In re Riley B. ( 2022 )

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IN RE RILEY B.*
(SC 20613)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Kahn, Ecker and Keller, Js.
Syllabus
The proposed intervenor, J, filed a motion to intervene subsequent to the
termination of her parental rights with respect to her minor child, R,
in an effort to obtain a posttermination order of visitation with R. J’s
parental rights had been terminated on the grounds that she failed to
achieve a sufficient degree of personal rehabilitation, as required by
the applicable statute (§ 17a-112), and that termination was in R’s best
interest. During the termination proceedings, J did not request visitation
with R in the event that her parental rights were terminated. J appealed
from the judgment terminating her parental rights but did not request
a stay of execution of that judgment pending appeal. More than six
months after that appeal had been filed, J filed a motion for visitation,
which the trial court denied, concluding that it did not have authority
to order visitation after her parental rights were terminated and that,
even if it had such authority, there was no basis for granting visitation
under the circumstances. The trial court dismissed her subsequent
motion to intervene on grounds of res judicata in light of its decision
on her motion for visitation. After the dismissal of J’s motion to intervene,
the Appellate Court affirmed the judgment terminating J’s parental
rights. On appeal from the trial court’s dismissal of J’s motion to inter-
vene, held that J’s appeal was dismissed for lack of subject matter
jurisdiction, J having had no colorable claim to intervention in R’s juve-
nile case as a matter of right: following the termination of her parental
rights, J lacked a direct and substantial interest in the subject matter
of R’s juvenile case to warrant intervention as of right, notwithstanding
any emotional bond between J and R, and, therefore, J failed to establish
the party status necessary to support this court’s jurisdiction to consider
her appeal from the dismissal of her motion to intervene; moreover,
insofar as J claimed that, as R’s biological mother, she was an appropriate
person to represent R’s interests, that claim ignored both the legal
and factual implications of the termination of J’s parental rights, as J’s
parental rights were terminated because there was clear and convincing
evidence that she was unable or unwilling to put R’s best interests ahead
of her own and that there was no reasonable prospect that that fact
would change in the near future, and, accordingly, J was in no position
to claim a right to represent R’s best interests.
Argued November 18, 2021—officially released March 2, 2022**
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 Haven, Juvenile
Matters, and tried to the court, Marcus, J.; judgment
terminating the respondents’ parental rights, from
which the respondent mother appealed to the Appellate
Court; thereafter, the court, Marcus, J., denied the
respondent mother’s motion for posttermination visita-
tion; subsequently, the court, Marcus, J., dismissed the
respondent mother’s motion to intervene, and the
respondent mother appealed to the Appellate Court;
thereafter, the Appellate Court, Alvord, Moll and DiPen-
tima, Js., affirmed the trial court’s judgment terminat-
ing the respondents’ parental rights; subsequently, the
respondent mother’s appeal from the trial court’s dis-
missal of the motion to intervene was transferred to
this court. Appeal dismissed.
Albert J. Oneto IV, assigned counsel, for the appellant
(proposed intervenor).
Evan O’Roark, assistant attorney general, with
whom, on the brief, were William Tong, attorney gen-
eral, and Sara Nadim, assistant attorney general, for
the appellee (petitioner).
Margaret Doherty filed a brief for the Connecticut
Alliance of Foster and Adoptive Familes as amicus
curiae.
Opinion
KELLER, J. In In re Ava W., 336 Conn. 545, 248 A.3d
675 (2020), this court held that, if a parent requests
posttermination visitation in the course of the proceed-
ing adjudicating the petition for termination of parental
rights, the trial court has jurisdiction over such a request
and the authority to grant posttermination visitation
under appropriate circumstances. See id., 548–49. This
court underscored that its decision was limited to this
specific procedural posture and explicitly left open the
question of whether a trial court has the authority to
adjudicate a request for posttermination visitation filed
after parental rights have been terminated. Id., 590 n.18.
The present appeal arises under the circumstances on
which we reserved judgment in In re Ava W.
The proposed intervenor, Jacquanita B., the biologi-
cal mother of Riley B., appeals from the trial court’s
judgment dismissing her posttermination motion to
intervene in Riley’s juvenile case to obtain an order for
visitation.1 Jacquanita B. claims that the trial court
incorrectly concluded that her motion to intervene was
barred by res judicata in light of the court’s denial of
a previously filed postjudgment motion for posttermina-
tion visitation. We conclude that, posttermination, bio-
logical parents lack a legally cognizable interest to
support a right to intervene in the juvenile case for
the purpose of seeking visitation. Therefore, the appeal
must be dismissed for lack of subject matter jurisdiction.
The record reveals the following facts, as found by
the trial court in its decision terminating Jacquanita
B.’s parental rights or that are otherwise reflected in
the record, and procedural history. The Department of
Children and Families (department) has a long history
of involvement with Jacquanita B. and her three biologi-
cal children—half siblings Nyasia, Corrynn, and Riley—
due to mental health issues and a pattern of inflicting
physical abuse as discipline. Although this history is
not directly relevant to the issue in this appeal, it pro-
vides an important context for the legal principles on
which we rely.
In 2013, when Jacquanita B.’s eldest child, Nyasia, was
six or seven years old, she was removed from Jacquanita
B.’s care and placed in her father’s custody after evi-
dence came to light that Jacquanita B. had repeatedly
physically abused her. Jacquanita B.’s second born child,
Corrynn, who was then only an infant, was unharmed
at that time and remained in Jacquanita B.’s care.
The department became involved with the family
again in 2018, when Corrynn was six or seven years old,
after a school nurse reported that she had observed
extensive bruising and welts on Corrynn’s inner fore-
arms. Corrynn stated that Jacquanita B. had struck her
with a belt because she had forgotten to do her home-
work. Jacquanita B. denied the allegations and mini-
mized the nature of Corrynn’s injuries but, eventually,
was criminally charged with risk of injury to a child
and assault in the second degree.
In June, 2018, following the report of the school
nurse, the petitioner, the Commissioner of Children and
Families (commissioner), filed a neglect petition as to
Corrynn and Jacquanita B.’s youngest child, Riley, after
Jacquanita B. repeatedly failed to meet conditions of a
safety plan that would have allowed them to remain in
her care. The department thereafter received reports
that Jacquanita B. had been physically and verbally abus-
ing Corrynn on a regular basis. Jacquanita B. repeatedly
thwarted the department’s efforts to visit the home to
investigate. In July, 2018, after the New Haven police
informed the department that Jacquanita B. had been
arrested on charges relating to her assault of a neighbor
with a crowbar, the department invoked a ninety-six
hour hold and obtained an ex parte order of temporary
custody of the children. Both children were taken for
medical examinations, which revealed that Corrynn had
numerous injuries in various stages of healing but that
Riley appeared unharmed. In August, 2018, the trial
court sustained the order of temporary custody of the
children, after Jacquanita B. elected to contest the order
but failed to appear for most of the hearing. The children
were placed in a nonrelative foster home.
Two months after the children entered the depart-
ment’s care, by which time Riley was almost two years
old, Riley was adjudicated neglected and committed to
the commissioner’s custody.2 The trial court issued final
specific steps for reunification. The department arranged
for the provision of mental health and anger manage-
ment services, but Jacquanita B. never participated and
repeatedly asserted that she had never abused Corrynn
or anyone else. Jacquanita B. attended weekly super-
vised visitation with Riley until August, 2018, at which
time she ceased attending to evade arrest on a warrant
that had been issued in connection with Corrynn’s
injuries.
In December, 2018, Jacquanita B. was located by the
police and taken into custody. The department resumed
Jacquanita B.’s supervised visitation with Riley once
she was released on bond and continued to provide
visitation after she began to serve a two year term of
imprisonment in connection with the charges relating
to the incidents involving Corrynn and the neighbor.
In 2019, the court approved the commissioner’s per-
manency plan of termination of parental rights and
adoption for Riley. The commissioner thereafter filed
a petition seeking to terminate Jacquanita B.’s parental
rights as to Riley on the ground of failure to rehabilitate.3
While that petition was pending, Jacquanita B. filed a
motion to open and modify the neglect disposition to
transfer guardianship of Riley to a maternal relative
who lived in New Jersey. The termination petition and
the motion to open and modify the disposition were
heard together. During the proceedings, Jacquanita B.
made no request for visitation with Riley in the event
that her parental rights were terminated.
In January, 2020, the trial court issued a memoran-
dum of decision in which it found that the commissioner
proved by clear and convincing evidence that Jacqua-
nita B. had failed to rehabilitate pursuant to General
Statutes § 17a-112 (j) (3) (B) (i) and that termination
of her parental rights was in Riley’s best interest. The
court cited, among other things, Jacquanita B.’s failure
to address her mental health issues, to acknowledge
her abuse of her other children, and to refrain from
involvement with the criminal justice system. The court
noted that it was barred from transferring guardianship
of Riley to Jacquanita B.’s relative, despite the depart-
ment’s willingness to consider the relative as a potential
adoptive resource, because the study mandated for an
out-of-state placement under the Interstate Compact on
the Placement of Children; see General Statutes § 17a-
175; had not yet been completed.4 The court rejected
Jacquanita B.’s request to stay disposition of the case
until the study was completed, finding that a stay would
not be in Riley’s best interest. It emphasized the impor-
tance of achieving permanency for Riley, even if place-
ment with the New Jersey relative ultimately was not
approved. The court acknowledged credible testimony
that Riley had a bond with Jacquanita B., having lived
with her for the first two years of her life, but found
that there was no reasonable likelihood that giving Jac-
quanita B. more time would result in her bringing her
performance as a parent within acceptable standards
that would allow for reunification. The court therefore
denied Jacquanita B.’s motion seeking to transfer guard-
ianship, rendered judgment terminating her parental
rights, and appointed the commissioner as Riley’s statu-
tory parent.
Jacquanita B. timely appealed from the judgment ter-
minating her parental rights. She did not request a stay
of the execution of the judgment pending appeal. See
Practice Book § 61-12. In August, 2020, after that appeal
had been pending for more than six months, Jacquanita
B. filed a motion for posttermination visitation with
Riley. In the motion, she alleged that the department
had provided posttermination visitation until February,
2020, at which time the correctional facility where she
was incarcerated stopped in person visits due to the
COVID-19 pandemic. She further alleged that, following
her release from that facility in July, 2020, the depart-
ment did not resume visitation. She cited this court’s
recently released decision in In re Ava W. as support
for the trial court’s authority to issue a posttermination
of parental rights visitation order and asserted that such
an order should issue because visitation would be ‘‘in
the best interests of the minor child.’’ The commissioner
opposed the motion, contending that the court lacked
authority to issue such an order and that, even if it
had such authority, the basis on which visitation was
sought—a generalized best interest of the child stan-
dard—was legally insufficient.
The trial court denied the motion for posttermination
visitation. It concluded that In re Ava W. did not provide
it authority to grant the motion because the holding in
that case was limited to a request for posttermination
visitation made in the course of the termination pro-
ceeding. The court further noted that, even if In re Ava
W. provided authority for the court to order, postjudg-
ment, posttermination visitation, there were neither
allegations nor evidence to support the statutory ground
on which this court in In re Ava W. relied to justify
such an order, i.e., that visitation was ‘‘necessary or
appropriate to secure the welfare, protection, proper
care and suitable support of [the] child . . . .’’ General
Statutes § 46b-121 (b) (1); see In re Ava W., supra, 336
Conn. 549. The court noted that Jacquanita B. had put
her own needs ahead of Riley’s needs and had not
addressed the issues that resulted in the physical abuse
of Riley’s half siblings, which put Riley at risk if visits
were to occur.
In October, 2020, approximately six weeks after the
trial court denied her motion for posttermination visita-
tion, Jacquanita B. filed a ‘‘Motion to Intervene Post-
judgment and for an Order of Posttermination Visita-
tion’’ (motion to intervene), in which she again cited
In re Ava W. as authority for posttermination visitation
but now asserted that the failure of the department
and Riley’s foster parents to ensure visitation was in
contravention of Riley’s ‘‘welfare, protection, proper
care, and suitable support.’’ In her accompanying mem-
orandum of law, she asserted that she had standing to
seek such an order by virtue of her status as Riley’s
natural parent, whose ongoing relationship with the
child was necessary to secure the child’s welfare. The
motion was opposed by the commissioner, as well as
by Riley’s counsel. The trial court ‘‘dismissed’’ the
motion to intervene on the ground of res judicata in
light of the court’s decision on the motion for posttermi-
nation visitation.5 This appeal followed.6
Although the parties make several arguments on
appeal, we limit our focus to those implicating subject
matter jurisdiction, which ultimately is dispositive. Jac-
quanita B. contends that res judicata does not apply to
her second request for posttermination visitation because
the trial court lacked subject matter jurisdiction over
her first request. Specifically, she contends that she
lacked standing to file her motion for posttermination
visitation in the absence of a properly filed motion to
intervene and that, because this omission precluded
her from being made a party to Riley’s juvenile case in
connection with the motion for posttermination visita-
tion, the trial court lacked subject matter jurisdiction
to consider that motion.
The commissioner agrees with Jacquanita B. on one
point—that the lack of a proper motion to intervene is
a jurisdictional bar. The commissioner contends, how-
ever, that Jacquanita B. has no colorable claim to inter-
vention as of right, and, therefore, her appeal must be
dismissed due to the lack of subject matter jurisdiction.
We agree with the commissioner.
Unless a specific right to appeal otherwise has been
provided by statute, ‘‘[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
and of this court is governed by [General Statutes] § 52-
263, which provides that an aggrieved party may appeal
to the court having jurisdiction from the final judgment
of the court.’’ (Citation omitted; emphasis omitted; foot-
note omitted; internal quotation marks omitted.) King
v. Sultar, 253 Conn. 429, 434, 754 A.2d 782 (2000).
When a motion to intervene is denied; see footnote
5 of this opinion; typically two elements of appellate
jurisdiction are called into question: whether the mov-
ant properly can be viewed as a party to the underlying
matter and whether denial of the motion is a final judg-
ment. See In re Santiago G., 325 Conn. 221, 228, 157
A.3d 60 (2017); In re Brian P., 195 Conn. App. 582, 587,
226 A.3d 152 (2020); In re Joshua S., 127 Conn. App.
723, 728, 14 A.3d 1076 (2011). Both elements are
assessed under the same standard: ‘‘[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, supra, 253 Conn. 436.
The present case is atypical, however, because the
trial court did not deny intervention on the ground
that Jacquanita B. did not meet the requirements for
intervention. Cf. In re Santiago G., supra, 325 Conn.
225–26. It did not reach that issue because it concluded
that consideration of her motion to intervene was
barred by res judicata. A decision that a party’s claim
is barred by res judicata is deemed a final judgment
under the second prong of State v. Curcio, 191 Conn.
27, 31, 463 A.2d 566 (1983) (otherwise interlocutory
order or ruling constitutes appealable final judgment
when order or ruling ‘‘so concludes the rights of the
parties that further proceedings cannot affect them’’).
See Lighthouse Landings, Inc. v. Connecticut Light &
Power Co., 300 Conn. 325, 328 n.3, 15 A.3d 601 (2011).
A denial of a motion to intervene on this basis does
not, however, remove the party status jurisdictional
impediment to appeal.
Therefore, we turn to the issue of whether Jacquanita
B. has a colorable claim to intervention as of right. ‘‘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 mov-
ant’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. . . . Failure to meet any
one of the four elements . . . will preclude interven-
tion as of right.’’ (Citations omitted; footnote omitted;
internal quotation marks omitted.) BNY Western Trust
v. Roman, 295 Conn. 194, 205–206, 990 A.2d 853 (2010).
‘‘A colorable claim is one that is superficially well
founded but that may ultimately be deemed invalid
. . . .’’ (Internal quotation marks omitted.) Id., 209.
‘‘[T]he [movant] need not convince the trial court that
he necessarily will prevail; he must demonstrate simply
that he might prevail.’’ (Emphasis omitted; internal quo-
tation marks omitted.) In re Santiago G., supra, 325
Conn. 231. If the movant meets this threshold, the
reviewing court has jurisdiction to consider whether
the trial court properly denied the motion to intervene.7
See id. Because the trial court did not determine
whether Jacquanita B. met the requirements for inter-
vention as of right, our review is plenary. See Austin-
Casares v. Safeco Ins. Co. of America, 310 Conn. 640,
650, 81 A.3d 200 (2013) (review of claim of intervention
as of right is plenary, except as to element of timeliness,
which is reviewed for abuse of discretion).
A survey of jurisprudence addressing the effect of
termination of parental rights yields the inexorable con-
clusion that, following the rendering of judgment termi-
nating parental rights, a biological parent has no
colorable right to intervene in the child’s juvenile case
to seek posttermination visitation. ‘‘ ‘Termination of
parental rights’ means the complete severance by court
order of the legal relationship, with all its rights and
responsibilities, between the child and the child’s par-
ent . . . .’’ General Statutes § 17a-93 (5); accord Gen-
eral Statutes § 45a-707 (8). Severance of this legal
relationship means that ‘‘the constitutional right to
direct the child’s upbringing, as well as the statutory
right to visitation, no longer exists . . . .’’ (Internal
quotation marks omitted.) In re Ava W., supra, 336
Conn. 560. ‘‘In effect, the [biological parent] is a legal
stranger to the child with no better claim to advance
the best interests of the child than any remote stranger.’’
(Emphasis omitted.) In re Charles R., 1993 WL 7528,
*1 (Conn. Super. January 8, 1993); see also A.J. v. L.O.,
697 A.2d 1189, 1191–92 (D.C. App. 1997) (termination
of parental rights rendered parents legal strangers to
their biological children); In re Z.O.G.-I., 375 N.C. 858,
869, 851 S.E.2d 298 (2020) (‘‘[t]ermination of parental
rights . . . render[s] the child a legal stranger to the
biological parent’’ (internal quotation marks omitted)).
Once judgment terminating parental rights is ren-
dered, the court is authorized to issue posttermination
orders only to protect the child’s interests, not the bio-
logical parents’ interests. See General Statutes § 46b-
121 (b) (1) (‘‘[i]n juvenile matters, the Superior Court
shall have authority to make and enforce such orders
directed to parents . . . guardians, custodians or
other adult persons owing some legal duty to a child
therein, as the court deems necessary or appropriate to
secure the welfare, protection, proper care and suitable
support of a child subject to the court’s jurisdiction
or otherwise committed to or in the custody of the
[c]ommissioner’’). Posttermination actions by the court,
as well as those of the commissioner, as the child’s statu-
tory parent, are aimed at one goal—securing a perma-
nent home for the child, preferably through adoption.
See General Statutes § 17a-93 (6) (‘‘ ‘[s]tatutory parent’
means the [commissioner] or that child-placing agency
appointed by the court for the purpose of giving a minor
child or minor children in adoption’’); General Statutes
§ 17-112 (o) (charging court with periodic review, post-
termination, of statutory parent’s progress in imple-
menting permanency plan and finalizing adoption); see
also In re Davonta V., 285 Conn. 483, 492, 940 A.2d 733(2008); In re Jonathan M., 255 Conn. 208, 232, 764 A.2d
739 (2001).
In In re Ava W., this court emphasized the signifi-
cance of the fact that the respondent mother was a
party to the termination proceeding at the time she
made her request for posttermination visitation: ‘‘[The
respondent mother] has a specific personal and legal
interest in the subject matter of the decision, as distin-
guished from a general interest shared by the commu-
nity, because she was a party to the underlying litigation
who requested that the trial court act pursuant to its
common-law authority. She was not merely a partici-
pant in that litigation. . . . She was the respondent in
a proceeding in which the [commissioner] sought to
terminate her parental rights. In the course of that pro-
ceeding, she requested that the trial court permit and
order posttermination visitation with her child.’’8 (Cita-
tion omitted.) In re Ava W., supra, 336 Conn. 555–56;
cf. In re Jason P., 41 Conn. Supp. 23, 30, 549 A.2d 286(1988) (because termination of father’s parental rights
would foreclose his right to intervene in subsequent
proceeding to terminate mother’s parental rights, pater-
nal grandmother could not intervene in that proceeding
as of right). Because of her party status in the termina-
tion proceeding, the respondent mother had the oppor-
tunity to present evidence in that proceeding bearing
on whether posttermination visitation would be ‘‘neces-
sary or appropriate . . . .’’ General Statutes § 46b-121
(b) (1); see In re Ava W., supra, 590 n.18.
The temporal distinction that this court alluded to in
In re Ava W. has been explicitly recognized by several
other jurisdictions. They have concluded that the court’s
ability to adjudicate a biological parent’s request for
posttermination visitation ceases following the render-
ing of judgment terminating parental rights. Some juris-
dictions have reached this conclusion on the basis of the
biological parent’s lack of standing.9 Other jurisdictions
have cast this issue in terms of the trial court’s lack of
authority to order postjudgment, posttermination visita-
tion in the absence of a specific statutory grant of
authority.10
Ignoring this uniform authority rejecting a biological
parent’s right to be heard on a request for posttermina-
tion visitation, Jacquanita B. contends that this court’s
decisions in In re Ava W. and Michaud v. Wawruck,
209 Conn. 407, 551 A.2d 738 (1988), support a contrary
conclusion. She suggests that this court in In re Ava
W. recognized a parent’s ‘‘common-law right’’ to postter-
mination visitation and asserts that it is this interest that
she seeks to vindicate through her motion to intervene.
Jacquanita B. misreads that decision. In In re Ava W.,
this court clearly referred to § 46b-121 (b) (1) as a codifi-
cation of the trial court’s common-law authority to
issue orders for posttermination visitation to protect
the child’s interests. See In re Ava W., supra, 336 Conn.
577. This court previously has noted that, ‘‘[a]t common
law, grandparents, or third parties in general, have no
right to visitation.’’ Castagno v. Wholean, 239 Conn.
336, 340, 684 A.2d 1181 (1996), overruled in part on
other grounds by Roth v. Weston, 259 Conn. 202, 789
A.2d 431 (2002). Whether the trial court’s common-law
authority to order posttermination visitation extends
postjudgment was not addressed by this court in In re
Ava W.; however, regardless of whether it would so
extend, such authority would not give rise to a biologi-
cal parent’s common-law right to posttermination visi-
tation.
Jacquanita B. also misinterprets this court’s decision
in Michaud. She reads that case to stand for the proposi-
tion that a judgment terminating parental rights does
not affect the biological parent’s ability to invoke the
power of the Superior Court in equity, posttermination,
to issue orders of visitation with her child. Michaud
stands for no such proposition. In Michaud, a written
agreement for visitation had been executed by the
child’s then foster parents, who were seeking to adopt
the child, after the biological mother filed a motion to
set aside the judgment terminating her parental rights.
See Michaud v. Wawruck, supra, 209 Conn. 408–409.
The biological mother agreed to withdraw her action
and to allow the adoption to go forward in exchange
for the foster parents’ agreement to permit regular visi-
tation postadoption. See id., 409. After the adoption was
finalized, the adoptive parents terminated all visitation.
See id., 409–10. The biological mother brought an action
seeking enforcement of the agreement. See id., 408. The
sole issue before this court in Michaud was ‘‘whether
a written visitation agreement between a [biological]
mother and adoptive parents violates the public policy
of this state.’’ Id. This court concluded that ‘‘the statu-
tory creation of an adoptive family does not automati-
cally require complete severance of the child from all
further contact with former relatives’’ and that, ‘‘as long
as the best interest of the child is the determinative
criterion, public policy does not forbid an agreement
about visitation rights between a [biological] parent and
adoptive parents.’’ Id., 415. Thus, Michaud, as a contract
case between private parties, is procedurally and sub-
stantively distinguishable from the present case.11 More-
over, the statutory provisions that the legislature
subsequently enacted to regulate cooperative postadop-
tion agreements regarding contact with biological par-
ents further underscore the temporal line of demarcation
embodied in the authorities previously discussed. See
General Statutes § 17a-112 (b) (2) (permitting parties
to enter into cooperative postadoption agreements if
order has not yet been entered terminating parental
rights); General Statutes § 17a-112 (f) (requiring court
to include order approving cooperative postadoption
agreement in final order terminating parental rights).
The foregoing principles and authorities make it appar-
ent that Jacquanita B. has no colorable claim to inter-
vention as of right in Riley’s juvenile case. Although
the commissioner has argued that Jacquanita B. cannot
satisfy any element of the test for intervention as of
right, it suffices to conclude that, as to the second
element, she lacks ‘‘a direct and substantial interest in
the subject matter of the litigation . . . .’’ (Internal quo-
tation marks omitted.) BNY Western Trust v. Roman,
supra, 295 Conn. 205. Whatever emotional bond that
may continue to exist between Jacquanita B. and Riley
does not give rise to a direct and substantial interest
in Riley’s juvenile case. See In re Joshua S., supra, 127
Conn. App. 729–30 (concluding that foster parents did
not have colorable claim to intervention as of right
and, thus, were not parties entitled to appeal because,
‘‘[a]lthough the [trial] court’s determination regarding
the guardianship of [the child] likely affected the foster
parents emotionally, it did not affect any direct or per-
sonal rights held by them as a matter of law’’); In re
Kristy L., 47 Conn. Supp. 273, 289–90, 787 A.2d 679(1999) (concluding that paternal grandparents had
legally insufficient interest to intervene in juvenile case
to seek custody or visitation of grandchild after termina-
tion of parents’ parental rights); see also In re Santiago
G., supra, 325 Conn. 234 (‘‘the termination of [the biolog-
ical mother’s] parental rights will not cause [the pro-
posed intervenor] irreparable harm or abrogate a right
that she currently holds because, even assuming that
[she] does have some guardianship interest over [the
child], the . . . termination proceeding would in no
way affect that interest’’).
To the extent that Jacquanita B. suggests that she is
an appropriate person to represent Riley’s interests
because she is Riley’s biological mother, that argument
ignores not only the legal, but also the factual, implica-
tions of termination of parental rights. As the trial
court’s findings in the termination proceedings in the
present case plainly demonstrate, when termination of
parental rights is deemed the proper disposition, there
is clear and convincing evidence that the biological
parent is unable and/or unwilling to put her child’s
best interests ahead of her own and that there is no
reasonable prospect that this fact will change in the
near term. In this context, the biological parent is in
no position to claim the right to represent the child’s
best interests.12
Although we do not discount the possibility that there
may be situations in which the provision, postjudgment,
of posttermination visitation could be appropriate, the
commissioner, or any other statutory parent, is charged
with protecting the child’s interests and overseeing the
child’s care until an adoption or other permanent place-
ment is secured.13 See General Statutes § 45a-718 (b)
(‘‘[t]he statutory parent shall be the guardian of the
person of the child, shall be responsible for the welfare
of the child and the protection of the child’s interests
and shall retain custody of the child until the child
attains the age of eighteen unless, before that time, the
child is legally adopted’’); see also Nye v. Marcus, 198
Conn. 138, 142, 145, 502 A.2d 869 (1985) (rejecting argu-
ment that foster parents who sought to contest return
of custody to parent had standing ‘‘derivatively . . . to
assert the interests of their foster child because of the
nature of their relationship with the child and because
to deny them standing effectively eliminates the child’s
ability to assert her own interest,’’ holding that ‘‘[i]t is
clear that the legislature intended that [the commis-
sioner] safeguard [the child’s] best interests regarding
custody’’). The commissioner could assess any benefit
to be gained from visitation in light of the child’s emo-
tional needs and paramount interest in permanency,
and determine, eventually, whether it would be feasible
and would not unreasonably interfere with the child’s
permanent placement.14
We conclude that Jacquanita B. lacks a colorable
claim of a direct and substantial interest in the subject
matter of the litigation that would warrant intervention
as of right. She therefore has failed to establish the party
status necessary to support this court’s jurisdiction to
consider her appeal from the trial court’s dismissal of
her motion to intervene.
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.
** March 2, 2022, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
Jacquanita B. appealed from the trial court’s dismissal of her motion to
intervene to the Appellate Court. Following oral argument to that court, in
which the parties debated the question on which this court had expressly
reserved judgment in In re Ava W., the Appellate Court recommended
transfer of the appeal to this court pursuant to Practice Book § 65-2, and
we thereafter transferred the appeal to this court.
2
By the time proceedings ensued for termination of Jacquanita B.’s paren-
tal rights as to Riley, Corrynn had been adjudicated abused, and her approved
permanency plan was for her to be reunified with her father.
3
The commissioner simultaneously sought to terminate the parental rights
of Riley’s father due to abandonment and other grounds. The trial court
granted the petition as to the father and rendered judgment terminating his
parental rights. He did not appeal from the judgment.
4
The court noted that, while the study was in process, the department
had been transporting Riley to New Jersey for monthly visitation with
this relative.
5
‘‘[T]he doctrine of res judicata, or claim preclusion, [provides that] a
former judgment on a claim, if rendered on the merits, is an absolute bar
to a subsequent action [between the same parties or those in privity with
them] on the same claim.’’ (Internal quotation marks omitted.) Girolametti
v. Michael Horton Associates, Inc., 332 Conn. 67, 75, 208 A.3d 1223 (2019).
Although the trial court purported to dismiss Jacquanita B.’s motion to
intervene on the basis of res judicata, that doctrine is not jurisdictional in
nature, and, therefore, the motion should have been denied. See Labbe v.
Pension Commission, 229 Conn. 801, 816, 643 A.2d 1268 (1994); Zizka v.
Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985).
6
In the intervening period between the filing of Jacquanita B.’s appeal
from the dismissal of her motion to intervene and oral argument before the
Appellate Court in connection with that appeal; see footnote 1 of this opinion;
the Appellate Court affirmed the judgment terminating Jacquanita B.’s paren-
tal rights. See In re Riley B., 203 Conn. App. 627, 628–29, 248 A.3d 756(concluding that record was inadequate to review respondent mother’s claim
that trial court deprived her of substantive due process by terminating
her parental rights before parties learned whether guardianship could be
transferred to maternal relative), cert. denied, 336 Conn. 943, 250 A.3d
40 (2021).
7
In the typical case, if the movant makes a colorable claim to intervention
as of right, the reviewing court ‘‘has jurisdiction to adjudicate both [the
movant’s] claim to intervention as a matter of right and to permissive inter-
vention.’’ (Internal quotation marks omitted.) BNY Western Trust v. Roman,
supra, 295 Conn. 204; see also In re Santiago G., supra, 325 Conn. 231(‘‘[i]t is only after we have addressed the jurisdictional threshold inquiry of
whether the intervenor has a colorable 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 interve-
nor’s claim to intervene as of right or permissively’’). As we previously
indicated, however, in the present case, the trial court never reached the
issue of whether Jacquanita B. was entitled to intervention as of right or
to permissive intervention. If we were to conclude that Jacquanita B. had
a colorable claim to intervention as of right, we would then review the trial
court’s determination that the doctrine of res judicata barred adjudication
of the motion to intervene. If Jacquanita B. prevailed on her claim that res
judicata was inapplicable, we would need to remand the case to the trial
court to determine in the first instance whether Jacquanita B. established
the elements for intervention as of right or permissive intervention, unless
we were to request supplemental briefing on the issue of whether interven-
tion would be improper as a matter of law. See Austin-Casares v. Safeco
Ins. Co. of America, 310 Conn. 640, 652–53, 664, 81 A.3d 200 (2013) (conclud-
ing that, although plenary review applies to three elements of intervention
as of right, timeliness element is reviewed for abuse of discretion, and abuse
of discretion applies to ruling on permissive intervention).
8
The court in In re Ava W. made this point in connection with its analysis
of appellate aggrievement. See In re Ava W., supra, 336 Conn. 555.
9
See, e.g., In re Adoption of Douglas, 473 Mass. 1024, 1025–26, 45 N.E.3d
595 (2016) (‘‘Until parental rights have been terminated by entry of a decree,
parents have the right to participate in proceedings to determine issues
such as placement and visitation arrangements concerning their children.
. . . It is only after a decree enters terminating parental rights . . . [that]
the parent whose rights have been terminated is without standing to deter-
mine the child’s future . . . .’’ (Citations omitted; footnote omitted; internal
quotation marks omitted.)); In re Adoption of Rico, 453 Mass. 749, 758 n.16,
905 N.E.2d 552 (2009) (emphasizing significance of fact that order addressing
father’s request for visitation was issued in decision that ‘‘was part of the
adjudication of a termination proceeding to which the father was a party’’);
In re Interest of Ditter, 212 Neb. 855, 856–57, 859, 326 N.W.2d 675 (1982)
(concluding that, after parental rights of father had been terminated, paternal
grandparents lacked standing to request visitation rights because they can
have no greater rights than those of father); In re Stacey D., 12 Neb. App.
707, 718, 684 N.W.2d 594 (2004) (concluding that, ‘‘once [the biological
mother’s] parental rights are terminated, she has no standing to assert
entitlement to continued visitation with [her children],’’ unless ‘‘such request
is made prior to the actual termination’’); see also In Interest of J.P., 499
N.W.2d 334, 340 (Iowa App. 1993) (concluding that biological parent ‘‘has
no enforceable right to visitation with her children once her parental rights
are terminated’’).
10
See, e.g., In re Noreen G., 181 Cal. App. 4th 1359, 1391, 105 Cal. Rptr.
3d 521 (‘‘The parent-child relationship enjoys no legal recognition after
termination of parental rights. . . . Thus, nothing in [the governing statutory
scheme] requires the court to address postadoption visitation when terminat-
ing parental rights under [the applicable provision], and the court has no
authority to essentially modify a termination order by granting visitation to
the parent.’’ (Citation omitted.)), review denied, California Supreme Court,
Docket No. S180958 (April 22, 2010); In re Elizabeth D., 888 A.2d 281, 282–83
(Me. 2006) (concluding that, although ‘‘an order terminating parental rights
deprives the court of any authority to impose a condition that preserves
contact between the parent and the child,’’ court had authority to grant
visitation pending appeal of judgment terminating parental rights, if court
stayed judgment (internal quotation marks omitted)); Division of Youth &
Family Services v. B.G.S., 291 N.J. Super. 582, 594–96, 677 A.2d 1170 (App.
Div. 1996) (authority to allow posttermination visitation rests exclusively
with state child protection agency); In re R.J.A.H., 101 S.W.3d 762, 764 n.1
(Tex. App. 2003) (‘‘we are unaware of any authority that gives a trial court
the power to grant a parent visitation rights to the child after their parental
rights have been terminated’’); see also C.W. v. State, 23 P.3d 52, 57–58
(Alaska 2001) (‘‘[W]hen adequate grounds for termination exist, there is no
presumption that the parent should have visitation rights. After parental
rights have been fully terminated, the former parent has no residual rights
at all—certainly the [applicable] statute provides for none. Because the
. . . statute does not expressly provide for [posttermination] visitation by
biological parents, courts probably lack authority to order [posttermination]
visitation.’’ (Footnote omitted.)).
11
Jacquanita B. also suggests that intervention is appropriate because,
according to her, our case law demonstrates that she alternatively could
have initiated an independent action to seek visitation. Insofar as Jacquanita
B. principally relies on In re Jonathan M., supra, 255 Conn. 208, for this
proposition, she ignores the fact that this court held in that case that the
biological father had standing to file a petition for a writ of habeas corpus
alleging ineffective assistance of counsel because he ultimately was challeng-
ing the termination of his parental rights. Id., 223–24. Although this court
also stated in that case that a habeas petition could be used to challenge
custody and visitation orders; see id., 223; the case law discussed involved
biological parents whose parental rights had not been terminated. See id.,
220; see also Doe v. Doe, 163 Conn. 340, 341, 345, 307 A.2d 166 (1972) (holding
that person who had lived with child and mother lacked standing to bring
habeas action to obtain custody and visitation because only parents or legal
guardians of child have standing to seek such relief). The legislature later
conferred statutory standing on foster parents and permitted adoptive par-
ents to petition for a writ of habeas corpus regarding the custody of a child
currently or recently in their care for a specified continuous period. See
General Statutes § 52-466 (f). Notably, it did not confer such standing on
parents whose parental rights had been terminated.
We are mindful that this court in Michaud indicated that the biological
mother whose parental rights had been terminated could have obtained
visitation with the child by filing a petition for right of visitation under
General Statutes § 46b-59 and demonstrating that visitation was in the child’s
best interest. See Michaud v. Wawruck, 209 Conn. 414. Subsequent to this
court’s decision in Michaud, however, we placed a significant judicial gloss
on that statute. See Roth v. Weston, supra, 259 Conn. 234–35. Section 46b-
59 now requires the petitioner to establish, by clear and convincing evidence,
that he or she has a parent-like relationship with the child and that the child
will suffer real and substantial harm in the absence of visitation. See id.The rights of a biological parent to seek posttermination visitation under
§ 46b-59 is not at issue in the present case, and, consequently, that statute
does not inform our analysis here.
12
In an appeal that was heard on the same day as the present appeal, this
court was asked to clarify the nature of proof required to meet the statutory
standard under § 46b-121 (b) (1) in cases of posttermination visitation, when
sought in termination of parental rights proceedings. See In re Annessa J.,
Connecticut Supreme Court, Docket No. SC 20614 (appeal filed September
17, 2021).
13
We also note that the statutory scheme provides an opportunity for
children to participate in the development of their permanency plan—
directly, if older, or through an appointed representative, attorney, or guard-
ian ad litem, if younger. See General Statutes § 46b-129 (k) (1) (B) (i) and (5).
14
The Connecticut Alliance of Foster and Adoptive Families filed an ami-
cus brief in which it suggested that foster and adoptive parents are best
situated to assist the child in reconnecting with biological family members,
where appropriate. It asks this court to hold that a biological parent has
no standing, postjudgment, to seek posttermination visitation. We note that
nothing in this opinion prevents foster families from facilitating such connec-
tions and recognize that, when relatives of the biological parents become
a resource for the permanent placement of the child, there often may be
continued, informally arranged contact between the child and the biologi-
cal parents.