This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).





In Re the Matter of the Welfare of:

Q.T.B., f/k/a J.T.B.

Filed May 26, 1998


Huspeni, Judge

Stearns County District Court

File No. J497050574

Jody Ollyver DeSmidt, Nathalie S. Rabuse, Walling & Berg, P.A., 121 S. Eighth St., Suite 1550, Minneapolis, MN 55402-2815 (for appellant foster mother Erin O'Neill)

Michael G. Blee, Blee & Reep, P.A., 101 S. Seventh Ave., Suite 110, St. Cloud, MN 56301 (for respondent mother)

Roger S. Van Heel, Stearns County Attorney, Richard J. May, Asst. Stearns County Attorney, 705 Courthouse Square, Admin. Center, Room 448, St. Cloud, MN 56303 (for respondent Stearns County)

Considered and decided by Shumaker, Presiding Judge, Huspeni, Judge, and Schumacher, Judge.



In this consolidated appeal, appellant challenges the denial of her motion to intercede in respondent county's public CHIPS proceeding, the failure of the court to choose her as foster parent, and the dismissal of her private CHIPS petition. Because we find no error in any of these decisions, we affirm.


On March 18, 1997, when Q.T.B. was one day old, appellant Erin O'Neill signed an agreement to adopt him. Respondent, Q.T.B.'s mother, signed the adoption agreement on April 3, with the understanding that she had ten working days to revoke her consent. She revoked her consent ten working days later; the timeliness of the revocation is not contested. On April 17, appellant filed a private petition requesting that Q.T.B. be adjudicated a child in need of protection or services (CHIPS). After a hearing, the district court (district court one) ordered a maltreatment assessment and placed Q.T.B. in foster care. On June 26, respondent Stearns County filed a public CHIPS petition. After Q.T.B.'s mother admitted to the allegations in the public CHIPS petition, another district court (district court two) adjudicated Q.T.B. CHIPS.

On August 12, appellant filed a motion to consolidate the two CHIPS petitions to be heard in district court one. Stearns County moved to dismiss appellant's private CHIPS petition. District court one denied the motion to dismiss, ordered appellant to file her motion to consolidate in district court two, and directed that the private action automatically be dismissed if the motion was denied. On October 9, 1997, appellant moved to intercede in the public CHIPS action on the theories of intervention, consolidation, and joinder. Appellant also requested that she be considered for possible foster care placement of Q.T.B. District court two denied appellant's motion and district court one dismissed appellant's private CHIPS petition.

Appellant sought review of both judgments and this court consolidated those appeals.


1. Intervention[1]

Appellant asserts that she had the right to intervene in the public CHIPS proceeding because she was Q.T.B.'s lawful custodian at the time that she filed the private petition. See Minn. Stat. § 260.155, subd. 1(a) (1996) ("A child who is the subject of a petition, and the parents, guardian, or lawful custodian of the child have the right to participate in all proceedings on a petition").[2] "[I]n reviewing orders concerning intervention as of right, this court is allowed to independently assess the appropriateness of the order." In re Welfare of C.J., 481 N.W.2d 861, 862 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992).

Valentine v. Lutz, 512 N.W.2d 868 (Minn. 1994), addressed the right of foster parents to intervene in a CHIPS proceeding. In Valentine two foster parents argued that because they had been the lawful custodians of the child before the CHIPS proceeding, they had a right to intervene in the action under Minn. Stat. § 260.155, subd. 1(a). Id. at 870. In upholding denial of the motion to intervene, the supreme court relied on the definition of "custodian" from Minn. Stat. § 260.015, subd. 14 (A custodian is "any person who is under a legal obligation to provide care and support for a minor or who is in fact providing care and support for a minor."). Id. Valentine held that because the child had been removed from the foster parents' home three weeks before they filed their motion to intervene, they were not providing care for the child, were under no obligation to provide such care, and did not qualify as custodians for the purposes of Minn. Stat. § 260.155. Id. at 871.

The Valentine analysis applies here. Q.T.B. was removed from appellant's custody on April 23, 1997, one week after appellant filed her own private CHIPS petition and two months before Stearns County initiated the proceedings into which appellant is attempting to intervene. Appellant was under no obligation to provide care for Q.T.B. and was not providing care for him either at the time she filed her motion to intervene on August 12 or at the time Stearns County filed its CHIPS petition on June 26.

Appellant argues that this case is analogous to C.J., where this court permitted two foster parents to intervene in a parental rights termination proceeding because they qualified as custodians. In C.J., the foster parents had actual custody of the child for two years before the court permitted the child to go to Florida for a "temporary visit" with family members. Id. at 862. The district court permitted the child to remain in Florida and informed the foster parents that they would be able to intervene only if the arrangement in Florida was not successful. Id. This court reversed the denial of the motion to intervene, holding that the foster parents were under an obligation to provide care for the child and therefore qualified as lawful custodians. Id. at 863.

C.J. is distinguishable from this case. Appellant's obligation to Q.T.B. was extinguished once the county removed him from her home. Two months intervened between appellant's custody of Q.T.B. and the filing of the Stearns County CHIPS petition. C.J. does not support appellant's argument that she was entitled to intervention as a matter of right.[3]

Because appellant did not qualify as a lawful custodian either when the county filed its petition or when she moved for intervention, the district court did not abuse its discretion in holding that appellant had no right to intervene.

2. Consolidation

"The question of consolidation in any given case * * * rests in the sound discretion of the trial court." Fitzer v. Bloom, 253 N.W.2d 395, 401-02 (Minn. 1977). Appellant argues that the district court abused its discretion when it denied her request to consolidate the private and the public CHIPS proceedings.

When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; * * * and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

Minn. R. Civ. P. 42.01. The district court held that because the two CHIPS petitions involved not just common but identical questions of law or fact, it was unnecessary to consolidate the proceedings; the county's petition would suffice.

Appellant argues that the court abused its discretion by failing to consider that she filed the private CHIPS petition on behalf of Q.T.B. and that she could provide significant input into Q.T.B.'s best interests. Appellant fails to argue, however, what special information or insight she could have provided to the CHIPS proceeding that would have affected the court's disposition. Appellant also fails to note that the public CHIPS petition was successful in obtaining the admission of Q.T.B.'s mother to the allegations in the petition.

Considering that appellant had custody of Q.T.B. for only one month, it is doubtful that she could have provided important information to the court that would have led to a more appropriate result for Q.T.B. Stearns County had custody of Q.T.B. at the time the petition was filed and was in a position to adequately protect the child's best interests. Because CHIPS petitions are brought for the benefit of the child and disposition is based on the child's best interests, the court did not abuse its discretion in refusing to consolidate the two petitions.

3. Joinder

Minn. R. Civ. P. 19.01 provides that:

A person * * * shall be joined as a party in the action if (a) in the person's absence complete relief cannot be accorded among those already parties, or (b) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (1) as a practical matter impair or impede the person's ability to protect that interest * * *.

Appellant argues that she should have been joined in the public CHIPS proceeding because she was at risk of losing her visitation rights with Q.T.B.

We are not insensitive to appellant's request that she continue to be permitted to have contact with this infant whom she wished to adopt and parent. Appellant has been afforded visitation with Q.T.B. and there is nothing in the record to indicate that the court would refuse to consider continuing that visitation. However, any rights that appellant may have are separate from the goal of eventual reunion of mother and child and do not rise to the level of requiring joinder under rule 19.01. The court did not err in denying her request to join the public CHIPS proceeding.

4. Appellant as a foster care provider

Appellant argues that because the district court acknowledged that she is an "important friend" to Q.T.B., it erred in failing to require that Stearns County place Q.T.B. with her for foster care. Appellant cites as support for her argument Minn. Stat. § 260.181, subd. 3 (1996) (custody should be transferred to a relative, if possible, or to an "important friend with whom the child has resided or had significant contact"). Even though the district court may have considered appellant an important friend to Q.T.B, Minn. Stat. § 260.181 affords little support to appellant because that statute was created to insure "[p]rotection of heritage or background" of the child. Id. at subd. 3. In this case, Q.T.B.'s heritage is uncertain from the record, but a newborn infant exam referred to him as non-white. Appellant is Caucasian. The record does not reflect any manner in which appellant would be in a better position than others to protect and preserve Q.T.B.'s heritage or background.

We recognize that appellant has a strong and commendable desire to care for Q.T.B. and that she may, indeed, be a special friend to the child. Other factors, however, must be considered when placing a child in foster care. Here, the goal of the CHIPS proceeding is reunification of the mother and child. Appellant lives in Minneapolis, 67 miles from St. Cloud. If the court were to place Q.T.B. with appellant rather than in a foster home in St. Cloud, the child would be a considerable distance from his mother and the process of reunification very likely would be more onerous. In addition, Stearns County would be exercising jurisdiction over a child who is in foster care in another county. The court's placement of Q.T.B. in foster care in St. Cloud was reasonable. The court did not err in failing to place Q.T.B. with appellant.

5. Dismissal of private petition

Lastly, appellant argues that because the evidence indicates that the court erred in refusing to permit her to intervene, consolidate, or join in the public CHIPS proceeding, the order dismissing her private CHIPS petition is invalid. While we acknowledge appellant's genuine concern for the immediate safety of Q.T.B., and her proper motivation in filing the private CHIPS petition, we also recognize that once the public petition was filed, appellant's involvement was no longer needed in order to protect Q.T.B. Even if appellant could have provided helpful information when the petition was filed, the natural mother's admissions and the adjudication of Q.T.B. as CHIPS obviated further input by appellant. Upon adjudication, the concern of the court became reunification of Q.T.B. with his mother.

There is nothing in the record to indicate that appellant would not have been a capable and nurturing parent for Q.T.B. She clearly wishes to maintain a relationship with him. However, despite the very human issues here, the law is clear, and the court acted in accord with the law in deciding the issues in this case as it did.


[1]Both respondent Stearns County and respondent Q.T.B.'s mother assert that appellant improperly filed her CHIPS petition and did not have standing in the public proceeding or in this appeal. Because of our decision in this case, these issues will not be addressed.

[2] The language "lawful custodian" was changed as part of the 1997 laws to "legal custodian." This change took effect in August 1997 and has no application in this case, which was commenced in April 1997. See Minn. Stat. § 645.02 (1996) (unless stated otherwise, an act is effective August 1, after enactment).

[3] Appellant also relies on In re Welfare of C.S.C., No. C4-94-268 (Minn. App. June 21, 1994), review denied (Minn. Aug. 24, 1994), to support her claim. Not only is C.S.C. unpublished and therefore without precedential value, it also permitted foster parents to intervene only because they had actual physical custody of the child at the time of the petition. Id. This is not the case here, and C.S.C. is not persuasive.