In re Adoption of D.M.

• Decision Date: 08 February 2006
• Docket Number: No. 23434.,23434.
• Citation: 710 N.W.2d 441,2006 SD 15
• Parties: In the Matter of the ADOPTION OF a Child known as D.M.
• Court: South Dakota Supreme Court

710 N.W.2d 441

2006 SD 15

In the Matter of the ADOPTION OF a Child known as D.M.

No. 23434.

Supreme Court of South Dakota.

Argued on April 26, 2005.

Reassigned July 22, 2005.

Decided February 8, 2006.

Debra D. Watson of Watson & McGowan, L.L.P., Rapid City, SD, for proposed intervenors and appellants Degens.

Jean M. Cline of Feehan & Cline, P.C., Rapid City, SD, for adoptive parents and appellees.

Lawrence E. Long, Attorney General, Ann M. Holzhauser, Assistant Attorney General, Pierre, SD, for appellee State of South Dakota.

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 15-6-24(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 protectable. 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, i.e., 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 permanent 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 stepsibling." 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...