State ex rel. J.T.

• Docket Number: 20220623-CA
• Decision Date: 21 December 2023
• Parties: F.R., Appellant, v. State of Utah, Appellee. STATE OF UTAH, IN THE INTEREST OF J.T. AND A.T., PERSONS UNDER EIGHTEEN YEARS OF AGE.
• Court: Utah Court of Appeals

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2023 UT App 157

STATE OF UTAH, IN THE INTEREST OF J.T. AND A.T., PERSONS UNDER EIGHTEEN YEARS OF AGE.

F.R., Appellant,
v.
State of Utah, Appellee.

No. 20220623-CA

Court of Appeals of Utah

December 21, 2023

First District Juvenile Court, Brigham City Department The Honorable Bryan Galloway Nos. 1051672 and 1210454

Christopher A. Beins, Attorney for Appellant

Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

Judge John D. Luthy authored this Opinion, in which Judges David N. Mortensen and Ryan M. Harris concurred.

LUTHY, Judge:

¶1 After minor children J.T. and A.T. were removed from the custody of their mother (Mother), their grandmother, F.R. (Grandmother), moved to intervene in the child welfare proceeding. The juvenile court ultimately denied Grandmother's motion, and she appeals. We conclude that Grandmother should have been allowed to intervene but only as a limited-purpose party based on her statutory right to request preferential consideration for temporary placement of the children. We

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therefore reverse the juvenile court's ruling on Grandmother's intervention motion and remand this matter for proceedings consistent with this opinion.

BACKGROUND

¶2 J.T. and A.T. share the same mother but have different fathers. J.T.'s father passed away before the proceedings commenced. In 2021, J.T. turned eleven and A.T. turned eight. As of the time of the events relevant to this appeal, A.T.'s father was subject to an order that prohibited him from contacting A.T.

¶3 Grandmother is the children's maternal grandmother. In September 2021, she filed a petition in the district court for the appointment of a guardian for J.T. In her petition, Grandmother alleged that Mother was "unwilling or unable to exercise her parental rights," and Grandmother requested that she, Grandmother, be appointed as J.T.'s guardian.

¶4 The district court ordered Mother and Grandmother to mediation. The mediation resulted in a stipulation, filed in January 2022, under which Mother and Grandmother agreed for J.T., Mother, and Grandmother to each be evaluated by a therapist and to then "abide by the appointed therapist's recommendations as a temporary order" until final resolution of the guardianship case. Under the stipulation, Mother and Grandmother were "required to cooperate in good faith and follow through with the requests made by the appointed therapist."

¶5 Thereafter, the Division of Child and Family Services (DCFS) received repeated referrals raising concerns that J.T. and A.T. were being abused and neglected by Mother. In response to those referrals, in May 2022 (while the guardianship action remained pending in the district court), DCFS filed a petition in juvenile court alleging that J.T. and A.T. were "abused, neglected,

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and/or dependent children." The children were then removed from Mother's custody and placed in the temporary custody of DCFS.

¶6 At the ensuing shelter hearing, a temporary placement for the children was discussed. Mother and A.T.'s father objected to Grandmother as a temporary placement option. The juvenile court considered their objections and ordered DCFS to "conduct a reasonable search to determine whether there [were other] relatives of the children or friends of the parents of the children who [were] willing and appropriate to be considered for placement of the children." The juvenile court was "reluctant to have the children placed with [Grandmother] based on . . . accusations that [had] been made and the history involved in this case," and it stated that it did "not believe that a kinship placement [was] appropriate if the children [were] going to be kept together."^[1] Nonetheless, the juvenile court left the temporary placement decision "up to the discretion of [DCFS]."

¶7 Shortly after the shelter hearing, DCFS held a kinship meeting and considered all the placement options that had been identified, including placement with Grandmother. DCFS decided to place both children with A.T.'s paternal aunt and uncle.

¶8 Grandmother then filed a Motion to Intervene and for Kinship Placement in the child welfare proceeding. In support of her motion, Grandmother argued that she had a right to intervene

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under rule 24(a)(2) of the Utah Rules of Civil Procedure.^[2] That rule requires, among other things, that the movant "claim[] an interest relating to the property or transaction that is the subject of the action" and that the movant be "so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest." Utah R. Civ. P. 24(a)(2). Grandmother claimed to have three interests that relate to the subject of this child welfare action, each of which, she asserted, might be impaired or impeded by resolution of the action: (1) an interest related to potential grandparent visitation, (2) an interest related to her petition for guardianship of J.T., and (3) an interest related to her right to preferential consideration as a temporary kinship placement for the children.

¶9 The juvenile court acknowledged that Grandmother has "some statutory rights . . . through the child welfare proceeding," including "the right to be given preferential treatment as it relates to placement." But it found that none of Grandmother's rights "would be compromised if she is not allowed to intervene as a party," and it therefore denied Grandmother's request to intervene. It also denied her request to be the children's temporary kinship placement. Grandmother appeals the denial of her request to intervene in the child welfare proceeding.

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ISSUES AND STANDARDS OF REVIEW

¶10 On appeal, Grandmother again contends that she has three interests related to this child welfare proceeding, that "her ability to pursue each of these interests was impaired or impeded by prior and prospective rulings in the child welfare case," and that "[e]ach of these three distinct interests is thus sufficient to support her right to intervene under [r]ule 24(a)(2)."

¶11 As to Grandmother's first two claimed interests-namely, her interest related to grandparent visitation and her interest related to her guardianship petition-we resolve this appeal under rule 24 and examine whether the claimed interests qualify under rule 24(a)(2) as "interest[s] relating to the property or transaction that is the subject of the [child welfare] action." Utah R. Civ. P. 24(a)(2). "Whether the intervenor has claimed an interest relating to the property or transaction which is the subject of the action" is an issue that "we review for correctness." Supernova Media, Inc. v. Pia Anderson Dorius Reynard & Moss, LLC, 2013UT 7, ¶ 16, 297 P.3d 599 (cleaned up).

¶12 As to Grandmother's claimed interest related to her right to preferential consideration as a temporary kinship placement in the child welfare action, we resolve the issue through application of a controlling line of Utah Supreme Court cases-In re guardianship of A.T.I.G., 2012 UT 88, 293 P.3d 276; State v. Brown, 2014 UT 48, 342 P.3d 239; and F.L. v. Court of Appeals, 2022 UT 32, 515 P.3d 421. "Our interpretation of case law . . . presents a question of law reviewed for correctness." State v. Morgan, 2001 UT 87, ¶ 1, 34 P.3d 767.

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ANALYSIS

I. Intervention as of Right Under Rule 24(a)(2)

A. Legally Protectable Interest

¶13 To the extent that Grandmother based her motion to intervene on rule 24(a)(2) of the Utah Rules of Civil Procedure,^[3]she was required to show (1) that her motion was timely, (2) that she "claims an interest relating to the property or transaction that is the subject of the action," (3) that the disposition "of the action may as a practical matter impair or impede [her] ability to protect [that] interest," and (4) that "existing parties" do not "adequately represent that interest." Utah R. Civ. P. 24(a)(2); see also Supernova Media, Inc. v. Pia Anderson Dorius Reynard & Moss, LLC, 2013 UT 7, ¶ 22, 297 P.3d 599. With respect to Grandmother's first two interests that she claims form the basis of her right to intervene, we conclude that the interests do not qualify under rule 24(a)(2) as interests "relating to the property or transaction that is the subject of the action" and, thus, that she is not entitled to intervene based on those claimed interests.

¶14 We begin our analysis by recounting the relevant history of rule 24(a)(2). As of 1982, rule 24(a)(2) required a showing that the applicant "is or may be bound by a judgment in the action." Utah R. Civ. P. 24(a)(2) (1982) (emphasis added). Not surprisingly, therefore, the Utah Supreme Court held in 1982 that a "party seeking intervention must demonstrate a direct interest in the subject

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matter of the litigation such that the intervenor's rights may be affected, for good or for ill." Lima v. Chambers, 657 P.2d 279, 282 (Utah 1982) (emphasis added), superseded by rule, Utah R. Civ. P. 24(a)(2) (1987), as recognized in Supernova Media, 2013 UT 7, ¶ 39. The court further explained:

The required interest does not include a mere, consequential, remote or conjectural possibility of being in some manner affected by the result of the original action. It must be such a direct claim upon the subject matter of the action that the intervenor will either gain or lose by direct operation of the judgment to be rendered.

Id. (emphasis added) (cleaned up).

¶15 Rule 24(a)(2) was later amended-effective January 1, 1987-to eliminate the requirement to show that the applicant would be "bound" by a judgment in the action. Utah R. Civ. P. 24(a)(2) (1987). The amended rule instead allowed for intervention when "the disposition of the action may as a practical matter impair or impede [the applicant's] ability to protect that interest." Id. The amended rule also changed the requirement to demonstrate an interest in the subject of the action to a...