In re Adoption of CCLB

• Decision Date: 18 April 2001
• Docket Number: No. 00-275.,00-275.
• Citation: 305 Mont. 22,22 P.3d 646,2001 MT 66
• Parties: In the Matter of the ADOPTION OF C.C.L.B., a Minor.
• Court: Montana Supreme Court

22 P.3d 646

2001 MT 66

305 Mont. 22

In the Matter of the ADOPTION OF C.C.L.B., a Minor.

No. 00-275.

Supreme Court of Montana.

Submitted on Briefs October 26, 2000.

Decided April 18, 2001.

Darcy M. Crum, Rebeck & Crum, Great Falls, for Appellants.

Mary Rose Heller, Department of Public Health and Human Services, Helena, Richard Weber, Koch, Johnson, Weber & Goheen, Hamilton, Dustin Gahagan, Waters, Smith & Gahagan, Hamilton, (Guardian ad Litem), for Respondents.

LEAPHART, Justice.

¶ 1 The "Greens" adopted C.B. on May 26, 1999, through a judicial decree of adoption in the Twenty-first Judicial District Court. The "Whites" also wanted to adopt C.B. and filed a motion to intervene and to set aside the Greens' final decree of adoption.¹ The District Court determined that the Whites' motions were untimely and that they had no standing to intervene or set aside the final decree. We affirm.

FACTUAL BACKGROUND

¶ 2 This case began in July 1996, when the Montana Department of Public Health and Human Services (DPHHS) removed C.B. from the custody of her natural mother and placed her in temporary foster care with the Greens. At the time, C.B. was a little less than a year old. C.B.'s natural father had never taken any responsibility for her care, but DPHHS had developed a treatment plan for C.B.'s natural mother with the hope of reuniting the family. By October 1997, however, it was clear the plan would not be successful, and DPHHS began proceedings to terminate parental rights. By this time, C.B. had been with the Greens for seventeen months, and they decided to pursue permanent adoption, pending the outcome of the termination proceeding. Mrs. White is C.B.'s second cousin. After she learned of the termination proceeding through C.B.'s aunt, the Whites contacted DPHHS to express their interest in adopting C.B. They hoped that, by doing so, C.B. would be able to maintain ties to her natural family.

¶ 3 From this point forward, the case developed along three lines: the parental rights' termination action initiated by DPHHS, the adoption proceeding initiated by the Greens and the adoption proceeding initiated by the Whites. The DPHHS termination action and the Greens' adoption petition were filed in the Twenty-first Judicial District, Ravalli County, where C.B. lives. The Whites filed their adoption petition in the Twelfth Judicial District, Choteau County, where they live. Initially, neither the Twenty-first Judicial District Court nor the Twelfth Judicial District Court knew there was a competing adoption petition pending in the other court. Later, the Whites filed post-judgment motions to intervene in both the termination proceeding and the Greens' adoption petition.

A. Intervention in the Termination Proceeding

¶ 4 The Twenty-first Judicial District Court terminated the parental rights of C.B.'s mother and father in March 1998; at the same time it granted custody of C.B. to DPHHS and authorized it to consent to her adoption. When DPHHS subsequently gave its consent to adopt to the Greens, the Whites attempted to intervene in the termination proceeding—despite the fact that some six months had passed since the District Court's final order. Although the Whites' motion to intervene in the termination proceeding is not at issue on appeal, its history and outcome are relevant to the questions of how and why the Whites came to file their motion to intervene in the Greens' adoption petition. ¶ 5 Well before the termination hearing, DPHHS told the Whites that, before they could be approved as adoptive parents or initiate visits with C.B., they would need to go through a preadoptive evaluation and training process. This involved a study to assess the conditions in the Whites' home and their suitability as adoptive parents. DPHHS also recommended that the Whites complete a training program for potential foster parents. In addition, the Whites undertook numerous lengthy trips to the Greens' home to begin to become acquainted with C.B.

¶ 6 The termination hearing was held in March 1998. The Whites completed the recommended programs and evaluations in July 1998. Shortly thereafter, DPHHS staff approved their home as "an adoptive resource" and recommended placement of C.B. with the Whites. These developments led the Whites to believe that DPHHS would support their efforts to adopt C.B. However, like the Whites, the Greens were also being reviewed by DPHHS as potential adoptive parents for C.B. In August 1998, DPHHS determined that C.B. had formed a strong bond in her current foster placement and that it would be in her best interests to stay with the Greens. In response, the Whites moved to intervene in the termination action, the only legal proceeding that had been filed to date. The Whites, who contend that they are members of C.B.'s extended family, argued that DPHHS should have given them priority as adoptive parents.

¶ 7 The District Court determined that the Whites failed to state sufficient grounds for intervention in the termination proceeding:

[The Whites] do not appear to be challenging the Court's decision to terminate ... parental rights and give [DPHHS] permanent legal custody, or the Court's decision to grant [DPHHS] the right to consent to adoption. Instead, the substance of the briefs leads the Court to determine that the [Whites] are seeking judicial review of [DPHHS's] decision to approve the [Greens] as C.B.'s adoptive family. The [Whites] do not set forth any authority for judicial review of the Department's placement determination, and the statutes governing placement of youths do not provide for any such review....

The District Court also determined that the motion to intervene was untimely. It noted that the Whites' motion to intervene came almost two years after initial investigatory authority was granted and almost eight months after parental rights had been terminated. Citing § 42-2-620, MCA, which limits the time to question a termination order to six months, the District Court denied their motion.

¶ 8 The District Court went on to recommend that a more appropriate forum for the Whites to seek judicial review of DPHHS's decision would be in "an action against [DPHHS], or in the separate adoption proceeding, should ... the [Greens] file such an action." (Emphasis added.) The Whites did not follow either recommendation, electing instead to file their own adoption petition in the Twelfth Judicial District Court.

B. Motion to Intervene in the Greens' Adoption Action

¶ 9 By the summer of 1998, C.B. had been with the Greens for nearly two years. They formally filed their petition to adopt on March 17, 1999, after DPHHS indicated that it would give them its consent to adopt and after the Whites' motion to intervene in the termination proceeding had been denied. The Twenty-first Judicial District Court granted the Greens' petition on May 26, 1999. The Whites filed their motion to intervene and set aside the adoption on December 9, 1999, more than six months after the final decree and more than three years after C.B. was first placed in the Greens' care.

¶ 10 The Whites made their motion to intervene pursuant to Rule 24(a), M.R.Civ.P., which specifies conditions under which an applicant shall be allowed to intervene in an action as a matter of right, and Rule 24(b), M.R.Civ.P., which sets outs conditions under which the court may, at its discretion, allow intervention. The Whites also argued that the Greens' adoption decree should be set aside under the provisions of Rule 60(b)(3), (4) and (6), M.R.Civ.P ¶ 11 The District Court determined that the Whites had no standing to intervene as a matter of right under Rule 24(a), M.R.Civ.P., and that permissive intervention under Rule 24(b), M.R.Civ.P., was both untimely and would undermine the purpose of adoption: to "help a child become a permanent member of a nurturing family that can give the child the care, protection, and opportunities essential for healthy personal growth and development." The District Court denied the Whites' Rule 60(b) motion to set aside the decree on the grounds that, as nonparties to the Greens' adoption petition, they had no standing to make such a motion and that, in any case, the motion was untimely, coming more than 180 days after the final decree. On appeal, the Whites raise the following issues:

¶ 12 Issue 1. Did the District Court err when it denied the Whites' motion to intervene in the Greens' adoption petition?

¶ 13 Issue 2. Did the District Court err when it denied the Whites' motion to set aside the Greens' final decree of adoption?

DISCUSSION

¶ 14 Under Rule 24, M.R.Civ.P., intervention may be either as a matter of right or by permission of the court. The District Court denied the Whites' motion for intervention as a matter of right on the grounds that they showed no legally-protected interest that entitled them to intervene. It denied the motion for permissive intervention on the grounds that the motion was not timely.

A. Intervention as a Matter of Right

¶ 15 Under Rule 24(a), M.R.Civ.P., upon timely application, anyone must be allowed 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 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....

The Whites do not cite a statute that provides them with an unconditional right to intervene. Rather, they rely on Rule 24(a)(2), M.R.Civ.P., arguing that they have a legal "interest relating to the ... transaction" by virtue of the extended family placement preference in the Indian Child Welfare Act (ICWA) and various legislative and departmental policies favoring adoptive placement with extended family members. The Greens respond that ICWA is inapplicable to this case and that the policies cited by...