In re Tristram K.

36 A.D.3d 147, 824 N.Y.S.2d 232
CourtAppellate Division of the Supreme Court of the State of New York
DecidedNovember 2, 2006
StatusPublished
Cited by6 cases

This text of 36 A.D.3d 147 (In re Tristram K.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Tristram K., 36 A.D.3d 147, 824 N.Y.S.2d 232 (N.Y. Ct. App. 2006).

Opinion

OPINION OF THE COURT

Gonzalez, J.

On this appeal, we must decide whether Family Court Act § 1035 (f) precludes a child’s relatives from intervening in Family Court Act article 10 child protective proceedings, where the only living parent has appeared in the proceeding and refuses to consent to intervention. Based upon the plain meaning of the statutory language, we reverse and find that Family Court erred in permitting intervention by the child’s paternal relatives.

This appeal arises out of protracted neglect, custody and visitation proceedings concerning the child Tristram K., now six years old, under articles 6 and 10 of the Family Court Act. The history of these proceedings is set out in detail in our decision in a prior appeal (25 AD3d 222 [2005]), and will not be repeated. Insofar as relevant, this Court vacated orders releasing the child to the custody of a paternal aunt and awarding her permanent custody, and remanded for “an immediate hearing on visitation for the mother and an expedited new dispositional and custody hearing” (id. at 229).

[149]*149Following this Court’s November 17, 2005 order, Family-Court directed that a hearing on visitation and an expedited dispositional and custody hearing be held on December 29, 2005. Prior to the hearing date, however, Douglas K. and Corinne K. (the K.s), the child’s paternal uncle and his wife, with whom the child, without the court’s permission, had been living in California, moved for permission to intervene pursuant to Family Court Act § 1035 (f) in order to participate in all hearings and arguments concerning disposition of the matter. The K.s argued that section 1035 (f) permits intervention by designated relatives without parental consent where a parent does not appear, and that the father, who is now deceased, could not “appear” or provide his consent because of his death. They further noted that section 1035 (f) commands that such motions for intervention “shall be liberally granted.” The mother opposed the motion, arguing that section 1035 (f), as written, prohibits intervention by relatives where an appearing parent, in this case the mother, does not consent.

Family Court granted the motion to intervene. Although the court acknowledged that the statutory language could be read to prohibit intervention where an appearing parent refuses to consent, it nevertheless found that such refusal only precludes “automatic” standing, and did not affect the court’s power to permit intervention on a “discretionary” basis. In reaching this conclusion, the court relied heavily on recent statutory amendments to article 10, the spirit of which, in its view, “give[s] relatives full participatory status.” We reverse. Where the language of a statute is clear and unambiguous, courts must give effect to its plain meaning (Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97 NY2d 86, 91 [2001]; see also McKinney’s Cons Laws of NY, Book 1, Statutes § 94). In our view, the plain language of section 1035 (f) compels the conclusion that the designated relatives listed in the statute do not have standing to intervene where an appearing parent refuses to consent. Subdivision (f) provides:

“The child’s adult sibling, grandparent, aunt or uncle not named as respondent in the petition, may, upon consent of the child’s parent appearing in the proceeding, or where such parent has not appeared then without such consent, move to intervene in the proceeding as an interested party intervenor for the [150]*150purpose of seeking temporary or permanent custody of the child, and upon the granting of such motion shall be permitted to participate in all arguments and hearings insofar as they affect the temporary custody of the child during fact-finding proceedings, and in all phases of dispositional proceedings. Such motions for intervention shall be liberally granted” (emphasis added).

In the present case, it is undisputed that the mother appeared in the proceeding as a respondent, and that she objects to intervention by the K.s. Accordingly, based on the clear and unambiguous statutory language, the mother’s refusal to consent disqualifies the K.s as potential intervenors (see Matter of Marylou L. v Tenecha L., 182 Misc 2d 457, 459 [1999] [no provision in article 10 grants relatives the right to intervene in child protective proceedings where appearing parent does not consent]; Matter of Ricky P., 135 Misc 2d 28, 31 [1987] [precondition of appearing parent’s consent is mandatory before a relative can move to intervene]; Besharov, Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 1035, at 82 [“(s)ubsection 1035 (f) allows designated relatives of the child ... to intervene on the issue of custody, but only if the respondent consents”]).

The K.s’ argument that consent was unnecessary because the father “has not appeared” in the proceeding is unavailing. Obviously, the father’s appearance was no longer possible after his death in 2002, and his death cannot be equated with a failure to appear so as to trigger the right to intervene without consent. Moreover, even if the father’s consent to intervention by his own relatives could be implied from the circumstances of this case, such implied consent could not override the fact that the mother, who did appear, refused to consent. No reasonable reading of the statutory language would permit intervention over the express objection of the sole living parent.

The statute’s requirement that motions to intervene “shall be liberally granted” does not warrant a different result. This liberal standard comes into play only after the statutory criteria are satisfied, namely, that an appearing parent consents or a parent fails to appear in the proceeding (Matter of Ricky P., 135 Misc 2d at 29). Thus, in circumstances where an appearing parent refuses to consent, the child’s relatives are without standing to move to intervene in an article 10 proceeding and the liberal [151]*151standard utilized in determining such motions is never triggered.

In addition, it is a fundamental principle of statutory construction that a court must construe a statute in a manner that will give effect to every word, if possible, and every word, phrase, clause or paragraph must be presumed to have some meaning (see Matter of Yolanda D., 88 NY2d 790, 795 [1996]; see also McKinney’s Cons Laws of NY, Book 1, Statutes § 231). Unquestionably, the consent provision of subdivision (f) is an integral component of the intervention statute (Matter of Ricky P., 135 Misc 2d at 31 [Legislature mandated obtaining approval of respondent parent as prerequisite to intervention by relatives]), and Family Court’s “discretionary” grant of intervention to the K.s would render the consent requirement of subdivision (f) meaningless.

We reject the argument made by the K.s and the Law Guardian that recent amendments to the Family Court Act have impliedly repealed the parental consent requirement of section 1035 (f). The argument rests primarily on amendments to Family Court Act § 1017 (L 2005, ch 3, part A, § 10; L 2005, ch 671, § 1), which, inter alia, expanded the list of relatives that must be located and investigated as potential custodial resources to include any nonrespondent parent and any suitable relatives identified by either parent or the child if over five years of age.

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Bluebook (online)
36 A.D.3d 147, 824 N.Y.S.2d 232, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-tristram-k-nyappdiv-2006.