In re Marcquan C. ( 2021 )

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beginning of this opinion is the date the opinion was
released as a slip opinion. The operative date for the
beginning of all time periods for filing postopinion
motions and petitions for certification is the ‘‘officially
released’’ date appearing in the opinion.
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changes, not of a substantive nature, and corrections
of a technical nature prior to publication in the
Connecticut Law Journal.
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IN RE MARCQUAN C.*
(AC 43892)
Bright, C. J., and Prescott and Suarez, Js.
Syllabus
The respondent mother appealed to this court from the trial court’s order
requiring her to participate in a psychological evaluation, issued in the
same memorandum of decision with its judgment denying her motion
to revoke the commitment of her minor child to the custody and care
of the petitioner, the Commissioner of Children and Families. The mother
claimed the order was a part of the judgment denying her motion to
revoke commitment, alleging that the order, inter alia, violated her right
to remain silent in neglect proceedings. Held that this court lacked
jurisdiction over the respondent mother’s appeal, as the order from
which the mother appealed was not a final judgment: the trial court’s
order for a psychological examination was not a part of the court’s
judgment denying the motion to revoke commitment, as the court’s
denial of the motion to revoke commitment was not based on its decision
to order the psychological examination; moreover, the trial court’s order
for a psychological examination was not immediately appealable as it
did not satisfy either of the prongs of the test set forth in State v. Curcio
(191 Conn. 27) that govern when an interlocutory order is appealable,
as the order was an integral part of the ongoing proceedings involving
the mother and her child following the uncared for petition brought by
the petitioner in that the results of the evaluation could affect the ulti-
mate outcome of a later adjudication of the mother’s parental rights,
and, thus, the resolution of the issue did not constitute a separate
and distinct proceeding; furthermore, no presently existing right of the
mother had been concluded by the court’s order to undergo a psychologi-
cal evaluation, as the order did not risk irreparable harm to the mother’s
custody or visitation rights or to the parent-child relationship, and the
order did not directly infringe on or threaten irreparable harm to the
mother’s right to remain silent or rule on the admissibility of any state-
ment made by her, and, accordingly, the appeal was dismissed.
Argued October 8, 2020—officially released February 2, 2021**
Procedural History
Petition by the Commissioner of Children and Fami-
lies to adjudicate the respondents’ minor child uncared
for, brought to the Superior Court in the judicial district
of New Haven, Juvenile Matters, where the court, Con-
way, J., adjudicated the child uncared for and ordered
protective supervision with custody vested in the
respondent mother; thereafter, the court, Conway, J.,
extended the period of protective supervision and sus-
tained an order of temporary custody vesting custody
of the minor child with the respondent father; subse-
quently, the court, Hon. Richard E. Burke, judge trial
referee, vacated the order of temporary custody and
ordered shared custody and guardianship of the child
between the respondent parents with primary physical
custody vesting in the respondent father; thereafter,
the court, Hon. Richard E. Burke, judge trial referee,
sustained an order of temporary custody vesting cus-
tody of the minor child in the petitioner; subsequently,
the court, Hon. Richard E. Burke, judge trial referee,
granted the motion filed by the petitioner to open and
modify the dispositive order of protective supervision,
and committed the child to the custody of the petitioner;
thereafter, the court, Conway, J., denied the respondent
mother’s motion to revoke commitment, and the
respondent mother appealed to this court. Appeal dis-
missed.
Albert J. Oneto IV, assigned counsel, for the appellant
(respondent mother).
Seon Bagot, assistant attorney general, with whom,
on the brief, were William Tong, attorney general, and
Benjamin Zivyon and Evan O’Roark, assistant attor-
neys general, for the appellee (petitioner).
Opinion
SUAREZ, J. The respondent mother, Monica C.,1
appeals from the trial court’s order requiring her to
participate in a psychological evaluation. The court
ordered the evaluation immediately after it denied the
respondent’s motion to revoke commitment with
respect to her minor child, Marcquan C.2 The respon-
dent does not challenge on appeal the judgment denying
her motion to revoke commitment. Her appeal is limited
to her claim that the court abused its discretion by
compelling her to participate in the psychological evalu-
ation. We do not reach the respondent’s claim because
we agree with the petitioner, the Commissioner of Chil-
dren and Families, that the order for a psychological
evaluation was not part of the court’s judgment denying
the respondent’s motion to revoke commitment and is
not otherwise an appealable final judgment.3 Accord-
ingly, we dismiss the appeal.
The following facts, which are either undisputed or
were found by the court, and procedural history are
relevant to this appeal. On January 13, 2017, the peti-
tioner filed a neglect petition alleging that Marcquan
was being neglected. On May 16, 2017, Marcquan was
adjudicated uncared for and the court, Conway, J.,
ordered that he remain in the care and custody of the
respondent under protective supervision for a period
of six months.4 Subsequently, the order was extended
for an additional six months.
On February 5, 2018, Marcquan appeared in school
with a swollen eye and lines resembling belt marks on
his temple. The respondent admitted disciplining him
on his buttocks with a belt and theorized that she may
have inadvertently struck him on the head. On February
7, 2018, the court, Conway, J., vested temporary cus-
tody of Marcquan with his father. On April 11, 2018, by
agreement of the parties, the court, Hon. Richard E.
Burke, judge trial referee, ordered that the order of
temporary custody be vacated and that the father and
the respondent share custody and guardianship of Marc-
quan, with the father having primary physical residence.
Protective supervision remained in place until August
11, 2018.
On July 10, 2018, at an in-court review hearing, the
father reported that he could no longer care for Marc-
quan and, on July 12, 2018, the court vested temporary
care and custody of the child with the petitioner. On
July 27, 2018, the court granted the petitioner’s motion
to modify the order of protective supervision and com-
mitted Marcquan to the care and custody of the peti-
tioner. Since that time, he has remained committed
to the petitioner. Marcquan was placed in nonrelative
foster care until September, 2019, when he was placed
with his godmother.
On September 30, 2019, the respondent filed a motion
to revoke commitment.5 On October 19, 2019, the peti-
tioner filed a motion for a psychological evaluation of
Marcquan and the respondent. On October 29, 2019,
the court, Conway, J., held a hearing on the petitioner’s
motion for a psychological evaluation and, expressing
its belief that the requested order would be futile,
denied the motion on the ground that ‘‘[the respondent]
refuses to cooperate.’’
On November 25 and December 18, 2019, the court,
Conway, J., held a hearing on the respondent’s motion
to revoke commitment. On December 26, 2019, the
court issued a memorandum of decision wherein it
found the following facts. The permanency plan for
Marcquan was reunification with the respondent.6 To
that end, the respondent and Marcquan were working
with R’kids, a reunification service provider, from May
to August, 2019, to provide a safe transition of Marcquan
from out of home care to the respondent. R’kids identi-
fied three goals for the respondent. First, she was to
consistently participate and exhibit progress in her
mental health treatment. Second, she was to engage in
appropriate conversations with Marcquan during visits.
Specifically, the ‘‘respondent . . . [was] to gain a bet-
ter understanding of her son’s mental health/cognitive
capabilities as it relates to engagement in age appro-
priate conversations; for [her] to have age appropriate
expectations of Marcquan, and for [her] to gain a better
understanding of her son’s needs and challenges and
for her to learn effective, age appropriate ways to assist
her son in managing his behaviors.’’ Third, she was to
acquire skills and knowledge regarding positive and
effective forms of discipline.
The court found that, in September, 2019, R’kids rec-
ommended to the petitioner that Marcquan not return
to the respondent’s care. It found that, although the
respondent participated in supervised visits with her
son, she continued to make inappropriate comments
and engaged in inappropriate conversations in Marc-
quan’s presence. Moreover, she failed to develop skills
or a working knowledge of positive and effective forms
of discipline.
The court also found that the respondent participated
in weekly individual therapy with a licensed profes-
sional counselor at the Shoreline Wellness Clinic for
approximately two years. The respondent made
improvements in managing her anxiety and using cop-
ing skills. On the basis of its subordinate findings of
fact, the court concluded, however, that there had not
been any discernable improvement in her ability to con-
form her behavior so as to make it in Marcquan’s best
interest to reunify with the respondent. The court
expressly found that the benefits the respondent
derived from her therapy sessions did not assist her in
her reunification effort with her son and her ability to
properly care for him. The court found that the respon-
dent’s therapist did not offer any insight as to her emo-
tional and mental makeup and was unable to identify
appropriate interventions or services that could con-
structively advance the reunification process.
The court concluded that ‘‘absent a credible psycho-
logical evaluation, it is impossible to understand or to
predict how [the respondent] will react to and with
others, including Marcquan. The past and present reality
has stalled Marcquan’s return to her care and has
undoubtedly negatively impacted Marcquan’s fragile
well-being.’’ As a result of these findings, the court
determined that grounds for commitment continued to
exist and denied the motion to revoke. The permanency
plan remained reunification of Marcquan with the
respondent.7
After observing that it lacked a credible psychological
evaluation of the respondent, the court also reconsid-
ered its October 29, 2019 denial of the petitioner’s
motion for a psychological evaluation and ordered the
respondent to participate in one. The court stated in
relevant part: ‘‘[From the denial of] her motion to revoke
today, the respondent . . . has to understand that until
she demonstrates an ability to collaboratively and effec-
tively interact with [the Department of Children and
Families] and services providers and she demonstrates
a sustained ability to parent Marcquan in a manner
which affords him both physical and emotional safety,
reunification is highly unlikely. While no guarantee, her
participation in a court-ordered evaluation and her sus-
tained and effective follow-through with treatment rec-
ommendations may potentially be the key to a reinvigo-
rated reunification process.’’ This appeal followed.8
In the respondent’s principal brief, she contends that
the court improperly issued the order to participate
in a psychological evaluation, sua sponte, because the
court’s earlier ruling denying the petitioner’s motion
for a psychological evaluation was res judicata, the
motion was not before the court at the time of the
order, and the order violated her right to remain silent.
Reiterating in substance the arguments that she
advanced in her motion to dismiss the appeal; see foot-
note 8 of this opinion; the petitioner responds that the
court’s order for a psychological evaluation is not an
immediately appealable final judgment, and, therefore,
this court does not have jurisdiction over this appeal.
The respondent did not file a reply brief, so we are left
to consider the jurisdictional analysis that she set forth
in her opposition to the petitioner’s motion to dismiss
the appeal.
We begin our analysis by considering the jurisdic-
tional issue raised by the petitioner and the standard
of review that applies to the issue. ‘‘The lack of a final
judgment implicates 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]. . . .
The appellate courts have a duty to dismiss, even on
[their] own initiative, any appeal that [they lack] juris-
diction to hear.’’ (Citation omitted; internal quotation
marks omitted.) State v. Jamar D., 300 Conn. 764, 770,
18 A.3d 582 (2011).
‘‘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.’’
State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983).
‘‘Because our jurisdiction over appeals, both criminal
and civil, is prescribed by statute, we must always deter-
mine the threshold question of whether the appeal is
taken from a final judgment before considering the mer-
its of the claim.’’ Id.We first consider, as the respondent argued in her
opposition to the petitioner’s motion to dismiss the
appeal, whether the order for a psychological examina-
tion, from which the respondent appeals was a part of
the court’s judgment denying the respondent’s motion
to revoke commitment, from which she had a right of
appeal. See, e.g., In re Shawn S., 262 Conn. 155, 167,
810 A.2d 799 (2002) (acknowledging right to appeal
from denial of motion to revoke commitment); In re
Zoey H., 183 Conn. App. 327, 330, 192 A.3d 522 (appeal
from denial of motion to revoke commitment), cert.
denied, 330 Conn. 906, 192 A.3d 425 (2018).
As an initial observation, the respondent’s assertion
that the order for a psychological evaluation was merely
a part of the judgment denying her motion to revoke
commitment is somewhat belied by the fact that, on
her appeal form in the present appeal, she did not state
that she was appealing from the judgment denying the
motion to revoke commitment. Instead, she character-
ized ‘‘the action that constitutes the appealable final
judgment or decision’’ as ‘‘[a] postjudgment order com-
pelling psychological evaluation.’’ (Emphasis added.)
As this court has observed, ‘‘[t]he construction of a
judgment is a question of law for the court. . . . To
determine the meaning of a judgment, we must ascer-
tain the intent of the court from the language used and, if
necessary, the surrounding circumstances.’’ (Citations
omitted; internal quotation marks omitted.) Ottiano v.
Shetucket Plumbing Supply Co., 61 Conn. App. 648,
652, 767 A.2d 128 (2001). A review of the court’s memo-
randum of decision and the surrounding circumstances
leads us to conclude that the judgment denying the
respondent’s motion to revoke commitment was sepa-
rate from the court’s order for a psychological eval-
uation.
As we have explained, after the respondent brought
her motion to revoke commitment, the petitioner
sought an order for a psychological evaluation. Prior
to the hearing on the motion to revoke commitment, the
court denied the motion for a psychological evaluation.
The court denied the motion to revoke commitment on
its merits, and the court’s memorandum of decision
encompassed its findings and conclusions of law with
respect to the motion to revoke commitment. In addi-
tion to denying the motion to revoke commitment, it sua
sponte revisited its prior ruling denying the petitioner’s
motion for a psychological evaluation.
The court’s ruling on the motion to revoke commit-
ment and its ruling to order a psychological evaluation
are addressed in the same memorandum of decision,
but this fact is not dispositive of whether the rulings
should be viewed as a single, immediately appealable
judgment. In setting forth its rationale for denying the
motion to revoke commitment, the court observed that
it did not have before it a credible psychological evalua-
tion of the respondent, but it did not suggest that its
denial of the motion to revoke commitment was based
on its decision to order a psychological evaluation. To
the contrary, undoubtedly mindful of the fact that a
final decision concerning the care and custody of Marc-
quan in this ongoing child protection matter will be
made in future proceedings, it expressly characterized
its order for a psychological examination as potentially
benefitting the future prospect of reunification follow-
ing its denial of the motion to revoke commitment. The
court aptly recognized that its order was merely a tool
in the process that began with the petitioner’s uncared
for petition and that an ultimate decision regarding
reunification was yet to be made. In this regard, the
court explained its order in relevant part: ‘‘While no
guarantee, [the respondent’s] participation in a court-
ordered evaluation and her sustained and effective fol-
low-through with treatment recommendations may
potentially be the key to a reinvigorated reunification
process.’’ Indeed, there is no basis on which to conclude
that the order for a psychological evaluation affected
the court’s ruling to deny the motion to revoke commit-
ment. Accordingly, we are not persuaded that, for
appeal purposes, the order from which the respondent
appeals was part of the court’s judgment denying the
motion to revoke commitment.9
We next address the respondent’s alternative argu-
ment that, even if the order to undergo a psychological
evaluation is interlocutory in nature, it nonetheless is
immediately appealable. Our Supreme Court has recog-
nized that certain otherwise interlocutory orders may
be final judgments for purposes of an appeal, and the
court may deem an interlocutory order or ruling to have
the attributes of a final judgment if the ruling or order
falls within either of the two prongs of the test set
forth in Curcio. ‘‘Under Curcio, interlocutory orders
are immediately appealable if the order or ruling (1)
terminates a separate and distinct proceeding, or (2)
so concludes the rights of the parties that further pro-
ceedings cannot affect them.’’ (Internal quotations
marks omitted.) State v. Jamar D., supra, 300 Conn. 771.
‘‘The first prong of the Curcio test . . . requires that
the order being appealed from be severable from the
central cause of action so that the main action can
proceed independent of the ancillary proceeding. . . .
If the interlocutory ruling is merely a step along the
road to final judgment then it does not satisfy the first
prong of Curcio. . . . It must appear that the interlocu-
tory ruling will not impact directly on any aspect of the
[action].’’ (Internal quotation marks omitted.) Abreu v.
Leone, 291 Conn. 332, 339, 968 A.2d 385 (2009).
We conclude that, unlike the court’s denial of the
respondent’s motion to revoke commitment, the order
for psychological evaluation did not terminate a sepa-
rate and distinct proceeding. Rather, contrary to her
assertion that the order was not made ‘‘in connection
with any pending matter before the court,’’ the order
is an integral part of the ongoing proceedings involving
the respondent and Marcquan following the uncared for
petition brought by the petitioner. See General Statutes
§ 46b-129 (i).10 As the respondent seems to have recog-
nized in her opposition to the motion to dismiss; see
footnote 8 of this opinion; the results of the evaluation
may affect the ultimate outcome of a later adjudication
of her parental rights. It is not in dispute that, at the
time that the court issued its order, Marcquan was adju-
dicated uncared for. He remains committed to the peti-
tioner, and the court has an ongoing statutory obligation
to ascertain whether the petitioner’s permanency plan
for Marcquan is in his best interest. See General Statutes
§ 46b-129 (k). Stated otherwise, the order is not sever-
able from the central cause of action involving the
respondent and Marcquan and whether reunification is
possible but is merely a step along the road to a final
judgment in that action. Accordingly, we conclude that
the order does not satisfy the first prong of the Cur-
cio test.
Likewise, we conclude that the order does not satisfy
the second prong of the Curcio test. ‘‘[F]or an interlocu-
tory ruling in either a criminal or a civil case to be
immediately appealable under the second prong of Cur-
cio, certain conditions must be present. There must be
(1) a colorable claim, that is, one that is superficially
well founded but that may ultimately be deemed invalid,
(2) to a right that has both legal and practical value,
(3) that is presently held by virtue of a statute or the
state or federal constitution, (4) that is not dependent
on the exercise of judicial discretion and (5) that would
be irretrievably lost, causing irreparable harm to the
[appellant] without immediate appellate review.’’
Sharon Motor Lodge, Inc. v. Tai, 82 Conn. App. 148,
158–59, 842 A.2d 1140, cert. denied, 269 Conn. 908, 852
A.2d 738 (2004). ‘‘The second prong of the Curcio test
focuses on the nature of the rights involved. It requires
the parties seeking to appeal to establish that the trial
court’s order threatens the preservation of a right
already secured to them and that that right will be
irretrievably lost and the [parties] irreparably harmed
unless they may immediately appeal. . . . One must
make at least a colorable claim that some recognized
statutory or constitutional right is at risk.’’ (Internal
quotation marks omitted.) State v. Jamar D., supra, 300
Conn. 771.
Guided by several relevant appellate decisions that
pertain to rulings in family matters, we are not per-
suaded that the court’s order is immediately appealable
under Curcio on the ground that it risks irreparable
harm to the respondent’s custody or visitation rights.
Relying on the second prong of Curcio, our Supreme
Court in Madigan v. Madigan, 224 Conn. 749, 754–55,
620 A.2d 1276 (1993), concluded that a temporary order
of custody is a final judgment for purpose of an immedi-
ate appeal ‘‘because a parent’s custodial rights during
the course of dissolution proceedings cannot otherwise
be vindicated at any time, in any forum.’’ The court,
considering the nature of the right to be vindicated in
such an appeal, observed that temporary custody orders
fall within the narrow class of otherwise interlocutory
orders that are immediately appealable under Curcio
because they ‘‘affect the irreplaceable time and relation-
ship shared between parent and child.’’ Id., 755. The
court in Madigan also reasoned: ‘‘[A] temporary cus-
tody order may have a significant impact on a subse-
quent permanent custody decision. Especially if both
parents would be suitable custodians, an order of tem-
porary custody may establish a foundation for a stable
long-term relationship that becomes an important fac-
tor in determining what final custodial arrangements
are in the best interests of the child. . . . Accordingly,
not only is any impropriety in granting an initial order
for temporary custody not subsequently reversible, but
it may also have an adverse spillover effect on the
ultimate determination of custody.’’ (Citations omitted.)
Id., 756–57. It has long been recognized that orders
extending the commitment of children to the petitioner
also satisfy the second prong of Curcio. In In re Todd
G., 49 Conn. App. 361, 364–65, 713 A.2d 1286 (1998),
this court, relying on Madigan, held that a trial court’s
granting of an extension of commitment of a minor
child to the petitioner pursuant to General Statutes
§ 46b-129 (e) is a final judgment for purposes of bringing
an immediate appeal. In determining that the order
extending the child’s commitment, which was disposi-
tional in nature, was immediately appealable, this court
stated: ‘‘The parent-child relationship in the present
case would be . . . disrupted for a significant period
of time if no appeal were possible. There are no further
proceedings in the underlying action brought pursuant
to § 46b-129 (d) that will affect the commitment order
until the petitioner either moves to extend the commit-
ment again or to terminate the respondent’s parental
rights.’’ (Footnote omitted.) Id.
We also note that, in Taff v. Bettcher, 243 Conn. 380,
387, 703 A.2d 759 (1997), our Supreme Court, relying
on Madigan, held that an order of the trial court which
barred the parties for one year from seeking review on
the issues of custody and visitation was an immediately
appealable final judgment. The court’s rationale further
illustrates the principles expressed in Madigan: ‘‘The
considerations that informed our decision in Madigan
apply equally to the facts of this case. Just as a tempo-
rary custody order may have a significant impact on a
subsequent permanent custody decision, a court order
barring the parties for one year from seeking review
on the issues of custody and visitation may interfere
with a parent’s custodial rights over a significant period
in a manner that cannot be redressed at a later time.
A lost opportunity to spend significant time with one’s
child is not recoverable. . . . Any chance by the non-
custodial parent to restructure custody and visitation
to enhance the relationship or further establish a foun-
dation in that interval cannot be replaced by a subse-
quent modification one year later. Nor can any harm
to the child caused by the custodial arrangement be
meaningfully addressed one year after it occurs. We
are persuaded that, as in the case of a temporary order
of custody, an immediate appeal of the court order in
this case is the only reasonable method of ensuring
that the important rights surrounding the parent-child
relationship are adequately protected.’’ (Citation omit-
ted; internal quotation marks omitted.) Id., 386–87.
In the present case, the respondent does not raise a
claim related to the court’s denial of her motion to
revoke commitment or to any other type of order that
interferes, for any length of time, with custody or visita-
tion rights. The order for a psychological evaluation is
not dispositional in nature, and it does not affect the
irreplaceable time and relationship that exists between
a parent and a child. Nor does it risk establishing a
relationship between a child and another suitable custo-
dian that may impact a subsequent decision concerning
custody rights.
In her opposition to the petitioner’s motion to dis-
miss, the respondent asserted that an immediate appeal
was necessary to avoid irreparable harm to ‘‘her right
to remain silent in neglect proceedings under General
Statutes § 46b-137.’’ Section 46b-137 (d) provides in rele-
vant part: ‘‘Any confession, admission or statement,
written or oral, made by the parent or parents or guard-
ian of the child or youth after the filing of a petition
alleging such child or youth to be neglected, uncared
for or abused shall be inadmissible in any proceeding
held upon such petition against the person making such
admission or statement unless such person shall have
been advised of the person’s right to retain counsel,
and that if the person is unable to afford counsel, coun-
sel will be appointed to represent the person, that the
person has a right to refuse to make any statement and
that any statements the person makes may be intro-
duced in evidence against the person . . . .’’11
In an effort to obtain immediate review of the order,
the respondent relies on her right to remain silent,
which is safeguarded by the advisement of rights man-
dated by § 46b-137. We observe that the court’s order,
which required her to submit to a psychological evalua-
tion, did not directly infringe on or threaten irreparable
harm to her right to remain silent or rule on the admissi-
bility of any statement made by her. The order did not
address her right to remain silent.
Beyond bringing the present appeal, the respondent
has not taken any action with respect to complying
with the order, let alone asserted her right to remain
silent instead of complying with the order. It is possible
that she may refuse to comply with the order and as a
result be found in contempt, at which time she may
bring an immediate appeal. See Khan v. Hillyer, 306
Conn. 205, 216, 49 A.3d 996 (2012) (‘‘a contempt order
is considered final for appellate purposes when the
order so substantially resolves the rights and duties
of the parties that further proceedings relating to the
judgment of contempt cannot affect them’’ (emphasis
in original; internal quotation marks omitted)). Alterna-
tively, the court, at a future proceeding, might enter an
appealable judgment against the respondent based on
an adverse inference drawn from her failure to partici-
pate in the psychological evaluation. In such a circum-
stance, the respondent would be able to challenge the
judgment on the basis that the order for a psychological
evaluation was improper.
It is also possible that the respondent could choose
to attend the psychological evaluation but refuse to
answer some or all of the questions asked of her based
on her right to remain silent. Although under that cir-
cumstance it is unlikely that the court would hold the
respondent in contempt for exercising a constitutional
and statutory right, to the extent the court issued a
judgment adverse to the respondent based on her exer-
cise of that right, the respondent could challenge on
appeal that judgment and the propriety of the court’s
psychological evaluation order.
It is also a possibility that the respondent may comply
with the order for a psychological evaluation. Doing so
may benefit her with respect to her efforts to be reunited
with Marcquan, be detrimental with respect to those
efforts, or have no effect on those efforts. The respon-
dent will have an opportunity to challenge the propriety
of the order in the event that there is a final judgment
adverse to her that results from the use, if any, of the
evidence obtained as a result of the order. What all
of these potential scenarios demonstrate is that the
respondent’s rights are far from being finally resolved.12
Although the hearing on the respondent’s motion to
revoke commitment has come to an end, the court’s
involvement in the ongoing child protective case involv-
ing Marcquan and the respondent is continuing. ‘‘The
policy concerns underlying the final judgment rule are
to discourage piecemeal appeals and to facilitate the
speedy and orderly disposition of cases at the trial court
level.’’ (Internal quotation marks omitted.) Pritchard v.
Pritchard, 281 Conn. 262, 270, 914 A.2d 1025 (2007).
To permit an appeal at this juncture would interfere
with the speedy and orderly disposition of that ongoing
case and encourage piecemeal appeals. If the psycho-
logical evaluation required by the order yields evidence
that is used by the court in a final judgment from which
the respondent appeals, or if the respondent’s refusal
to participate fully in the psychological evaluation
results in an adverse judgment, a reviewing court will
have an opportunity to evaluate the propriety of the
order at that time, when it may fully apprehend its
import following a trial. Thus, in the absence of an
immediate right to appeal, the respondent’s right to
challenge the order has not been irretrievably lost.
The type of order at issue in the present case merely
is an intermediate step along the road to facilitate reuni-
fication, if possible, and provides a factual predicate
for future custody determinations. The order at issue
does not threaten irrevocable harm to the parent-child
relationship or to the rights of the respondent. In light
of the foregoing, we are persuaded that the order from
which the respondent appeals is not part of the judg-
ment denying her motion to revoke commitment. It
is an interlocutory order that is not an immediately
appealable final judgment under either prong of the
Curcio test. Thus, we dismiss the appeal and do not
consider the merits of the respondent’s claim that the
court abused its discretion in ordering the psychological
evaluation. See, e.g., State v. Jamar D., supra, 300
Conn. 770.
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 on to persons having a proper interest therein and upon order
of the Appellate Court.
** February 2, 2021, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
The mother is referred to herein as the respondent. The father, Mark
B., although also a respondent in the underlying proceedings, is not a party
to this appeal and for convenience is referred to herein as the father.
2
The attorney for the minor child has filed a statement, pursuant to
Practice Book §§ 67-13 and 79a-6 (c), adopting the brief of the Commissioner
of Children and Families.
3
The respondent also claims that, as part of its order requiring her to
participate in a psychological evaluation, the court abused its discretion
by ordering that confidential records related to her past treatment with a
counselor be disclosed to the court-appointed evaluator. The respondent
argues that the court failed to make a necessary finding pursuant to General
Statutes § 52-146s that the records should be disclosed and that, even if such
a finding was made by the court, the evidence did not support such finding.
For the same reasons that we conclude in this opinion that the appeal
from the court’s order for a psychological evaluation is not an immediately
appealable interlocutory order, we likewise conclude that we lack jurisdic-
tion over this claim, which, according to the respondent, is a component
of the order for a psychological evaluation. As the respondent acknowledges
in her appellate brief, however, the record, including the court’s December
26, 2019 memorandum of decision, wherein it denied the respondent’s
motion to revoke commitment and ordered her to participate in a psychologi-
cal evaluation, does not reflect that the court made any ruling concerning
the disclosure of her counseling records. Accordingly, even if we did have
jurisdiction to review this claim, the lack of an order leaves us with no
ruling to review.
4
On May 16, 2017, the neglect petition was orally amended to allege that
Marcquan was uncared for.
5
Motions to revoke commitment are governed by General Statutes § 46b-
129 (m), which provides in relevant part: ‘‘The commissioner, a parent or
the child’s attorney may file a motion to revoke a commitment, and, upon
finding that cause for commitment no longer exists, and that such revocation
is in the best interests of such child . . . the court may revoke the commit-
ment of such child . . . . No such motion shall be filed more often than
once every six months.’’
Practice Book § 35a-14A provides in relevant part: ‘‘Where a child or youth
is committed to the custody of the Commissioner . . . the commissioner,
a parent or the child’s attorney may file a motion seeking revocation of
commitment. The judicial authority may revoke commitment if a cause for
commitment no longer exists and it is in the best interests of the child
. . . . Whether to revoke the commitment is a dispositional question, based
on the prior adjudication, and the judicial authority shall determine whether
to revoke the commitment upon a fair preponderance of the evidence. The
party seeking revocation of commitment has the burden of proof that no
cause for commitment exists. If the burden is met, the party opposing the
revocation has the burden of proof that revocation would not be in the best
interests of the child. If a motion for revocation is denied, a new motion
shall not be filed by the movant until at least six months have elapsed from
the date of the filing of the prior motion unless waived by the judicial
authority.’’
6
General Statutes § 46b-129 (k) (1) (A) requires that nine months after a
child is placed in the care and custody of the petitioner, the petitioner
must file a permanency plan and the court must have a hearing on such
permanency plan. Section 46b-129 (k) (2) provides that such permanency
plan may include the goal of (1) revocation of commitment and reunification
of the child with the parent, (2) transfer of guardianship to a third person,
(3) termination of parental rights and adoption, or (4) a plan for a permanent
living arrangement.
7
At the revocation hearing, Marcquan’s attorney represented that Marc-
quan’s desire was to go home to the respondent, but that he wanted and
needed her to work on her issues while he remained in foster care with
his godmother.
8
Prior to the time of oral argument, the petitioner filed a motion to dismiss
the appeal for lack of an appealable final judgment. The petitioner argued
that the order for a psychological evaluation was not part of the court’s
judgment denying the respondent’s motion to revoke commitment, which
order, as we explain in this opinion, is a final judgment from which she
properly may have appealed. Viewing the order for a psychological evalua-
tion as an interlocutory ruling, the petitioner argued that the order was not
appealable under the test set forth in State v. Curcio, 191 Conn. 27, 31, 463
A.2d 566 (1983). See id. (‘‘[a]n 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 concludes the
rights of the parties that further proceedings cannot affect them’’). With
respect to the first prong of Curcio, the petitioner argued that, unlike the
court’s denial of the respondent’s motion to revoke, the order for a psycho-
logical evaluation did not terminate a separate and distinct proceeding.
With respect to the second prong of Curcio, the petitioner argued that the
respondent was unable to demonstrate that the order risked irreparable
harm to her. Accordingly, the petitioner argued that the appeal should
be dismissed.
In the respondent’s objection to the motion to dismiss, she argued that,
contrary to the petitioner’s characterization of the order, it was not interlocu-
tory in nature, but ‘‘part of a final judgment from which [she] was entitled
to appeal under General Statutes § 51-197a.’’ She also argued that the denial
of her motion to revoke commitment concluded all matters that were pend-
ing before the court and that the order for a psychological evaluation was
made merely ‘‘in anticipation of hypothetical future proceedings that had
not yet been initiated.’’ Thus, the respondent argued, the court was without
authority to order the evaluation.
The respondent also argued that, if the order was interlocutory in nature,
the order was immediately appealable under Curcio in that the order
‘‘directed [her] to speak to a court-appointed psychologist in violation of
her right to remain silent in neglect proceedings under General Statutes
§ 46b-137 . . . .’’ She also argued that the order ‘‘authorized the petitioner
to obtain from [her] licensed professional counselor statutorily privileged
information within the counselor’s control in violation of General Statutes
§ 52-146s.’’ The respondent argued that she was without the ability to prevent
the disclosure of the counseling records because they were in the control
of her counselor and that ‘‘[t]he only judicial recourse available to [her]
in protecting the privileged information . . . was by immediate appeal to
this court.’’
On July 22, 2020, this court denied the petitioner’s motion to dismiss the
appeal ‘‘without prejudice to the petitioner addressing in her appellee’s brief
on the merits, and the [respondent] addressing in her reply brief, the question
[of] whether there is an appealable final judgment in this matter.’’
9
In her opposition to the petitioner’s motion to dismiss the present appeal,
the respondent heavily relied on this court’s decision in Savage v. Savage,
25 Conn. App. 693, 596 A.2d 23 (1991), for the proposition that the order
for a psychological evaluation was not interlocutory but part of the judgment
of the trial court denying the motion to revoke commitment. Savage involved
an appeal in a dissolution action. The plaintiff wife appealed from the
judgment dissolving her marriage to her former husband, the defendant, as
well as from postjudgment orders. Id., 694. The respondent in the present
case focuses on the plaintiff’s claim in Savage that the trial court abused
its discretion in ordering, as part of its judgment, that the parties and their
minor children engage in postjudgment consultation with a child expert.
Id., 698. This court agreed with the plaintiff that the order was improper
and reasoned: ‘‘The trial court’s order here compelling consultation with
[the child expert] for two years into the future is not a proper custody order
but rather is an attempt to force consultation for purposes of a postjudgment
evaluation. There is no statutory authorization for such an evaluation without
a pending motion or matter before a court.’’ Id., 701.
The respondent’s reliance on Savage is misplaced. In Savage, this court
did not expressly address an issue concerning this court’s subject matter
jurisdiction or whether the plaintiff had appealed from a final judgment.
More importantly, Savage was an appeal from a judgment of dissolution
and postdissoluton orders, not a child protection matter. The judgment
rendered by the trial court in Savage disposed of pending matters between
the parties until such time as one or both parties brought before the court
a new postjudgment motion. The procedural posture of the court’s order
in the present case is materially distinguishable from that at issue in Savage.
Judicial involvement in the present child protection matter will be ongoing
until such time as reunification between the respondent and Marcquan has
been achieved, the court has terminated the respondent’s parental rights with
respect to Marcquan, or the court has made some other final determination
regarding his custody and placement.
10
General Statutes § 46b-129 (i) authorizes the court to order a psychologi-
cal evaluation when a neglect or uncared petition is filed in said court. It
provides in relevant part: ‘‘When a petition is filed in said court for the
commitment of a child . . . the Commissioner of Children and Families
shall make a thorough investigation of the case and shall cause to be made
a thorough physical and mental examination of the child or youth if requested
by the court. The court after hearing may also order a thorough physical
or mental examination, or both, of a parent or guardian whose competency
or ability to care for a child or youth before the court is at issue. . . .’’
General Statutes § 46b-129 (i).
Practice Book § 34a-21 (a) provides: ‘‘The judicial authority, after hearing
on a motion for a court-ordered evaluation or after an agreement had been
reached to conduct such an evaluation, may order a mental or physical
examination of a child or youth. The judicial authority after hearing or after
an agreement has been reached may also order a thorough physical or
mental examination of a parent or guardian whose competency or ability
to care for a child or youth is at issue.’’
11
As we stated previously; see footnote 8 of this opinion; the respondent
also argued that an immediate appeal was necessary so that she could
protect statutorily protected counseling records that were in the custody
of her counselor. She argued that, as part of its order for a psychological
evaluation, the court had authorized the petitioner to obtain these records
from her counselor. As we determined previously in this opinion, however,
the record does not reflect that the court ordered such disclosure. See
footnote 3 of this opinion. Accordingly, this aspect of the respondent’s
argument is unavailing because it is based on an inaccurate interpretation
of the court’s order.
12
The respondent does not dispute that Marcquan remains committed to
the petitioner following the filing of an uncared for petition. In claiming
that a presently held right is at risk for purposes of the issue before us, she
has focused on her right to remain silent but has not argued that she has
a presently held statutorily or constitutionally protected right to not undergo
a psychological evaluation.