Timothy J. Eirich, Esq.

Grob & Eirich, LLC

Lakewood, CO

www.GrobEirich.com

INTERVENTION BY RELATIVES AND FOSTER PARENTS IN D&N CASES

Why do relatives or foster parents seek to intervene?

Desire to directly address the judge.Distrust in the system or the decision

making.They are told / recommended to do so.Desire permanent placement of the child.Want to advocate for what they think is in the

child’s best interest.

Legal Basis for Intervention

Intervention “as a matter of right”

§19-3-507(5)(a), C.R.S. (2014)Parents, grandparents, relatives, or foster parents who

have the child in their care for more than three months who have information or knowledge concerning the care and protection of the child may intervene as a matter of right following adjudication with or without counsel.

Distinguish from the “right to notice” and “the right to be heard,” § 19-3-502(7), C.R.S. (2014)

History of Intervention - In the Interest of A.W.R., 17 P.3d 192 (Colo. App. 2000)

Legal Basis for Intervention (cont.)

Permissive Intervention C.R.C.P. Rule 24 (b)

Case Example:Is the parent in an unlicensed kinship

home, a foster parent for purposes of 19-3-507(5)(a)?

Meaning of Intervention A.M. v. A.C., 296 P.3d 1026 (Colo. 2013)

Case History

1. Intervenors become full parties. “Foster parent intervenors are afforded the same degree of participation as all other parties, and such participation is not limited to the dispositional hearing. Foster parents who meet the required statutory criteria to intervene may participate fully in the termination hearing without limitation.” A.M. v. A.C., 296 P.3d 1026, 1033(Colo. 2013)

Meaning of Intervention (cont.)2. Intervenors provide valuable information that mitigate the risk of an erroneous decision.

“…limitation proposed by the parents would actually serve to diminish the accuracy of decisions by withholding admissible, highly relevant information from a juvenile court’s consideration merely because it comes from a foster parent. Exclusion of relevant information that foster parent intervenors might provide would therefore heighten, not mitigate, the risk of an erroneous decision at the termination hearing.” A.M. v. A.C., 296 P.3d at 1037.

Meaning of Intervention (cont.)3. Courts should consider all relevant, non-cumulative evidence regardless of the source.

“We have urged courts to exercise extreme caution when considering the termination of parental rights. (cite removed) That caution is best exercised by giving due consideration to all relevant, non-cumulative evidence – whatever the source. Because of its role in securing both the child’s welfare and a just outcome at the juvenile proceeding, the government’s interests are substantial.” Id.

Meaning of Intervention (cont.)4. Intervention is not without limits

“Presentation of evidence by any party is limited by familiar principles of evidence.” Id. at 1034.

“Juvenile courts act as gatekeepers so that, in cases where additional parties have intervened, the termination hearing ought not to become awash with unnecessary evidence or devolve into a contested custody hearing.” Id.

Due process protections afforded to parents are not changed by intervention (right to notice, counsel, legal standard and termination criteria).

Intervention by Relatives

In the Interest of O.C., 308 P.3d 1218 (Colo. 2013)

“…section 19-3-507(5)(a)’s three month time requirement does not apply to parents, grandparents, or relatives. Rather, section 19-3-507(5)(a) permits parents, grandparents, and relatives to intervene as a matter of right without regard to whether the child has previously been in their care.”

Other States’ Perspectives Regarding 3rd Party Participation in Termination Hearings Arizona

Intervention by foster parents or relatives is discretionary (permissive intervention) and must be in the child’s best interest.

Any person or agency that has a legitimate interest in the welfare of a child, including, but not limited to, a relative, a foster parent, a physician, the department or a private licensed child welfare agency, may file a petition for the termination of the parent-child relationship alleging grounds contained in subsection B of this section. A.R.S. § 8-533

Indiana Permits a foster parent to request intervention as a party when it is in the child’s

best interest. Ind. Code § 31-34-21-4.5

Kansas Permits “any party or interested party” to petition the court to terminate parental

rights. K.S.A. § 38-2266(a) The term “interested party” includes people with whom the child has lived or is

living and grants the party the right to present evidence, make arguments, and examine witnesses. K.S.A. § 38-2202(m) and 38-2241.

…Other States Perspectives … Minnesota

Allows “any reputable person” who has “knowledge of circumstances which indicate that the rights of the rights of a parent should be terminated” to petition the court to terminate parental rights. M.S.A. § 260C.307

New Mexico Foster parents & relatives may intervene when

certain conditions are met and, as a “party to the proceeding” may file a motion to terminate parental rights. N.M.S.A. §§ 32A-4-27 and 32A-4-29

…Other States’ Perspectives

OklahomaLimits filing of termination petition to certain

enumerated parties, but considers foster parents “an essential participant with regard to decisions related to the care, supervision, guidance, rearing and other foster care services to the child.” 10A Okl. St. Ann. §1-1-102(D)

Washington Limits permissive foster parent intervention due to

likelihood of “adversarial participation.” In re Welfare of Coverdell, 696 P.2d 1241 (Wash. App. 1984)

Remaining Issues / Questions Regarding InterventionDiscovery?

Right to Intervene after child’s removal (A.W.R. question)?

Role of Intervenors in adjudicatory hearing of 2nd parent?

May an Intervenor file a Motion to Terminate?