In Re the Adoption of a Child Known as D.M.
Lead Opinion
[¶ 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 inter
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.
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
[¶ 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
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.,
[¶5.] South Dakota’s court rule
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 pro-tectable.” 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,” ie., 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*445 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.”
[¶ 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 perma- ■ nent 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
[¶ 9.] Unfortunately for Degens, the legislation came too late. All abuse and neglect proceedings involving D.M. had been completed prior to the new law taking effect. Consequently, the only avenue of challenge left for Degens was through the adoption proceedings. The adoption statutes, however, do not specifically give family members the right to intervene. When the Legislature added the right to challenge adoptive placement, it did so only as part of the abuse and neglect proceedings.
[¶ 10.] We have long recognized that “adoption is a creature of statute.” Calhoun v. Bryant,
In an adoption proceeding or in any proceeding that challenges an order of adoption or order terminating parental rights, the court shall give due consideration to the interests of the parties to the proceedings, but shall give paramount consideration to the best interests of the child.
Id. The only persons identified as participants or parties to an adoption are the persons adopting the child, the child, DSS, and other persons whose consent is necessary. See
[¶ 11.] Courts from other jurisdictions have addressed this issue with varying results. The cases, however, offer little guidance because of their dependence on their own state statutes. See, e.g., Baker v. Webb,
[1f 12.] As with the cases from other jurisdictions, our decision is controlled by our own state statutes. Although the Legislature amended the abuse and neglect statutes to give certain family members standing to intervene, it did not afford the same rights in the adoption statutes. Neither do we find that the policies espoused in the DSS manual give, Degens a legally protectable interest. We are sympathetic to Degens’ plight and their commendable efforts to enlist the assistance of the court in the adoption of their grandniece. Nevertheless, we cannot stretch the definition of a legally protectable interest to include an internal policy statement in an employee manual written by DSS. Adoption rights and procedures are created by the Legislature. At this point, the Legislature has only recognized the right to intervene as part of the abuse and neglect proceedings. These are policy decisions best left to the Legislature. Unfortunately, we must again decline Degens’ request to participate in proceedings involving D.M.
[¶ 13.] We hold that Degens do' not have a right to intervene under
Notes
. D.M. became eligible for adoption through DSS after the parental rights to the child were involuntarily terminated. Through the process of finding adoptive placement, DSS approved three adoptive families. Two of the families were relatives of D.M., the other was a non-related foster family. DSS rejected both of the family placements and selected the foster family for D.M.'s adoption.
. The Federal rule provides:
Intervention of Right. 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 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.
. The concurrence correctly points out that the Legislature specifically foreclosed intervention in an adoption proceeding under the abuse and neglect statutes.
Concurrence Opinion
(concurring).
[¶ 17.] I concur because, in addition to the Court’s analysis, most courts conclude that relatives do not have a legally protect-able interest in another relative’s adoption. Lacking a legally protectable interest in their grandniece’s adoption, Degens were not entitled to intervene as a matter of right under
[¶ 18.] As the Court notes, South Dakota’s intervention statute is almost identical to
[¶ 19.] Under
■ [¶ 21.] Furthermore, even if the 2005 legislation applied, it explicitly prohibited a relative’s intervention in an adoption proceeding. Newly enacted
[¶ 22.] The Legislature’s express prohibition regarding intervention in adoption proceedings is understandable, considering strong' countervailing public policies. An Illinois court explained, one such countervailing public policy:
We note also that there is a grave matter of public policy implicit in the contention of the grandparents that they have a right to intervene because they are the grandparents and are the preferred parties in an adoption case. In the absence of a statute giving the grandparents a preference (which might be unconstitutionally discriminatory) where are we to stop in allowing relatives to block a proposed. adoption? Is an uncle or aunt in a less favorable position than a grandparent? Indeed, an adult cousin may have closer ties to the child than a grandparent. In many countries it is customary for a brother to adopt his deceased brother's children and the cases are legion in both fact and fiction, viz., David Copperfield and Tom Sawyer, of an aunt adopting a deceased sister’s child. How can we draw the line at- grandparents? Are we to subject every adoption to the hazard of being disrupted or pre-empted by an intervening relative who learns of it midway in*450 its course? While consents cannot legally be required of such relatives, their rights to intervene might very well cause further delays and “red tape” in the adoption process and pose to prospective adopting parents and agencies the frustrating question whether to ignore such a possibility and be unpleasantly surprised half-way through the adoption, or to invite trouble by attempting to get some sort of waiver from the close relatives of the child. Nor can we overlook the possibility that such relationship might be exploited for the benefit of the relatives, disregarding the child’s best interests. A decision which invites such unwelcome possibilities would, we think, be contrary to public policy.
The trial court found that in the absence of any allegations of unfitness on the part of the adopting parents or any question relative to the mother’s consent or the termination of the putative father’s rights, there was no legal basis for the petition to intervene. We agree.
Petition of Benavidez,
[¶ 23.] Considering the facts that there was no applicable law giving Degens a legally protected interest in this adoption, there are conflicting public policies concerning this matter, and the 2005 Legislature expressed its policy on this type of intervention, this Court has no authority to retroactively impose a contrary policy and afford rights that the Legislature has specifically rejected.
[¶ 24.] GILBERTSON, Chief Justice, joins this special writing.
. Degens did not make an argument for permissive intervention under SDCL' 15-6-24(b) or an argument for intervention, as a matter of right under
. The Court cites three cases suggesting that some states have, under different statutes, permitted relatives to intervene in adoption proceedings. See supra ¶ 11. While the Court acknowledges that these cases "offer little guidance because of their dependence on their own state statutes,” the cases actually provide no guidance in determining the right to intervene under
In re Adoption of B.T.,
In Baker v. Webb,
Finally, in Matter of B.C.,
. I also agree that DSS’s internal policy of providing adoptive preference to family members, as reflected in its procedures manual, does not provide Degens with .a legally pro-tectable interest. See supra 11 12. The policy is only an executive branch policy that guides and assists DSS employees in making their discretionary recommendations for placement and adoption. The policy does not, however, purport to extend a legally protectable interest in extended relatives. In fact, because DSS's internal procedure manual was not adopted as an administrative rule of South Dakota, it could not have afforded Degens a legally protectable interest in the adoption of any child. Internal policies generally do not create a legally protectable interest because only duly “adopted” rules express "the will of the” State, and only duly “adopted” rules have the "force of law.” See
. The dissent suggests that this writing has applied the "detriment of the amended statutes” without applying the "benefit.” See infra n. 8. However, it is Degens rather than this writing that seek to apply some but not all of the policy underlying the 2005 amendments.
Dissenting Opinion
(dissenting).
[¶ 25.] I respectfully dissent. Almost two years ago, the majority denied Degens the right to intervene in the abuse and neglect proceeding. See In re D.M.,
[¶ 26.] In the prior case, this Court had the opportunity to determine whether the Degens could intervene in a subsequent adoption proceeding. D.M.,
I would respectfully point out that refusing to consider whether the Degens can intervene in a subsequent adoption proceeding merely extends the “undue delay” the trial court was concerned about. Now [this] case can go back to the circuit court for consideration of the adoption, the Degens can attempt to intervene again, the court can deny intervention and the parties can once again bring this case before this court.
Id. at ¶ 21,
[¶ 27.] Now, almost two years later, the Court addresses the adoption issue and again denies Degens an opportunity to adopt their grandniece. It does so by incorrectly concluding that Degens do not have the right to intervene and by permitting DSS to ignore its internal policies. The Court also overlooks the fact that the Legislature, by amending
. The concurrence accurately points out that the Legislature has now precluded parties from intervening in adoption proceedings. However, that amendment does not apply to Degens as their case was filed and determined in 2004. See majority opinion n. 3. Moreover, by prohibiting intervention in adoption proceedings, it would be assumed that a party would have had the right to intervene and in fact be given preference in the abuse and neglect proceeding. See
. Degens have a legally protected right to intervene in the adoption proceeding just as they did in the abuse and neglect proceeding. See DM.,