In re Brian P. ( 2020 )

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IN RE BRIAN P.*
(AC 43119)
DiPentima, C. J., and Alvord and Moll, Js.
Syllabus
The paternal grandmother, S, of the minor child, B, appealed to this court
from the judgment of the trial court denying her motion to intervene,
which was filed after the court granted the petition of the Commissioner
of Children and Families to terminate the parental rights of the respon-
dents, the mother and father of B. On appeal, S claimed that the court
improperly denied her motion to intervene. Held that this court lacked
subject matter jurisdiction and, accordingly, dismissed the appeal: S
neither initiated the action nor was the action brought against her, and
the trial court denied her motion to intervene, thus, S was never a party
to the action, and lacked standing to appeal; moreover, S did not have
a colorable claim to intervention as a matter of right pursuant to the
applicable statute (§ 52-263), because S filed her motion to intervene
more than two years after the commissioner filed the neglect petition,
approximately two years after B was committed to the custody of the
commissioner, more than one year after the commissioner filed a termi-
nation of parental rights petition, and nearly one month after the judg-
ment was rendered terminating the respondents’ parental rights; S was
aware of the proceedings and waited to attempt to intervene until after
the termination judgment was rendered, and, S’s claim that she could
not prevail on a motion for permanent guardianship pursuant to the
applicable statute (§ 46b-129 (j) (6)) until after the court found that a
statutory ground for termination existed was unavailing, as this claim
misinterpreted the plain language of §46b-129 (j) (6), which sets forth
findings that a court must make prior to issuing an order for permanent
legal guardianship and does not address the issue of the timeliness
of a motion to intervene and, furthermore, permanent guardianship
is intended to occur without the termination of parental rights; S’s
untimeliness was evident by the fact that the court had already appointed
the commissioner as the statutory parent for purposes of securing adop-
tion, thus, the opportunity had passed for S to present evidence concern-
ing the viability of granting her permanent guardianship of B in lieu of
terminating parental rights and, by her delay, S lost any colorable claim
to intervene.
Argued December 10, 2019—officially released February 6, 2020**
Procedural History
Petition by the Commissioner of Children and Fami-
lies to terminate the respondents’ parental rights with
respect to their minor child, brought to the Superior
Court in the judicial district of New London, Juvenile
Matters at Waterford, and tried to the court, Driscoll, J.;
judgment terminating the respondents’ parental rights;
thereafter, the court denied the paternal grandmother’s
motion to intervene, and the paternal grandmother
appealed to this court. Affirmed.
Benjamin M. Wattenmaker, for the appellant (pater-
nal grandmother).
Sara Nadim, assistant attorney general, with whom,
on the brief, were William Tong, attorney general, and
Benjamin Zivyon, assistant attorney general, for the
appellee (petitioner).
James W. Auwood, for the minor child.
Opinion
DiPENTIMA, C. J. The paternal grandmother of the
minor child and proposed intervenor, Susan P., appeals
from the denial of her motion to intervene, which was
filed following the judgment of the trial court granting
the petition of the Commissioner of Children and Fami-
lies (commissioner) to terminate the parental rights of
Brian P. (father) and Jennifer L. (mother) with respect
to the minor child, Brian P.1 We conclude that we lack
subject matter jurisdiction and, accordingly, dismiss
the appeal.
The relevant facts are those that follow. Brian P.
was born in February, 2016, and his meconium tested
positive for opiates. Both parents had a history of opiate
addiction, although initially only the mother admitted
her addiction to the Department of Children and Fami-
lies (department). The department became involved
and entered into a voluntary agreement with Susan P.
wherein Brian P. was placed under the parents’ custody
at Susan P.’s home, with the further agreement that the
mother would have no unsupervised contact with Brian
P. The mother was to engage in substance abuse treat-
ment, and no treatment was recommended for the
father because, according to the parents, he had no
substance abuse issues.
On January 18, 2017, the commissioner filed a neglect
petition. On April 25, 2017, the parents pleaded nolo
contendere to the neglect allegations, the court
accepted the pleas, and Brian P. was adjudicated
neglected. The court ordered that Brian P. remain in
the parents’ custody at the parents’ place of abode with
six months of protective supervision. At that time, the
parents’ place of abode was at Susan P.’s house. On
June 9, 2017, in response to an oral motion made by
the commissioner, the court, Hon. Michael A. Mack,
judge trial referee, modified the disposition and com-
mitted Brian P. to the care and custody of the commis-
sioner.2 On June 14, 2017, the father admitted to the
department that he had been addicted to opiates for
the past three years. On May 22, 2018, the commissioner
filed a petition for termination of parental rights.
On May 3, 2019, the court, Driscoll, J., granted the
petition for termination of parental rights.3 The court
found that no family member was available as a place-
ment resource and that Brian P. had been placed in a
foster home of a nonrelative.4 The court first made its
adjudicatory decision that a statutory basis for termina-
tion of parental rights existed pursuant to General Stat-
utes § 17a-112 (j) because both parents had failed to
achieve rehabilitation to such a degree as to be able to
assume a responsible position in Brian P.’s life. The
court concluded in the dispositional phase, after exam-
ining the seven factors in § 17a-112 (k), that termination
of parental rights was in Brian P.’s best interests. The
court granted the commissioner’s petition to terminate
the parental rights of Brian P.’s biological parents and
appointed the commissioner as the statutory parent for
the purpose of securing Brian P.’s adoption.
On May 31, 2019, approximately one month after the
termination judgment, Susan P. filed a ‘‘motion to
reopen judgment, intervene and request permanent
transfer of guardianship of the minor.’’ She filed an
amended motion on June 3, 2019. The amended motion
sought intervention as a matter of right and permissive
intervention. In her amended motion, Susan P. alleged
that she had a preexisting relationship with Brian P.
and was actively involved in his care. She alleged that
in September, 2016, Brian P. moved into her home and
she cared for him until June, 2017. She claimed that
the department informed her repeatedly that, ‘‘pending
the parents’ compliance,’’ Brian P. would be returned
to the care of his parents or family. She further alleged
that the department did not discuss the case with her
for confidentiality reasons and did not raise the fact
that the parents resided at her home as an issue against
her being a possible placement resource. On June 11,
2019, oral argument was held regarding Susan P.’s
motion to intervene. The court, after considering sev-
eral factors, denied Susan P.’s motion to intervene and
stated that the motion was ‘‘very untimely filed and
[Brian P. is] entitled to a determination as to his perma-
nency.’’ This appeal followed.
On appeal, Susan P. claims that the court improperly
denied her motion to intervene. The commissioner con-
tends that because Susan P. is not a party to the underly-
ing action and because she does not have a colorable
claim to intervene as a matter of right, the statute gov-
erning our jurisdiction, General Statutes § 52-263,
deprives us of jurisdiction to hear this appeal. We first
address this threshold issue and conclude that Susan
P. does not have the party status necessary to invoke
our appellate jurisdiction. ‘‘A threshold inquiry of this
court upon every appeal presented to it is the question
of appellate jurisdiction. . . . It is well established that
the subject matter jurisdiction of the Appellate Court
. . . is governed by . . . § 52-263 . . . . Section 52-
263 provides: ‘Upon the trial of all matters of fact in
any cause or action in the Superior Court, whether to
the court or jury, or before any judge thereof when the
jurisdiction of any action or proceeding is vested in
him, if either party is aggrieved by the decision of the
court or judge upon any question or questions of law
arising in the trial, including the denial of a motion to
set aside a verdict, he may appeal to the court having
jurisdiction from the final judgment of the court or of
such judge, or from the decision of the court granting
a motion to set aside a verdict, except in small claims
cases, which shall not be appealable, and appeals as
provided in [General Statutes §§] 8-8 and 8-9.’ . . .
Thus, [o]n its face, [§ 52-263] explicitly sets out three
criteria that must be met in order to establish subject
matter jurisdiction for appellate review: (1) the appel-
lant must be a party; (2) the appellant must be aggrieved
by the trial court’s decision; and (3) the appeal must
be taken from a final judgment.’’ (Citation omitted;
emphasis omitted; internal quotation marks omitted.)
In re Joshua S., 127 Conn. App. 723, 727–28, 14 A.3d
1076 (2011).
To determine whether we have subject matter juris-
diction over this appeal, we examine the question raised
by the commissioner of whether Susan P. has party
status.5 Only a party to an underlying action is entitled
to review by way of an appeal pursuant to § 52-263.
State v. Salmon, 250 Conn. 147, 154, 735 A.2d 333 (1999).
‘‘Ordinarily, the word party has a technical legal mean-
ing, referring to those by or against whom a legal suit is
brought . . . the party plaintiff or defendant, whether
composed of one or more individuals and whether natu-
ral or legal persons. . . . This definition of party, which
we also have labeled party status in court . . . includes
only those who are parties to the underlying action.’’
(Citations omitted; internal quotation marks omitted.)
Id.
In the present case, Susan P. did not initiate the action
nor was the action brought against her; her motion to
intervene was denied. Thus, she was never a party to
the action. In order to determine, however, whether
Susan P. has satisfied the party status requirement of
§ 52-263, we look to whether she has a colorable claim
to intervene as a matter of right.6 ‘‘[I]f a would-be inter-
venor has a colorable claim to intervention as a matter
of right . . . both the final judgment and party status
prongs of our test for appellate jurisdiction are satis-
fied.’’ (Citation omitted; internal quotation marks omit-
ted.) King v. Sultar, 253 Conn. 429, 436, 754 A.2d 782
(2000). We conclude that Susan P. does not have a
colorable claim to intervention as a matter of right and,
therefore, lacks standing to appeal.
‘‘A colorable claim is one that is superficially well
founded but that may ultimately be deemed invalid
. . . . For a claim to be colorable, the [proposed inter-
venor] need not convince the trial court that [s]he neces-
sarily will prevail; [s]he must demonstrate simply that
[s]he might prevail. . . . In order for a proposed inter-
venor to establish that [she] is entitled to intervene as
a matter of right, the proposed intervenor must satisfy
a well established four element conjunctive test: [t]he
motion to intervene must be timely, the movant must
have a direct and substantial interest in the subject
matter of the litigation, the movant’s interest must be
impaired by disposition of the litigation without the
movant’s involvement and the movant’s interest must
not be represented adequately by any party to the litiga-
tion. . . .
‘‘[These] four factors of the intervention as of right
test are viewed in a slightly different lens when
determining the jurisdictional issue of whether the pro-
posed intervenor has made a colorable claim to inter-
vene as of right. . . . Consistent with the well estab-
lished rule that every presumption is to be indulged in
favor of jurisdiction, and the judicial policy preference
to bring about a trial on the merits of a dispute whenever
possible and to secure for the litigant his day in court
. . . our examination of whether a colorable claim
exists focuses on the plausibility of the appellant’s chal-
lenge to the denial of the motion to intervene when the
pleadings and motion are viewed in light of the relevant
legal principles.’’ (Citations omitted; emphasis omitted;
internal quotation marks omitted.) In re Santiago G.,
325 Conn. 221, 231–33, 157 A.3d 60 (2017). ‘‘Failure
to meet any one of the four elements, however, will
preclude intervention as of right.’’ BNY Western Trust
v. Roman, 295 Conn. 194, 206, 990 A.2d 853 (2010).
We begin by addressing the dispositive issue of timeli-
ness, viewing it through the lens of a colorable claim
for intervention as of right. ‘‘[T]he necessity for showing
that a would-be intervenor made a timely request for
intervention involves a determination of how long the
intervenor was aware of an interest before he or she
tried to intervene, any prejudicial effect of intervention
on the existing parties, any prejudicial effect of a denial
on the applicant and consideration of any unusual cir-
cumstances either for or against timeliness. . . . Fac-
tors to consider also include the nature of the interest
and the purpose for which the intervenor is seeking to
be brought into the action.’’ (Citation omitted; internal
quotation marks omitted.) Id., 208–209.
Susan P. filed her motion to intervene on May 31,
2019, more than two years after the commissioner filed
its January 18, 2017 neglect petition, approximately two
years after Brian P. was committed to the custody of
the commissioner on June 9, 2017, and more than one
year after the commissioner filed a termination of
parental rights petition on May 22, 2018. Most notable,
the motion was filed nearly one month after the judg-
ment was rendered terminating the parental rights of
the mother and father. Clearly, Susan P. was aware of
the proceedings because Brian P. was placed in her
home under the parents’ custody until the June 9, 2017
commitment. Susan P.’s allegations in her motion to
intervene that agents for the department failed to
apprise her of the status of the case, inform her that
Brian P. would be back with the parents pending com-
pliance, or provide guidance on becoming a placement
resource, do not negate the fact that she was aware of
the proceedings and chose to wait to attempt to inter-
vene until after the termination judgment was rendered.
In her amended motion, Susan P. sought ‘‘to intervene
in the above captioned matter and asks the court to
grant her permanent transfer of guardianship of the
minor.’’ Susan P. had an opportunity to attempt to inter-
vene and to seek guardianship of Brian P. prior to the
court’s termination judgment, but did not do so. For
instance, she could have timely moved to intervene in
the dispositional phase of the neglect proceedings to
seek to transfer guardianship to herself. See In re
Anthony A., 112 Conn. App. 643, 650–53, 963 A.2d 1057
(2009); see also In re Shyliesh H., 56 Conn. App. 167,
172, 743 A.2d 165 (1999) (trial court granted cotermi-
nous petitions for neglect and termination of parental
rights and denied paternal grandmother’s request for
transfer of guardianship). It was only after the conclu-
sion of the termination proceedings that she filed her
motion to intervene to seek permanent guardianship.
General Statutes § 46b-129, which concerns neglect
proceedings, establishes in subdivision (4) of subsec-
tion (d) a right to file a motion to intervene for purposes
of seeking permanent guardianship. General Statutes
§ 46b-129 (d) (4) provides in relevant part: ‘‘Any person
related to a child or youth may file a motion to intervene
for purposes of seeking guardianship of a child or youth
more than ninety days after the date of the preliminary
hearing. The granting of such motion to intervene shall
be solely in the court’s discretion, except that such
motion shall be granted absent good cause shown when-
ever the child’s or youth’s most recent placement has
been disrupted or is about to be disrupted. . . .’’ This
statute provides that if the motion to intervene is made
more than ninety days after the date of the preliminary
hearing, that the intervention is permissive and not as
of right unless the child’s most recent placement has
been disrupted or is about to be disrupted. There is no
allegation that the child’s placement has been disrupted
or is about to be disrupted, and, therefore, this statute
does not afford Susan P. the ability to intervene as
of right.
Susan P. argues that her motion to intervene was not
untimely under the circumstances because she could
not prevail on her motion for permanent guardianship
pursuant to § 46b-129 (j) (6) until after the court found
that a statutory ground for termination existed. This
argument misinterprets the plain language of § 46b-129
(j) (6). That section provides in relevant part: ‘‘Prior to
issuing an order for permanent legal guardianship . . .
the court shall find by clear and convincing evidence
that the permanent legal guardianship is in the best
interests of the child or youth and that the following
have been proven by clear and convincing evidence:
(A) One of the statutory grounds for termination of
parental rights exists . . . or the parents have volunta-
rily consented to the establishment of the permanent
legal guardianship; (B) Adoption of the child or youth
is not possible or appropriate . . . (D) The child or
youth has resided with the proposed permanent legal
guardian for at least a year; and (E) The proposed per-
manent legal guardian is (i) a suitable and worthy per-
son, and (ii) committed to remaining the permanent
legal guardian and assuming the right and responsibili-
ties for the child or youth until the child or youth attains
the age of majority.’’ General Statutes § 46b-129 (j) (6).
Section 46b-129 (j) (6) sets forth findings that a court
must make prior to issuing an order for permanent
legal guardianship and does not address the issue of
timeliness of a motion to intervene. Section 46b-129 (j)
(6) provides that, under one scenario, the court must
find that a statutory ground for termination exists,
which is not the same as requiring the court to terminate
parental rights prior to granting a motion for permanent
guardianship. Rather, a permanent guardianship is
intended to occur without the termination of parental
rights.7 See General Statutes § 45a-604 (8) (defining per-
manent guardianship as guardianship ‘‘that is intended
to endure until the minor reaches the age of majority
without termination of the parental rights of the minor’s
parents . . . .’’). Additionally, § 46b-129 (j) (6) provides
that, prior to issuing an order for permanent legal guard-
ianship, the court must find that adoption of the child
or youth is not possible or appropriate. Adoption and
permanent legal guardianship are different permanency
plans that, under § 46b-129 (j) (6), cannot coexist. Susan
P.’s lack of timeliness is also evident by the fact that
the court already has appointed the commissioner as
the statutory parent for purposes of securing adoption.
The present case proceeded to its ultimate conclusion
and at no point during the proceedings was Susan P.’s
motion to intervene before the court. Of the five perma-
nency options provided for in our statutory scheme,8
the court granted the petition to terminate parental
rights and appointed the commissioner as the statutory
parent for purposes of securing adoption. By filing her
motion to intervene seeking a transfer of permanent
guardianship after the final judgment of the court, Susan
P. seeks to undo what has already been done. The
opportunity has passed for Susan P. to present evidence
to the court concerning the viability of granting her
permanent guardianship of Brian P. in lieu of terminat-
ing parental rights.9 By her delay, Susan P. lost any
colorable claim to a right to intervene. See BNY Western
Trust v. Roman, supra, 295 Conn. 208–209 (‘‘[a]s a case
progresses toward its ultimate conclusion, the scrutiny
attached to a request for intervention necessarily inten-
sifies’’ [internal quotation marks omitted]); Horton v.
Meskill, 187 Conn. 187, 194, 445 A.2d 579 (1982) (‘‘[t]he
right to intervene is lost, not merely weakened, if it is
not exercised in a timely fashion’’); 67A C.J.S. 658, Par-
ties § 90 (2019) (‘‘[i]ntervention presupposes the pen-
dency of a suit’’). Susan P. has not directed us to any
compelling circumstances for her decision to wait until
she was unsatisfied with the final disposition of the
case before moving to intervene. In child protection
proceedings, time is of the essence, and permitting
intervention after the conclusion of the termination pro-
ceedings would unnecessarily delay permanency. See
In re Juvenile Appeal, 187 Conn. 431, 439–40, 446 A.2d
808 (1982) (public policy in child protection cases is to
protect best interest and welfare of children with notion
that time is of essence).
Susan P.’s claim as to the timeliness of her motion
is not well founded, and, accordingly, she has failed to
make a colorable claim to intervention as of right. As
a result, she is not a party to the underlying action and
consequently does not have standing to appeal. See,
e.g., M.U.N. Capital, LLC v. National Hall Properties,
LLC, 163 Conn. App. 372, 376, 136 A.3d 665 (concluding
that former defendant lacked standing to appeal
because it was not party to underlying judgment), cert.
denied, 321 Conn. 902, 136 A.3d 1272 (2016); In re
Joshua S., supra, 127 Conn. App. 730 (concluding that
because foster parents did not have colorable claim to
intervention as matter of right they were not parties
entitled to appeal pursuant to § 52-263). Accordingly,
we conclude that, pursuant to § 52-263, we lack subject
matter jurisdiction over her appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
* In accordance with the spirit and intent of General Statutes § 46b-142
(b) and Practice Book § 79a-12, the names of the parties involved in this
appeal are not disclosed. The records and papers of this case shall be open
for inspection only to persons having a proper interest therein and upon
order of the Appellate Court.
** February 6, 2020, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
Pursuant to Practice Book § 67-13, the attorney for the minor child filed
a statement adopting in its entirety the brief filed by the commissioner.
2
Brian P. has been in the care and custody of the commissioner since
then, living in the home of a nonrelative.
3
Brian P.’s biological parents appealed from the judgment of the trial
court terminating their parental rights. See In re Brian P., Conn. App.
, A.3d (2020). The same attorney who filed the appeal on behalf
of Brian P.’s biological parents represents Susan P. in the present appeal.
4
A social study dated May 14, 2018, stated that Susan P. was not a resource
because both of the child’s parents live with her, and Susan P. was part of
the previous safety plan with the department during which time both parents
continued to use drugs while in the home of Susan P.
5
The typical appeal from a denial of a motion to intervene involves an
interlocutory ruling. See, e.g., BNY Western Trust v. Roman, 295 Conn. 194,
202–206, 990 A.2d 853 (2010). In the unique procedural posture of the present
case, Susan P. filed her motion to intervene after the court rendered its
final judgment terminating parental rights to the child. Regardless of whether
the question of our subject matter jurisdiction concerns the party status
prong or the final judgment prong of § 52-263, our analysis turns on whether
a colorable clam for intervention as a matter of right has been made. See
King v. Sultar, 253 Conn. 429, 436, 754 A.2d 782 (2000).
6
There are ‘‘two types of intervention . . . [i]ntervention as of right pro-
vides a legal right to be a party to the proceeding that may not be properly
denied by the exercise of judicial discretion. Permissive intervention means
that, although the person may not have the legal right to intervene, the court
may, in its discretion, permit him or her to intervene, depending on the
circumstances.’’ (Internal quotation marks omitted.) Austin-Casares v.
Safeco Ins. Co. of America, 310 Conn. 640, 663–64, 81 A.3d 200 (2013).
7
On rare occasions, a transfer of guardianship occurs with the termination
of parental rights. See In re Brayden E.-H., 309 Conn. 642, 644, 72 A.3d
1083 (2013).
8
‘‘Our statutory scheme provides five permanency options: (1) reunifica-
tion with a parent; (2) long-term foster care; (3) permanent guardianship; (4)
transfer of either guardianship or permanent guardianship; or (5) termination
followed by adoption. General Statutes §§ 17a-111b (c) and 46b-129 (k) (2).’’
(Footnotes omitted; internal quotation marks omitted.) In re Adelina A.,
169 Conn. App. 111, 121, 148 A.3d 621, cert. denied, 323 Conn. 949, 169 A.3d
792 (2016).
9
We do not comment on whether Susan P. properly could have intervened
in the termination proceedings prior to judgment.