Opinion
No. T11-CP04-011822
February 28, 2008
MEMORANDUM OF DECISION RE PATERNAL GRANDPARENTS' MOTION TO INTERVENE
On January 30, 2004, the minor child, Selena O., was removed from the care of her biological parents pursuant to an order of temporary custody. The child was adjudicated neglected and committed to the Department of Children and Families (DCF) on April 29, 2004. DCF subsequently filed a motion for the termination of parental rights as to both the mother and father on October 25, 2004. The paternal grandparents sought to intervene in this proceeding on April 5, 2005, and their motion to intervene was granted by the court, Graziani, J., on June 2, 2005. DCF withdrew the motion to terminate the parental rights of the father and proceeded solely against the mother. The court, Crawford, J., rendered judgment denying the petition for termination of the mother's parental rights on September 27, 2006. This judgment was appealed by DCF and the Appellate Court reversed the decision and remanded the case. DCF then refiled the petition to terminate the parental rights of both parents.
On November 17, 2004, the paternal grandparents filed a motion to intervene in the neglect proceeding. This motion was granted by the court, Graziani, J., on March 31, 2005.
The present issue before the court arose subsequent to DCF's decision to refile the termination petition as to the father. The paternal grandparents filed a new motion to intervene on January 3, 2008. Through this motion, the grandparents seek to be heard on the issue of disposition regarding the minor child. The new motion mirrors the grounds stated in the original motion to intervene, the only difference being that they no longer seek custody of the child; instead, the grandparents seek to continue bi-monthly visitation. DCF opposes this motion on the same grounds asserted when the court first heard argument on this motion in 2005. Oral argument was heard on February 1, 2008.
DISCUSSION
The Supreme Court in Horton v. Meskill, 187 Conn. 187, 445 A.2d 579 (1982), provides a thorough analysis of two different types of intervention, intervention as of right and permissive intervention. Regarding intervention as of right, the court stated: "An applicant for intervention has a right to intervene . . . where the applicant's interest is of such a direct and immediate character that the applicant will either gain or lose by the direct legal operation and effect of the judgment." (Internal quotation marks omitted.) Id., 194. In the event that a party is found to be lacking a sufficient direct or personal interest in the case that enable them to intervene as of right, permissive intervention may still be granted at the discretion of the court. "The consideration of permissive intervention involves numerous factors including the timeliness of the intervention, the proposed intervenor's interests in the controversy, the adequacy of representation of such interests by existing parties, the delay in the proceedings or other prejudice to the existing parties the intervention may cause, and the necessity for or value of the intervention in terms of resolving the controversy before the court." Id., 197.
Intervention As of Right
The grandparents assert several grounds in support of their contention that they should be granted intervention as of right in the termination proceeding. The main thrust of this argument focuses on their interpretation of General Statutes § 46b-129(c) and its purported applicability to termination proceedings. It is their position that the statutory scheme favors intervention in these circumstances, and that the legislature did not intend to place implicit restrictions on the types of proceedings in which grandparents would be able to intervene. In addition to this statutory right to intervene, they also maintain that Practice Book § 35a-4 supports their proposition that grandparents were intended to be able to intervene as of right in termination proceedings. In response, DCF argues that the only legally cognizable interest at stake during a TPR proceeding is that of the parent, and as such, the grandparents cannot establish the requisite direct interest in the outcome.
Turning first to the argument that General Statutes § 46b-129(c) is not limited to neglect proceedings, this court's preliminary analysis of the applicability of this section to a termination proceeding will depend on whether the plain meaning of the statutory language can be ascertained. "A cardinal rule of statutory construction is that where the words of a statute [or rule] are plain and unambiguous the intent of the [drafters] in enacting the statute [or rule] is to be derived from the words used . . . Where the court is provided with a clearly written rule, it need look no further for interpretive guidance We are constrained to read a statute as written . . . and we may not read into clearly expressed legislation provisions which do not find expression in its words." (Internal quotation marks omitted.) Bank of New York v. National Funding, 97 Conn.App. 133, 140, 902 A.2d 1073 (2006); see also General Statutes § 1-2z. Thus, the court must first look to the statutory language of § 46b-129(c) to determine if the statute, as written, allows a grandparent to intervene as of right in a termination proceeding.
The plain meaning rule has been codified in General Statutes § 1-2z, which provides: "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered."
Section 46b-129(c) provides in relevant part: " In any proceeding under this section, any grandparent of the child may make a motion to intervene and the court shall grant such motion except for good cause shown." (Emphasis added.). The section referenced encompasses the procedures of a neglect proceeding; therefore, in accordance with the plain reading of the statute, subsection (c) is only intended to allow intervention by a grandparent in neglect proceedings. Furthermore, it is especially telling that a similar provision is absent in General Statutes § 17a-112, the section addressing termination proceedings. Thus, this court is constrained by the limitations imposed by the legislature in drafting these two sections and cannot interpret the plain meaning of the statute to expand the scope of § 46b-129(c) to extend intervenor status to grandparents in termination proceedings.
In addition to arguing that they are afforded intervenor status pursuant to General Statutes § 46b-129(c), the grandparents also contend that Practice Book § 35a-4 contemplates the intervention of grandparents in termination proceedings. The court finds it significant that the language utilized in this section mirrors the intervention as of right language set forth in Horton. Specifically subsection (a) provides: "In making a determination upon a motion to intervene by any grandparent of the child, the judicial authority shall consider: (1) the timeliness of the motion as judged by all the circumstances of the case; (2) whether the applicant has a direct and immediate interest in the case." (Emphasis added). Practice Book § 35a-4(a). While the grandparents are correct in stating that intervention by a grandparent is contemplated by the Practice Book, this provision cannot be interpreted as extending an automatic right to intervene absent proof of a direct and immediate interest in the case.
Although the grandparents provide lengthy argument in support of their motion to intervene as of right, they have failed to articulate a clear and direct interest in the outcome of the termination proceedings. In the dispositional phase of the case, the focus of the court is on determining whether termination of the parental rights would be in the best interest of the child. Our jurisprudence has indicated that parties who do not have a direct legal interest in the termination itself are not allowed intervention as of right. See In re Jason P., CT Page 3166 41 Conn.Sup. 23, 27, 549 A.2d 286 (1988) (delineating the difference between "legal party in interest" who would be afforded intervention as of right and an "equitable party in interest" that would be allowed to intervene at the discretion of the court).
"A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition . . . In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights [under § 17a-112(j)] exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child." (Internal quotation marks omitted.) In re Ryan R., 102 Conn.App. 608, 617-18, 926 A.2d 690, cert. denied, 284 Conn. 923, 924, 933 A.2d 724 (2007).
At the time In re Jason P., supra, 41 Conn.Sup. 23, was decided, Practice Book § 1023.1 was the operative section. This section has since been revised, and now appears as Practice Book § 26-1(h). The revised section changes the label of "equitable party at interest" to "intervening party." However, it is apparent that the definitions utilized by both § 1023.1 and § 26-1(h) are the same. A legal party entitled to intervention as of right is one who has a direct legal relationship to the matter pending before the court, and an equitable party permitted to permissively intervene is one whose participation may promote the interests of justice.
For example, in the case of In re Denzel A., 53 Conn.App. 827, 733 A.2d 298 (1999), the maternal grandmother appealed the decision to terminate parental rights and argued that the best interest of the child was not served because termination foreclosed her opportunity to develop a relationship with her grandson and eventually gain custody. In addressing her appeal, the court set forth the parameters of the role of an intervening grandparent in the dispositional phase of a termination proceeding when the court's focus is on determining whether it is in the best interest of the child to terminate the parent-child relationship. The court found that "where [the child] should reside and with whom are not questions that relate to whether it is in the best interests to terminate [the child's] relationship with his parents." Id., 834. The court concluded that intervention of a grandparent in the dispositional phase of a termination proceeding is appropriate only for the purpose of affecting the termination itself. Id., 835. See also In re Ryan, 46 Conn.App. 69, 698 A.2d 371 (1997) (trial court correctly denied grandmother's motion to intervene for lack of standing because motion attempted to address issue of custody and did not speak on the issue of termination).
The case of In re Baby Girl, 224 Conn. 263, 618 A.2d 1 (1992), provides further instruction on what qualifies as a direct legal interest in a juvenile proceeding. The Supreme Court addressed the propriety of the trial court's decision to deny the preadoptive parents' motion to intervene in proceedings to open the judgment terminating the mother's parental rights. The preadoptive parents argued, inter alia, that they were entitled to intervene as of right pursuant to the definition set forth in Horton v. Meskill, supra, 187 Conn. 197. The Supreme Court sustained the decision of the trial court, and reiterated their discussion in Horton that "a person . . . does not have a sufficient interest to qualify for the right to intervene merely because an impending judgment will have some effect on him . . . The judgment to be rendered must affect the proposed intervenor's direct or personal rights, not those of another." Id., 195. The court then concluded that the only legal interest at stake in the termination proceeding was that of the biological mother. Although the preadoptive parents' rights would be affected by the outcome of this proceeding, "they had no legal interest at stake that would entitle them to intervene." Id., 275-76.
Turning to the facts of the present case, this court recognizes that the grandparents' right to visit their grandchild will hinge on whether the father's parental rights are terminated; however, this is a tangential issue. Their motion to intervene is for the purpose of preserving their relationship with their grandchild, and while this court commends their dedication, their interest is not directly related to the termination of the parental rights. As their purpose in intervening would not be to affect the termination itself, they are not afforded as of right status. See In re Denzel A., supra, 53 Conn.App. 827. Furthermore, as stated in the case, In re Baby Girl, supra, 224 Conn. 263, the fact that a party's interest would be affected by the outcome of the proceeding is also not sufficient to extend intervention as of right status to that party.
Unlike neglect proceedings, which focus on the entire family of the minor child, and preservation of the family unit, termination proceedings focus on the severing of the parent and child relationship.
Permissive Intervention
Having determined that the grandparents are not entitled to intervene as of right, the court must now determine whether they should be allowed to permissively intervene in the termination proceeding. The grandparents maintain that they have satisfied the elements of permissive intervention as set forth in Horton v. Meskill, supra, 187 Conn. 197, because their motion was timely filed and the court's previous decision to grant intervention status in the original termination proceeding establishes that they have demonstrated good cause. The grandparents' contention that the previous decision to grant their motion to intervene demonstrates the existence of good cause to intervene in the present proceeding, is made within the context of § 46b-129(c). However, as the court previously discussed, § 46b-129(c) does not apply to termination proceedings. In addition, this argument ignores the fact that they are now seeking intervention for visitation purposes only. At the time of the original termination proceeding, the grandparents were attempting to gain custody of the minor child.
Finally, the interests of the paternal grandparents in the present case would be well represented in the proceeding by the existing parties, a fact that mitigates the need for their involvement in the proceeding. Their interest in intervening in the proceeding involves their desire to maintain visitation rights with their grandchild, and this right to visit hinges on the continuation of parental rights. The father in the present case is opposing the petition to terminate his parental rights; therefore, there is no reason to believe that he will not support their continued visitation with his child or present evidence of the ongoing relationship that exists between the child and the grandparents. Accordingly, while this court recognizes the grandparents' interests in maintaining visitation with their grandchild, this interest is tangential to the focal issue of a termination proceeding. Although timely filed, their formal participation in this proceeding is not necessary to protect their interests in the controversy because their interests are adequately represented by the existing parties. Thus, in accordance with the definition of permissive intervention set forth in Horton v. Meskill, supra, 187 Conn. 197, the grandparents' motion to intervene is denied.
At oral argument on the grandparents' motion to intervene, both counsel for respondents mother and father argued in favor of granting the paternal grandparents intervenor status.
It is so ordered.