as: 619 N.W.2d 340)
Court of Iowa.
the Interest of H.N.B. and A.J.B., Minor Children,
and C.L., Appellants.
Court's review of a denial of a motion to intervene
is for the correction of errors at law, though Supreme
Court accords some discretion to district court to determine whether
applicant intervenor is "interested" in litigation before the court. Rules
Civ.Proc., Rule 75.
courts are to liberally construe the rule governing intervention, they
must be certain that the applicant has asserted a legal
right or liability that will be directly affected by the
litigation. Rules Civ.Proc., Rule 75.
determining whether an intervenor applicant has a legal interest in
the subject litigation, courts examine the source of the right
claimed. Rules Civ.Proc., Rule 75.
indirect, speculative, or remote interest will not provide one a
right to intervene in litigation. Rules Civ.Proc., Rule 75.
interest or desire to adopt a child will not qualify
as a sufficient interest to entitle applicant to intervene in
termination of parental rights
I.C.A. § 232.117,
subd. 3; Rules Civ.Proc., Rule 75.
a juvenile court terminates the parental rights of a child's
those qualifying as "suitable persons" under statute governing transfer of
guardianship and custody are given the legal right to be
considered as the child's guardian. I.C.A. § 232.117,
term "suitable person," as used to describe individual to whom
juvenile court may transfer guardianship and custody of child following
termination of parental rights, is a flexible term that provides
the district court with discretion to determine "suitable person" status
based on the particular facts of each petition for intervention.
I.C.A. § 232.117,
focus in deciding an application for intervention in proceeding to
terminate parental rights must always include the welfare and best
interests of the child. I.C.A. § 232.117,
factor in determining a "suitable person" for guardianship of child
who is subject of action to terminate parental rights is
the existence of other prospective adoptive parents who maintain a
strong relationship with the child; if the child has no
strong bond with a prospective adoptive parent, the intervenors' own
lack of an ongoing relationship with the child becomes less
important in determining their suitability to intervene. I.C.A. § 232.117,
who applied for intervention in termination of parental rights proceeding
involving two Indian children were not, based on one applicant's
enrollment in a Canadian Indian tribe, an "Indian family" entitled
under Indian Child Welfare Act (ICWA) to a preference in
adoptive placement, where that tribe was not federally recognized by
Secretary of the Interior. Indian
Welfare Act of 1978, §§ 4,
105, 25 U.S.C.A. §§ 1903,
subd. 3; Rules Civ.Proc., Rule 75.
statement filed by Indian children's tribe in termination of parental
rights proceeding, requesting that children be placed with a particular
couple if not placed with tribe, was not the equivalent
of an approval or specification within meaning of Indian Child
Welfare Act (ICWA) so as to entitle that couple, who
sought to intervene in proceeding, to a preference for foster
care or preadoptive placement. Indian Child Welfare Act of 1978,
25 U.S.C.A. § 1915(b)(ii);
I.C.A. § 232.117,
subd. 3; Rules Civ.Proc., Rule 75.
lacked sufficient interest to be deemed "suitable persons" entitled to
intervene in termination of parental rights proceeding involving two siblings,
though couple had been foster parents to one of those
children, where that
relationship had ended when child was fourteen months old, over
two years had passed since couple's last contact with that
child, and siblings maintained an ongoing relationship with current foster
parents who wished to adopt them. I.C.A. § 232.117,
subd. 3; Rules Civ.Proc., Rule 75.
Elizabeth A. Rosenbaum, Sioux City, for appellants.
Thomas J. Miller, Attorney General, Janet L. Hoffman, Assistant Attorney
General, and Dewey Sloan, Assistant County Attorney, for appellee-State.
Suzan E. Boden of Vriezelaar, Tigges, Edgington, Rossi, Bottaro &
Boden, L.L.P., Sioux City, for appellee-guardians.
Marchelle Denker of the Juvenile Law Center, Sioux City, for
Considered en banc.
Byron and Christina Loft appeal from an order by the
district court denying their motion to intervene in a parent-child
termination proceeding. We affirm the district court.
Background Facts and Proceedings.
Byron and Christina Loft are kind and caring people who
sought to intervene in this
parent-child termination action after the juvenile court entered an order
terminating parental rights to the children in interest. The Lofts
had been foster parents to one of the children for
a period of time prior to the termination action, and
sought to intervene to seek custody and guardianship of the
children for the ultimate purpose of adopting them.
The children in interest are sisters, who have been identified
as H.N.B. and A.J.B. H.N.B. was born March 12, 1996,
and A.J.B. was born October 26, 1997. Both children are
enrolled members of the Rosebud Sioux Tribe of South Dakota.
They share the same natural mother and *342
father, whose parental rights were terminated on April 16, 1999.
The termination orders are not at issue in this appeal.
[FN1] The Lofts filed their motion to intervene and application
for custody and guardianship on June 11, 1999.
Only the father appealed his termination of parental rights. The
court of appeals affirmed the termination on December 13, 1999.
Byron is an enrolled member of the Canadian Tribe of
the Mohawks of the Bay of Quinte. Although this tribe
is a member of the Six Nations Confederacy, [FN2]
it is not federally recognized by the United States Secretary
of the Interior. Christina is Caucasian and suffers from Crohn's
disease. Both of the Lofts are thirty-two years old. The
Iowa Department of Human Services recognizes
the Loft home as a Native American foster family. They
were foster parents to H.N.B. for approximately nine months. This
foster care placement ended in May 1997.
The other five member tribes are located in the United
States and are federally recognized by the United States Secretary
of the Interior.
On June 28, 1999, Carleton and Shirley Helseth filed a
motion to intervene and an application for custody and guardianship
of H.N.B. and A.J.B. Like the Lofts, they too are
kind and caring people who have opened their home for
foster care. The children have been in the Helseths' foster
care home since March 4, 1998, and have developed a
strong bond with them.
Carleton is a doctor at Grandview Medical Center in Sioux
City, while Shirley is a registered nurse. Shirley stopped working
after H.N.B. and A.J.B. were placed in the Helseths' care.
Carleton is seventy-one years of age and has been diagnosed
with Parkinson's disease. Shirley is fifty-one years old. They are
both Caucasian. The Helseths' home is a licensed foster family
The Rosebud Sioux Tribe filed a motion to transfer jurisdiction
and dismiss on August 6, 1999, arguing the Indian Child
Welfare Act [hereinafter ICWA] governed the proceedings. The district court
consolidated all of the pending motions
and held a hearing. After the presentation of the evidence,
the Lofts withdrew their guardianship application.
The district court denied the Rosebud Sioux Tribe's motion to
transfer jurisdiction and dismiss, finding that good cause existed to
modify the preferences of the ICWA. The district court also
denied the Lofts' motion, but granted the Helseths' motion to
intervene and ordered guardianship and custody of the children to
be transferred to the Helseths. The court noted that the
Helseths had established a substantial family relationship with H.N.B. and
A.J.B., and that the children's natural mother requested that the
children stay with the Helseths.
The Lofts appealed, advancing several arguments, including that the district
court erroneously denied their motion to intervene. The Lofts claim
they are sufficiently interested in the litigation before this court,
especially considering the provisions of the ICWA, and therefore have
a right to intervene. The Lofts also allege a variety
of claims related to the failure of the district court
to follow the preferences of the ICWA.
The Rosebud Sioux Tribe has not appealed. However, the Tribe
has filed a position statement with this court, requesting that
H.N.B. and A.J.B. be placed with the Lofts if the
court refuses to return them to the Tribe.
Scope of Review.
Our review of a denial of a motion
to intervene is for the correction of
errors at law. In
re A.G., 558 N.W.2d
400, 403 (Iowa 1997); In
re B.B.M., 514 N.W.2d
425, 426 (Iowa 1994). Although our review is on error, we
accord some discretion to the district court. A.G.,
558 N.W.2d at 403; B.B.M.,
514 N.W.2d at 426. The *343
district court exercises this discretion when determining whether an applicant
intervenor is "interested" in the litigation before the court.
558 N.W.2d at 403.
The Right of Intervention.
The fundamental and paramount
issue we face in this case is whether the Lofts have a right to intervene.
Iowa Rule of Civil Procedure 75 delineates who is generally
entitled to intervention.
[FN3] Rule 75 provides "[a]ny person interested in the subject
matter of the litigation, ..., may intervene at any time before trial
begins...." Iowa R. Civ. P. 75. Although we are to liberally construe
the rule of intervention, we must be certain that the applicant has asserted
a legal right or liability that will be directly affected by the litigation.
In re J.R.,
315 N.W.2d 750, 752 (Iowa 1982).
Although we do not automatically apply the rules of civil
procedure to a juvenile proceeding, we have permitted applicants to
intervene in a termination of parental rights proceeding. In
558 N.W.2d 400, 402 (Iowa 1997); In
315 N.W.2d 750, 752 (Iowa 1982)
(noting "[t]he termination of parental rights provisions of the juvenile
justice code do not set out procedures of intervention").
In determining whether an applicant
has a legal interest, we examine the source of the right claimed. A.G.,
558 N.W.2d at 403. An indirect, speculative, or remote interest
will not provide one a right to intervene. Id.;
59 Am.Jur.2d Parties
§ 134, at 591-92 (1987) (to have an interest in an action, a
person must assert more than a mere general interest in the subject matter
of the litigation); 67A C.J.S. Parties
§ 75, at 815 (1978) (same). Thus, the mere interest
or desire to adopt a child will not qualify as a sufficient interest.
514 N.W.2d at 427 (noting that if such an interest were found sufficient,
an unlimited number of people would be entitled to intervene); In
re C.L.C., 479 N.W.2d
340, 344 (Iowa App.1991) (same). On the other hand, statutes
often provide the best guidance in determining who possesses the right
to intervene. 59 Am.Jur.2d Parties
§ 133, at 587 ("[t]he right of intervention depends largely
on the construction of the particular statute or rule under consideration");
see also A.G.,
558 N.W.2d at 403 (statute may support right to intervention if the right
will be directly affected by the outcome of the suit).
Section 232.117(3) of the Iowa
Code is the statute applicable to this matter. It provides
in pertinent part:
the court terminates the parental rights of the child's parents,
the court shall transfer the guardianship and custody of the
child to one of the following:
A parent who does not have physical care of the
child, other relative, or
other suitable person.
Iowa Code § 232.117(3)
(1999) (emphasis added). Thus, after a juvenile court terminates the
parental rights of a child's natural parents, those qualifying as
"suitable persons" under section 232.117(3) are given the legal right
to be considered as the child's guardian. C.L.C.,
479 N.W.2d at 343 (relying on the rationale of J.R.,
315 N.W.2d at 750).
term "suitable person" is not defined by our legislature. C.L.C.,
479 N.W.2d at 344. Instead, it is a flexible term which provides
the district court with discretion to determine the "suitable person"
status based on the particular facts of each petition for intervention.
558 N.W.2d at 404; C.L.C.,
479 N.W.2d at 344. Thus, the Lofts have a statutory avenue
to intervene if their interest is sufficient enough to rise to the level
of a "suitable person" for the purpose of appointment as custodian
and guardian following the termination.
The sufficiency of the interest
asserted by the intervenor under the "suitable person"
provision is considered in light of the nature of the proceeding
and surrounding facts and circumstances. See
A.G., 558 N.W.2d at
N.W.2d at 427-28. Additionally, the focus must always include
the welfare and best interests of the child. See
B.B.M., 514 N.W.2d
at 428. The intervention must be compatible with the child's
best interest. See
id. at 429 (cannot
elevate interests of intervening grandparents above those of the child).
We have previously indicated that the closeness of the relationship
between the child in interest and the intervenor is a
critical factor in determining the sufficiency of the interest of
an intervenor. See
Thus, in B.B.M.,
we found the lack of an ongoing relationship between the
child in interest and his grandparents weighed against intervention by
the grandparents in a termination proceeding. Id.
On the other hand, the formation of a close relationship
between the intervenor and the children in interest has supported
a petition for intervention in a parent-child termination action. See
479 N.W.2d at 344. In B.B.M.,
the grandparents were literally "strangers" to the child, B.B.M.,
514 N.W.2d at 429, while in C.L.C.,
the couple who sought to intervene had devoted a significant
amount of time each week to the children for nearly
two years prior to the intervention. C.L.C.,
479 N.W.2d at 344. They also provided financial support to
the children. Id.
factor in determining a "suitable person" is the existence of
prospective adoptive parents who maintain a strong relationship with the
child. If the child has no strong bond with a prospective
adoptive parent, the intervenors' own lack of an ongoing relationship
with the child becomes less important in determining their suitability
to intervene. See
B.B.M., 514 N.W.2d
at 429 (children had not established bonds of affection); J.R.,
315 N.W.2d at 753 (children had established bonds of affection).
The Lofts, unlike the couple in C.L.C.,
have not established a family relationship with H.N.B. and A.J.B.
The Lofts were foster parents to H.N.B. for nine months,
but this ended in May 1997, when H.N.B. was fourteen
months old. The Lofts have not had contact with her
since that time. More than two years have passed from
the time the Lofts have had any contact with H.N.B.
and the filing of the petition for intervention. In addition,
the Lofts have never had any contact with A.J.B. Thus,
the Lofts have not established the same level of relationship
as the prospective adoptive parents did in C.L.C.
Furthermore, there is ample evidence that the children have a
positive ongoing relationship with foster parents who do desire to
factors may also exist to support the existence of a sufficient interest
to justify intervention. See
B.B.M., 514 N.W.2d
at 430-31 (medical necessity may support intervention). In
this case, the Lofts assert the provisions of the ICWA apply and enhance
their suitability. We agree that H.N.B. and A.J.B. are Indian
children for purposes of the ICWA. See
§ 1903(4) (1983) (" 'Indian child' means any unmarried
person who is under age eighteen and is ... a member of an Indian tribe....").
However, Byron does not satisfy the definitional requirements of
an Indian under the ICWA. To be recognized as an Indian, an individual's
tribe must be eligible for benefits provided by the Secretary of the Interior.
25 U.S.C.A. §§ 1903(3) (definition of Indian), 1903(8)
(definition of Indian tribe). Byron's tribe, the Mohawks of
the Bay of Quinte, is not federally recognized by the Secretary. Therefore,
because Byron is not an Indian under the ICWA, the Lofts cannot be considered
an Indian family, and are not entitled to a preference in the adoptive
placement of Indian children. See
25 U.S.C.A. § 1915(a) (with the adoption of an Indian child,
a preference in placement is given to: "(1) a member of the
child's extended family; (2) other members of the Indian child's
tribe; or (3) other
Indian families "
addition, the Lofts are not entitled to a preference for foster care or
preadoptive placement as a "foster home ... approved, or specified
by the Indian child[ren's] tribe." 25 U.S.C.A. § 1915(b)(ii).
The Rosebud Sioux Tribe did file a position statement with this court
requesting the children to be placed with the Lofts if we do not place
them with the Tribe. However, we do not find a position statement
to be the equivalent of Tribe approval or specification as required by
section 1915(b)(ii). Thus, because the ICWA is inapplicable
to the Lofts, the ICWA does
not enhance their suitability to be guardians under Iowa Code section
We are unable to distill any other circumstances from the
facts presented to the district court to support intervention by
the Lofts. We understand Byron still has the ability to
raise the children in an Indian culture even though the
law gives him no recognized preference. The children will benefit
from an environment which will maintain their heritage and culture
as they grow into adults, and the ability of prospective
parents to do this will be a proper consideration in
the proceedings that will follow in this case. Thus, it
is a factor to consider in permitting intervention, but one
we think the district court considered. Moreover, it is not
sufficient enough for us to conclude the district court abused
its discretion in failing to permit intervention by the Lofts
considering all the circumstances.
We conclude the district court
acted within its discretion in finding the interests of the Lofts as "suitable
persons" under section 232.117(3) were insufficient to support intervention.
The term "suitable persons" cannot be interpreted
to include every non-relative interested in adopting a child. C.L.C.,
479 N.W.2d at 344. Moreover, it cannot be interpreted to include
intervenors who have had no relationship with the children when the children
maintain an ongoing relationship with a foster family who do want to adopt.
The Lofts do not possess a sufficient interest in
light of all the circumstances of the case, and consequently do not have
a legal right that will be directly affected by the litigation as required
by Rule 75. Thus, because we affirm the denial of the Lofts'
motion to intervene, we need not address any other issues presented.
We conclude the district court properly denied the Lofts' motion
to intervene. Our resolution of this issue disposes of the
McGIVERIN, Senior Judge,
[FN*] participates in place of LARSON, J., who takes no
Senior judge assigned by order pursuant to Iowa Code section
619 N.W.2d 340