An intervenor is a non-party that is allowed to join a lawsuit. There are a few ways that litigants can intervene in a lawsuit—mainly through a right to do so or with permission of the court. Recently, the contours of intervention have collided with the requirement that a litigant have standing to maintain an action in court. Last term, the U.S. Supreme Court ruled that a litigant seeking to intervene at the trial court level under Fed. R. Civ. P. 24(a)(2) must meet Article III standing requirements if it wishes to pursue relief not requested by the plaintiff.1 And now, the Colorado Supreme Court has examined the issue vis-à-vis foster parents who intervene in the juvenile court as to whether they also have the right to appeal after those proceedings.
Foster Parents Intervene and Appeal, but the GAL and the Department Do Not
The Montezuma County Department of Social Services filed a D&N petition for a baby, C.W.B., Jr., after the child’s doctors discovered injuries consistent with child abuse. The baby was placed in foster care during the proceedings. Eventually, the child’s father’s parental rights were terminated, but the child’s mother—although having some trouble with her treatment plan at first—began to comply. At one point, the child’s foster parents moved to intervene in the dependency and neglect proceedings under section 19-3-507(5)(a), C.R.S. 2017. This statute allows foster parents to intervene in the proceedings, and because of a Colorado Supreme Court case called A.M. v. A.C., 2013 CO 16, allows them to participate fully in the proceedings.
The guardian ad litem (GAL) moved to terminate the parent-child legal relationship between the mother and child. The trial court denied the motion and the GAL did not appeal; neither did the Department. The foster parents, however—who desired to adopt the child—appealed the ruling.
The issue before the Supreme Court was whether the foster parents had standing to bring the appeal where the GAL and the Department did not appeal. In a split decision, the Colorado Court of Appeals concluded they did. But the Colorado Supreme Court, in an opinion announced on February 5, 2018, disagreed.
Held: Foster Parents Have No Standing to Appeal, Despite Having Standing to Intervene Below
The Supreme Court held that
although section 19-3-507(5)(a) permits foster parents to intervene in dependency and neglect proceedings following adjudication, foster parents here do not have a legally protected interest in the outcome of termination proceedings, and section 19-3-507(5)(a) does not automatically confer standing to them to appeal the juvenile court’s order denying the termination motion at issue, where neither the Department nor the GAL sought review of the trial court’s ruling.2
The Court first outlined the general requirements of Colorado’s standing doctrine. Standing consists of both constitutional and prudential (or practical) considerations. Considered together, to have standing before Colorado’s courts, the Court explained, a litigant must have suffered (1) an injury in fact (2) to a legally protected interest. The latter factor represents the prudential aspect of standing and seeks to limit judicial review to parties that truly have a stake in the litigation. The fact that a party may have standing in the trial court does not necessarily mean that it will have standing on appeal. Standing must be established at, and maintained through, each stage of the litigation.
The Court then considered the facts of the case against the backdrop of the statutory framework for dependency and neglect cases. By statute, foster parents have a clear right to intervene before the trial court. But while this right exists, the reason foster parents can intervene is really just to serve the role of providing the trial court with important information for its decision. While foster parents may have a right to intervene in the trial court, the right does not automatically extend to appeals. The Court disagreed that the foster parents had suffered an injury in fact vis-à-vis their potential to adopt the child. Further, the foster parents had no legal interest in the trial court’s ruling that would give them standing to appeal the decision, at least where neither the GAL nor the Department appealed. The Court’s decision in A.M.—which had previously held that foster parents can fully participate in the trial court proceedings—did not compel a different result.
A Split Decision: The Dissenters Highlight the Plain Language of the Statute and Would Find Standing
Chief Justice Rice, joined by Justice Coats, dissented. In the dissent’s view, the fact that the legislature decided to give foster parents the right to intervene answered the question for the Court. Because the statutory basis for intervention contains no limitations, Chief Justice Rice believed that the plain language of the statute called for the result reached by the Court of Appeals below and would have found standing here. And the dissent thought the majority conflated the requirements for intervention under Colorado Rules of Civil Procedure 24(a)(1) and 24(a)(2). Under Rule 24(a)(1), intervention is a matter of right, whereas under Rule 24(a)(2), it is permissive. The dissent argued that the majority’s opinion rendered Rule 24(a)(1) moot, and prevents the General Assembly from conferring the right to intervene on parties it believes should be able to participate in the proceedings. The dissent “would hold that intervenors entering a case pursuant to C.R.C.P. 24(a)(1) have standing to participate fully at trial and on appeal because the legislature has declared their interest sufficient for standing purposes.”3
Standing Must be Considered at Every Stage
The C.W.B., Jr. case is an important one in the dependency and neglect context and removes foster parents’ right to participate in an appeal if the Department and the GAL decline to take the case up. It also may have implications for intervention and standing doctrines in other cases. Regardless of its reach, it is an important reminder to be sure standing exists at all stages of the litigation.
1 Town of Chester v. Laroe Estates, Inc., ___ U.S. ___, 137 S. Ct. 1645 (2017).
2 People in Interest of C.W.B., Jr., 2018 CO 8, ¶ 2.
3 Id. at ¶ 44 (Rice, C.J., dissenting).
Featured Image: "Unnamed" by Aditya Romansa on Unsplash.
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