Opinion
No. 48602-1-I.
Filed: December 3, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of King County, No. 99-7-50013-8, Hon. James Doherty, April 5, 2001, Judgment or order under review.
Counsel for Appellant(s), Maria D. Victoria, Child Advocacy Clinic, 4045 Brooklyn Ave NE, Seattle, WA 98105.
Counsel for Respondent(s), Michelle L. Ressa, Asst. Attorney General, 900 4th Avenue Ste 2000, Seattle, WA 98164.
Counsel for Guardian(s) Ad Litem, Lori L. Irwin, Attorney At Law, 1401 E Jefferson Ste 500, Seattle, WA 98122-5598.
Counsel for Other Parties, Susi Vigessa (Appearing Pro Se), 2809-26th Ave. So., Seattle, WA 98144.
This case requires us to decide whether there is a right to intervene in the dependency proceeding of a sibling. We conclude that there is no right to intervene under the Civil Rules, the United States Constitution, or the common law. While a trial court may, in its discretion, allow a sibling to intervene, the court's refusal to do so in this case was not an abuse of discretion. Accordingly, we affirm.
FACTS
The appellant, Lacresha Bolar, is fourteen years old. Her brothers, L.B. and D.W. are twelve and eight years old, respectively. The children have the same mother, but different fathers.
Lacresha has another half-sister, M.B. Lacresha also filed a motion to intervene in M.B.'s dependency action, which was denied. She has not appealed that ruling.
Although the documents verifying many of the facts are not a part of the record before this court, the following is a summary of the uncontested facts of this case. The three children lived with their mother until 1993 when they were removed from her care. At the time, Lacresha was six years old, L.B. was four years old, and D.W. was six months.
Lacresha did not live with L.B. or D.W. again until February 1999 when her mother left the two boys in the care of the children's grandmother, with whom Lacresha was already living. The three children lived with their grandmother for ten months until December of 1999. At that time, L.B. and D.W. were placed in foster care following allegations of physical abuse by the grandmother.In total, L.B. lived with Lacresha for the first four years of his life, and then for ten months in 1999. D.W. lived with Lacresha until he was six-months and then for ten months in 1999, a total of sixteen months. The children have not resided together again since December of 1999. Dependency petitions were filed on behalf of L.B. and D.W. In October of 2000, the mother relinquished her parental rights to L.B. and D.W. The parent-child relationship between Lacresha and her mother remains legally intact. Lacresha now resides with another relative. According to the Department of Social and Health Services (DSHS), the two boys are presently in preadoptive homes.
In October 2000, in the context of a motion related to Lacresha's placement, a court commissioner ruled, upon Lacresha request, that written contact between the siblings should be allowed, but telephone contact should only be permitted if approved by the boys' therapists. Soon after this ruling, in December 2000, Lacresha filed a motion to intervene in her brothers' dependency actions, for the purpose of establishing a right to telephone contact and visitation with her brothers. DSHS opposed her intervention. A juvenile court commissioner denied the motion. A superior court judge denied Lacresha's motion for revision. This court granted discretionary review.
CP 270.
INTERVENTION AS OF RIGHT
The juvenile court commissioner concluded that Lacresha did not have a right to intervene in the proceedings under CR 24(a)(2). Lacresha claims that this ruling was in error. A denial of intervention as of right is reversed only if an error of law has occurred. CR 24 (a)(2), in relevant part, states:
Westerman v. Cary, 125 Wn.2d 277, 302, 892 P.2d 1067 (1994).
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.
In determining whether an applicant has an interest sufficient to intervene as a matter of right, a court makes a case-by-case analysis, balancing the relative concerns of the prospective intervenors, the original parties to the action, and the public in effecting the efficient resolution of the controversy. The interest that the intervenor seeks to protect must be one recognized by law.
In re Dependency of J.H., 117 Wn.2d 460, 468, 815 P.2d 1380 (1991).
In re Cloverdale, 30 Wn. App. 677, 680, 637 P.2d 991 (1981).
No Washington courts that have considered the issue have concluded that parties other than parents, guardians, or custodians have a right to participate in dependency actions. Foster parents `do not have a legal interest sufficient to mandate intervention in {a} dependency action under CR 24(a)(2)'. Nor do psychological parents have a right to intervene under CR 24(a)(2). Recently, this court also held that intervention as of right was not available to aunts and uncles. Family members other than siblings, and people who are not biologically related but have established relationships with children, have significant interests in the dependency actions of those children, but still do not have a right to intervene. We see no reason why the result should different in the case of a sibling.
J.H., 117 Wn.2d at 471.
In re Dependency of M.R., 78 Wn. App. 799, 802-03, 899 P.2d 1286 (1995).
In re Dependency of J.W.H., 106 Wn. App. 714, 724, 24 P.3d 1105 (2001).
Moreover, there no authority supporting the position that a prospective intervenor's own interest has any relevance in a dependency proceeding. As this court explained in J.W.H, the overarching purpose of such a proceeding is `to provide for the best interests of the children at issue. This purpose has primacy over all other rights of both the parents and intervenors.' In J.W.H., the aunt and uncle could not show that the best interests of the children would be inadequately represented by the guardian ad litem and DSHS. Likewise, Lacresha does not claim that the best interests of the children are inadequately protected by the Court Appointed Special Advocate and DSHS.
J.W.H., 106 Wn. App. at 724.
At the time when the motion to intervene was decided, the court did not have the benefit of this court's decision in J.W.H. In that case, this court held that the lower court erred in its determination that an aunt and uncle had a right to intervene in a dependency. Even though the disposition in the dependency had the potential to impair the aunt's and uncle's interests, that interest was outweighed by the `overarching purpose' of dependencies to protect the best interests of the children at issue.
J.W.H., 106 Wn. App. at 724.
Thus, J.W.H. supports the result reached here. Lacresha argues that the court erred by not balancing her interests against those of the original parties, and the interests of the public in efficient resolution on the record. While it is true that the court did not specially refer to these factors in it's ruling, we are convinced that it would reach the same conclusion on remand. Given that our courts have rejected all claims of intervention as of right by any party other that those defined in RCW 13.34, the statute governing dependency actions, we conclude that the court did not err in denying intervention as of right.
See J.H., 117 Wn.2d at 468.
PERMISSIVE INTERVENTION
If an applicant does not meet the requirements for intervention as of right, a court, in its discretion, may allow a party to intervene permissively. Under CR 24(b)(2), a party may permissively intervene in an action `when an applicant's claim or defense and the main action have a question of law or fact in common In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of rights of the original parties.' The court commissioner recognized that Lacresha's claim shared common facts with the dependency action, but even if permissive intervention were available, the court found that intervention would cause `undue prejudice' to the brothers.
RP 18.
The court specifically referred to letters from both of the boy's therapists recommending against contact with Lacresha, and concluded that contact would jeopardize their progress in therapy and interests in stability. Denial of permissive intervention is reviewed for abuse of discretion. In exercising its discretion in determining whether to allow intervention, the trial court should be guided by the purpose of promoting the best interests of the children. Discretion is abused if it is manifestly unreasonable or exercised on untenable grounds.
Westerman, 125 Wn.2d at 304.
M.R., 78 Wn. App. at 803-04.
State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Lacresha contends that even if the court did not err in denying her motion to intervene as of right, it was an abuse of discretion to deny her motion to intervene permissively. Unlike intervention as of right, Washington courts have found permissive intervention to be available in the case of foster parents, psychological parents, and extended family. Lacresha argues that according to CR 24(b)(2), once the court determined that her claim and the dependency action had facts in common, it was obligated to allow her to intervene. But, the language of the rule does not support this interpretation. CR 24(b)(2) states that an intervenor with facts or legal issues in common with the main action `may' intervene, and that intervention in that case is expressly subject to the court's discretion. Lacresha also argues that the court improperly based its decision on evidence which she was unable to challenge. The court's denial of her motion was based on its conclusion that contact was not in the best interests of the two boys.
See J.H., 117 Wn.2d at 471-72; M.R., 78 Wn. App. at 804; J.W.H., 106 Wn. App. at 724.
Lacresha, as a non-party, did not have access to the therapists upon whose recommendations the court relied. Therefore, she was unable to refute the State's position that contact with her was not in the boys' best interests. She did not have the opportunity to retain her own therapist to interview the boys. She was unable to depose or cross-examine the boys' therapists in order to evaluate their credentials and determine how they arrived at their recommendations. But, CR 24 allows the trial court to make this discretionary decision on intervention without the full evidentiary hearing that Lacresha advocates.
Because the rule directs the court to consider potential `undue delay' and `prejudice' in its consideration of whether to allow intervention, it presumably allows the court to consider evidence that goes to these issues. And since the ruling on intervention is always made before the prospective intervenor is a party, the court may consider evidence at a time when the parties are unable to conduct discovery and fully explore the evidence presented by the other side. If the rule were to mandate that discovery and a full evidentiary hearing take place prior to a decision on intervention, such a procedure could inevitably create `undue delay'. As long as the court articulates a tenable reason for its decision not to allow permissive intervention, it does not abuse its discretion. Lacresha further implies that the court should not have considered whether visitation or contact with her was in the best interests of the children, because the rule requires only consideration of whether the intervention would prejudice the adjudication of the children's rights.
But it would be difficult to determine whether intervention would prejudice the adjudication of the children's rights without considering the ultimate goal of the intervention. In her reply brief, Lacresha suggests that the court may consider only whether intervention will `procedurally prejudice' the parties, but it is unclear what this procedural prejudice would be. Case law supports the consideration of the prospective intervenor's objectives. For example, in discussing whether permissive intervention of foster parents is appropriate, our courts have looked to the ultimate goals of the foster parents and to whether those goals conflict with the interests of the biological parents. The fact that there are substantial policies on both sides militates toward allowing the court wide discretion to weigh these policies in the context of individual cases. We will not disturb that discretion by requiring the court to conduct a full hearing on the merits at the intervention stage. Such a process is not required by the rule and would be duplicative. The court's decision to deny intervention because it found that intervention would prejudice the interests of the children was not manifestly unreasonable.
See e.g. J.H., 117 Wn.2d 471-72; J.W.H., 106 Wn. App. at 724-25.
COMMON LAW RIGHT TO INTERVENTION
Lacresha asserts that the common law protects her right to maintain her sibling relationship through visitation. She relies on In re Smith, in which our supreme court struck down a statute allowing for third party visitation rights when the court found such visitation to be in the best interests of the child. The court held that the statute was deficient because it allowed unconstitutional state interference in parental autonomy without a showing of harm to the children. The court noted that the statute at issue, in addition to not requiring a showing of harm, did not require inquiry into various other matters such as the significance of the relationship between the third party and the child, or the reasons for the parental decision to limit visitation, or whether the person who petitioned for visitation had a history of abusing the child. Smith says nothing about a pre-existing common law right to sibling visitation. The court's comments about the additional deficiencies of the statute were extraneous to the holding of the case and do not establish criteria for asserting a common law right to visitation.
137 Wn.2d 1, 969 P.2d 21 (1998)
Smith, 137 Wn.2d at 19-20.
Smith, 137 Wn.2d at 21.
CONSTITUTIONAL RIGHT TO INTERVENTION
Lacresha argues that the court erred in denying her motion to intervene because she has a right to maintain her relationship with her brothers under the First and Fourteenth Amendments of the U.S. Constitution. The lower federal court cases cited by Lacresha are not factually analogous and do not establish that a court's denial of a motion to intervene in a dependency amounts to unconstitutional State interference in a sibling relationship. Therefore, even assuming that the First and Fourteenth Amendments protect the sibling relationship from arbitrary state interference, we find that no constitutional violation occurred.
EXPERT WITNESS DECLARATION
DSHS asks this court to strike an expert's declaration submitted by Lacresha on appeal because it was not presented to the trial court. However, because our resolution of this case does not require us to consider the declaration, it is unnecessary to strike the evidence.
We affirm.
WE CONCUR: FAYE C. KENNEDY, MARLIN J. APPELWICK