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Stricklin v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division IV

September 13, 2017

REBECCA STRICKLIN APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILD APPELLEES

         APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, ELEVENTH DIVISION [NO. 60JV-14-575] HONORABLE PATRICIA JAMES, JUDGE

          Miller, Miller & Churchwell, PLLC, by: Joseph Churchwell, for appellant.

          One brief only.

          OPINION

          N. MARK KLAPPENBACH, Judge

         Rebecca Stricklin appeals from the order of the Pulaski County Circuit Court denying her petition to intervene in the dependency-neglect case involving her great-grandson, LE, after the parental rights of both of LE's parents were terminated. Stricklin argues that the petition to intervene should have been granted to allow her to pursue adoption of LE and to enforce "sibling rights" under the juvenile code. We affirm.

         This dependency-neglect case began in April 2014 when the Department of Human Services (DHS) removed three-year-old LE from the custody of his mother, Jordan Goff, due to her drug usage. During the case, Stricklin's grandson, Jesse Everett, was determined to be LE's father. The couple have two other children who were in the care of relatives. Goff reported that six-year-old CE had been living with Everett's aunt and uncle in Texas since August 2013, and twenty-one-month-old RE had been in Stricklin's care for several months. LE was placed in foster care, and the court ordered for the other children to remain with their relatives and for the relatives to seek guardianships. Stricklin obtained a guardianship over RE in December 2014. Reunification with Goff was initially the goal of LE's case, but ultimately the goal was changed to adoption.

         In November 2015, the circuit court terminated the parental rights of both Everett and Goff. Everett appealed the termination.[1] On June 16, 2016, while Everett's appeal was pending, Stricklin filed a petition in the dependency-neglect case to adopt LE. The petition stated that Stricklin had custody of RE, that CE was currently living with her and would likely remain in her home permanently, and that granting the adoption would facilitate continued familial relationships and would be in the best interest of all the children. Stricklin claimed that she had previously sought custody of LE but that DHS had rejected her and excluded her from proceedings after she requested a DNA test to confirm her relation to LE. On June 21, 2016, the circuit court entered an order directing Stricklin to file her adoption petition as a separate case since Stricklin was not a party in the dependency-neglect case.

         Instead of filing her petition in a new case, on July 28, 2016, Stricklin filed a petition to intervene in the dependency-neglect case and for enforcement of Arkansas Code Annotated section 9-28-1003 (Repl. 2015).[2] She alleged that she was entitled to intervene as a matter of right pursuant to Arkansas Rule of Civil Procedure 24(a) and pursue her petition for adoption. She also claimed that LE's rights under section 9-28-1003 had been violated and that sibling visitation should be ordered. DHS responded to Stricklin's petition to intervene, asserting that she had no right to intervene and that intervention was not necessary to pursue adoption.

         On September 21, 2016, the circuit court entered an order denying the petition to intervene and for enforcement of section 9-28-1003. The court found that Stricklin's petition, which was filed twenty-seven months after LE had been placed in foster care and eight months after parental rights had been terminated, was not timely filed. The court found that other parties would suffer prejudice if Stricklin was allowed to intervene so late in the proceedings and that she offered no reason for her delay. The court noted that Stricklin was not deprived of a remedy because an adoption petition could be considered on its own merits without her becoming a party to the dependency-neglect case. Regarding her claims under section 9-28-1003, the court found that Stricklin cited no authority to allow the court to enforce a code section on behalf of a nonparty. Stricklin now appeals this order.

         There are two means by which a nonparty may intervene in a lawsuit: as a matter of right and by permission. Ark. R. Civ. P. 24 (2016). Stricklin asserted that she was entitled to intervene as a matter of right pursuant to Rule 24(a), which provides as follows:

Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of this state confers an unconditional right to intervene; or (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.

Ark. R. Civ. P. 24(a).

         Whether a motion to intervene is permissive or as a matter of right, the motion must be timely. See Ark. R. Civ. P. 24(a)-(b). The timeliness question is a matter within the discretion of the circuit court, which will be reversed only for an abuse of that discretion. Valois Dynasty, LLC v. City Nat'l Bank, 2016 Ark.App. 140, 486 S.W.3d 205. Timeliness is determined from all the circumstances, with the following factors being considered: (1) how far the proceedings have progressed; (2) any prejudice to other parties caused by the delay; and (3) the reason for the delay. Id. Lack of notice is a factor that may be considered. Id. After a final judgment has been entered, intervention is generally allowed only upon a strong showing of entitlement or a demonstration of unusual and compelling circumstances. Id.

         Stricklin argues that her petition to intervene was not untimely and was not filed postjudgment because the adoption phase of a dependency-neglect case does not arise until after termination of parental rights and the exhaustion of appeals. She claims that she timely asserted her rights before LE was even legally available for adoption. Stricklin contends that if her petition is considered to be filed postjudgment, there are unusual and compelling circumstances that entitle her to intervention, namely that she tried to have LE placed with ...


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