In re Santiago G. , 325 Conn. 221 ( 2017 )

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IN RE SANTIAGO G.*
(SC 19798)
Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.
Argued December 7, 2016—officially released April 4, 2017**
Hugh D. Hughes, with whom, on the brief, was Glenn
Formica, for the appellant (proposed intervenor
Maria G.).
Benjamin Zivyon, assistant attorney general, with
whom, on the brief, were Michael Besso, assistant attor-
ney general, and George Jepsen, attorney general, for
the appellee (petitioner).
Joshua Michtom, assistant public defender, for the
minor child.
Opinion
ROBINSON, J. The dispositive issue in this appeal is
whether the denial of a third party’s motion to intervene
in a proceeding brought to terminate the parental rights
of a minor child’s biological mother is an appealable
final judgment. The proposed intervenor, Maria G.,
appeals from the judgment of the trial court, Hon. Bar-
bara M. Quinn, judge trial referee,1 denying her motion
to intervene as of right and permissively.2 On appeal,
Maria G. claims that her guardianship interests over
the minor child, Santiago G., will effectively be extin-
guished if the court terminates the parental rights of
the respondent Melissa E.,3 who is Santiago’s biological
mother. As such, she claims to have a right to intervene
or, in the alternative, that she should be granted permis-
sive intervention. We disagree, and conclude that Maria
G. does not have a colorable claim of intervention as
of right and, as such, is not appealing from a final
judgment. Accordingly, we dismiss this appeal for lack
of subject matter jurisdiction.
The record and our decision in a related matter reveal
the following relevant facts and procedural history.
‘‘Santiago was born in Guatemala . . . on April 18,
2009. He was cared for since his birth, however, by
Maria G., an Argentinian citizen and legal permanent
resident of the United States who resided in Stamford,
and, for some of that time, by Henry L., Maria G.’s
husband.’’4 In re Santiago G., 318 Conn. 449, 453, 121
A.3d 708 (2015).
Santiago was in Maria G.’s care from birth until Octo-
ber 16, 2012, when the petitioner, the Commissioner of
Children and Families (commissioner), filed a motion
for an order of temporary custody of Santiago on the
basis of neglect after having ‘‘received a report from the
federal Department of Homeland Security (Homeland
Security) stating that Maria G. and Henry L. possibly
had purchased Santiago in Guatemala and smuggled
him into the United States on June 14, 2009.’’ (Footnote
omitted.) Id. During the investigation, Maria G. told a
social worker from the Department of Children and
Families (department) and an investigator from Home-
land Security that her former housekeeper’s mother
had introduced her to Melissa E., a pregnant teenage
orphan at the time, who was interested in giving her
baby away. Id., 453–54. Maria G. then told the investiga-
tors that she and Henry L. paid an unnamed physician
at a clinic in Guatemala to deliver the baby. Id., 454.
They then had a midwife falsely state that Maria G.
was the biological mother in order to obtain a birth
certificate naming Maria G. and Henry L. as Santiago’s
parents, and paid another party $6000 for a falsified
United States passport for Santiago to allow his entry
into the United States. Id. On the basis of this informa-
tion, the department invoked a ninety-six hour hold
over Santiago, during which he was placed in a foster
home. Id. ‘‘On November 15, 2012, the trial court, Heller,
J., adjudicated Santiago neglected, on the basis of aban-
donment by his biological parents, who [at that time]
remained unknown, and ordered him committed to the
commissioner’s custody. After removing Santiago to a
temporary foster home in November, 2012, the depart-
ment placed him in a legal risk preadoptive foster home
in December, 2012, where he remains today.’’ Id., 457.
On December 20, 2013, the commissioner filed a
motion to open the judgment of neglect, requesting that
the judgment be set aside because it was based on the
mutual mistake of the parties that Santiago’s biological
parents were unknown and that Santiago had been a
victim of human trafficking. Id., 460. A trial on the
motion to open commenced, during which the trial
court learned that Maria G. had pleaded guilty to a
federal felony in connection with her act of using forged
documents to bring Santiago into the United States, and
that she soon would be deported to Argentina as part
of her sentence. Id., 460–61.
On April 22, 2014, the trial court, Mottolese, J., denied
the motion to open the judgment and Melissa E.’s
motion to revoke Santiago’s commitment, both of which
this court affirmed. Id., 463, 475. On October 7, 2015,
the department filed a petition to terminate Melissa E.’s
parental rights. Maria G. filed an amended motion to
intervene as of right and permissively. On June 15, 2016,
the trial court denied Maria G.’s motion to intervene.
This appeal followed. See footnote 2 of this opinion
Separate from the proceeding underlying the present
appeal, Maria G. filed a petition for a writ of habeas
corpus seeking custody of Santiago. In the course of
these habeas proceedings, Maria G. produced a June,
2015 Guatemalan court order that recognizes her right
to custody of Santiago. The habeas court, Colin, J.,
determined that the June, 2015 order was sufficient to
establish prima facie evidence of Maria G.’s standing
to pursue the habeas petition. On January 26, 2017,
the habeas court, Hon. Barbara M. Quinn, issued a
memorandum of decision resolving the parties’ cross
motions for summary judgment in the habeas action,
in which it concluded that Maria G. could not establish
that she is the parent or legal guardian of Santiago.
Accordingly, the habeas court granted the commission-
er’s motion for summary judgment and denied the
habeas petition.
In the present appeal, Maria G. claims that the trial
court improperly denied her motion to intervene in the
termination of parental rights proceeding both as of
right and permissively. Specifically, Maria G. asserts
that she may intervene as a matter of right pursuant to
the four factor test set forth in BNY Western Trust v.
Roman, 295 Conn. 194, 205, 990 A.2d 853 (2010),
because: (1) she has a direct and substantial interest
in the termination of parental rights proceeding on the
basis of the habeas court’s decision in February, 2016,
which recognized her prima facie interest in custody
of Santiago; (2) her rights are not adequately repre-
sented by any party to the termination of parental rights
proceeding; and (3) her interest could be impaired by
the disposition because the termination of Melissa E.’s
rights would effectively terminate Maria G.’s rights
without due process, as the department could then
move forward with the adoption proceedings for Santi-
ago.5 Maria G. further claims that the trial court abused
its discretion in denying her motion for permissive inter-
vention because the five factors governing such motions
weigh in her favor.6 See, e.g., Kerrigan v. Commis-
sioner of Public Health, 279 Conn. 447, 461, 904 A.2d
137 (2006). Finally, Maria G. contends that the trial
court erred in failing to consider in its decision federal
law regarding the Act of State Doctrine, international
comity of laws, and the Hague Convention.7
In response, the commissioner contends that the trial
court properly denied Maria G.’s motion to intervene,
as she did not have a direct and substantial interest in
the termination of parental rights proceedings against
Melissa E. The commissioner also claims that this court
does not have subject matter jurisdiction to decide this
appeal, on its merits, because Maria G. has not appealed
from a final judgment. Specifically, the commissioner
contends that this interlocutory appeal must be dis-
missed because Maria G. does not have a colorable
claim of right to intervene because she has no direct
and substantial interest in the termination proceeding,
which only concerns Melissa E.’s parental rights.
Finally, the commissioner claims that the court did not
abuse its discretion in denying Maria G.’s motion to
intervene permissively, because her actions in evading
established adoption laws undermine her claim that
this court should permissively grant her motion.8 We
agree with the commissioner, and conclude that Maria
G.’s appeal must be dismissed for lack of a final
judgment.
We first address the department’s jurisdictional
claim. ‘‘Unless a specific right to appeal otherwise has
been provided by statute, we must always determine
the threshold question of whether the appeal is taken
from a final judgment before considering the merits of
the claim.’’ (Internal quotation marks omitted.) Palmer
v. Friendly Ice Cream Corp., 285 Conn. 462, 466–67,
940 A.2d 742 (2008). ‘‘We begin by setting forth the
standard of review. The lack of a final judgment impli-
cates the subject matter jurisdiction of an appellate
court to hear an appeal. A determination regarding . . .
subject matter jurisdiction is a question of law [over
which we exercise plenary review].’’ (Internal quotation
marks omitted.) Id., 466. Specifically, with regard to
motions to intervene, ‘‘an unsuccessful applicant for
intervention in the trial court does not have a final
judgment from which to appeal unless [she] can make
a colorable claim to intervention as a matter of right.
If [she] does make such a colorable claim, on appeal
the court has jurisdiction to adjudicate both [her] claim
to intervention as a matter of right and to permissive
intervention.’’ (Internal quotation marks omitted.) Ker-
rigan v. Commissioner of Public Health, supra, 279
Conn. 449 n.3. ‘‘When prospective intervenors have not
made a colorable claim to intervene as a matter of right,
there is no right to interlocutory review of the order
denying their motion to intervene.’’ Palmer v. Friendly
Ice Cream Corp., supra, 479–80.
A review of our case law is necessary to clarify the
two part framework by which we consider interlocutory
appeals from a trial court’s decision to deny a motion
to intervene.9 The first part of the inquiry focuses on
whether the court’s judgment as to the motion to inter-
vene was a final judgment for purposes of appeal. ‘‘The
right of appeal is purely statutory. It is accorded only
if the conditions fixed by statute and the rules of court
for taking and prosecuting the appeal are met. . . .
The statutory right to appeal is limited to appeals by
aggrieved parties from final judgments. . . . Because
our jurisdiction over appeals, both criminal and civil,
is prescribed by statute, we must always determine the
threshold question of whether the appeal is taken from
a final judgment before considering the merits of the
claim.’’ (Citations omitted.) State v. Curcio, 191 Conn.
27, 30, 463 A.2d 566 (1983); see also General Statutes
§§ 52-263 and 51-197a. ‘‘An otherwise interlocutory
order is appealable in two circumstances: (1) where
the order or action terminates a separate and distinct
proceeding, or (2) where the order or action so con-
cludes the rights of the parties that further proceedings
cannot affect them.’’ State v. Curcio, supra, 31. ‘‘Unless
an order can satisfy one of these two prongs, the lack
of a final judgment is a jurisdictional defect that [neces-
sitates] . . . dismissal of the appeal.’’ (Internal quota-
tion marks omitted.) BNY Western Trust v. Roman,
supra, 295 Conn. 202. For purposes of the appeal from
a court’s interlocutory ruling on a motion to intervene,
only the second prong of the Curcio test is implicated.
See Palmer v. Friendly Ice Cream Corp., supra, 285
Conn. 478 n.13.
The first time we considered whether an interlocu-
tory appeal may be taken from the denial of a motion
to intervene was in Jones v. Ricker, 172 Conn. 572,
575 n.3, 375 A.2d 1034 (1977). In that case, this court
suggested that the appealability of a trial court’s deci-
sion in a motion to intervene depended on ‘‘whether a
person had an absolute right to intervene or whether
intervention was a matter within the trial court’s discre-
tion.’’ Id. Three years later, relying on Jones, this court
determined in Ricard v. Stanadyne, Inc., 181 Conn.
321, 322 n.1, 435 A.2d 352 (1980), that, ‘‘[b]ecause [the
intervenor] at the very least had a colorable claim to
intervention as a matter of right, the denial of its motion
to intervene was appealable.’’ In Ricard, this court con-
cluded that the intervenor had a colorable claim to
intervention as a matter of right, but concluded that
the trial court’s denial of the intervenor’s motion was
proper, because the intervenor’s motion was untimely.
Id., 322–24. Then, in Horton v. Meskill, 187 Conn. 187,
188–89, 445 A.2d 579 (1982), this court did not address
the issue of appealability, but rather, concluded that
the proposed intervenors did not have a right to inter-
vene and that the trial court did not abuse its discretion
in denying their motion to intervene permissively.
Relying on our Appellate Court’s interpretation of
these cases; see Common Condominium Assns., Inc.
v. Common Associates, 5 Conn. App. 288, 290–91, 497
A.2d 780 (1985); we subsequently determined in Kerri-
gan v. Commissioner of Public Health, supra, 279 Conn.
449 n.3, that ‘‘an unsuccessful applicant for intervention
in the trial court does not have a final judgment from
which to appeal unless [she] can make a colorable claim
to intervention as a matter of right. If [she] does make
such a colorable claim, on appeal the court has jurisdic-
tion to adjudicate both [her] claim to intervention as a
matter of right and to permissive intervention.’’ (Inter-
nal quotation marks omitted.) Accordingly, the disposi-
tive inquiry into whether the denial of a motion to
intervene is an appealable, final judgment is whether the
intervenor can make a colorable claim to intervention
as a matter of right. ‘‘A colorable claim is one that is
superficially well founded but that may ultimately be
deemed invalid . . . .’’ (Internal quotation marks omit-
ted.) BNY Western Trust v. Roman, supra, 295 Conn.
209. ‘‘For a claim to be colorable, the defendant need
not convince the trial court that he necessarily will
prevail; he must demonstrate simply that he might pre-
vail.’’ (Emphasis in original; internal quotation marks
omitted.) State v. Crawford, 257 Conn. 769, 776, 778
A.2d 947 (2001), cert. denied, 534 U.S. 1138, 122 S. Ct.
1086, 151 L. Ed. 2d 985 (2002).
It is only after we have addressed the jurisdictional
threshold inquiry of whether the intervenor has a color-
able claim of right to intervention that we turn to the
second part of the inquiry of whether the trial court’s
judgment as to the motion to intervene was proper,
namely, the merits of the intervenor’s claim to intervene
as of right or permissively. ‘‘In order for a proposed
intervenor to establish that it 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.’’ (Internal quotation marks omitted.) BNY Western
Trust v. Roman, supra, 295 Conn. 205. ‘‘For purposes
of judging the satisfaction of [the] conditions [for inter-
vention] we look to the pleadings, that is, to the motion
for leave to intervene and to the proposed complaint
or defense in intervention, and . . . we accept the alle-
gations in those pleadings as true. The question on a
petition to intervene is whether a well-pleaded defense
or claim is asserted. Its merits are not to be determined.
The defense or claim is assumed to be true on motion
to intervene, at least in the absence of sham, frivolity,
and other similar objections. . . . Thus, neither testi-
mony nor other evidence is required to justify interven-
tion, and [a] proposed intervenor must allege sufficient
facts, through the submitted motion and pleadings, if
any, in order to make a showing of his or her right to
intervene. The inquiry is whether the claims contained
in the motion, if true, establish that the proposed inter-
venor has a direct and immediate interest that will be
affected by the judgment.’’ (Citation omitted; internal
quotation marks omitted.) Kerrigan v. Commissioner
of Public Health, supra, 279 Conn. 457.
Accordingly, on appeal, two separate inquiries must
be made. First, the court must determine whether the
trial court’s decision on the motion to intervene is a
final judgment for jurisdictional purposes; if it is not,
then the appeal must be dismissed. BNY Western Trust
v. Roman, supra, 295 Conn. 202. If the court determines
that the trial court’s decision is a final judgment, then
it properly has subject matter jurisdiction to analyze
and render a decision as to the parties’ claims of inter-
vention as of right and permissive intervention. Put
another way, the 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. Id., 209. Consistent with the well
established ‘‘rule that every presumption is to be
indulged in favor of jurisdiction,’’ and ‘‘the judicial pol-
icy preference to bring about a trial on the merits of a
dispute whenever possible and to secure for the litigant
his day in court’’; (internal quotation marks omitted)
In re Jose B., 303 Conn. 569, 579, 34 A.3d 975 (2012);
concepts which extend to appellate jurisdiction; see In
re Judicial Inquiry No. 2005-02, 293 Conn. 247, 253–54,
977 A.2d 166 (2009); our examination of whether a color-
able claim exists focuses on the plausibility of the appel-
lant’s challenge to the denial of the motion to intervene
when the pleadings and motion are viewed in light of
the relevant legal principles. Cf. State v. Crawford,
supra, 257 Conn. 776 (‘‘[f]or a claim to be colorable,
the defendant need not convince the trial court that he
necessarily will prevail; he must demonstrate simply
that he might prevail’’ [emphasis in original; internal
quotation marks omitted]).
We now turn to the threshold jurisdictional inquiry
in the present appeal, namely, whether Maria G. has
made a colorable claim to intervene as of right in the
termination of parental rights proceeding against
Melissa E. In light of on point, unchallenged case law
from both this court and the Appellate Court squarely
barring Maria G.’s claim, we conclude that she has not.
This court ‘‘has stated that a person or entity does
not have a sufficient interest to qualify for the right to
intervene merely because an impending judgment will
have some effect on him, her, or it. The judgment to be
rendered must affect the proposed intervenor’s direct or
personal rights, not those of another.’’ (Internal quota-
tion marks omitted.) In re Joshua S., 127 Conn. App.
723, 729, 14 A.3d 1076 (2011), quoting Horton v. Meskill,
supra, 187 Conn. 195. Additionally, ‘‘our cases have
established that parties interested in the prospective
adoption have no right to intervene in the termination
proceeding. It is . . . essential, in considering a peti-
tion to terminate parental rights, to sever completely
the issues of whether termination is statutorily war-
ranted and whether a proposed adoption is desirable.’’
(Internal quotation marks omitted.) In re Baby Girl B.,
224 Conn. 263, 275, 618 A.2d 1 (1992). Further, termina-
tion of parental rights proceedings concern only the
rights of the respondent parent. See, e.g., General Stat-
utes § 17a-112 (n); see also In re Denzel A., 53 Conn.
App. 827, 835, 733 A.2d 298 (1999) (‘‘[t]he purpose of
the intervention . . . in a termination of parental rights
case does not include the right to effect an adoption
or to obtain custody . . . but is solely for the purpose
of affecting the termination itself’’).
On the facts of the present case, Maria G. has no
colorable claim of right to intervention in the termina-
tion of parental rights proceeding against Melissa E.,
because in the face of well established case law holding
that there is no right to intervene in the adjudicatory
phase of a termination of parental rights action; see In
re Vincent D., 65 Conn. App. 658, 665, 783 A.2d 534(2001); she simply has no claim of a direct and substan-
tial interest in that proceeding that is even ‘‘superficially
well founded . . . .’’ (Internal quotation marks omit-
ted.) BNY Western Trust v. Roman, supra, 295 Conn.
209. Although Maria G. filed her amended motion to
intervene to ‘‘allow her to argue and explain to the court
the reason that she is the holder of legal rights as the
parent of Santiago,’’ intervening in the termination of
parental rights action against Melissa E. is not the
proper forum for her to advance these interests. Addi-
tionally, the termination of Melissa E.’s parental rights
will not cause Maria G. irreparable harm or abrogate a
right that she currently holds because, even assuming
that Maria G. does have some guardianship interest over
Santiago, the present termination proceeding would in
no way affect that interest. See BNY Western Trust v.
Roman, supra, 203.
The dismissal of this appeal for lack of a final judg-
ment is further supported by the fact that the result of
the termination of parental rights proceeding against
Melissa E. did not affect the outcome of Maria G.’s
action in the habeas court for custody or guardianship
of Santiago. This is because the only rights at issue in
the termination of parental rights action underlying the
present appeal are the parental rights of Melissa E., not
those of Maria G.10 Put differently, Maria G.’s potential
adoption rights to Santiago are not impacted by the
termination proceeding underlying the present appeal,
but rather, were addressed during her action in the
habeas court.
Lastly, the Guatemalan judgment upon which Maria
G. relies11 does not affect the disposition of this case.
Even if we were to assume, without deciding, that the
Guatemalan judgment did give some sort of guardian-
ship interest of Santiago to Maria G., the proceeding
that underlies the present appeal is the termination of
Melissa E.’s parental rights, the disposition of which,
as previously noted in this opinion, in no way affected
Maria G.’s ability to pursue her guardianship rights or
interests in the habeas court.12 Stated another way, the
present case represents a situation akin to the commis-
sioner seeking the termination of parental rights of just
one of two biological parents—the termination of one
parent’s rights has no impact on the other parent’s
rights. See, e.g., General Statutes § 45a-717 (j) (‘‘if the
parental rights of only one parent are terminated, the
remaining parent shall be sole parent and, unless other-
wise provided by law, guardian of the person’’).
Thus, we conclude that Maria G. has failed to plead
a colorable claim to intervene as of right. Accordingly,
we conclude that the trial court’s denial of her motion
to intervene as of right is not a final judgment for pur-
poses of this appeal.
The appeal is dismissed.
In this opinion the other justices 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.
** April 4, 2017, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
We note that numerous trial judges participated in the proceedings under-
lying this appeal. For the sake of simplicity, all references to the trial court
in this opinion are to Judge Quinn unless otherwise noted.
2
Maria G. appealed from the judgment of the trial court to the Appellate
Court, and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
3
We note that Melissa E. has been referred to in previously published
appellate opinions as Melissa M. See, e.g., In re Santiago G., 318 Conn. 449,
452, 121 A.3d 708 (2015); In re Santiago G., 154 Conn. App. 835, 838 and
n.1, 108 A.3d 1184 (2015). For the sake of consistency with the trial court’s
memorandum of decision in the present case, however, we refer to her in
this opinion as Melissa E.
4
‘‘Maria G. testified that she and Henry L. separated in February, 2012.
Henry L. ceased visiting Santiago in March, 2012, and did not seek any
further contact with the child.’’ In re Santiago G., 318 Conn. 449, 453 n.1,
121 A.3d 708 (2015).
5
The first factor of the test, namely, that the motion be timely, is not in
dispute. See BNY Western Trust v. Roman, supra, 295 Conn. 205.
6
‘‘A trial court exercising its discretion in determining whether to grant
a motion for permissive intervention balances several factors [including]:
the timeliness of the intervention, the proposed intervenor’s interest in
the controversy, the adequacy of representation of such interests by other
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 resolving the controversy [before the court].’’ (Internal quotation marks
omitted.) Kerrigan v. Commissioner of Public Health, 279 Conn. 447, 461,
904 A.2d 137 (2006).
7
Although we do not reach the underlying merits of Maria G.’s claims in
this appeal because of our jurisdictional conclusion, we note that the habeas
court rejected them in its memorandum of decision dated January 26, 2017.
8
Counsel for the minor child has made five additional arguments. First,
counsel for the minor child claims that Maria G. never pleaded intervention
as of right to the trial court and, as such, this court should disregard any
such argument in the present appeal. Second, counsel for the minor child
contends that Maria G.’s claims fail on the merits because she does not
have a direct and substantial interest in the termination of parental rights
proceeding. Third, counsel for the minor child also claims that Maria G.’s
motion to intervene permissively is barred by res judicata because the issue
of whether she should be permitted to intervene as an interested party was
fully litigated in both 2012 and 2015. Fourth, counsel for the minor child
contends that the reasoning supporting the denial of Maria G.’s prior motions
to intervene remain applicable. Fifth, counsel for the minor child contends
that the trial court did not improperly decline to consider federal law regard-
ing the Act of State Doctrine, international comity of laws, and the Hague
Convention, in its denial of Maria G.’s motion. Because of our jurisdictional
conclusion, we need not consider these additional arguments.
9
We note the lack of consistency in our state’s appellate case law as to
the analysis of interlocutory appeals from denials of motions to intervene.
Compare Palmer v. Friendly Ice Cream Corp., supra, 285 Conn. 477–78
(analyzing, based on principles discussed previously, when plaintiffs have
not made colorable claim), Kerrigan v. Commissioner of Public Health,
supra, 279 Conn. 449 n.3 (raising, sua sponte, issue of subject matter jurisdic-
tion, and concluding that appellant made colorable claim to intervention as
matter of right without any analysis as to that point), and In re Joshua S.,
127 Conn. App. 723, 728–29, 14 A.3d 1076 (2011) (determining that appellants
did not have colorable claim to intervention after applying four factor test
for determining whether party is entitled to intervene as matter of right).
Put another way, sometimes this court has addressed the question of whether
a colorable claim exists separately from the four factor intervention as of
right test, and other times it has not. Accordingly, we take this opportunity
to clarify the proper approach.
10
To this end, this court expressed concerns at oral argument about
whether the department would proceed immediately with adoption proceed-
ings upon termination of Melissa E.’s parental rights, because to do so would
effectively extinguish any potential rights of Maria G. At oral argument,
Assistant Attorney General Benjamin Zivyon, counsel for the commissioner,
assured this court that the department would not proceed with the adoption
of Santiago until after the final disposition of Maria G.’s habeas proceeding.
Zivyon represented to this court that Judge Quinn had not yet scheduled a
trial for the termination of parental rights of Melissa E., and would not do
so until after Maria G.’s habeas action was resolved, a proceeding over
which Judge Quinn also presided. Moreover, we note that prior to any
adoption proceeding, an affidavit must be filed stating that there is no
proceeding pending in any other court affecting the custody of the child
free for adoption. See General Statutes § 52-231a.
Additionally, we note that Maria G. had an opportunity to litigate the
merits of her claims to guardianship in the proper venue, namely, the habeas
court. After the filing of cross motions for summary judgment, the habeas
court ultimately dismissed Maria G.’s habeas petition.
11
In Guatemala, Melissa E. filed a voluntary petition for confirmation with
the Family Trial Court, San Benito, Peten, on June 17, 2015. In this petition,
she granted custody to Maria G., ‘‘since [Maria G.] is the woman who has
cared for the minor child since his birth, as if he were her son, and has
provided his sustenance and education.’’ On June 18, 2015, the Judge of the
Family Trial Court, Department of Peten, Guatemala, entered judgment,
granting Maria G. parental rights, custody, and representation of Santiago.
We note several important facts regarding this foreign judgment. First, this
judgment was not sought until 2015, several years after the department
removed Santiago from the custody of Maria G. Second, the Guatemalan
judgment was rendered without notice to the department, Santiago’s coun-
sel, or the guardian ad litem for him, which is required by law. Third,
and finally, when rendering its judgment, the Guatemalan court relied on
Santiago’s birth certificate, an admittedly illegally forged document, for
which Maria G. pleaded guilty to a federal felony and soon will be deported.
12
This is further evidenced by the habeas court’s complete adjudication
of Maria G.’s interests, despite the fact that the termination of parental
rights action against Melissa E. remains pending.