author: LANDAU, J.

text:
    IN RE CARISSA K. ET AL.

    (AC 18600)
    Lavery, Landau and Dupont, Js.

      Argued September 22
    officially released November 16, 1999

      DavidB. Rozwaski, for the appellant (respondent D).

      Mary K. Lenehan, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, 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.

   Opinion

LANDAU, J.

The respondent D appeals from the judgments of the trial court terminating his parental rights with respect to his daughter, C, and terminating the parental rights of Z, the putative father of J. D claims that the court improperly found (1) that he failed to achieve such degree of personal rehabilitation as would encourage the belief that he could assume a responsible position in the children’s lives, (2) that he committed an act of omission or commission that denied the care, guidance and control necessary for the children’s welfare and (3) that termination of parental rights was in the best interests of the children. In her counterstatement of the issues, the commissioner of children and families (commissioner) claims that D lacks standing to appeal from the judgment terminating Z’s parental rights as to J. We dismiss D’s appeal from the judgment regarding J and affirm the judgment terminating D’s parental rights as to C.

The following facts are relevant to this appeal. The children, C, bom February 18,1991, and J, bom September 7,1992, first came to the attention of the department of children and families (department) in 1993, when they were briefly taken into custody because their mother was missing and D was intoxicated. In 1994, D commenced an action in the Probate Court seeking custody of the children because of their mother’s drug addiction.* At that time, D was believed to be the biological father of both children. Subsequent genetic testing excluded D as J’s natural father, and Z was identified as J’s putative father. Nevertheless, the Probate Court awarded the children’s mother and D joint custody of the children, who were to spend alternating weeks with each adult.

D’s guardianship application in the Probate Court resulted in the department’s reinvolvement with the family. The mandated social study conducted in connection with that application disclosed domestic abuse between D and the children’s mother, alcohol and drug addiction, and concerns about D’s ability to maintain adequate income and housing for the children. On September 2, 1994, C’s maternal uncle disclosed to a psychotherapist that he had had oral sex with his niece. On January 27, 1995, the department secured an order of temporary custody of both children based on the chaotic living conditions at their mother’s home and the alcohol and drug abuse by both D and the mother, as well as D’s unstable and inadequate living conditions. The children have been in foster care since that date.

On March 29, 1995, following an overnight visit with D, C disclosed facts to a department social worker indicating that D had sexually abused her. Later, J described an incident suggesting that D had sexually abused him also. D was charged with sexual assault. In November, 1997, as the result of a plea bargain, D was convicted of risk of injury to a child and sentenced to three year's imprisonment, execution suspended, witih five years of probation. The trial court imposed as a condition of probation that D have no contact with children under the age of sixteen, including C and J, until his probationary period ended in 2002. At the time of the termination hearing that is the subject of this appeal, D was incarcerated, awaiting trial on charges that he had violated the terms of his probation.

Subsequent to her disclosure of sexual abuse, C was interviewed numerous times by police, social workers, therapists and psychiatrists. She also reported incidents of abuse to her foster mother. C’s behavior, which she acted out with other children, including J, was sexually inappropriate. Both children have received psychotherapy.

On September 6,1995, both children were committed to the care and custody of the department as uncared-for children with special needs. On April 16, 1997, the commissioner filed petitions pursuant to General Statutes (Rev. to 1997) § 17a-112 to terminate the parental rights of D and Z with respect to J, and of D with respect to C. In each petition, the commissioner alleged two grounds as reasons to terminate D’s parental rights: failure to achieve personal rehabilitation and denial of necessary care, guidance and control by acts of commission or omission.

At a hearing on the petitions held during four days in April, 1998, the trial court heard testimony from department social workers, the children’s psychotherapists, several foster parents, the social workers and nurse involved in interviewing the children with respect to the allegations of sexual abuse and two expert witnesses. The court received twenty-five exhibits in evidence and took judicial notice of the prior proceedings involving D and the children. D was present during the trial and, through counsel, vigorously contested the termination petitions. The court found by clear and convincing evidence that each of the bases of the commissioner’s petition to terminate D’s parental rights with respect to C existed and that it was in C’s best interest to terminate D’s parental rights. The court rendered judgment accordingly. The court also terminated Z’s parental rights as to J. This appeal followed. Additional facts will be stated as necessary.

I

The commissioner claims that D lacks standing to appeal from the termination of parental rights as to J. At oral argument, D stated that he was only contesting the dispositional phase, i.e., whether termination of parental rights was in the best interest of the child. He argues that the court should have permitted him to maintain his “parental rights” because “the concept of family encompasses more than traditional father and mother.” We agree with the commissioner that D lacks standing to appeal any portion of the termination proceeding with respect to J.

Review by way of appeal is governed in general by General Statutes § 52-263, which provides in relevant part: “Upon the trial of all matters of fact in any cause or action in the Superior Court ... if either party is aggrieved by the decision of the court or judge ... he may appeal to the court having jurisdiction from the final judgment of the court . . . .” “An aggrieved party may appeal from a final judgment, except as otherwise provided by law.” Practice Book § 61-1, formerly § 4000. The question of aggrievement is essentially one of standing, and unless D is aggrieved by the decision of the trial court, he has no standing to appeal. See Beckish v. Manafort, 175 Conn. 415, 419, 399 A.2d 1274 (1978). “Where a party lacks standing to appeal, the court is without subject matter jurisdiction. Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192, 676 A.2d 831 (1996). Apossible absence of subject matter jurisdiction must be addressed and decided whenever the issue is raised. . . . [WJhenever a lack of jurisdiction to entertain a particular proceeding comes to a court’s notice, the court can dismiss the proceeding upon its own motion.” (Internal quotation marks omitted.) Marine Midland Bank v. Ahern, 51 Conn. App. 790, 797, 724 A.2d 537, cert. granted on other grounds, 248 Conn. 921, 733 A.2d 845 (1999). “The parties cannot confer subject matter jurisdiction on the court, either by waiver or by consent.” (Internal quotation marks omitted.) Jolly, Inc. v. Zoning Board of Appeals, supra, 192.

The following additional facts are necessary for our review of this claim. On January 27, 1995, the court, Sequino, J., granted an ex parte order of temporary custody as to C and J. Simultaneously, neglect petitions naming the children’s mother and D as parents also were filed. On February 7, 1995, the court, Sequino, J., ordered paternity testing. The results excluded D as J’s natural father and the court ordered D’s name stricken from the neglect petition as to J. At the extension of commitment hearing held on February 27, 1997, the court, Jones, J., conferred full party status on D with respect to the termination involving J because D was deemed to be J’s psychological father, he was the petitioner in the Probate Court guardianship proceedings and was named as J’s father on the neglect petition. Following the trial on the termination petitions, the court, Quinn, J., found that genetic tests had excluded D as J’s “biological father.” The court, therefore, did not adjudicate either phase of the termination proceedings as to J with respect to D.

“ ‘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 parent or parents . . . .” General Statutes § 45a-707 (8). “Termination of parental rights is a most serious and sensitive judicial action.” (Internal quotation marks omitted.) In re Barbara J., 215 Conn. 31, 44, 574 A.2d 203 (1990). “Since termination of parental rights is the ultimate interference by the state with the natural rights of parents in their children, resulting in an everlasting severance of the legal relationship, and usually the permanent separation of parent and child as well, courts must require strict adherence to the statutory standards.” In re Migdalia M., 6 Conn. App. 194, 203, 504 A.2d 533, cert. denied, 199 Conn. 809, 508 A.2d 770 (1986).

Chapter 319a, part I, of our General Statutes concerns dependent and neglected children, and includes § 17a-112, titled, “Termination of parental rights of child committed to commissioner.” General Statutes § 17a-93 contains the definitions used throughout the chapter, including § 17a-112. The word parent means “natural or adoptive parent . . . .” General Statutes § 17a-93 (b). The rules of statutoiy construction require that words in a statute be given their commonly approved meaning. General Statutes § 1-1 (a). The word natural means “begotten as distinguished from adopted.” Merriam-Webster’s Collegiate Dictionary (10th Ed. 1993). The court found that genetic testing had excluded D as J’s biological father. Biological father implies that the man begot the child, which is synonymous with natural father. D does not claim that he is J’s adoptive father and the court made no such finding. Instead, D claims that he is J’s psychological father. Section 17a-112, however, makes no mention of a psychological father.

The court’s memorandum of decision makes clear that the court did not adjudicate a termination petition concerning D with respect to J because he was not J’s biological father. The court’s findings and judgment pertaining to J concern Z only. Because the findings and judgment concerning J do not concern D, he has not been aggrieved and has no standing to appeal the termination of parental rights as to J.

Furthermore, this court previously considered a similar question in a termination of parental rights appeal where the child’s intervening grandparent sought to delay the termination of parental rights so that she could develop a relationship with the child and adopt him. See In re Denzel A., 53 Conn. App. 827, 733 A.2d 298 (1999). “After the statutory grounds for termination are proved by clear and convincing evidence in an adjudicatory phase, the question then to be decided in a dispositional phase is whether it is in the best interests of the child to sever the parent-child relationship. That is different from the question of who should have custody of the child if termination of parental rights is determined to be in the best interests of the child. See Practice Book § 33-5.

“The only reason in this case not to sever the parent-child relationship would be if the severance would ensure that [the child] could reside with his grandmother. Where he should reside and with whom, however, are not questions that relate to whether it is in his best interests to terminate his relationship with his parents. ‘It bears emphasis that a judicial termination of parental rights may not be premised on a determination that it would be in the child’s best interests to terminate the parent’s rights in order to substitute another, more suitable set of adoptive parents.’ In re Baby Girl B., [224 Conn. 263, 280, 618 A.2d 1 (1992)]. The purpose of the intervention of a grandparent in a termination of parental rights case does not include the right to effect an adoption or to obtain custody for the grandparent but is solely for the purpose of affecting the termination itself. In re Ryan V., 46 Conn. App. 69, 72, 698 A.2d 371 (1997).” (Emphasis in original.) In re Denzel A., supra, 53 Conn. App. 834-35.

The In re Denzel A. reasoning applies to the question before us. Whether Z’s parental rights as to J should be terminated has nothing to do with whether D should obtain custody of J or be permitted to adopt him. That question is for another day and another legal proceeding. This court, therefore, lacks subject matter jurisdiction with respect to that portion of D’s appeal concerning J, which we dismiss.

II

As to the termination of his parental rights with respect to C, D claims that the trial court improperly found that (1) he failed to achieve sufficient personal rehabilitation, (2) he committed an act of omission or commission regarding the welfare of C and (3) it was in C’s best interest to terminate his parental rights. We disagree.

“The standard for review on appeal [from a termination of parental rights] is whether the challenged findings are clearly erroneous. . . . The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous. . . .

“On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. . . . Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling. . . .

“A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. ... In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the disposi-tional phase. In the dispositional phase, the trial court determines whether termination is in the best interest of the child.” (Citations omitted; internal quotation marks omitted.) In re Roshawn R., 51 Conn. App. 44, 51-52, 720 A.2d 1112 (1998).

A

D’s first claim is that the court improperly found that he had failed to rehabilitate himself pursuant to § 17a-112 (c) (3) (B) with respect to C.

General Statutes (Rev. to 1997) § 17a-112 (c) provides in relevant part: “The Superior Court, upon hearing and notice as provided in sections 45a-716 and 45a-717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence ... (3) that . . . (B) the parent of a child who has been found by the Superior Court to have been neglected or uncared for in a prior proceeding has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .”

“ ‘Personal rehabilitation’ as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as a parent.” In re Migdalia M., supra, 6 Conn. App. 203. “Our Supreme Court has held that § [17a-112 (c) (3) (B)] requires the trial court to analyze the respondent’s rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time. ... A determination by the trial court under § [17a-112 (c) (3) (B)] that the evidence is clear and convincing that the parent has not rehabilitated [himself] will be disturbed only if that finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous.” (Citations omitted; internal quotation marks omitted.) In re Felicia D., 35 Conn. App. 490, 500, 646 A.2d 862, cert. denied, 231 Conn. 931, 649 A.2d 253 (1994).

The substance of D’s claim is that the court improperly found that he had not followed through on departmental referrals for prescription drug and alcohol abuse treatment, that he had an alcohol related arrest and two visits to a hospital emergency room due to alcohol and prescription drug abuse, that he was unable to find housing and that he was unemployed for long periods of time. On the basis of our review of the record, transcripts and briefs, we conclude that there is ample evidence in the record to support the court’s findings with respect to D’s failure to rehabilitate himself.

The court found that C had been adjudicated an uncared for child on September 6, 1995, and had been in foster care for more than three years. In its memorandum of decision, filed more than one year after the petition to terminate D’s parental rights, the court found that he was even less able to care for C than he had been at the time the petition was filed. The department had established expectations for D, which he agreed to follow. Although he regularly and consistently visited C to the extent that he was permitted to do so, D did not acknowledge his drug and alcohol problems and allegations of sexual abuse by seeking and continuing counseling and treatment for those problems. He had been unable to secure employment or suitable housing and unable to avoid further involvement with the criminal justice system. At the time of trial, he was incarcerated for violation of the terms of his probation related to his conviction for risk of injury to a child. Indeed, the terms of his probation prohibit him from having contact with C until 2002. Finally, we note that the court also made the findings required by General Statutes (Rev. to 1997) § 17a-112 (e). We conclude, therefore, that the court’s finding by clear and convincing evidence that D had failed to rehabilitate himself was not clearly erroneous.

B

D’s second claim is that the trial court improperly found that he had committed an act of omission or commission regarding the welfare of C.

General Statutes (Rev. to 1997) § 17a-112 (c) provides in relevant part: “The Superior Court, upon hearing and notice as provided in sections 45a-716 and 45a~717, may grant a petition filed pursuant to this section if it finds by clear' and convincing evidence ... (3) that . . . (C) the child has been denied, by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for his physical, educational, moral or emotional well-being. ...”

The crux of D’s claim is that there was insufficient evidence to support the court’s finding that D had sexually abused C. D bases his claim on the conflicting testimony of his expert witness and the department’s expert witness. He takes exception to the fact that the court chose to believe the department’s expert witness rather than his expert.

“The testimony of professionals is given great weight in parental termination proceedings.” In re Michael M., 29 Conn. App. 112, 127 n.12, 614 A.2d 832 (1992). “It is well established that [i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. Kimberly-Clark Corporation v. Dubno, 204 Conn. 137, 153, 527 A.2d 679 (1987). The credibility and the weight of expert testimony is judged by the same standard, and the trial court is privileged to adopt whatever testimony he reasonably believes to be credible. . . . Transportation Plaza Associates v. Powers, 203 Conn. 364, 378, 525 A.2d 68 (1987). On appeal, we do not retry the facts or pass on the credibility of witnesses. Nor’easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 473, 542 A.2d 692 (1988).” (Internal quotation marks omitted.) Torres v. Waterbury, 249 Conn. 110, 123, 733 A.2d 817 (1999). “It is the quintessential function of the fact finder to reject or accept certain evidence, and to believe or disbelieve any expert testimony. State v. Blades, 225 Conn. 609, 629, 626 A.2d 273 (1993). The trier may accept or reject, in whole or in part, the testimony of an expert offered by one party or the other. Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981); Richard v. A. Waldman & Sons, Inc., 155 Conn. 343, 348, 232 A.2d 307 (1967).” Champagne v. Champagne, 54 Conn. App. 321, 324, 734 A.2d 1048 (1999).

In its memorandum of decision, the court went to great lengths to review the testimony of the expert witnesses. The principal issue addressed by D’s expert was the manner in which and the number of times C was interviewed. Although the court acknowledged the criticism offered by D’s expert, it properly noted that there is no recognized and accepted protocol for questioning victims of sexual abuse that is binding on the court in termination decisions. The court found that the criticism offered by D’s expert concerning the accuracy of C’s reporting was speculative and that her concerns derived from the reporting procedures that were used to obtain information from the children.

The court explicitly set forth its reason for choosing to believe the testimony of the department’s expert witness. The court found that C had been sexually abused by D because the department’s expert testified that C’s descriptions of abuse were articulate and that she was able to make distinctions between what her maternal uncle did to her and what D did to her. As the court noted, “[T]here is no legal distinction between direct and circumstantial evidence so far as probative force is concerned. . . . [I]t is the right and the duty of the [trier of fact] to draw reasonable and logical inferences from the evidence. ... In considering the evidence introduced in a case, [triers of fact] are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Citations omitted; internal quotation marks omitted.) State v. Chapman, 46 Conn. App. 24, 34-35, 698 A.2d 347, cert. denied, 243 Conn. 947, 704 A.2d 800 (1997), cert. denied, 523 U.S. 1063, 118 S. Ct. 1393, 140 L. Ed. 2d 652 (1998).

For the foregoing reasons, we conclude that there was clear and convincing evidence that permitted the court to find that D, in sexually abusing C, had committed acts that denied C necessary care, guidance and control.

C

D’s final claim is that the trial court improperly found that termination of his parental rights was in C’s best interest.

The court found that C was flourishing in her current foster home. She was performing well in school, was a motivated student and with continued counseling, her troublesome behaviors had lessened. C was happy in her placement and wanted to remain there. On the basis of the testimony of several of C’s treatment providers and the department’s expert witness, the court found that the child’s need for permanency was urgent. Her present foster parents had expressed a desire to adopt C. The court, therefore, found that D’s parental rights in C should be terminated. As previously noted, the court found that the department had offered reasonable and appropriate reunification and rehabilitative services to D. Therefore, on the basis of our review of the record and briefs, and the parties’ oral arguments, we cannot say that the court’s findings were clearly erroneous.

That portion of the appeal concerning the termination of parental rights with respect to J is dismissed. The judgment terminating parental rights as to C is affirmed.

In this opinion the other judges concurred.

       The petition to terminate parental rights with respect to J named as respondents Z as J’s father and D as J’s “psychological father.” The trial court stated in its memorandum of decision that because D was not the biological father of J, it was not necessary to make findings as to whether D had denied J necessary care, guidance and control by acts of commission or omission. On the petition concerning J, the court rendered judgment terminating Z’s parental rights. On the petition concerning C, the court rendered judgment terminating D’s parental rights. Only D has appealed to this court, where he challenges both judgments.

       The appropriate procedural vehicle for contesting D’s standing to appeal the termination of parental rights with respect to J is a motion to dismiss filed in the Appellate Court. See Practice Book § 66-8. “Despite this procedural lacuna, however, it is necessary to reach the issue, because a question relating to subject matter jurisdiction must always be addressed whenever it comes to the attention of the court.” Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Information Commission, 227 Conn. 848, 850 n.5, 633 A.2d 305 (1993).

       The children’s mother died on March 7, 1996, prior to the filing of the termination petitions.

       Z is not a party to this appeal. The trial court found that he had notice of the termination petition as to J, although he did not enter an appearance or participate in the trial.

       General Statutes (Rev. to 1997) § 17a-112 provides in relevant part: “(a) In respect to any child in the custody of the Commissioner of Children and Families in accordance with section 46b-129, either the commissioner, or the attorney who represented such child in a pending or prior proceeding, or an attorney appointed by the Superior Court on its own motion, or an attorney retained by such child after attaining the age of fourteen, may petition the court for the termination of parental rights with reference to such child. The petition shall be in the form and contain the information set forth in subsection (b) of section 45a-715, and be subject to the provisions of subsection (c) of said section. . . .
      “(c) The Superior Court, upon hearing and notice as provided in sections 45a-716 and 45a-717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence (1) that the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts provided such finding is not required if the court has determined at a hearing pursuant to subsection (b) of section 17a-110 that such efforts are not appropriate, (2) that termination is in the best interest of the child . . . .”

       See footnote 1.

       We do note that the court file contains a form ,JD-,IM-31EL, order, termination of parental rights and appointment of statutory parent/guardian, terminating D’s rights in J. The judgment file, however, reflects that the court terminated only Z’s parental rights with respect to J.

       General Statutes (Rev. to 1997) § 17a-112 (e), now (d), provides: “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended; (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (4) the feelings and emotional ties of the child with respect to his parents, any guardian of his person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (5) the age of the child; (6) the efforts the parent has made to adjust his circumstances, conduct, or conditions to make it in the best interest of the child to return him to his home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable ad or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.”


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    KNUTSON MORTGAGE CORPORATION v. MIHALY J. SALATA ET AL.
    (AC 19732)
    Lavery, Landau and Hennessy, Js.
    Considered September 8
    officially released November 23, 1999

      Keith K. Fuller, in support of the motion.
   Opinion

HENNESSY, J.

The defendant Helen Salata appeals from the judgment confirming a mortgage foreclosure sale following the denial of her motion to reargue the confirmation. The plaintiff, Knutson Mortgage Corporation, has moved to dismiss the defendant’s appeal as untimely. We hold that the filing of a bankruptcy petition by the defendant during the appeal period following the confirmation of the foreclosure sale tolled the appeal period and extended the time for filing her motion to reargue. Therefore, we deny the portion of the plaintiffs motion to dismiss that challenges the timeliness of this appeal.

The underlying action to foreclose a $35,600 mortgage on property owned by the defendants, Mihaly J. Salata and Helen Salata, began in 1996. Pursuant to a stipulation of the parties, a judgment of foreclosure by sale entered on November 19, 1997. The sale was set for May 2, 1998. The defendant filed for bankruptcy protection on April 28, 1998, thus staying the sale. The plaintiff obtained relief from the bankruptcy stay on July 21, 1998, thereby allowing the foreclosure to proceed.

On November 16, 1998, the trial court rendered a judgment of foreclosure by sale, finding the debt to be $41,790, the appraised fair market value of the property to be $105,000, and set the sale date. The sale took place on January 16, 1999. The highest bid was $58,000. The committee for sale moved for approval of its report and expenses, the committee deed and confirmation of the sale. These motions were granted on February 8, 1999. On February 26, 1999, the defendant filed her second bankruptcy petition.

On May 17, 1999, the plaintiff obtained relief from the bankruptcy stay. On May 18, 1999, the defendant filed a motion to reargue the confirmation of the foreclosure sale. The motion to reargue was denied on May 24, 1999. Notice of the denial issued on June 2, 1999. The defendant filed this appeal on June 22, 1999, challenging the confirmation of the sale and the denial of her motion to reargue.

Of the preceding facts, those most relevant to this appeal are as follows. The foreclosure sale was confirmed by the trial court on February 8, 1999. During the twenty day appeal period from that decision, the defendant filed her bankruptcy petition. The day after the lifting of the bankruptcy stay, the defendant filed her motion to reargue the confirmation of the sale. This appeal was filed within twenty days of the denial of her motion to reargue.

Practice Book § 63-1 (b) provides in relevant part: “If within the appeal period, including any extension thereof . . . any party files any motion, which, if granted, would render the judgment or decision appealed from ineffective, a new appeal period shall commence upon the issuance of notice of the decision on the last such outstanding motion. Motions that would render the judgment or decision ineffective include . . . motions to reargue . . . .” The issue presented in this case is whether the defendant’s second bankruptcy filing tolled the appeal period so that her motion to reargue was timely filed and a new appeal period began upon disposition of her motion to reargue.

The filing of a petition in bankruptcy operates as a stay of “the commencement or continuation ... of a judicial . . . action or proceeding against the debtor that was or could have been commenced before the commencement of the case. . . .”11 U.S.C. § 362 (a) (1). The Bankruptcy Court, in considering the plaintiffs motion for relief from the automatic stay of § 362, held that “the automatic stay imposed by § 362 (a) of the Bankruptcy Code, triggered by the filing of the debtor’s bankruptcy petition, suspended the deadline in the mov-ant’s foreclosure action for filing the appeal, thereby extending the state stay of execution.” The Bankruptcy Court also held that “relief from the automatic stay is granted so that the time permitted under state law for filing an appeal may resume . . . .”

Our Supreme Court has noted that “[t]he decisions of the federal circuit in which a state court is located are entitled to great weight in the interpretation of a federal statute.” (Internal quotation marks omitted.) Thomas v. West Haven, 249 Com. 385, 392, 734 A.2d 535 (1999). In Koolik v. Markowitz, 40 F.3d 567, 568 (2d Cir. 1994), the United States Court of Appeals for the Second Circuit found that the automatic stay of 11 U.S.C. § 362 (a) (1) is applicable to proceedings against the debtor, but that determination of whether an action or proceeding is “against” the debtor is made by considering the posture of the parties at the commencement of the action or proceeding, not by which party has initiated the appeal. In In the Matter of Barbier & Shearson Lehman Hutton, 943 F.2d 249, 250 (2d Cir. 1991), the Second Circuit held that an appeal is indisputably a continuation of a judicial action or proceeding. Thus, the filing of an appeal or motion to reargue by any party in this case was prohibited by the § 362 stay and the appeal period could not run. In Citicorp Mortgage, Inc. v. Mehta, 39 Com. App. 822, 830, 668 A.2d 729 (1995), we noted that § 362 of the Bankruptcy Code stays any and all postpetition filing, and that any filing constitutes an act directed toward the disposition of the case in violation of the automatic stay. We now hold that the defendant’s filing of her bankruptcy petition during the twenty day appeal period from the judgment confirming the sale stayed the appeal period. We further hold that her motion to reargue, filed one day after the termination of the § 362 stay, was timely filed. Her appeal filed within twenty days after the denial of her motion to reargue was timely pursuant to Practice Book § 63-1 (b).

The motion to dismiss is denied.

In this opinion the other judges concurred.

         The defendant Helen Salata owned the property subject to this foreclosure action with the named defendant. Only Helen Salata has appealed. We refer in this opinion to Helen Salata as the defendant.

       The plaintiff also argued that the defendant’s appeal should be dismissed as frivolous and as taken solely for delay. We hold that the defendant has presented a good faith argument that the trial court should not have confirmed the sale under the circumstances of this case; therefore, the criteria of Texaco v. Golart, 206 Conn. 454, 463-64, 538 A.2d 1017 (1988), for dismissal of an appeal as frivolous have not been met. We therefore deny the motion to dismiss on that basis as well.

       Practice Book § 63-1 (a) provides in relevant part: “Except where a different time is provided by statute, a party shall have twenty days from the commencement of the appeal period as set forth in this subsection to file an appeal . . . .”

         The plaintiff also raised other grounds for dismissal of the appeal in its motion to dismiss. We find them unavailing and deny the remainder of the motion to dismiss.


author: FOTI, J.

text:
    JOHN CZUJAK v. CITY OF BRIDGEPORT
    (AC 18534)
    O’Connell, C. J., and Foti and Landau, Js.
    Argued September 28
    officially released November 23, 1999

      George C. Springer, Jr., for the appellant (plaintiff).

      Frank A. May, with whom, on the brief, was James J. Moynihan, for the appellee (defendant).
   Opinion

FOTI, J.

The plaintiff, John Czujak, appeals from the June 10, 1998 decision by the workers’ compensation review board (board) that reversed the commissioner’s January 31,1997 finding and award. The plaintiff claims that the board improperly (1) reversed the commissioner’s decision to adjust the plaintiffs benefits cap under General Statutes § 7-433b (b) to include overtime earnings prospectively from the date of the Supreme Court decision in Szudora v. Fairfield, 214 Conn. 552, 573 A.2d 1 (1990), and (2) reversed the commissioner’s award of interest and attorney’s fees. We affirm the board’s decision.

The following procedural history and facts are necessary to a resolution of this appeal. The plaintiff was employed by the city of Bridgeport (city) as a police officer. On October 16,1981, he suffered a heart attack, was in a coma for eighteen days and sustained considerable brain damage. On November 27,1984, the commissioner issued a finding that the plaintiffs heart disease had resulted in his total incapacity to work and awarded him disability benefits pursuant to General Statutes § 7-433c,1 * commonly referred to as the Heart and Hypertension Act. Benefits conferred pursuant to § 7-433c are subject to the limitation imposed by § 7-433b (b) so that they “shall not exceed one hundred per cent of the weekly compensation being paid, during their compensable period, to members of such department in the same position which was held by such member at the time ol'his . . . retirement. . . .” General Statutes § 7-433b (b). Accordingly, it was determined that the plaintiff was entitled to a maximum compensation rate of $310 per week, which was the base salary, exclusive of overtime, of a similarly situated Bridgeport police officer at that time. No appeal was taken from that 1984 decision.

In April, 1990, our Supreme Court decided Szudora v. Fairfield, supra, 214 Conn. 552. Szudora expanded the definition of maximum “weekly compensation” available under § 7-433b (b) to include overtime earnings as well as base compensation. In 1994, the plaintiff sought to adjust his § 7-433b (b) benefits cap to account for the inclusion of overtime payments made to similarly situated police officers since April 10, 1984, the plaintiffs date of retirement. On January 31, 1997, the commissioner determined that Szudora’s interpretation of § 7-433b (b) should be applied prospectively, from the date of the Szudora decision, to any benefits due the plaintiff. The commissioner, therefore, found that the plaintiff was entitled to an adjusted pay cap that included overtime earnings as well as base compensation, starting in April, 1990. The commissioner further ordered an award of attorney’s fees and interest for the city’s delay in payment of those overtime adjustments.

The city appealed to the board from the commissioner’s decision, and, while the appeal was before the board, our Supreme Court decided Marone v. Waterbury, 244 Conn. 1, 707 A.2d 725 (1998), which addressed the applicability of the Szudora decision. Marone held that awards that were not pending when Szudora was decided were not entitled to retroactive or prospective application of Szudora. Relying on Marone, the board reversed the commissioner’s decision, and the plaintiff appealed to this court.

Our standard of review in workers’ compensation cases is well settled. Our role is to determine whether the board’s decision results from an incorrect application of the law to the subordinate facts or from an inference unreasonably drawn from them. Aurora v. Miami Plumbing & Heating, Inc., 6 Conn. App. 45, 47, 502 A.2d 952 (1986).

I

The present case is controlled by Marone and we therefore consider Marone’s two part test for determining whether the plaintiff is entitled to a recalculation of his benefits under Szudora. First, we must determine whether the original award was a pending matter at the time Szudora was decided. If the award was not a pending matter when Szudora was decided, then the plaintiff is not entitled to retroactive application of Szudora. See Marone v. Waterbury, supra, 244 Conn. 11, n.10. Second, we must address whether the commissioner had the authority to modify the award pursuant to General Statutes § 31-315.

A

Here, the plaintiffs 1984 benefits award was a final judgment and was not a pending matter when Szudora was decided in 1990. “General Statutes §§ 31-301a and 31-301b govern the finality of workers’ compensation awards, which become final when and if the parties fail to appeal within the statutory time period.” Marone v. Waterbury, supra, 244 Conn. 13. Because the plaintiff filed neither an appeal nor a motion to correct the commissioner’s November 27, 1984 finding and award, that decision became final after the appeal period expired, well before Szudora was decided. Thus, the award was not pending when Szudora was decided and, unless the commissioner had the authority to modify the award pursuant to § 31-315, the plaintiff is not entitled to retroactive or prospective application of Szudora. Id.

B

Although the plaintiffs award was a final judgment and not a pending matter, final judgments may be modified pursuant to statutory authority. Section 31-315 confers authority on the workers’ compensation commission to modify § 7-433c benefits in certain limited situations. In the present case, however, the commissioner lacked the authority to modify the award because § 31-315 does not authorize modifications based on a new interpretation of law such as that contained in Szudora. Marone v. Waterbury, supra, 244 Conn. 15. The commissioner, therefore, lacked the authority to recalculate the plaintiffs benefits.

Finally, we are not persuaded by the plaintiffs argument that the commissioner’s adjustment of his benefits cap to include overtime earnings was merely an “enforcement” of the earlier award and not a “modification” controlled by § 31-315. The commissioner’s November, 1984 finding and award clearly established the benefits cap to include only the base salary of a similarly situated police officer. There is nothing in the record to suggest that the commissioner’s original award was intended to include overtime compensation as well as base salary in determining the benefits cap. On the contrary, it is evident that the commissioner intended the November 27, 1984 award to be limited to the base compensation of a similarly situated police officer. The plaintiffs efforts to increase his benefits to include overtime payments is clearly an attempt to modify his original 1984 award. For the foregoing reasons, we conclude that modification of the award would be improper.

II

Because the commissioner’s January 31,1997 finding and award improperly modified the plaintiffs benefits to include overtime compensation, it also was improper for the commissioner to have awarded attorney’s fees and interest on outstanding overtime compensation not paid to the plaintiff.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       General Statutes § 7-433b (b) provides: “Notwithstanding the provisions of any general statute, charter or special act to the contrary affecting the noncontributory or contributory retirement systems of any municipality of the state, or any special act providing for a police or firemen benefit fund or other retirement system, the cumulative payments, not including payments for medical care, for compensation and retirement or survivors benefits under section 7-433c shall be adjusted so that the total of such cumulative payments received by such member or his dependents or survivors shall not exceed one hundred per cent of the weekly compensation being paid, during their compensable period, to members of such department in the same position which was held by such member at the time of Ms death or retirement. Nothing contained herein shall prevent any town, city or borough from paying money from its general fund to any such member or Ms dependents or survivors, provided the total of such cumulative payments shall not exceed said one hundred per cent of the weekly compensation.”

       The commissioner dismissed the plaintiffs claim for a retroactive rate adjustment for the period prior to the 1990 Szudora decision.

       General Statutes § 7-4:i-‘ie (a) provides: “Notwithstanding any provision of chapter 568 or any other general statute, charter, special act or ordinance to the contrary, in the event a uniformed member of a paid municipal fire depart ment or a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the. same manner as that provided under chapter 508 if such death or disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment, and from the municipal or state retirement system under which he is covered, he or his dependents, as the case may be, shall receive the same retirement or survivor benefits which would be paid under said system if such death or disability was caused by a personal injury which arose out of and in the course of his employment, and was suffered in the line of duty and within the scope of his employment. If successful passage of such a physical examination was, at the time of his employment, required as a condition for such employment, no proof or record of such examination shall be required as evidence in the maintenance of a claim under this section or under such municipal or state retirement systems. The benefits provided by this section shall be in lieu of any other benefits which such policeman or fireman or his dependents may be entitled to receive from his municipal employer under the provisions of chapter 568 or the municipal or state retirement system under which he is covered, except, as provided by this section, as a result of any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability. As used in this section, the term ‘municipal employer’ shall have the same meaning and shall be defined as said term is defined in section 7-467.”

         See footnote 1.

       See also Liano v. Bridgeport, 55 Conn. App. 75, 737 A.2d 983 (1999), in which we applied the Marone decision lo fa els similor to those in the present case.

       General Statutes § 31-30la provides: “Any decision of the Compensation Review Board, in the absence of an appeal therefrom, shall become final after a period of twenty days has expired from the issuance of notice of the rendition of the judgment or decision."

       General Statutes § 31-301b provides: “Any party aggrieved by the decision of the Compensation Review Board upon any question or questions of law arising in the proceedings may appeal the decision of the Compensation Review Board to the Appellate Court.”

       “Section 31-315 allows the [workers’ compensation] commission to modify an award in three situations. First, modification is permitted where ‘the incapacity of an injured employee has increased, decreased or ceased, or ... the measure of dependence on account of which the compensation is paid has changed . .•. .’ Second, the award may be modified when ‘changed conditions of fact have arisen which necessitate a change of [the award].’ . . . Third, ‘[t]he commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify ajudgment of such court.’ This provision extends the commission’s power to open and modify judgments to cases of accident; Hayden v. Wallace & Sons Mfg. Co., 100 Conn. 180, 188, 123 A. 9 (1923); to mistakes of fact; Fair v. Hartford Rubber Works Co., 95 Conn. 350, 355, 111 A. 193 (1920); and to fraud; Grabowski v. Miskell, 97 Conn. 76, 84, 115 A. 691 (1921); but not to mistakes of law. Kalinick v. Collins Co., [116 Conn. 1, 4-5, 163 A. 460 (1932)]. The final clause of § 31-315 allows the commission to retain jurisdiction over claims during the entire compensable period. This provision, however, does not independently confer authority to modify awards for reasons not otherwise enumerated in § 31-315. Id., 7-8.” Marone v. Waterbury, supra, 244 Conn. 16-17.


text:
    STATE OF CONNECTICUT v. ALBERT GEBEAU
    (AC 17412)
    Lavery, Landau and Healey, Js.

      Argued September 14
    officially released November 23, 1999

      David B. Rozwaski, special public defender, for the appellant (defendant).

      Frederick W. Fawcett, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and JohnBlawie, assistant state’s attorney, for the appellee (state).
   Opinion

LANDAU, J.

The defendant, Albert Gebeau, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4). The defendant claims that the trial court improperly failed to charge the jury on robbery in the second degree in violation of General Statutes § 53a-135 (a) (2) as a lesser included offense. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In the afternoon of July 7,1996, Phyllis Raucci was in her apartment in Bridgeport, and Alford Kearsley, a friend of the Raucci family, was sleeping in a bedroom when the doorbell rang. Raucci answered the door and a woman, Laura Ritz, told Raucci that her car- had broken down and she needed to use the telephone. Ritz’s car had not actually broken down. Rather, she and the defendant intended to rob Raucci. Once inside Raucci’s apartment, Ritz asked to use the telephone to call her husband. After using the telephone, Ritz told Raucci that she was going to see if her husband had arrived, at which time she let the defendant into the apartment.

When the defendant entered Raucci’s apartment, he asked if he could use the bathroom. After emerging from the bathroom, the defendant walked toward the stairs as if to leave the apartment, but suddenly returned with a pistol in his hand. He ordered Raucci and Kear-sley, who by this time had awakened, into the bathroom while he and Ritz took items from the apartment.

At trial, the defendant submitted a request for a jury charge on second degree robbery as a lesser included offense. The court denied the request and charged only on robbery in the first degree. The jury returned a guilty verdict and this appeal followed.

The defendant claims that the court improperly failed to charge the jury on robbery in the second degree as a lesser included offense. The defendant contends that whether the perpetrator used a firearm was sufficiently in dispute to permit the jury to find the defendant guilty of second degree robbery, but not guilty of first degree robbery. We disagree.

“ ‘Connecticut law entitles a defendant to a lesser included offense charge if his request satisfies the four requirements set forth in State v. Whistnant, [179 Conn. 576, 588, 427 A.2d 414 (1980)].’ State v. Crafts, 226 Conn. 237, 250, 627 A.2d 877 (1993). The Whistnant requirements are as follows: ‘(1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.’ State v. Whistnant, supra, 588.” State v. Collins, 45 Conn. App. 6, 9, 692 A.2d 865 (1997).

“In considering whether the defendant has satisfied the requirements set forth in State v. Whistnant, supra, 179 Conn. 588, we view the evidence in the light most favorable to the defendant’s request for a charge on the lesser included offense. . . . [T]he jury’s role as fact-finder is so central to our jurisprudence that, in close cases, the trial court should generally opt in favor of giving an instruction on a lesser included offense, if it is requested. . . . On appeal, an appellate court must reverse a trial court’s failure to give the requested instruction if we cannot as a matter of law exclude [the] possibility that the defendant is guilty only of the lesser offense.” (Citations omitted; internal quotation marks omitted.) State v. Preston, 248 Conn. 472, 477, 728 A.2d 1087 (1999). The fourth prong of Whistnanl requires the court to consider whether the element that differentiates the proposed lesser included offense from the greater offense is “sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” State v. Whistnant, supra, 588.

“ ‘[I]t is clear that the essential difference between §§ 53a-134 (a) (4) and 53a-135 (a) (2) is the type of weapon used. The former is limited to firearms; the latter includes firearms but is not limited to them.’ State v. Kolinsky, 182 Conn. 533, 543, 438 A.2d 762 (1980), cert. denied, 451 U.S. 973, 101 S. Ct. 2054, 68 L. Ed. 2d 354 (1981). See State v. Hawthorne, 175 Conn. 569, 573, 402 A.2d 759 (1978).” State v. Evans, 200 Conn. 350, 359, 511 A.2d 1006 (1986).

For the defendant to have been entitled to a charge on the proposed lesser included offense of robbery in the second degree, there must have been some dispute as to the essential differentiating element, use of a firearm, so that he could have been acquitted of the greater offense and convicted of the lesser. The only evidence presented at trial was that the defendant was carrying a firearm. The victims, Raucci and Kearsley, as well as the accomplice, Ritz, all testified that the defendant used a firearm in the commission of the crime. Kearsley, a retired Bridgeport police officer, testified that the defendant had what looked like a silver .38 caliber automatic weapon. The defendant, on the other hand, chose to dispute that he was in any way involved in the crime. Whether the perpetrator carried a firearm was never in issue.

The defendant claims that the issue was sufficiently in dispute because the state, in a substitute information, did not charge him with criminal possession of a firearm as it had in its original information. The defendant maintains that this was an admission by the state that an operable firearm was not used. The state, however, does not have to prove that the firearm was operable to obtain a conviction for robbery in the first degree. State v. Hawthorne, supra, 175 Conn. 573. “[I]n fact, [the defendant] need not even have a gun. He need only represent by his words or conduct that he is so armed.” Id.

Because the defendant failed to meet the fourth prong of the Whistnant test, he was not entitled to a jury instruction on robbery in the second degree as a lesser included offense of robbery in the first degree.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm, except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. . . .”

       General Statutes § 53a-135 (a) provides in relevant part: “A person is guilty of robbery in the second degree when he commits robbery as defined in section 53a-133 and ... (2) in the course of the commission of the crime or of immediate flight therefrom he or another participant in the crime displays or threatens the use of what he represents by his words or conduct to be a deadly weapon or a dangerous instrument.”

       In a separate proceeding, Ritz pleaded guilty to first degree robbery in connection with this incident and agreed to testify against the defendant.

       The defendant’s request to charge on a lesser included offense also fails to meet the third requirement of the Whistnant test. Because a court is justified in refusing to give a lesser included offense charge when the defendant fails to meet any one of the four Whistnant requirements; see State v. Kolinsky, 182 Conn. 533, 544, 438 A.2d 762 (1080), cert. denied, 451 U.S. 973, 101 S. Ct. 2054, 68 L. Ed. 2d 354 (1981); for the purpose of this appeal, we will discuss only the fourth prong of the Whistnant test.

       “One of the necessary elements that the state must prove for a conviction for criminal possession of a firearm is that the firearm that the defendant is alleged to have possessed is operable. State v. Bradley, 39 Conn. App. 82, 90, 663 A.2d 1100 (1995), cert. denied, 236 Conn. 901, 670 A.2d 322 (1996).” State v. Rogers, 50 Conn. App. 467, 475, 718 A.2d 985, cert. denied, 247 Conn. 942, 723 A.2d 319 (1998).


text:
    SUSAN M. MARSHALL ET AL. v. WILLIAM J. O’KEEFE ET AL.
    (AC 18044)
    Foti, Lavery and Landau, Js.
    Argued September 13
    officially released November 23, 1999

      Max F. Brunswick, with whom, on the brief, was Herbert Watstein, for the appellant (named plaintiff).

      Andrew J. O’Keefe, with whom were Joseph M. Busher and, on the brief, Peter K. O’Keefe, for the appel-lee (named defendant).

      Patricia A. Tisdall, for the appellee (defendant Jason J. O’Keefe).
   Opinion

LANDAU, J.

The named plaintiff, Susan M. Marshall, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendants William J. O’Keefe and Jason J. O’Keefe. The plaintiff claims that the court improperly (1) failed to instruct the jury as to her requested Secondino charge and (2) excluded a prior inconsistent statement of Jason O’Keefe. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 1, 1992, the plaintiff attended a wedding reception at Walko’s Talk of the Town Restaurant in Plainville. The plaintiff is the groom’s sister-in-law. Also present were the defendants William O’Keefe and Jason O’Keefe, who are the bride’s father and brother; Kirk Marshall, the plaintiffs husband; Kathy Berry and Gregory Berry, the groom’s sister and brother-in-law; Lovey Fasci, the plaintiffs mother-in-law; and Stephen McDougall, a cousin of the plaintiffs husband.

At about 10 p.m., William O’Keefe and his wife, who are the bride’s parents, were dancing when they exchanged words with the Berrys.1 ** Gregory Berry, feeling that his spouse had been spoken to rudely, came to her defense and confronted William O’Keefe. Jason O’Keefe, apparently thinking that his sire was being threatened, shoved Berry, causing him to fall to the floor. The plaintiff claimed that during the course of Berry’s fall, a table and the chair on which she was sitting tipped over, causing her to sustain injuries. During the trial, the plaintiff failed to call her husband, Fasci or McDougall to testify. The jury returned a verdict in favor of the defendants, and the plaintiff appealed.

I

The plaintiffs first claim is that the trial court improperly gave the Secondino, or missing witness, charge because it did not sufficiently emphasize the requirement that a missing witness must have had knowledge that was favorable to the plaintiff. We do not agree.

The following additional facts are necessary for our review of this claim. The plaintiff filed a request to charge, which included in part, instructions addressing her failure to call her husband, Fasci or McDougall to testify. The court did not use the words of the plaintiffs request, instead charging that the jury could draw adverse inferences against the plaintiff for not having called Fasci, McDougall and Kirk Marshall as witnesses if the jury found that the defendants had proved that those witnesses were available and were witnesses the plaintiff would naturally have produced if their testimony was favorable.* ****

“Our standard of review concerning claims of instructional error is well settled. [J]ury instructions must be read as a whole and . . . are not to be judged in artificial isolation from the overall charge. . . . The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . The instruction must be adapted to the issues and may not mislead the jury but should reasonably guide it in reaching a verdict. . . . We must review the charge as a whole to determine whether it was correct in law and [whether it] sufficiently guided the jury on the issues presented at trial. . . .

“Our standard of review on this claim is whether it is reasonably probable that the jury was misled. . . . The test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Therefore, jury instructions need not be exhaustive, perfect, or technically accurate. Nonetheless, the trial court must correctly adapt the law to the case in question and must provide the jury with sufficient guidance in reaching a correct verdict,.” (Citations omitted; internal quotation marks omitted.) Thames River Recycling, Inc. v. Gallo, 50 Conn. App. 767, 774, 720 A.2d 242 (1998).

On appeal, no claim is made that the witnesses were unavailable. The plaintiff seems to argue that the court’s charge improperly omitted or failed to emphasize a reference to the requirement that the missing witness must have “peculiar or superior information . . . .” Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960). The court’s charge, however, did include a statement that “[a] witness who would naturally be produced by a party is one who is known by that party and who, by reason of his or her relationship to the party or to the issues or both, could reasonably be expected to have peculiar or superior information material to the case which, if favorable, the party would produce.”

The plaintiffs claim that the language requested should have been on one page rather than on the following page of the charge is without merit. The communication by the court was contained in the Secondino section of the charge and was legally correct. “We will not: examine a jury charge ‘with [a] legal microscope.’ Borsoi v. Sparico, 141 Conn. 366, 371, 106 A.2d 170 (1954). The day has long passed when reviewing courts are to be considered ‘citadels of technicality. ’ Kolleakos v. United States, 328 U.S. 750, 759, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946).” Lemonious v. Burns, 27 Conn. App. 734, 741, 609 A.2d 254, cert. denied, 223 Conn. 915, 614 A.2d 823 (1992). We conclude that the court’s charge was legally correct, adapted to the issue and did not mislead the jury.

II

The plaintiff next claims that the trial court abused its discretion in excluding a prior inconsistent statement by Jason O’Keefe when it ruled that there was no inconsistency between his testimony at trial and his deposition testimony. We disagree.

The plaintiff alleged that Jason O’Keefe caused Gregory Berry to overturn a table and the chair on which the plaintiff was sitting. During trial, the plaintiff questioned Jason O’Keefe as to whether he pushed Berry and what happened as a result. The plaintiff believed that Jason O’Keefe’s testimony at trial contradicted his deposition testimony and sought to impeach him. The court disagreed and declined to permit the use of the deposition testimony. The plaintiff failed to have the deposition testimony marked for identification or to make it part of the record at trial.

This court will set aside evidentiary rulings only when there is a showing of a clear abuse of discretion. See Hall v. Burns, 213 Conn. 446, 451, 569 A.2d 10 (1990). It is the province of the trial court to determine whether a prior statement is in fact inconsistent with statements advanced at trial. State v. Piskorski, 177 Conn. 677, 710, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979).

The plaintiff has failed to make Jason O’Keefe’s deposition testimony part of the appellate record. She has, therefore, failed to furnish us with any basis to dispute the trial court’s ruling. The record, therefore, is inadequate for us to determine whether the trial court abused its discretion. See Practice Book § 61-10.

The judgment is affirmed.

In this opinion the other judges concurred.

       Prior to trial, the plaintiff Kirk Marshall withdrew his cause of action and the plaintiff Susan M. Marshall withdrew her claims against the defendants Gary O’Keefe, Barry J. Walko and Walko’s Restaurant, Inc. We refer in this opinion to Susan M. Marshall as the plaintiff and to the defendants William J. O’Keefe and Jason J. O’Keefe as the defendants.

         Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960), enunciated the rule that “[t]he failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party’s cause.” (Internal quotation marks omitted.) The trial in this case occurred in December, 1997, and this appeal was filed on January 20, 1998. The legislature abolished the Secondino rule in civil actions, effective October 1, 1998. See Public Acts 1998, No. 98-50, codified at General Statutes § 52-216c. In State v. Malave, 250 Conn. 722, 738, 737 A.2d 442 (1999), our Supreme Court abandoned the rule in criminal cases. Neither the legislation nor the Supreme Court’s action affects our decision in this appeal.

       The plaintiff also requests that we overrule Supreme Court precedent that established the missing witness rule. “Whether our Supreme Court precedent should be reexamined, discarded or changed is not for this court to decide.” State v. Panella, 43 Conn. App. 76, 83, 682 A.2d 532, cert. denied, 239 Conn. 937, 684 A.2d 710 (1996); see footnote 2.

       Apparently, Kathy Berry, the groom’s sister, felt slighted that she was not asked to be a member of the wedding party.

       The plaintiffs request to charge stated in part: “Before you can even consider any inference from [the plaintiff’s not having called Kirk Marshall to testify], these defendants must demonstrate by evidence . . . that Kirk Marshall has superior information material to 1he issues [as to] what happened to his wife ... as she sa.t at the table alone as she was injured, or as to what took place between Gregory Berry and defendant William O’Keefe, or what happened to Gregory Berry upon being struck or blind-sided. . . . If you find these defendants failed to produce evidence that Kirk Marshall had superior knowledge on these matters, his testimony would at best be cumulative and I instruct you that under the law you cannot under any circumstances draw an unfavorable inference against [the plaintiff] because he was not called as a witness. . . . See Hines v. St. Vincent’s Medical Center, 232 Conn. [632, 637-38, 657 A.2d 578 (1995)].”

       The court instructed the jury in part: “Whether each of these witnesses [was] available is a question of fact for you to determine as a condition precedent to drawing any adverse inference from his or her absence. Availability may be shown or determined not only from mere physical presence or accessibility for service, but also from the relationship [and] usefulness in nature of the expected testimony. And this means only that the witness is in such relationship with the party that it is likely that his or her presence could be procured.”

       The plaintiff also argues that, in the circumstances of this case, her failure to call her husband as a witness should not be subject to the missing witness rule. After failing to point out in her brief that a court’s decision whether to give a missing witness charge is an evidentiary matter; State v. Anderson, 212 Conn. 31, 41-42, 561 A.2d 897 (1989); that is reviewed on appeal under the abuse of discretion standard; see State v. Grant, 221 Conn. 93, 106, 602 A.2d 581 (1992); the plaintiff failed to brief her claim adequately. Accordingly, we decline to afford review. See Krondes v. O’Boy, 37 Conn. App. 430, 436, 656 A.2d 692 (1995).

       Because we affirm the judgment, we will not consider the alternative ground put forth by the defendants.


author: DALY, J.

text:
    IN RE SAVANNA M.

    (AC 18571)
    Lavery, Spear- and Daly, Js.

      Submitted on briefs September 21
    officially released November 23, 1999

      Nicholas A. D Agosto TV filed a brief for the appellant (respondent father).

      Richard Blumenthal, attorney general, and James D. Moorehead, Susan T. Pearlman and Eliot D. Prescott, assistant attorneys general, filed a brief for the appel-lee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, 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.

   Opinion

DALY, J.

This is an appeal by the respondent father from the judgment of the trial court terminating his parental rights with respect to his minor daughter, Savanna, pursuant to General Statutes (Rev. to 1997) § 17a-112 (c) (3) (B) and (D). The respondent claims that the trial court improperly (1) denied his motion to dismiss the petition to terminate his parental rights because the petition failed to plead sufficiently that reasonable efforts were made to reunify him with the child, (2) concluded that the department of children and families (department) had made reasonable efforts to reunify him with the child as required by § 17a-112 (c) (1), (3) found that he had failed to achieve sufficient rehabilitation as would encourage the belief that within a reasonable time he could assume a responsible role in the life of Savanna and (4) concluded that there was no ongoing parent-child relationship, and that to allow more time for establishment of such a relationship would be detrimental to the best interest of the child. We affirm the judgment of the trial court.

The following facts are pertinent to the resolution of this appeal. Savanna was born in April, 1991. The respondent father was arrested the following month and was admittedly not able to parent the child from 1991 to 1994, having been arrested and incarcerated many times due to a drug problem as well as psychiatric impairment. While out of jail from February to December, 1994, he refused to take a blood test to determine the paternity of the child and declined to participate in a psychological evaluation or in anger management classes. The respondent was then incarcerated from December, 1994, until June, 1996.

On July 31,1995, Savanna was adjudicated neglected and committed to the custody of the commissioner of children and families (commissioner). Her commitment was extended until November 1,1998. On January 17, 1997, the petition for termination was filed against both the mother and the respondent and was granted on May 15, 1998.

I

The respondent’s first claim is that the trial court improperly denied his motion to dismiss for lack of subject matter jurisdiction because the commissioner failed to check the box on the preprinted termination of parental rights form that designates whether the department made reasonable efforts to reunify the child with the parent.

Before addressing this claim, we note that subject matter jurisdiction is the power of the court to hear and determine cases of the general class to which the proceedings in question belong. In re Felicia D., 35 Conn. App. 490, 495, 646 A.2d 862, cert. denied, 231 Conn. 931, 649 A.2d 253 (1994). General Statutes (Rev. to 1997) § 17a-112 (c) provides in relevant part: “The Superior Court. . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence (1) that the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts provided such finding is not required if the court has determined at a hearing pursuant to subsection (b) of section 17a-110 that such efforts are not appropriate . . . .”

It is axiomatic that in seeking to terminate parental rights, the commissioner must prove by clear and convincing evidence that the department made reasonable efforts to reunify the parent and child as required by § 17a-112 (c) (1). See In re Eden F., 250 Conn. 674, 695 n.23, 741 A.2d 873 (1999). We also note that “[t]he statutory criteria must be strictly complied with before termination can be accomplished. In re Juvenile Appeal (Docket No. 9489), 183 Conn. 11, 13, 438 A.2d 801 (1981); In re Juvenile Appeal (Anonymous), [177 Conn. 648, 672, 420 A.2d 875 (1979)].” In re Michael M., 29 Conn. App. 112, 119, 614 A.2d 832 (1992).

“We are also cognizant, however, of the presumption in favor of upholding a trial court’s ruling . . . and the nonbinding effect of clerical defects where notice has otherwise been effectively given.” (Citation omitted.) Id., 119-20. Although the commissioner did fail to check the box on the termination petition representing that the department made reasonable efforts toward reunification, the succeeding paragraphs of the petition alleging abandonment; lack of personal rehabilitation; denial of care, guidance and control by acts of omission or commission; and no ongoing parent-child relationship provided the respondent adequate notice of the proceedings against him. Moreover, the court entered an order on October 17,1997, extending Savanna’s commitment to April 1, 1998, and stated: “Said child . . . having been committed, it is the best interest of said child ... to extend the commitment, and the court further finds that continuing efforts to reunify the child . . . with the family are not appropriate.” On the basis of the foregoing, we conclude that the respondent had adequate notice of the grounds on which the commissioner was proceeding and, therefore, the court properly denied the motion to dismiss.

II

The respondent next claims that the trial court improperly concluded that the department had made reasonable efforts to reunify Savanna with him. We disagree.

“On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. . . . Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling. . . . [W]e will disturb the findings of the trial court in both the adjudication and disposition phases only if they are clearly erroneous.” (Internal quotation marks omitted.) In re Tabitha T., 51 Conn. App. 595, 599, 722 A.2d 1232 (1999).

“ ‘Before a termination of parental rights can be granted, the trial court must be convinced that the department has made reasonable efforts to reunite the [child with the] family. The term reasonable efforts was recently addressed by this court: Turning to the statutory scheme encompassing the termination of the parental rights of a child committed to the department, the statute imposes on the department the duty, inter alia, to make reasonable efforts to reunite the child or children with the parents. The word reasonable is the linchpin on which the department’s efforts in a particular set of circumstances are to be adjudged, using the clear and convincing standard of proof. Neither the word reasonable nor the word efforts is, however, defined by our legislature or by the federal act from which the requirement was drawn. . . . [Reasonable efforts means doing everything reasonable, not everything possible. . . . [Id., 600].” (Internal quotation marks omitted.) In re Antony B., 54 Conn. App. 463, 474-75, 735 A.2d 893 (1999). “ ‘The trial court’s ruling on this issue should not be disturbed on appeal unless, in light of the evidence in the entire record, it is clearly erroneous. In re Tabitha P., 39 Conn. App. 353, 361, 664 A.2d 1168 (1995).’ In re Jessica B., 50 Conn. App. 554, 565-66, 718 A.2d 997 (1998).” In re Tabitha T, supra, 51 Conn. App. 600.

Here, the court found that the respondent’s incarceration, lack of personal initiative, mental condition and substance abuse rendered him unable to have visitation with the child or to benefit from reunification during the early years of her life. The department’s efforts toward reunification for the first three years of the child’s life were principally with the mother, with the knowledge and approval of the respondent. Even in recent year’s, the respondent did not offer himself as a resource for Savanna until well after the commencement of these proceedings. We agree with the trial court that there was clear and convincing evidence that the department did everything it reasonably could to reunify the respondent with his daughter, and that it was the conduct of the respondent that led to the failure of those efforts.

Ill

The respondent next claims that the trial court improperly found that he had failed to achieve sufficient rehabilitation as would encourage the belief that within a reasonable time he could assume a responsible role in the life of the child pursuant to § 17a-112 (c) (3) (B).

“Personal rehabilitation as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as a parent. . . . Section 17a-112 requires the trial court to analyze the respondent’s rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time. ... A determination by the trial court . . . that the evidence is clear and convincing that the parent has not rehabilitated herself will be disturbed only if that finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous.” (Citation omitted; internal quotation marks omitted.) In re Tricia A., 55 Conn. App. 111, 115-16, 737 A.2d 974 (1999).

Here, the court found that although the respondent, while incarcerated, took advantage of available substance abuse programs offered for his rehabilitation, his failure to maintain a relationship with Savanna prior to incarceration as well as his continuing mental health problems operated to displace him as a possible parent figure. The court found that giving him additional time to attempt rehabilitation would not likely bring his performance as a parent within acceptable standards and that, even if the respondent could achieve sufficient personal rehabilitation, the child had already been in placement for far too long—more than four years—and required immediate permanent placement. She also had indicated that she wanted a family and did not want to live with the respondent. We have consistently held that allowing a child to languish in foster care is not in the child’s best interest. In re Drew R., 47 Conn. App. 124, 131, 702 A.2d 647 (1997). We are not persuaded, therefore, that the trial court’s finding that the respondent had failed to achieve sufficient personal rehabilitation was clearly erroneous.

IV

The respondent claims finally that the trial court improperly found that there was no ongoing parent-child relationship within the meaning of § 17a-112 (c) (3) (D) and that to allow further time for the establishment of such a relationship would be detrimental to the best interests of Savanna. We disagree.

“[Section 17a-112 (c) (3) (D)] requires the trial court to make a two-pronged determination. First, there must be a determination that no parent-child relationship exists, and, second, the court must look into the future and determine whether it would be detrimental to the child’s best interests to allow time for such a relationship to develop.” In re Michael M., supra, 29 Conn. App. 128.

Our Supreme Court has stated that “[i]t is reasonable to read the language of ‘no ongoing parent-child relationship’ to contemplate a situation in which, regardless of fault, a child either has never known his or her parents, so that no relationship has ever developed between them, or has definitely lost that relationship, so that despite its former existence it has now been completely displaced.” In re Juvenile Appeal (Anonymous), supra, 177 Conn. 670. “In considering whether an ongoing parent-child relationship exists, the feelings of the child are of paramount importance. . . . The ultimate question is whether the child has no present memories or feelings for the natural parent. . . . Feelings for the natural parent connotes feelings of a positive nature only. ... An ongoing parent-child relationship is one that develops as a result of a parent having met on a continuing, day-to-day basis the physical, emotional, moral and educational needs of the child . . . .” (Citations omitted; internal quotation marks omitted.) In re Kezia M., 33 Conn. App. 12, 21, 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993).

The fact that the respondent had some contact with Savanna did not preclude the court from finding that there had been no ongoing parent-child relationship for a period in excess of one year. See id. During the first five years of Savanna’s life, the respondent was incarcerated or psychiatrically or chemically impaired. He was physically, emotionally and spiritually unavailable to the child as a parent figure. Jamshid Marvasti, a child psychiatrist, testified that Savanna had no positive memories of her father. In this case, the department presented ample evidence to satisfy the statutory requirement of the absence of an ongoing parent-child relationship for more than one year.

“To satisfy the second prong [of the analysis], the trial court was required to determine whether it would be in the child’s best interest to allow additional time for the establishment of a parent-child relationship. . . . The ‘best interest’ standard, therefore, does not become relevant until after it has been determined that no ongoing parent-child relationship exists.” (Citation omitted.) Id., 22.

The factors to be considered in deciding whether it would be in Savanna’s best interest to permit further time for a relationship with her father to develop include (1) the length of stay with her foster parents, (2) the nature of her relationship with her foster parents, (3) the degree of contact maintained with the natural parent and (4) the nature of her relationship to her natural parent. Id., citing In re Juvenile Appeal (Anonymous), supra, 177 Conn. 663. “In addition, the genetic bond shared by a biological parent and his or her child, although not determinative of the issue of the best interest of the child, is certainly a factor to consider. . . . ‘The psychological testimony from professionals is rightly accorded great weight in termination proceedings.’ In re Nicolina T., 9 Conn. App. 598, 605, 520 A.2d 639, cert. denied, 203 Conn. 804, 525 A.2d 519 (1987).” In re Kezia M., supra, 33 Conn. App. 22. Furthermore, it is well established that a “trial court [is] free to judge the credibility of the expert witnesses.” Id., 23.

The court found that Savanna had been in foster care for more than four years, and that she had positive feelings and emotional ties toward her foster parents whom she regarded as her mother and father. In contrast, Savanna harbors negative feelings toward her father. Given those facts, we uphold the court’s finding that termination was in the best interest of the child.

The judgment is affirmed.

In this opinion the other judges concurred.

       The respondent mother consented to the termination of her parental rights and has not appealed from the termination judgment. We refer in this opinion to the respondent father as the respondent.

       General Statutes (Rev. to 1997) § 17a-112 (c) provides in relevant part: “The Superior Court, upon hearing and notice as provided in sections 45a-716 and 45a-717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence (1) that the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts provided such finding is notrequired if the court has determined at a hearing pursuant to subsection (b) of section 17a-110 that such efforts are not appropriate, (2) that termination is in the best interest, of the child, and (3) that . . . (B) the parent of a child who has been found by the Superior Court, to have been neglected or uncared for in a prior proceeding has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent, could assume a responsible position in the life of the child . . . [and] (I)) There is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of aparen!, having met on a day to day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best, interest, of the child . . . ."

         Since the respondent’s release from his latest incarceration, he has made progress, taking medications and 'attending Alcoholics Anonymous meetings. In addition, he is engaged to a woman with an eight year old daughter.

         In August, 1996, the respondent filed for a paternity test and was determined subsequently to be the father of the child.


author: Per Curiam.

text:
    JOSEPH P. GERARDI v. DENNIS J. MITCHELL
    (AC 19511)
    O’Connell, C. J., and Spear and Dupont, Js.
    Argued September 13
    officially released November 2, 1999
   Per Curiam.

The judgment is affirmed.


text:
    JEFFREY J. DONTIGNEY v. COMMISSIONER OF CORRECTION
    (AC 19175)
    Foti, Lavery and Landau, Js.
    Argued September 13
    officially released November 2, 1999
   Per Curiam.

The appeal is dismissed.


text:
    TOWN OF WINDHAM v. ROGER L. LECLAIR ET AL.
    (AC 19139)
    (AC 19140)
    (AC 19142)
    O’Connell, C. J., and Schaller and Hennessy, Js.
    Argued September 21
    officially released November 2, 1999
   Per Curiam.

The judgments are affirmed.


text:
    CENTER AUTOMOTIVE, INC. v. COMMISSIONER OF MOTOR VEHICLES
    (AC 18711)
    Schaller, Spear and Mihalakos, Js.
    Submitted on briefs September 15
    officially released November 2, 1999
   Per Curiam.

The judgment is affirmed.


text:
    JOSEPH MARSHALL v. UNITED TECHNOLOGIES CORPORATION/PRATT AND WHITNEY AIRCRAFT DIVISION ET AL.
    (AC 18811)
    Landau, Schaller and Hennessy, Js.
    Submitted on briefs September 15
    officially released November 2, 1999
   Per Curiam.

The decision of the workers’ compensation review board is affirmed.


text:
    JOSE HERNANDEZ, ADMINISTRATOR (ESTATE OF EFREN TORRES) v. ERNEST NEWTON
    (AC 18873)
    Foti, Lavery and Vertefeuille, Js.
    Submitted on briefs September 15
    officially released November 2, 1999
   Per Curiam.

The judgment is affirmed.


text:
    LAURENCE V. PARNOFF, P.C. v. TAX ASSESSOR OF THE CITY OF BRIDGEPORT
    (AC 18936)
    O’Connell, C. J., and Landau and Hennessy, Js.
    Submitted on briefs September 15
    officially released November 2, 1999
   Per Curiam.

The judgment is affirmed.


text:
    PHILIP A. DEPALLO v. COMMISSIONER OF CORRECTION
    (AC 17847)
    Foti, Landau and Spear, Js.
    Submitted on briefs September 23
    officially released November 9, 1999
   Per Curiam.

The judgment is affirmed.


text:
    NATIONAL WESTMINSTER BANK v. PETER J. GOULD ET AL.
    (AC 18842)
    Foil, Schaller and Dupont, Js.
    Argued September 24
    officially released November 9, 1999
   Per Curiam.

The judgment is affirmed and the case is remanded for the purpose of setting a new sale date.


text:
    STATE OF CONNECTICUT v. JOSEPH R. DINEGAR
    (AC 18633)
    O’Connell, C. J., and Foti and Landau, Js.
    Argued September 28
    officially released November 9, 1999
   Per Curiam.

The judgment is affirmed.


text:
    COUNTRY LUMBER, INC. v. RICCI CORPORATION
    (AC 18610)
    O’Connell, C. J., and Landau and Dupont, Js.
    Argued September 24
    officially released November 9, 1999
   Per Curiam.

The judgment is affirmed.


text:
    DONALD FEE v. COMMISSIONER OF CORRECTION
    (AC 17833)
    O’Connell, C. J., and Lavery and Hennessy, Js.
    Submitted on briefs October 18
    officially released November 9, 1999
   Per Curiam.

The judgment is affirmed.


text:
    FIRST FEDERAL BANK, FSB v. MAUREEN A. CLARK ET AL.
    (AC 19252)
    Landau, Spear and Vertefeuille, Js.
    Argued October 21
    officially released November 9, 1999
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. CHARLES AARON FEIN
    (AC 18033)
    Lavery, Landau and Hennessy, Js.
    Argued October 25
    officially released November 9, 1999
   Per Curiam.

The appeal is dismissed by agreement.


text:
    STATE OF CONNECTICUT v. MICHAEL REID
    (AC 18293)
    O’Connell, C. J., and Landau and Mihalakos, Js.
    Argued October 26
    officially released November 9, 1999
   Per Curiam.

The judgment is affirmed.


text:
    JOSEPH A. GIBSON III v. COMMISSIONER OF CORRECTION
    (AC 19159)
    Lavery, Hennessy and Vertefeuille, Js.
    Argued October 27
    officially released November 23, 1999
   Per Curiam.

The judgment is affirmed.


text:
    EUGENE LIDMAN ET AL. v. LINDA NUGENT
    (AC 18996)
    O’Connell, C. J., and Spear and Mihalakos, Js.
    Submitted on briefs September 15
    officially released November 23, 1999
   Per Curiam.

The judgment is affirmed.


text:
    OLYMPIA G. FUSCO v. TOWN OF EAST HAVEN
    (AC 18715)
    Foti, Landau and Daly, Js.
    Argued October 27
    officially released November 23, 1999
   Per Curiam.

The judgment is affirmed.


text:
    EMANUEL SBONA v. CITY OF MIDDLETOWN
    (AC 18404)
    Foti, Landau and Daly, Js.
    Argued October 27
    officially released November 23, 1999
   Per Curiam.

The decision of the workers’ compensation review board is affirmed.


text:
    CHRISTINA TRUDEAU v. WILLIAM A. TRUDEAU, JR.
    (AC 19494)
    Landau, Schaller and Vertefeuille, Js.
    Submitted on briefs November 3
    officially released November 23, 1999
   Per Curiam.

The judgment is affirmed.


text:
    CHERYL A. FELTT v. TERRY A. FELTT
    (AC 19347)
    Foti, Laveiy and Hennessy, Js.
    Submitted on briefs November 3
    officially released November 23, 1999
   Per Curiam.

The judgment is affirmed.


text:
    BEVERLY DURHAM v. OSCAR DURHAM
    (AC 19579)
    O’Connell, C. J., and Spear and Mihalakos, Js.
    Submitted on briefs November 3
    officially released November 23, 1999
   Per Curiam.

The judgment is affirmed.