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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 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 (§ 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 termination of parental rights petition, and nearly one month after the judgment 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 adoption, thus, the opportunity had passed for S to present evidence concerning 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 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.
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 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 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 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 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 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 for termination of parental rights existed pursuant to General Statutes § 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 examining 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 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, 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 appellant 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 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 § 52-263.

State v. Salmon, 250 Conn. 147, 154, 735 A.2d 333 (1999).

‘‘Ordinarily, the word party has a technical legal meaning, 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 natural 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 intervenor 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 satisfied.’’ (Citation omitted; internal quotation marks omitted.) 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 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 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 litigation. . . .

‘‘[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 proposed intervenor has made a colorable claim to intervene as of right. . . . Consistent with the well established 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 challenge 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 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 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 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 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 intervene 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 coterminous petitions for neglect and termination of parental

rights and denied paternal grandmother’s request for

transfer of guardianship). It was only after the conclusion 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 subsection (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 whenever 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 voluntarily 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 permanent legal guardian is (i) a suitable and worthy per-
son, and (ii) committed to remaining the permanent

legal guardian and assuming the right and responsibilities 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 permanent 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 guardianship, 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 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. 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 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 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 provides 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) reunification 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.