Baker v. Webb

KELLER, Justice,

dissenting.

Because the majority has literally “thrown the baby out with the bathwater” in this case, I respectfully dissent and vote to affirm the trial court’s order denying Appellants’ motion to intervene in the underlying adoption proceeding. I share the majority’s frustration with what appears to be a continuing failure on the part of the Cabinet for Families and Children (“the Cabinet”) to follow its own policies and procedures in adoption cases.1 However, the apparent equitable position of Appellants vis-a-vis the Cabinet does nothing to alter the fact that Appellants’ motion to intervene was procedurally void in that it was not accompanied by “a pleading setting forth the claim or defense for which intervention is sought.”2 The majority opinion’s attempt to “do the right thing” in this case fails not only because its holding ignores our Rules of Civil Procedure, but also — and primarily — because, by severing the legal relationship between J.A.J. and the family with which he has lived for more than two and a half years simply to allow Appellants to assert a claim that they failed to assert properly before, the majority effectively punishes J.A.J. for what it perceives to be the Cabinet’s “sins” against Appellants.

“The procedure to secure the right to intervene is to a great extent fixed by ... rule, and intervention can generally be secured only in accordance with the terms of the applicable provision.”3 In Kentucky, CR 24.03 provides:

A person desiring to intervene shall serve a motion to intervene upon the parties as provided in Rule 5. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when a statute gives a right to intervene....

CR 24.03’s mandatory language (“shall be accompanied”) means what it says, “[a]n application to intervene must be accompanied by a pleading setting forth the claim or defense for which the intervention is sought[,]”4 and this requirement serves a valid purpose. The Kentucky Rules of Civil Procedure permit intervention of right only when a prospective intervenor “claims an interest relating to the property or transaction which is the subject of the action and is so situated that the disposition of the action may as a practical matter *628impair or impede the applicant’s ability to protect that interest.”5 The interest in question must be “direct, substantial, and legally protectable”6 (“as distinguished from a mere expectancy” 7). Thus, intervention of right gives parties an opportunity to protect their interests by bringing a competing claim before the trial court8 in the form of an intervening complaint9 or similar pleading that identifies both the competing claim or interest and the relief sought to protect that claim or interest. As such, CR 24.03’s underlying purpose is to “place other parties [as well as the trial court] on notice of the claimant’s position, the nature and basis of the claim asserted, and the relief sought by the intervenor.” 10

Given that Appellants did not have the written approval of the Cabinet’s secretary, J.A.J. had not been placed with Appellants by the Cabinet for the purpose of adoption, and, in fact, Appellants never made an application to the Cabinet for permission to receive a child for adoption,11 Appellants could not — and admit that they did not — seek to intervene in the underlying adoption proceeding for the purpose of asserting their own adoption petition.12 However, the majority correctly concludes that Appellants had a “sufficient, cogniza*629ble legal interest in the adoption proceeding of this child”13 to support intervention by virtue of “the policies and administrative regulations of the Cabinet that give priority to relatives of a child placed for adoption.”14 In my view, however, the source of Appellants’ interest in J.A.J.’s placement with them for adoption was 922 KAR 1:100, which provides for a relative preference in adoption placements,15 and not, as the majority suggests, KRS 620.090(2) and 922 KAR 1:140, which provide for a relative placement preference when the Cabinet has custody of a child under a temporary custody order “for a period of time not to exceed forty-five (45) days”16 unless extended by court order. Although Appellants would likely have had a sufficient legal interest in J.A.J.’s placement at the time of his removal to support their intervention in the dependency, neglect, and abuse (“DNA”) proceedings in district court,17 the KRS 620.090(2) and 922 KAR 1:140 placement preferences did not govern the Cabinet’s decisions as to J.A.J.’s placement for the purpose of adoption and thus no longer conferred any litigable interest upon Appellants at the time intervention was sought. The suggestion to the contrary found in a footnote in Williams v. Phelps,18 which was an appeal from a custody proceeding, is clearly dicta.

Accordingly, Appellants could have demonstrated a cognizable interest that would have warranted intervention if their motion to intervene had included a claim for immediate entitlement to custody of J.A.J. or they had sought an order directing the Cabinet to place J.A.J. with them for the purposes of adoption. However, despite CR 24.03’s mandatory requirements, Appellants filed no pleading with their motion to intervene and asserted no claim to physical custody of J.A.J.; instead, their motion stated only that they “seek to intervene in this action to at least temporarily suspend the adoption of [J.A.J.] until all the facts are discovered.” As such, the trial court was correct to deny Appellants’ motion to intervene,19 and I would affirm the trial court’s ruling.

As for the dicta concerning Thomas v. Cabinet for Families and Children that is *630found in the next-to-last paragraph of the majority opinion, I stand by the views that I expressed in my concurring opinion in that case, which are, in my view, even more applicable to the case at bar.20

LAMBERT, C.J., joins this dissenting opinion.

. See Thomas v. Cabinet for Families and Children, Ky., 57 S.W.3d 262, 263-65 (2001); L.S.J. v. E.B., Ky.App., 672 S.W.2d 937, 940 (1984) ("It is our observation that the cahinet, once the foster parents demonstrated aggressive interest and commenced litigation, abandoned its duty and obligation to L.SJ. and her daughter by failing to fulfill its duties as set out in its own regulations.”); Cabinet for Human Resources v. McKeehan, Ky.App., 672 S.W.2d 934, 935-36 (1984) (referencing misrepresentations by local agents that led foster parents to believe erroneously that a child had been placed with them for purposes of adoption).

. CR 24.03.

. 59 Am. Jur. 2d Parties § 229 (2002).

. Mulligan v. First National Bank & Trust Co. of Lexington, Ky., 351 S.W.2d 59, 62 (1961) (emphasis added). See also 7 Kurt A. Phillips, Kentucky Practice: Rules Of Civil Procedure Annotated § 24.03 at 451 (5th ed.1995) [There-inafter Phillips] ("A motion to intervene under either branch of the Rule [CR 24.01 or 24.02] ... must be accompanied by [a] pleading setting forth the intervenor’s claim or defense. This pleading should state a sufficient claim or defense.”).

. CR 24.01(1).

. Phillips, supra note 4 at § 24.01 at 442. Cf. Winn v. First Bank of Irvington, Ky.App., 581 S.W.2d 21, 23 (1978) (“A party plaintiff must have a real, direct, present and substantial right or interest in the subject matter of the controversy.” (citing 67 C.J.S. Parties § 6 (1950))); 59 Am. Jur 2d Parties § 176 at 595 (2002) (observing that a party seeking to demonstrate a "litigable interest” sufficient for intervention "must have an enforceable or recognizable right and more than a general interest in the subject matter of the proceedings.” (footnotes omitted)).

. Winn, 581 S.W.2d at 23. See also 59 Am. Jur. 2d Parties § 177 at 595 (2002) ("A person whose interest in the matter of litigation is an indirect, inconsequential, remote, conjectural, or contingent one, cannot intervene.” (footnote omitted)).

. See Shepherd v. Rowe, Ky., 243 S.W.2d 915 (1951) (intervention was proper in a suit for specific performance of a real estate contract when the intervenors asserted title to the land under a prior deed that had allegedly been fraudulently altered); Summers v. Besterman, 254 Ky. 231, 71 S.W.2d 450 (1934) (a party claiming to be the true owner of real estate may intervene in an attachment proceeding in which it is asserted that someone else owns the property); Louisville Title Co. v. White Construction Co., 250 Ky. 212, 62 S.W.2d 795 (1933) (intervention to assert competing lien in foreclosure action); Smith v. Jones, 226 Ky. 785, 11 S.W.2d 937 (1928) (intervention to assert competing claim to title of real estate).

. See Ambassador College v. Combs, Ky., 636 S.W.2d 305, 306 (1982).

. 59 Am. Jur. 2d Parties § 231 (2002).

. See KRS 199.473(1); 922 KAR 1:010.

. See KRS 199.470(4) ("No petition for adoption shall be filed unless prior to the filing of the petition' the child sought to be adopted has been placed for adoption ... by the cabinet, or the child has been placed with written approval of the secretary.”); Dept. of Child Welfare v. Jarboe, Ky.App., 464 S.W.2d 287, 291 (1971) ("[KRS 199.470(4)] requires that before the child [which had been committed to the custody of the Department] can be adopted it must have been placed in the home for the purpose of adoption. It is therefore abundantly clear that the legislative policy of this state is that no child except as set out in [exceptions not relevant in this case] is to be adopted unless it is first placed in the home for that purpose by the Department of Child Welfare.”); L.S.J., 672 S.W.2d at 939 (applying Jarboe and observing that "[i]t is plain from the record that the child was not placed for adoption with anyone.”); McKee-han, 672 S.W.2d at 936 (holding that the trial court lacked jurisdiction over an adoption petition where "the child has never been placed for adoption.”). See also KRS 199.490(3) ("[A] copy of the written approval of the secretary of the Cabinet for Families and Children or the secretary’s designee shall be filed with the petition.”).

. Baker v. Webb, Ky., 127 S.W.3d 622, - (2004).

. Id.

. 922 KAR 1:100 § 3(2) provides: "Priority consideration for an adoptive placement shall be given to the: (a) Existing relative; or (b) Current foster parent." (emphasis added).

. KRS 620.090(5).

. In my view, Appellants could have sought to intervene in the district court proceedings: (1) prior to the temporary removal hearing (KRS 620.080) in order to assert a claim that they should be given temporary custody of J.A.J., see KRS 620.090(1), or that J.A.J. should be placed in their care by the Cabinet if the court gave custody to the Cabinet, see KRS 620.090(2); (2) after the temporary removal hearing, by means of a petition for immediate entitlement to custody of J.A.J., see KRS 620.110; or (3) prior to the final adjudicatory hearing (KRS 620.100) in order to assert a claim for custody of J.A.J. See KRS 620.140(l)(c). Authority from other jurisdictions — some of which is cited in today’s majority opinion — supports the conclusion that relative placement preferences confer interests that can be asserted in such proceedings. See In the Interest of C.P., 34 Colo.App. 54, 524 P.2d 316 (1974); In Re Kayle C., 253 Neb. 685, 574 N.W.2d 473 (1998); In the Interest of A.G., 558 N.W.2d 400 (Iowa 1997).

. Ky.App., 961 S.W.2d 40 (1998).

. See Polo v. Cuyahoga County Board of Elections, 74 Ohio St.3d 143, 656 N.E.2d 1277, 1278 (1995) (interpreting language of Ohio Civil Rule 24(C), which is identical to CR 24.03, as a procedural bar: "Since Uffman-Kirsch’s motion [to intervene] is not accompanied by any pleading, her motion is denied.”).

. Thomas, 57 S.W.3d at 267-69 (Keller, J., concurring).