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In re Children of Mary J.

Supreme Court of Maine

January 3, 2019

IN RE CHILDREN OF MARY J.

          Argued: November 7, 2018

          Arnold S. Clark, Esq. (orally), Fletcher Mahar & Clark, Calais, for appellant Passamaquoddy Tribe

          Janet T. Mills, Attorney General, and Hunter C. Umphrey, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee Department of Health and Human Services

          Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

          JABAR, J.

         [¶1] The Passamaquoddy Tribe (Tribe) appeals from an order of the District Court (Calais, D. Mitchell, J.) denying the Tribe's motion to intervene in a child protective action involving nonmember children, following the removal of the children from the custody of their mother, who resided within the Tribe's territory. The Tribe contends that the court erred in determining that the Department of Health and Human Services' removal of the children from its territory was not impermissible state regulation of an internal tribal matter. See 30 M.R.S. § 6206(1) (2017). Because we find no error in the court's determination, we affirm the court's denial of the Tribe's motion for intervention of right, filed pursuant to M.R. Civ. P. 24(a)(2), and the denial of the Tribe's motion for permissive intervention, filed pursuant to M.R. Civ. P. 24(b).

          I. BACKGROUND

         [¶2] The following is derived from the court's factual findings, all of which are supported by competent evidence in the record. See Grondin v. Hanscom, 2014 ME 148, ¶ 8, 106 A.3d 1150 ("A factual finding is clearly erroneous only if no competent evidence supports it").

         [¶3] In September 2017, the Department filed a child protection petition alleging neglect by both the mother and the father of several children. See 22 M.R.S. § 4032 (2017). Although the mother is a member of the Passamaquoddy Tribe, neither the father nor the children are members, or eligible to become members.[1] At the time the petition was filed, the children were living with the mother on the Passamaquoddy reservation at Indian Township.

         [¶4] In February 2018, the Department requested a preliminary protection order, seeking custody of the children. See 22 M.R.S. § 4034 (2017). The mother waived her right to a summary preliminary hearing except as to the issue of placement. She requested that the children be placed with their maternal grandmother, who is also a member of the Passamaquoddy Tribe, and who lives on the reservation. After a hearing, the court denied the mother's request and allowed the Department to seek foster placement.[2] The Department placed the children in foster care outside of Indian Township.

         [¶5] Following the Department's removal of the children from their mother's care, the Tribe filed a motion to intervene, alleging that Maine Rule of Civil Procedure 24(a)(2) provided for intervention of right, because the Department's removal of the children from the Tribe's territory constituted impermissible state regulation of an "internal tribal matter[]." See 30 M.R.S. § 6206(1). Alternatively, the Tribe sought permissive intervention, pursuant to Rule 24(b), asserting that the underlying child protective action and its claim of tribal sovereignty have a question of law in common. The court denied the Tribe's motion to intervene, and the Tribe timely appealed. See M.R. App. P. 2B(c)(1).[3]

         II. DISCUSSION

         [¶6] Rule 24(a)(2) permits a nonparty to intervene, as a matter of right, if three criteria are met: "(1) [the nonparty] must claim an interest in the property or transaction that is the subject of the action; (2) it must be so situated that the disposition of the action may impair or impede its ability to protect its interests; and (3) its interests must not be adequately represented by the existing parties to the action." Bangor Publ'g Co. v. Town of Bucksport, 682 A.2d 227, 231 (Me. 1996). Alternatively, permissive intervention is available when a "[nonparty's] claim or defense and the main action have a question of law or fact in common" and intervention will not "unduly delay or prejudice the adjudication of the rights of the original parties." M.R. Civ. P. 24(b).

         [¶7] Under either path for the Tribe's intervention, the pivotal issue before us is whether the court's order, issued pursuant to Title 22, granting the Department custody of children in jeopardy constitutes an impermissible state intervention into "internal tribal matters." See 30 M.R.S. § 6206(1).

         [¶8] We review the denial of a motion to intervene for error of law or abuse of discretion. State v. MaineHealth,2011 ME 115, ¶ 7, 31 A.3d 911. Where the court's decision turns on a question of law, we review the issue de novo. See Passamaquoddy ...


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