In re Brian P.
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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 respondents, 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 (
Procedural History
Petition by the Commissioner of Children and Families 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 (paternal 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.
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 Families (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 Families (department). The department became invоlved 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 treatment, 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 nоlo 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 committed Brian P. to the care and custody of the commissioner.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 placement 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 fоr termination of parental rights existed pursuant to
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 several 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 permanency.” This appeal followed.
On appeal, Susan P. claims that the court improperly denied her motion to intervene. The commissioner contends that because Susan P. is not a party to the underlying action and because she does not have a colorable claim to intervene as a matter of right, the statute governing our jurisdiction,
To determine whether we have subject matter jurisdiction 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
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
“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 intervenor] need not convince the trial court that [s]he necessarily will prevail; [s]he must demonstrate simply that [s]he might prevail. . . . In order for a proposed intervenor 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 bе 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 litigation. . . .
“[These] four factors of the intervention as of right
We begin by addressing the dispositive issue of timeliness, 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 circumstances either for or against timeliness. . . . Factors 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 twо 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 judgment 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 compliance, 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 intervene until after the termination judgment was rendered.
In her amended motion, Susan P. sought “to intervene in the abovе captioned matter and asks the court to grant her permanent transfer of guardianship of the
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
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 permanency 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 terminating parental rights.9 By her delay, Susan P. lost any colorable claim to a right to intervene. Seе 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 intensifies” [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, Parties § 90 (2019) (“[i]ntervention presupposes the pendency 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 рrotection proceedings, time is of the essence, and permitting intervention after the conclusion of the termination pro-
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 consеquently 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
The appeal is dismissed.
In this opinion the other judges concurred.
* In accordance with the spirit and intent of
** February 6, 2020, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.