In Re the Custody of: KCDC DOB 1-9-2018, Kristin Annette Vanderheyden, et al., Respondents,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0493

In Re the Custody of: KCDC DOB 1-9-2018, Kristin Annette Vanderheyden, et al.,
Respondents,

vs.

Brittany Joyce Simon,
Respondent,

Dannie Kory Contreras,
Respondent,

David Frank Simon, et al., intervenors,
Appellants.

Filed January 18, 2022
Affirmed
Reilly, Judge

Todd County District Court
File No. 77-FA-20-463

Franz J. Vancura, Quinlivan & Hughes, P.A., Long Prairie, Minnesota (for respondents
Kristin Annette Vanderheyden, et al.)

John C. McIntosh, McIntosh Law Office, Buffalo, Minnesota (for appellants)

Considered and decided by Reilly, Presiding Judge; Johnson, Judge; and
Jesson, Judge.
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NONPRECEDENTIAL OPINION
REILLY, Judge
Appellants challenge the district court’s de nial of their motion to intervene as a
matter of right in a third-party custody proc eeding among respondents. Appellants argue
that the district court (1) erred by denying the motion to intervene, (2) misapplied the statute
addressing custody modifica tion, and (3) improperly denied the motion to intervene
without an evidentiary hearing. We affirm.
FACTS
Respondent mother, Brittany Simon, and resp ondent father, Dannie Contreras, are
the biological parents of a minor child born in 2018. Respondents Kristin Vanderheyden
and Gregory Vanderheyden are the child’s maternal grandmother and her spouse.
Appellants David Simon and Nancy Simon are the child’s maternal grandfather and his
spouse. In September 2019, father and mother transferred temporary custody of the child
to grandmother and her spouse through a dele gation of parental authority. About nine
months later, father and mother determined it would be in the child’s best interest to “make
the Designation of Parental Authority permanent.” They voluntarily entered a third-party
custody consent decree with grandmother and her spouse. The district court approved this
custody consent decree. In November 2020, grandfather and his spouse moved to intervene
as a matter of right in the custody matter and sought joint physical and joint legal custody
of the child. The district court denied th e requested relief. Grandfather and his spouse
appeal.
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DECISION
“A parent’s right to make decisions concerning the care, custody, and control of [the
parent’s] children is a protected fundamental right.” SooHoo v. Johnson, 731 N.W.2d 815,
820 (Minn. 2007) (citing Troxel v. Granville, 530 U.S. 57, 65 (2000)). This right includes
“deciding who spends time with the child.” In re C.D.G.D., 800 N.W.2d 652, 655 (Minn.
App. 2011), rev. denied (Minn. Aug. 24, 2011). Because of the importance of a parent’s
fundamental right to make decisions regarding his or her child, the district court must give
“special weight” to a fit custodial parent’s wi shes about a third party’s interactions with
the child. Id. at 661.
Father and mother wanted the child’s maternal grandmother and her spouse to raise
the child. Father and mother executed a delegation of parental authority in September
2019, granting temporary custody to grandmot her and her spouse. With exceptions not
relevant here, a parent “may delegate to another person, for a period not exceeding one
year, any powers regarding care, custody, or property of th e minor or person subject to
guardianship.” Minn. St at. § 524.5-211 (2020); see also Minn. Stat. § 257B.06, subd. 5
(2020) (providing that a similar delegation may be accomplished under chapter 257B). The
statute, by its own terms, delegates parental ri ghts “for a period not exceeding one year.”
In re Welfare of Child of T.C.M. , 758 N.W.2d 340, 346 (Minn. App. 2008). “The
delegation of parental author ity is a temporary, revocable grant of a limited power of
attorney that does not divest [the parents] of [their] parental rights.” Id. at 347.
Here, mother explained that the parents delegated parental authority to grandmother
and her spouse because they believed grandmother and her spouse would provide “the most
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stability and the safest environment” for the child. At the time, mother and the child had
been living with grandmother and her spouse si nce the child was about six months old.
The child spent alternating weeks with grandmother and her spouse, and with grandfather
and his spouse. Yet the pare nts decided to delegate auth ority to grandmother and her
spouse because they “allowed [the parents] to be part of [the child’s] life.” Mother stated
that grandfather and his spouse, by contrast, had stopped talking to father and mother.
About nine months later, the parents determ ined it was in the ch ild’s best interests
to make the situation “permanent.” In June 2020, the parents volun tarily entered a third-
party consent decree with grandmother and her spouse under Minn. Stat. § 257C.07 (2020).
Section 257C.07 permits a parent to transfer legal and physical custody of a child to another
by a custody consent decree. Id. “The court may approve a proposed consent decree if the
custody arrangement is in the best interests of the child and all parties to the decree agree
to it after being fully informed of its contents.” Id.
The district court approved the custody cons ent decree in July 2020. The district
court noted that the child “has had only a spor adic relationship [] with [the parents] since
January 9, 2018.” The child has “regularly resided” with grandmother and her spouse since
February 2018, and alternated weeks between grandmother and her spouse, and grandfather
and his spouse. The district court found that the parents together with grandmother and
her spouse “agree that it is in the best interests of the ch ild” that grandmother and her
spouse undertake custody and control of the child. Based on these determinations, the
district court awarded grandmother and her spouse permanent sole legal and permanent
sole physical custody of the child under Minn. Stat. § 257C.07.
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More than three months later, grandfathe r and his spouse sought to intervene as a
matter of right under Minn. R. Civ. P. 24.01. Under this rule, an individual may intervene
in a proceeding “when the applicant claims an interest relating to the property or transaction
. . . and the applicant is so situated that th e disposition of the acti on may . . . impair or
impede the applicant’s ability to protect that interest,” unless the applicant’s interest is
represented by an existing party. Minn. R. Civ. P. 24.01. This rule requires: “(1) a timely
application; (2) an interest in the subject of the action; (3) an inability to protect that interest
unless the applicant is a party to the action; and (4) the applicant’s interest is not adequately
represented by existing parties.” League of Women Voters Minn. v. Ritchie, 819 N.W.2d
636, 641 (Minn. 2012) (citation omitted). Failure to establish any one of these factors is
dispositive. See id. (holding that a party must satisfy each of the four requirements for
intervention as of right). We review the district court’s decision regarding whether to grant
intervention of right de novo. State Fund Mut. Ins. Co. v. Mead , 691 N.W.2d 495, 499
(Minn. App. 2005).
Here, the second factor is dispositive b ecause grandfather and his spouse do not
have “an interest relating to the property or transaction which is the subject of the action.”
Minn. R. Civ. P. 24.01. Controlling caselaw directs that rule 24.01 does not apply to child-
custody proceedings arising under chapter 257C. “Not every a lleged interest in a lawsuit
supports intervention as a matter of right.” Schroeder v. Minn. Sec’y of State Steve Simon,
950 N.W.2d 70, 76 (Minn. App. 2020), rev. dismissed (Minn. Nov. 25, 2020). And
generally, “personal or familial interests are insufficient to warrant intervention as a matter
of right.” Id. (citing Valentine v. Lutz, 512 N.W.2d 868, 870 (Minn. 1994)).
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In Valentine, a child’s former foster parents sought to intervene as of right in a child-
protection proceeding out of concern for the child’s health and wellbeing. 512 N.W.2d at
870. The foster parents sought an order transferring custody of the child to them, or, in the
alternative, an order granting them visitation. Id. The district court denied the motion to
intervene. Id. We affirmed the district court’s d ecision on appeal and the supreme court
granted further review. Id. The supreme court affirmed, holding that the foster parents did
not have a right to intervene and were not entitled to an evid entiary hearing. Id. at 869.
The supreme court explained that the “propert y or transaction” lang uage in rule 24.01
“more appropriately applies to interests involved in traditiona l civil actions, such as in
contracts and torts, rather than the very pers onal and family interests” arising in family-
law matters. Id. at 870. The supreme court also held that the “type of interaction between
foster parents and child is not an interest that allows intervention under Rule 24.01.” Id.
This court later applied Valentine’s reasoning in family-law proceedings involving
custody disputes. In Van Meveren v. Van Meveren , we held that an adult daughter’s
personal or family interest in the welfare of her younger brothers did not constitute an
“interest” under rule 24.01 allo wing her to intervene as of ri ght into her parents’ custody
dispute. 603 N.W.2d 671, 673 (Minn. App. 1999) (applying Valentine), rev. denied (Minn.
Feb. 23, 2000). We held that the sister’s interest in “her concern for her younger brothers’
welfare” stemmed from “the sort of very personal and family interests the Valentine court
held were insufficient to meet the requirement of Rule 24.01.” Id. (internal quotation marks
omitted). We concluded that “[s]uch personal or family in terests do not constitute an
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‘interest sufficient’ to support intervention as of right under Rule 24.01.” Id. We therefore
held that the district court did not err in denying the sister’s motion to intervene. Id.1
Grandfather’s counsel argued for the first time at oral argument that we should apply
the reasoning set forth in Halverson ex rel. Halverson v. Taflin , 617 N.W.2d 448 (Minn.
App. 2000).2 In that case, a minor child’s father alleged that mother’s new boyfriend was
abusing the child and sought an order for protection. Id. at 449. The district court granted
the order for protection and awarded fath er temporary custody of the child. Id. Mother
was not a party to these domestic-abuse proceedings. Id. Mother sought to intervene but
the district court denied her request as untimely. Id. at 449-50. On appeal, we concluded
that the district court erred by denying mother’s request to intervene because “[a] parent
meeting the criteria of Minn. R. Civ. P. 24 .01 has a right to intervene in non-ex parte
proceedings commenced under th e Domestic Abuse Act, Minn. Stat. § 518B.01 . . . on

1 During oral hearing on this matter, counsel referenced our nonprecedential decision in
Hennepin County v. Brown, No. A09-258, 2009 WL 4796450, at *1 (Minn. App. Dec. 15,
2009). In Brown, a minor child’s grandparents moved to intervene in a custody matter
under rule 24. Id. The district court denied the motion to intervene. Id. We applied
Valentine and Van Meveren and held that grandparents did not have a right to intervene as
of right in a de facto custody matter or seek visitation because the child’s welfare was not
“an interest relating to the pr operty or transaction which is the subject of the action.” Id.
at *2. We therefore determined the district court did not err by denying the motion to
intervene as a matter of right under rule 24.01. Id.
2 We note that because this theory was raised for the first time at oral argument before this
court, it was not previously presented to, and co nsidered by, the district court. Thus, the
question is not properly before this court, and we need not address it. Thiele v. Stich, 425
N.W.2d 580, 582 (Minn. 1988); see Getz v. Peace, 934 N.W.2d 347, 353 n.3 (Minn. 2019)
(declining to address an argument first raised at oral argument, stating that “[w]e generally
will not consider arguments raised fo r the first time on appeal”) (quoting Hegseth v. Am.
Fam. Mut. Ins. Grp., 877 N.W.2d 191, 196 n.4 (Minn. 2016)). We will, however, exercise
our discretion to, briefly, address the point.
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behalf of the parent’s child.” Id. at 449. We concluded that “absent an immediate and
present danger of abuse necessitating an ex parte order, due process compelled [mother’s]
inclusion in the action to protect her fundamental parental rights.” Id. at 452.
This case is readily distinguishable. Halverson provides that “[t]he failure to grant
a parent an opportunity to be heard on custody issues is a denial of equal protection and
due process.” Id. at 451 (citation omitted). Halverson recognizes that parents have a
constitutionally protected liberty interest in deciding on the care, cust ody, and control of
their children. Id. The holding does not extend to grandparents. And Halverson arose in
proceedings under the Minnes ota Domestic Abuse Act. Id. That opinion instructed that
the domestic abuse act provides “extensive procedural protections that guard against
erroneous deprivation of a parent’s rights.” Id. The domestic abuse act is not at issue here
and Halverson does not apply.
As we stated earlier, a parent’s right to make decisions regarding his or her children
is a protected fundamental right. SooHoo, 731 N.W.2d at 820. Here, both parents chose
to transfer custody to grandmother and her spouse under chapter 257C. The child-custody
proceedings under this chapter are related to a “personal and family interest,” rather than
to an “interest relating to [a] property or transaction.” Valentine, 512 N.W.2d at 870.
Applying Valentine and Van Meveren, we determine that grandfather and his spouse had
9
no right to intervene in the custody proceedings under rule 24.01. As a result, the district
court did not err by denying the motion to intervene as a matter of right.3
Affirmed.

3 Grandfather and his spouse also argue the district court’s custody decision constitutes an
abuse of discretion and the district court erred by declining to hold an evidentiary hearing
on the best interests of the ch ild. Because we affirm the di strict court’s decision denying
the motion to intervene, we do not reach these issues. See In re Custody of D.T.R. , 796
N.W.2d 509, 513 (Minn. 2011) (stating that “[a] party with no interest in the subject of the
litigation cannot be aggrieved by the adjudi cation and consequently has no right to
appeal”).