In re N.W. , 70 A.3d 1219 ( 2013 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2013 ME 64
Docket: And-13-116
Submitted
On Briefs: May 30, 2013
Decided: July 2, 2013
Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, GORMAN, and JABAR, JJ.
IN RE N.W.
LEVY, J.
[¶1] Ruth James1 appeals from an order of the District Court (Lewiston,
Beliveau, J.) denying her motion to intervene in a child protection proceeding
involving her grandniece, N.W. We affirm the trial court’s judgment.
I. BACKGROUND
[¶2] This case began in June 2010, when the Department of Health and
Human Services petitioned, pursuant to 22 M.R.S. § 4032(1)(A) (2012), for a child
protection order. In August, the Department requested, and the court granted, a
preliminary protection order removing N.W. from her mother’s custody and
granting custody to the Department. See 22 M.R.S. §§ 4034(1), (2), 4036(1)(F)
(2012). In the months that followed, the Department placed N.W. in several
different placements. In December 2010, the Department placed N.W. with James
and her husband. James is N.W.’s maternal great-aunt.
1
We refer to the appellant with a pseudonym to protect the identity of the minor child involved in this
proceeding.
2
[¶3] The court terminated the mother’s and father’s parental rights to N.W.
in March 2012. By June, the permanency plan for N.W. was that James would
adopt her.
[¶4] That plan was called into question, however, beginning in the fall of
2012. The guardian ad litem’s report of November 7 indicates that James “has
struggled to complete the permanency plan for her to adopt.” The court held a
permanency planning hearing the following day, and issued an order finding that
“[d]ue to new information about Ms. [James] and [her husband]’s relationship, the
Department may need to reconsider this placement.” The Department attempted to
notify James of the proceeding as a “pre-adoptive parent who has entered into a
pre-adoptive agreement with the [D]epartment.” See id. § 4005-D(6) (2012).
James did not attend the November 8 hearing, nor did she obtain a license as a
foster parent, file for adoption, or seek to obtain “interested person” or
“participant” status pursuant to 22 M.R.S. § 4005-D(1)(C), (1)(E) (2012).2 The
Department removed N.W. from James’s care on November 17.
2
Title 22 M.R.S. § 4005-D (2012) provides, in relevant part:
1. Definitions. For the purposes of this section, unless the context otherwise indicates,
the following terms have the following meanings.
....
C. “Interested person” means a person the court has determined as having a
substantial relationship with a child or a substantial interest in the child’s
well-being, based on the type, strength and duration of the relationship or
3
[¶5] Shortly thereafter, James filed a motion to intervene pursuant to M.R.
Civ. P. 24, and a motion for a placement hearing. The motions alleged that N.W.
had been in James’s care since N.W. was six months old; that James and N.W.
have a strong bond; that N.W. calls James her “mommy”; that James had complied
with all aspects of the plan for her to adopt; and that N.W. would suffer irreparable
harm unless returned to James. James also asserted that the Department removed
N.W. from her care following its receipt of a false anonymous tip to law
enforcement that James and her husband had engaged in a domestic dispute. By
interest. A person may request interested person status in a child protection
proceeding either orally or in writing.
....
E. “Participant” means a person who is designated as an interested person under
paragraph C and who demonstrates to the court that designation as a participant
is in the best interests of the child and consistent with section 4003. A person
may request participant status in a child protection proceeding either orally or in
writing.
2. Interested persons. Upon request, the court shall designate a foster parent,
grandparent, preadoptive parent or a relative of a child by blood or marriage as an
interested person unless the court finds good cause not to do so. The court may also grant
interested person status to other individuals who have a significant relationship to the
child, including, but not limited to, teachers, coaches, counselors or a person who has
provided or is providing care for the child.
3. Access to proceedings. An interested person, participant or intervenor may attend
and observe all court proceedings under this chapter unless the court finds good cause to
exclude the person. The opportunity to attend court proceedings does not include the
right to be heard or the right to present or cross-examine witnesses, present evidence or
have access to pleadings or records.
4. Right to be heard. A participant or an intervenor has the right to be heard in any
court proceeding under this chapter. The right to be heard does not include the right to
present or cross-examine witnesses, present evidence or have access to pleadings or
records.
4
way of relief, James sought intervention to obtain “primary residence and physical
custody” of N.W.3 The Department and the guardian ad litem filed written
oppositions to James’s motions.
[¶6] The court denied James’s motions without holding a hearing,
concluding in a written decision that permitting James to intervene would be
inconsistent with the goal of permanency as provided by 22 M.R.S. § 4003(4)
(2012), and that “granting [James’s] motions would delay permanency [and
adoption] and would be inconsistent with the best interests of the child.” James
filed a motion to alter or amend the judgment pursuant to M.R. Civ. P. 59(e),
which the court denied.
II. DISCUSSION
[¶7] An exception to the final judgment rule permits immediate appeals
from the denial of a motion to intervene, which we review for an abuse of
discretion. State v. MaineHealth, 2011 ME 115, ¶ 7, 31 A.3d 911. We address in
turn James’s arguments that the court abused its discretion in denying her motions
(A) to intervene, and (B) for placement.
3
Attached to the motion to intervene, James provided a copy of the Department’s report of an
October 12, 2012, “family plan” meeting with James. The report raised the possibility of changing
N.W.’s placement due to the Department’s concerns regarding, ongoing discord between James and her
husband, James’s failure to obtain licensing as a foster parent, James’s failure to leave her husband
despite her promises to do so for the sake of N.W., James’s unstable housing and finances, and James’s
lack of candor with the Department. The report recognized that James had otherwise provided stable care
for N.W.
5
A. Motion to Intervene
[¶8] As an intervenor in a child protection proceeding pursuant to the Child
and Family Services and Child Protection Act, 22 M.R.S. §§ 4001 to 4099-H
(2012), a party can request, among other things, review of the child’s placement.
See 22 M.R.S. §§ 4005-D(5), 4038(2). The Act also gives foster parents,
preadoptive parents, and relatives providing care a right to notice and an
opportunity to be heard in child protection proceedings. See id. § 4005-D(6). But
those rights are limited, and they “may not be construed to require that any foster
parent, preadoptive parent or relative providing care for the child be made a party
to the proceeding solely on the basis of the notice and right to be heard.” Id.
[¶9] James contends that the court erred in denying her motion for
permissive intervention pursuant to M.R. Civ. P. 24(b).4 “Upon timely application
anyone may be permitted to intervene in an action when an applicant’s claim or
defense and the main action have a question of law or fact in common.” M.R. Civ.
P. 24(b). Further, “the court shall consider whether the intervention will unduly
4
James’s appellate brief does not raise intervention as a matter of right pursuant to M.R. Civ.
P. 24(a). We also note that the court did not address, and the Department has not challenged, James’s
standing to intervene. See Davis v. Anderson, 2008 ME 125, ¶ 17, 953 A.2d 1166 (establishing that to
successfully intervene, a party must demonstrate that it has standing to assert the claim or defense it seeks
to raise as an intervenor); see also 22 M.R.S. § 4005-E(2) (2012) (providing that in a child protection
proceeding, a “relative” may request placement of a minor child with the relative if the court has
designated the relative as an “interested person” or a “participant” in the proceeding, or if the relative has
intervenor status, as provided by 22 M.R.S. § 4005-D(1)(C), (D), (E)). Thus, we assume without
deciding that James had standing to intervene as a preadoptive parent with a preadoptive agreement with
the Department, or as a possible de facto parent, as James asserts in her appellate brief.
6
delay or prejudice the adjudication of the rights of the original parties.” Id. In a
child protection proceeding, intervention is permitted if, in addition to complying
with Rule 24, the intervention is consistent with the purposes of the Act, as
established by 22 M.R.S. § 4003. See 22 M.R.S. § 4005-D(1)(D).5
[¶10] James contests the trial court’s denial of her motion to intervene on
several grounds, including that intervention (1) was timely and thus would not
unduly delay or prejudice the adjudication of the rights of the original parties to the
proceeding, and (2) is not contrary to the purposes established by 22 M.R.S.
§ 4003. Each contention is considered in turn.
1. Timeliness, Undue Delay, and Prejudice
[¶11] In the context of a motion to intervene, “the concept of timeliness . . .
is not measured, like a statute of limitations, in terms of specific units of time, but
rather derives meaning from assessment of prejudice in the context of the
particular litigation.” P.R. Tel. Co. v. Sistema de Retiro de los Empleados del
Gobierno y la Judicatura, 637 F.3d 10, 15 (1st Cir. 2011); see also MaineHealth,
2011 ME 115, ¶ 16, 31 A.3d 911 (holding that intervention that would unduly
5
Title 22 M.R.S. § 4005-D(1)(D) defines an “intervenor” as “a person who is granted intervenor
status in a child protective proceeding pursuant to the Maine Rules of Civil Procedure, Rule 24, as long as
intervention is consistent with section 4003.” Further, section 4005-D(5) provides as follows:
Intervention. An intervenor may participate in any court proceeding under this chapter
as a party as provided by the court when granting intervenor status under Maine Rules of
Civil Procedure, Rule 24. An intervenor has the rights of a party as ordered by the court
in granting intervenor status, including the right to present or cross-examine witnesses,
present evidence and have access to pleadings and records.
7
burden the proceedings may constitute undue delay for purposes of Rule 24(b)).
We begin by examining the rights of the original parties to this proceeding, and
then consider whether James’s intervention would unduly delay or prejudice the
adjudication of those rights.
[¶12] Here, the remaining original parties were N.W. and the Department,
because the court had already terminated the parental rights of N.W.’s parents.
N.W.’s interests and rights in the proceeding included prompt adjudication of a
permanent placement in her best interests, here represented by the guardian ad
litem’s stated goal of adoption. See 22 M.R.S. § 4005(1)(B) (providing that the
guardian ad litem must advocate for the child’s best interests before the court); id.
§ 4038-B(4)(A)(2) (providing that adoption is among the possible means of
achieving permanency for the child). The Department’s interests in the proceeding
included protecting N.W. from abuse and neglect, and promoting the goal of
permanency. See id. §§ 4003, 4004. Although the Department successfully
petitioned to terminate the parents’ rights, it was still required, among other things,
to monitor N.W.’s placement to prevent abuse and neglect, and to pursue a
permanent living arrangement for N.W. See id. §§ 4003(4), 4004(1).
[¶13] Thus, to state the obvious, both N.W. and the Department had an
interest in the prompt adjudication of a permanent and safe living arrangement for
N.W. In light of this interest, it was well within the bounds of the trial court’s
8
discretion to conclude that James’s intervention at this late stage in the child
protection proceeding would have unduly delayed adjudication of a prompt and
permanent placement for N.W. Furthermore, and contrary to James’s argument,
the court’s decision reflects that it fully considered N.W.’s best interests.6
2. Purposes of 22 M.R.S. § 4003
[¶14] James next challenges the trial court’s finding that her intervention
was inconsistent with the purposes established by 22 M.R.S. § 4003. As relevant
to this case, the statute’s purposes embrace (1) protecting children from abuse and
neglect; (2) preserving the right to family integrity, including, “[p]lac[ing] children
who are taken from the custody of their parents with an adult relative when
possible”; and (3) promoting “permanent plans for the care and custody of children
who cannot be returned to their family.” 22 M.R.S. § 4003.
[¶15] The trial court properly concluded that James failed to make a prima
facie case that her intervention was consistent with the purposes of section 4003,
because her intervention would have undermined one of those purposes without
furthering any of the others. The court concluded that granting James’s motion
would have interfered with permanency planning for N.W.’s adoption. The record
supports this finding, because James had already delayed permanency for N.W. In
6
Contrary to James’s contentions, it is within the sound discretion of a trial court to decline to hold an
evidentiary hearing on a motion to intervene. See M.R. Civ. P. 7(b)(7); Davis, 2008 ME 125, ¶ 17, 953
A.2d 1166.
9
the nearly two years during which N.W. was in James’s care, James did not obtain
a license as a foster parent, file for adoption, or otherwise establish a permanent
legal relationship with N.W. Meanwhile, granting James intervenor status would
not promote any other potentially applicable statutory purpose. Thus, contrary to
James’s contentions, her intervention would not fulfill the goal of priority
placement of children with a relative pursuant to section 4003(3-A), because for
that purpose, “relative” does not include a great-aunt.7 See id. § 4002(9-B)
(defining “relative” to mean “the biological or adoptive parent of the child’s
biological or adoptive parent, or the biological or adoptive sister, brother, aunt,
uncle, or cousin of the child”). In light of James’s failure to establish a permanent
and legally recognized relationship with N.W. after having a lengthy opportunity to
do just that, the trial court did not err in declining to provide James with an
additional opportunity to do so by intervening.
B. Motion for Placement
[¶16] We also discern no error in the court’s denial of James’s motion for
placement. The right of a non-party relative to seek a placement order is governed
by 22 M.R.S. § 4005-E(2), which provides:
7
Thus, contrary to James’s assertions, she is not a relative entitled to notice of proceedings involving
N.W. pursuant to 22 M.R.S. § 4005-D(6). To the extent that James was a preadoptive parent entitled to
notice and to be heard at the November 8 hearing pursuant to section 4005-D(6), the record does not
reveal all of the details regarding the Department’s apparent attempt to notify James. Regardless, upon
the court’s consideration of her motions to intervene and for placement, James was heard.
10
A relative who is designated as an interested person or a participant
under section 4005-D or who has been granted intervenor status under
the Maine Rules of Civil Procedure, Rule 24 may request the court to
order that the child be placed with the relative. A relative who has not
been designated as a participant under section 4005-D may make the
request for placement in writing. In making a decision on the request,
the court shall make placement with a relative a priority for
consideration for placement if that placement is in the best interests of
the child and consistent with section 4003.
[¶17] As the child’s great-aunt, James does not qualify as a “relative” under
this section. See 22 M.R.S. § 4002(9-B). Because of this, and having been
properly denied intervenor status, James did not have standing to seek placement
of the child with her. The court did not err by denying her request.
The entry is:
Judgment affirmed.
On the briefs:
Donald S. Hornblower, Esq., Hornblower, Lynch, Rabasco & Van Dyke,
Lewiston, for appellant great-aunt
Janet T. Mills, Attorney General, and Nora Sosnoff, Asst. Atty. Gen.,
Augusta, for appellee Department of Health and Human Services
Lewiston District Court docket number PC-2010-48
FOR CLERK REFERENCE ONLY