In the Matter of C.G.L.
| Decision Date | 12 October 2000 |
| Citation | 28 S.W.3d 502 |
| Parties | (Mo.App. S.D. 2000) In the Matter of C.G.L., a minor, Darrell Glenn Lowe, Anna Bell Lowe, and the Cherokee Nation of Oklahoma, Appellants, v. Jack Bilyeu and Kelly Bilyeu, McDonald County Juvenile Office, and Missouri Dept. of Social Services, Respondents. 23442 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of McDonald County, Hon. John R. LePage
Counsel for Appellant: Chris M. Hunt
Counsel for Respondent: John S. Dolence and Roya R. Hough
Opinion Summary: None
Darrell Glenn Lowe, Anna Bell Lowe and the Cherokee Nation of Oklahoma (collectively referred to as appellants) appeal a judgment denying a motion to intervene in an action for adoption of C. G. L. This court reverses and remands with directions.
The petition for adoption states that C. G. L. was born September 7, 1998. Parental rights of C. G. L.'s biological parents were terminated June 17, 1999, by judgment entered in the Juvenile Division of the Circuit Court of McDonald County, Missouri. The child was placed in the custody of the Missouri Division of Family Services.
On July 22, 1999, Jack Bilyeu and Kelly Bilyeu filed a petition in the Circuit Court of McDonald County seeking transfer of custody and adoption of C. G. L. An order transferring custody of C. G. L. to Jack and Kelly Bilyeu was entered September 8, 1999.1 On December 3, 1999, appellants filed a motion to intervene in the adoption proceeding pursuant to Rule 52.12. The motion alleged, inter alia, that proposed intervenor Anna Bell Lowe is a registered member of the Cherokee Nation of Oklahoma, a federally recognized Indian tribe; that the child and his biological father are members of the Cherokee Nation of Oklahoma. The motion asserted "[t]hat as such, all child custody proceedings in this cause are governed by the Indian Child Welfare Act 'ICWA,' 25 U.S.C. § 1901 et seq. and Mo. Rev. Stat. 453.080(6) (1998) [sic]."Procedure in Adoption Cases
A person seeking to adopt a child must file a petition for adoption in the juvenile division of a circuit court as specified by section 453.010.1 and .3.2 Section 453.080.1 sets forth requirements for finalizing an adoption. Those requirements include that if the Indian Child Welfare Act is applicable, the juvenile court, at the hearing to determine if the adoption will be finalized, must ascertain that the act has been complied with. Section 453.080.1(6).3
The Indian Child Welfare Act is found at 25 U.S.C. section 1901, et seq. (1983). Section 1915(a) of the act requires:
In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child's extended family; (2) other members of the Indian child's tribe; or (3) other Indian families.
Intervention Rule 52.12(a) provides:
Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of this state confers an unconditional right to intervene or (2) when the applicant claims an interest relating to the property or transaction that 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.
In re M. M. P., 10 S.W.3d 195 (Mo.App. 2000), explains:
Rule 52.12 is the rule governing intervention in court proceedings. Rule 52.12(a) addresses intervention as a matter of right. Rule 52.12(b) governs permissive intervention. . . . [A] party can only appeal from an order denying a motion to intervene under subsection (a) of Rule 52.12. "An order denying a motion to intervene under Rule 52.12(b), a 'permissive intervention,' is not a final judgment, and therefore not reviewable on appeal." In Interest of S. R. L., 984 S.W.2d 558, 559 (Mo.App. 1999) citing Ratermann v. Ratermann Realty & Inv. Co., 341 S.W.2d 280, 286 (Mo.App. 1960).
Id. at 197. See also, State ex rel. Reser v. Martin, 576 S.W.2d 289, 290 (Mo. banc 1978).This Appeal
The first question for determination is whether appellants' motion to intervene meets the criteria for intervention "as a matter of right." If it does, the judgment denying intervention is appealable. If it does not, it is not a final judgment and, consequently, is not appealable. In re M. M. P., supra.
There is no statute of this state that confers upon appellants an unconditional right to intervene. The circumstances to which subparagraph (1) of Rule 52.12(a) applies do not exist in this case. Subparagraph (2) provides, however, that intervention of right exists when one seeking to intervene claims an interest relating to the transaction that is the subject of the action that is not adequately represented by existing parties and "the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest."
An "interest" is a "concern, which is more than mere curiosity, or academic or sentimental desire." In re Adoption of H. M. C., 11 S.W.3d 81, 90 (Mo.App. 2000). "One 'interested' in an action is one who is concerned in the outcome or result thereof because he has a legal right which will be directly affected thereby . . . by the judgment or decree in such action." Id. citing In the Matter of Trapp, 593 S.W.2d 193, 204 (Mo. banc 1980). "The 'interest' must be such an immediate and direct claim upon the very subject matter of the action that the intervenor will either gain or lose by the direct operation of the judgment that may be rendered therein." Id.
Upon proving the allegations of their motion to intervene, appellants could have legal rights to a preference in the adoptive placement of C. G. L. under provisions in the Indian Child Welfare Act. 25 U.S.C. section 1915(a) mandates that preferential consideration be given to members of the child's extended family, members of the child's tribe and other Indian families in the adoptive placement of an Indian child. Missouri law, specifically section 453.080.1(6), requires a court in which an adoption is pending, in determining if the adoption should be finalized, to ascertain whether there...
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