March 11, 2014
IN THE MATTER OF: B.W.S., A Youth in Need of Care.
This is a proceeding regarding B.W.S., a youth in need of care, (the child). The parental rights of T.S., the child's natural mother (Mother), were terminated by order of the District Court entered on November 8, 2013. On November 27, 2013, Mother, by counsel, filed a notice of appeal from the final judgment of the District Court. Mother's opening brief on appeal is due to be filed on March 28, 2014.
On February 19, 2014, Patrick and Corrine Gilbert, by counsel (the Gilberts), filed a motion and memorandum seeking permissive intervention in this appeal. No response to the petition has been filed by the Department of Public Health and Human Services (the Department) or Mother, Counsel for the Gilberts represents that the State of Montana objects to the motion, and that counsel for Mother takes no position because he has been unable to contact her.
By way of background, the child was adjudicated as a youth in need of care on January 20, 2012, within three weeks of her birth. Throughout these proceedings, the child has been in foster placement with the Watsons. The Gilberts reside in Oregon, and are the adoptive parents of the child's two half-siblings. They have throughout these proceedings expressed an interest in adopting the child. The Watsons have also expressed an interest in adopting the child.
Mother, by counsel, filed a motion in the District Court to allow the Gilberts to intervene as interested persons and requested a hearing to settle the placement dispute. On August 27, 2013, the District Court entered an order directing that the hearing on Mother's request to settle the placement dispute be held on the same date as that set for the Department's motion to terminate her parental rights. In addition, the court granted Mother's motion to allow intervention by the Gilberts. The termination hearing and the hearing regarding placement were conducted on September 23, 2013.
Immediately following testimony on the petition to terminate Mother's parental rights, the District Court took the termination motion under advisement and convened the placement hearing. Corrine Gilbert was present, as were Jarred and Cindy Watson, the child's current foster parents. Testimony was heard from Ms. Gilbert, Mr. Watson, and representatives of the Department regarding the actions of the Department with respect to placement. There was unequivocal testimony that both Gilberts and Watsons would be appropriate placements for the child. April Jones, a child protective specialist supervisor with the Department, testified that the selection committee from the Department had convened on June 6, 2013, at which time they agreed to have the child remain in her present placement. She further testified: "Since then, that decision is on hold. It has been appealed by the Gilberts to the Governor's Office of the State of Montana, and so the Department is now reviewing that." As of the date of the termination and placement hearing, no determination had been made as to the child's permanent placement or adoption.
At the conclusion of the placement hearing, the District Court stated that it would take the matter of placement under advisement. Further, it directed counsel for the parties to submit legal memoranda for the proposition that it was within the power of the court to actually place the child or instruct the Department to place the child with a particular family. There are no briefs or memoranda on this question from either the parties or from the Gilberts or Watsons contained in the District Court record.
On November 8, 2013, the District Court entered its Findings of Fact, Conclusions of Law and Order Terminating Parental Rights. The court terminated the parent-child legal relationship between the child and Mother. In addition, it directed that permanent legal custody of the child was awarded to the Department with the right to consent to adoption and/or guardianship. The court entered no findings, conclusions, or order relative to placement of the child. It is the order terminating parental rights that is currently on appeal by Mother.
In their motion for permissive intervention, counsel for the Gilberts represents that as of the date of their motion, February 17, 2014, the Department has allowed the child to remain in her existing placement, and further that "based on information and belief, " the child has not been adopted.
The Gilberts maintain in their motion that their home is the best placement for the child. They cite the manual of the Department which provides a preference for placing children with their siblings or half-siblings when possible. They argue that they wish to raise on appeal their priority as prospective adoptive parents. In the alternative, if not allowed intervention, Gilberts seek amicus curiae status.
As authority for their right to intervene, Gilberts cite M. R. App. P. 16, the general rule allowing for the filing of motions, and M. R. App. P. 2, which permits the filing of an amicus curiae brief We turn to M. R. App. P. 1(f), which acknowledges the status of an intervenor as one who has voluntarily entered into an action because of an asserted interest in the outcome. Because the District Court granted Mother's petition to allow intervention by the Gilberts, this Court could recognize Gilberts as intervenors, or in the alternative, as amici curiae. However, recognition of their status as one or the other does not provide any basis for Gilbert's intervention in this appeal.
As noted above, when it entered its final order, the District Court did not direct a placement; rather, it awarded the permanent legal custody of the child to the Department with the right to consent to adoption and/or guardianship. There being before this Court no order of placement of the child and no consent by the Department to an adoption or guardianship, there is nothing before this Court to presently review or decide with respect to placement. Moreover, the Gilberts have cited no authority for the proposition that the District Court actually had the statutory right to direct the placement of the child and erred in not doing so, nor have they provided legal authority for the proposition that this Court could sua sponte direct that the child be placed with them. There would be no utility in the Gilberts' intervention or filing of an amicus curiae brief in these proceedings because there is no relief this Court could afford them. The only issue before this Court for resolution will be whether the District Court erred in terminating Mother's parental rights, and the Gilberts have no standing or interest in this issue.
If they have not done so already, the remedy available to the Gilberts at this juncture is to file a formal petition to adopt the child in District Court. An order granting or denying a petition for adoption is an appealable order. In re Adoption of Riffle, 273 Mont. 237, 239, 902 P.2d 542, 544 (1995).
Accordingly, IT IS HEREBY ORDERED that the Gilberts' motion for permissive intervention is DENIED.
The Clerk of this Court is directed to serve notice of this Order upon all counsel of record, and upon counsel for the Gilberts.