditional right on foster parents to intervene in juvenile dependency proceedings. The first section of the above intervention of right rule (CR 24(a)(1)) thus does not apply.

The second section of the intervention of right rule (CR 24(a)(2)) requires that the prospective intervenor show: (1) an interest relating to the subject matter of the action; (2) that the ability of the intervenor to protect that interest may be impaired by disposition of the action; (3) that the interest is not being adequately protected by existing parties; and (4) that the motion to intervene is timely made. ⁷ It is only the first factor--an interest in the subject matter--that is at issue in this case.

The meaning of "interest" is broadly interpreted, requiring flexibility and a case-by-case analysis and balancing of the relative concerns of the prospective intervenor, the original parties to the lawsuit and the public in the efficient resolution of controversies. ⁸ The interest which the intervenor seeks to protect must be one recognized by law. ⁹

The foster parents argue that they are the "psychological" or de facto parents of J.H. and C.H. and therefore have a recognizable legal interest in maintaining a family relationship with the children. ¹⁰ The concept of "psychological" or de facto parent recognizes that children become attached to the adults who take care of their physical and...