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
