754 October 25, 2023 No. 560

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

In the Matter of A. K. N., 

aka A. N., a Child.

DEPARTMENT OF HUMAN SERVICES,

Petitioner-Respondent,

v.

B. B. 

and I. B.,

Appellants.

Deschutes County Circuit Court

19JU04428; A179897

Wells B. Ashby, Judge.

Submitted March 28, 2023.

Richard D. Cohen filed the brief for appellants.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, 

Solicitor General, and Inge D. Wells, Assistant Attorney 

General, filed the brief for respondent.

Before Ortega, Presiding Judge, and Powers, Judge, and 

Hellman, Judge.

HELLMAN, J.

Affirmed.
Cite as 328 Or App 754 (2023) 755

HELLMAN, J.

Appellants, child’s foster parents, challenge a juvenile court order denying their motion to intervene in child’s 

dependency case under ORS 419B.116. In two assignments 

of error, appellants contend that the court erred when it 

failed to “balance” the requirements for intervention in 

ORS 419B.116(5)(c) and when it determined that appellants 

failed to prove the requirement that “the existing parties 

cannot adequately present the case,” ORS 419B.116(5)(c)(D). 

We conclude that the statute does not allow a juvenile court 

to balance the requirements for intervention and that the 

record before the court did not compel the court to make a 

different determination. Accordingly, we affirm.

The relevant facts are undisputed. Appellants 

I. B. and B. B. have served as child’s foster parents since 

she was a newborn. Within a year of child’s placement, the 

Department of Human Services (DHS) located and contacted 

child’s paternal uncle, who lives in Virginia, and approved 

him and his wife as a placement option for child through 

an Interstate Compact on the Placement of Children (ICPC) 

study. That study was later updated when the first one 

expired. Paternal uncle and aunt also began weekly video 

visits with child and later visited child in person in Oregon. 

When child’s plan was changed to adoption, DHS discussed 

the potential adoption of child with both appellants and 

paternal uncle. When child was two-and-a-half years old, 

the court terminated her biological parents’ parental rights 

and freed her for adoption. Just prior to her third birthday, 

DHS completed the adoption selection committee process, 

in which child’s attorney and court-appointed special advocate (CASA) participated. Even though child’s attorney and 

permanency caseworker advocated for appellants as child’s 

adoptive resource, DHS ultimately selected child’s paternal 

uncle and aunt.

After that selection was made, appellants filed 

a motion to intervene under ORS 419B.116. Appellants 

argued that DHS’s decision was harming child, and they 

sought intervention for the purposes of providing more evidence on child’s best interest, removing child from DHS’s 

custody, becoming child’s temporary placement, and moving 
756 Dept. of Human Services v. B. B.

to become child’s guardians. As relevant to the issue on 

appeal, appellants alleged that the existing parties could not 

adequately present the case because child’s attorney did not 

actively participate in child’s life and because child—who 

was three years old—could not “provide in-depth advice and 

guidance to her counsel regarding how to advocate for her 

interests.” Appellants asserted that they were in a unique 

position as her caregivers to represent child’s best interests. 

Child’s attorney and child’s CASA supported intervention 

because it would be beneficial to have appellants in the case 

but did not offer an explanation why they could not adequately present the case. DHS opposed the motion, arguing, 

among other things, that the existing parties could adequately present the case.

The juvenile court held an evidentiary hearing and 

denied appellants’ motion. The court found appellants had 

proved all the statutory elements for intervention except for 

one—“the existing parties cannot adequately present the 

case.” The court found that DHS was not adequately presenting the case. However, the court also found that “the 

bottom line is, all of the people who were advocating or who 

have a role to advocate on behalf of the child did that. * * * 

They have explained why [the current plan is] not in the 

best interest [of the child.]” The court specifically pointed 

out that child’s attorney represented her best interest in 

both the dependency proceeding and in the adoption selection committee administrative proceeding. Consequently, it 

determined that appellants did not prove by a preponderance of the evidence that the existing parties cannot adequately present the case. The juvenile court explained:

“The statute does not say that the existing parties are 

not best equipped or the most adequate or in the best position to present the case but that the case cannot be adequately presented without the involvement of the intervenors. * **

“** * I cannot find, by the preponderance or by any measure, that the existing parties, meaning, in particular[,] 

Mr.Deuel, attorney for [c]hild, Ms.Thomas, CASA for [c]hild, 

have not and cannot adequately present the case. They 

have, and they’ve done their best, and they’ve tried the 

advocacy. ***
Cite as 328 Or App 754 (2023) 757

“And maybe there is something I don’t know and none of 

us know as to how this particular decision was reached, but 

it does not seem that any amount of advocacy would have 

resulted in a different outcome in terms of the placement 

decision and permanency decision of adoption with the biological relatives.”

Appellants now appeal that decision. Before setting 

out appellants’ specific arguments on appeal, we start with 

the text of the intervention statute to provide context for 

those arguments. ORS 419B.116(5)(c) provides, in relevant 

part:

“[T]he court may grant the motion for intervention if the 

person moving to intervene in the case proves by a preponderance of the evidence that:

“(A) A caregiver relationship exists between the person and the child or ward;

“(B) The intervention is in the best interests of the 

child or ward;

“(C) The reason for intervention and the specific relief 

sought are consistent with the best interests of the child or 

ward; and

“(D) The existing parties cannot adequately present the case.”

“ORS 419B.116 confers discretion on a juvenile court to 

allow intervention in a dependency case by a person who 

has a ‘caregiver relationship’ with a child, as that term is 

defined by statute.” Dept. of Human Services v. R. F., 328 

Or App 267, 271, ___ P3d ___ (2023). The juvenile court may 

allow intervention “only if the person seeking intervention 

first ‘proves by a preponderance of the evidence’” the four 

listed requirements. Id.

As set out above, the juvenile court in this case 

denied appellants’ motion based on their failure to prove by 

a preponderance of the evidence that “the existing parties 

cannot adequately present the case,” ORS 419B.116(5)(c)(D). 

In challenging that ruling on appeal, appellants raise two 

assignments of error. In the first, appellants assert that, in 

addressing intervention under ORS 419B.116(5)(c), the child’s 

best interest must be paramount, and, thus, the court erred 
758 Dept. of Human Services v. B. B.

in isolating the requirement under ORS 419B.116(5)(c)(D), 

when, here, the best interest factors overwhelmingly supported granting intervention, ORS 419B.116(5)(c)(B) and (C). 

In short, appellants argue that the court was required to 

balance the intervention requirements. In their second 

assignment, appellants argue that the juvenile court’s determination that they failed to prove ORS 419B.116(5)(c)(D) 

was not supported by the evidence. In so arguing, appellants 

assert that “adequacy” under ORS 419B.116(5)(c)(D) must 

be measured in relation to the best interests of the child, 

because otherwise it is “a low standard” that does not serve 

the best interests of the child. Appellants argue that, in the 

circumstances of this case, child’s best interests required 

a higher level of “[i]nformed and assertive advocacy” than 

child’s attorney or CASA could provide given that DHS’s 

placement decision ignored the recommendations it received.

We first engage in our familiar method of statutory 

interpretation under State v. Gaines, 346 Or 160, 171-72, 

206 P3d 1042 (2009), to address the questions of statutory 

construction that appellants’ arguments raise. As always, 

we begin “with the text and context of the statute, which 

are the best indications of the legislature’s intent.” State v. 

Walker, 356 Or 4, 13, 333 P3d 322 (2014).

Based on the text alone, we reject appellants’ 

argument for a balancing of the requirements under ORS 

419B.116(5)(c). ORS 419B.116(5)(c) is plainly written in the 

conjunctive and unambiguously requires intervenors to prove 

each of the four subparagraphs (A) to (D). See Broadway Cab 

LLC v. Employment Dept., 358 Or 431, 443, 364 P3d 338 

(2015) (explaining that because the elements of the disputed 

statute were conjunctive, the petitioner had the burden to 

establish each of those criteria); National Maintenance 

Contractors v. Employment Dept., 288 Or App 347, 352, 406 

P3d 133 (2017), rev den, 362 Or 508 (2018) (same). That is, a 

party seeking intervention must prove by a preponderance of 

the evidence each of those four statutory requirements; the 

four requirements cannot be balanced against each other, 

such that more weight on the best interests of the child could 

make up for an unpersuasive showing on “the existing parties cannot adequately present the case.”
Cite as 328 Or App 754 (2023) 759

Turning to appellants second statutory argument, we understand appellants to take the position that 

a determination of “adequacy” under ORS 419B.116(5)(c)(D) 

involves a subjective determination about which party can 

make the better presentation of the best interests of the 

child. We disagree.

To start, ORS 419B.116(5)(c)(D) references “the case” 

instead of “best interests of the child or ward,” reflecting 

the difference between “the case” in a juvenile proceeding 

and “the best interests of the child.” Although adequately 

presenting a case surely includes adequately presenting the 

child’s best interests—the essential question under ORS 

419B.090 in any juvenile case—nothing about the structure 

or text of the statute suggests that the legislature intended 

“adequately” to equate to a subjective determination of the 

quality of a party’s presentation.

In addition, the definition of the word “adequately” 

leads us to conclude that the statute does not have the meaning that appellants propose. “Adequately” is “in an adequate 

manner.” Webster’s Third Int’l Dictionary 25 (unabridged ed 

1993). And “adequate” is defined as “equal to, proportionate 

to, or fully sufficient for a specified or implied requirement” 

and “legally sufficient: such as is lawfully and reasonably 

sufficient.” Id. Nothing in those definition suggests that, as 

used in ORS 419B.116(5)(c)(D), “adequately” was intended to 

be determined by a comparison between two proposed presentations, as appellants assert.

Further, we note that the juvenile court correctly 

recognized that ORS 419B.116(5)(c)(D) does not require a 

person to show that the existing parties did not adequately 

present the case—which would look to the past; it requires 

that the existing parties cannot adequately present the 

case—which looks at the present. A present-focused inquiry 

does not lend itself to the kind of subjective and comparative 

analysis that appellants propose.

In sum, whatever the precise contours of “adequately present the case” are, the requirement does not turn 

on the question of whether the person seeking to intervene 
760 Dept. of Human Services v. B. B.

demonstrates that they can present a “better” case than the 

existing parties.

Finally, we turn to appellants’ argument that the 

juvenile court erred when it determined that appellants 

failed to prove ORS 419B.116(5)(c)(D), because that determination was not supported by the evidence. In addressing 

that argument, we “review to determine whether, on the 

record before it, the juvenile court permissibly concluded 

that they had not met their burden of demonstrating that 

they satisfied the statutory prerequisites for intervention.” 

R. F., 328 Or App at 271 (citing Dept. of Human Services v. 

S. E. K. H./J. K. H., 283 Or App 703, 705-06, 389 P3d 1181 

(2017)). We explained in R. F. that our standard of review 

binds us to a juvenile court’s finding that a person seeking 

intervention has not proved by a preponderance of the evidence that the existing parties could not adequately present 

the case unless we can conclude that the evidence before 

the court compels a contrary conclusion. 328 Or App at 271 

(citing Prime Properties, Inc. v. Leahy, 234 Or App 439, 449, 

228 P3d 617 (2010)).

Here, the evidence did not compel a contrary conclusion. Indeed, evidence in the record affirmatively supported the court’s determination. The juvenile court specifically found that “all of the people who were advocating 

or who have a role to advocate on behalf of the child did 

that.” The record showed that child’s attorney and CASA 

were “active participants” in the adoption selection committee. Their participation included seeking out and using 

information from outside sources to represent child’s best 

interests, and child’s attorney advocated that it was in 

child’s best interests for appellants to adopt child. Under the 

plain meaning of the term “adequately,” the juvenile court’s 

findings demonstrated that the existing parties could adequately present the case. To be sure, appellants put forth 

evidence that they possibly could have presented a stronger 

case in support of the position advocated by child’s attorney. 

However, as explained, the statute does not require appellants to prove that existing parties cannot present the best 

possible case; it requires appellants to prove that the existing parties cannot adequately present the case. Appellants 
Cite as 328 Or App 754 (2023) 761

have not demonstrated that the juvenile court erred when it 

denied their motion to intervene.

Affirmed.