text:
    TYSHUN WILLIAMS v. COMMISSIONER OF CORRECTION
    (AC 29690)
    Harper, Lavine and Beach, Js.

      Argued May 26
    officially released October 6, 2009

      Robert Tilewick, special public defender, for the appellant (petitioner).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Cynthia S. Serafini, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

HARPER, J.

The petitioner, Tyshun Williams, appeals from the judgment of the habeas court, A. Santos, J., denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly determined that he received effective assistance of counsel. We affirm the judgment of the habeas court.

The following undisputed facts and procedural history are relevant to the resolution of the petitioner’s claim. On September 29, 2003, the petitioner pleaded guilty to robbery in the first degree in violation of General Statutes § 53a-134 (a) (2) relating to his involvement in the robbery of a credit union in Waterbury. In connection with the plea, the state alleged that the petitioner, along with four codefendants, agreed to rob the credit union, and, on the morning of October 1, 2002, the petitioner, armed with two handguns and his face covered, entered the credit union accompanied by a codefendant. The petitioner jumped over the teller’s counter with a gun in each hand and pointed one gun at the teller’s head and the other at her back. The petitioner demanded money, and the teller complied. The petitioner and the codefendant then fled the credit union with approximately $20,000.

Several codefendants later were apprehended and gave statements to the police implicating the petitioner. In October, 2002, the petitioner was arrested and charged with conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (2), and robbery in the first degree in violation of § 53a-134 (a) (2). The petitioner admitted his involvement in the robbery and provided a full statement to the police. Originally, during plea negotiations, the state offered the petitioner and the codefendants fifteen years imprisonment. The offer was reduced to twelve years of incarceration with five years of special parole. That offer remained open from December, 2002, to September 26,2003. The petitioner, heeding his mother’s advice, did not accept the twelve year offer.

On Friday, September 26, 2003, the day jury selection was to begin, the petitioner was afforded one last opportunity to accept the offer. The petitioner’s mother could not be contacted on that day and was not present in court. The petitioner did not accept the twelve year offer, and it was withdrawn. The petitioner’s mother, however, accompanied the petitioner to court on the following Monday, September 29, 2003, at which time the petitioner entered a plea of guilty to robbery in the first degree. In regard to the conspiracy charge, the prosecutor entered a nolle prosequi. On November 7, 2003, the trial court, Iannotti, J., sentenced the petitioner to a total effective term of fifteen years imprisonment, five of which are mandatory, followed by five years special parole. During these proceedings and during the plea negotiations, the petitioner was represented by counsel, Thomas Conroy.

The petitioner did not move to withdraw his plea and did not file a direct appeal. On May 9,2006, the petitioner filed an amended petition for a writ of habeas corpus. In count one of his amended petition, the petitioner claimed that Conroy was ineffective for failing (1) to use mitigating factors in negotiating a fair plea bargain, (2) to investigate facts of the case that would be introduced as mitigating factors, including whether the petitioner suffered from any mental illness, (3) to ask the court to appoint a guardian ad litem and (4) to acknowledge that the petitioner could not knowingly, intelligently and voluntarily enter a guilty plea. In count two, the petitioner claimed that he was denied due process of law because his pleas were not made voluntarily, knowingly and intelligently.

During the habeas proceedings, four witnesses testified: Conroy; Jay Cudrin, a clinical psychologist who examined the petitioner; attorney Leon Kaatz, an expert in habeas coipus matters; and the petitioner. Other evidence was also considered by the court, including transcripts from the numerous proceedings before Judge Iannotti, Conroy’s file, a packet containing the results of the diagnostic tests administered to the petitioner by Cudrin, and the petitioner’s medical and mental health records.

Cudrin testified that he met with the petitioner in March, 2006, for an evaluation, during which Cudrin administered several psychological tests to the petitioner. Cudrin testified that one of the tests administered revealed that the petitioner had an intelligence quotient of sixty-nine, which is in the lowest 2 percent of the population. Cudrin, however, was unable to make a diagnosis regarding mental retardation because he did not have any information about the petitioner before he became eighteen years of age. In addition, because the petitioner did not score significantly below average on all the subtests and because his word recognition score was at a high school level and in the thirtieth percentile, Cudrin did not opine that the petitioner was mentally retarded. Cudrin also testified that the test results showed that the petitioner has “very poor judgment” and an “antisocial personality disorder.” Furthermore, Cudrin admitted that there existed a possibility that the petitioner was malingering and that Cudrin did not know the petitioner’s mental state at the time the petitioner had committed the robbeiy.

Conroy testified that he investigated the case and shared the information about the case and the plea negotiations with the petitioner. Although Conroy could not recall the amount of time he had spent with the petitioner, Conroy testified that he was able to communicate with the petitioner. Conroy testified that he informed the petitioner that the case against him was strong and that his advice to the petitioner was to accept the twelve year offer. Conroy also testified that he spoke to the petitioner’s mother on a “regular basis,” and, although he could not remember the specifics of the conversations he had with her, he strongly believed that he had informed the petitioner’s mother that there was compelling evidence against the petitioner. Conroy did not remember the petitioner asking him to obtain his mental health records and stated that he did not obtain them because the plea offer was “firm” and he was “not given a presentence investigative right to argue for a lesser sentence.” Finally, Conroy testified that the petitioner and his mother were unhappy with the twelve year offer.

Kaatz testified that the presence of the petitioner’s mother in court and the degree of her participation was “highly unusual.” He also testified that such involvement should have prompted Conroy to request a competency examination and to obtain the petitioner’s mental health records for the purpose of assisting him during plea bargaining, sentencing or an alternative resolution such as insanity or incompetency. Kaatz also opined that these circumstances should have prompted counsel to maintain close communication with the petitioner’s mother to facilitate communication with the petitioner. Kaatz, however, admitted that if Conroy was able to communicate with the petitioner, he had no obligation to procure the assistance of a third person and that on the basis of the facts of the case, the fifteen year sentence that the petitioner received was reasonable.

The petitioner testified that he lived with his parents and in group homes, was treated by psychologists, received social security assistance and needed his mother to perform everyday tasks, such as paying his bills for him. He also testified that he previously had been arrested for drug related offenses and that his mother had accompanied him to court and stood beside him during most court appearances. The petitioner further testified that Conroy never discussed trial strategy with him and did not obtain his medical records, even though he had asked Conroy to do so. The petitioner verified that on September 26,2003, the offer was twelve years and that he asked Judge Iannotti to “wait” because his mother was not present, but the court refused to do so. Although the petitioner testified that he had wanted to accept the offer, he admitted that he was aware on September 26, 2003, that he was rejecting the offer. The petitioner testified that Conroy had advised him that it was his last chance to accept the twelve year offer and that if he rejected it, the offer would be “taken off the table . . . .” Further, the petitioner testified that when he had pleaded guilty, he was not under the influence of drugs or alcohol. The petitioner also testified that during the plea canvass, he informed the court that his plea had been entered freely and voluntarily and that he had the opportunity to consult with Conroy prior to making his plea. The petitioner testified that he was dissatisfied with Conroy’s representation because he wanted a suspended sentence and because Conroy did not request his mental health records. The petitioner also was unhappy with Conroy’s representation because Conroy allegedly lied to him regarding the petitioner’s involvement in an unrelated matter.

After reviewing the evidence before it, the habeas court found that the state had a strong case against the petitioner and that there was no defense on the merits of the case. The court also found that Conroy was able to communicate with the petitioner regarding his criminal case and that the petitioner was unhappy with Con-roy’s representation because the petitioner did not like the terms of the state’s plea deal. The court found that Conroy had spoken to the petitioner’s mother on a regular basis and that, although the petitioner was of an adult age of twenty-one at the time of the court proceedings, his mother was in court on almost every occasion. The court further found: “There is no indication in the underlying record that either the [trial] court, the prosecuting attorney or attorney Conroy had concerns regarding [the] petitioner’s mental abilities that rose to the level of requesting either a competency evaluation or requesting the appointment of a guardian ad litem. Attorney Conroy could not recall being asked to get [the] petitioner’s mental health record, and he did not, in fact, order those records for purposes of his representation of [the] petitioner. [Although] Judge Iannotti permitted [the] petitioner’s mother to address the court and [to] interact with [the] petitioner, it also is patently evident that Judge Iannotti was not permitting [the] petitioner’s mother to speak for him in any representative capacity.” Moreover, the court found that although the petitioner’s mother was able to address the court, “it is evident from the transcripts that [the] petitioner conferred with attorney Conroy” and that the petitioner “addressed the court on several occasions and discussed concerns he had regarding the resolution of his matters.” Finally, the court found that “Judge Iannotti thoroughly canvassed [the] petitioner at the time of his guilty plea and found the plea to be knowing, voluntary and made with the assistance of competent counsel.”

The court then concluded that as to count one of his amended petition, the petitioner failed to meet his burden under both prongs of the test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), as modified by Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985). The court determined that the petitioner “has [not] shown deficient performance by [his trial attorney] .... Even if this court were to assume that such a showing had been made, which has not been made, [the] petitioner has not shown [that] there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. [The] [petitioner has also not shown that the alleged deficiencies . . . would have been successful had [his trial attorney] done what [the] petitioner presently alleges should have [been] done. Consequently, the claim in count one, notwithstanding the testimony of [Cudrin and Kaatz], is without merit and must be denied.” Relying on its resolution of the first count of the petition, the court declined to grant any relief as to the second count. The court, thereafter, denied the petition for a writ of habeas corpus and rendered judgment accordingly. On February 27, 2008, the petitioner filed a petition for certification to appeal, which the court granted. This appeal followed.

On appeal, the petitioner claims that Conroy was ineffective for failing to ensure that his mother was present in court on the day jury selection was to begin because he was unable to make a decision to plead guilty without his mother’s guidance. More specifically, the petitioner claims that, had his mother been present on September 26, 2003, he would have accepted the twelve year' offer. We are not persuaded.

We begin by setting forth the applicable standard of review. “In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . .

“A habeas petitioner can prevail on a constitutional claim of ineffective assistance of counsel [only if he can] establish both (1) deficient performance, and (2) actual prejudice. . . . For ineffectiveness claims resulting from guilty verdicts, we apply the two-pronged standard set forth in Strickland .... For ineffectiveness claims resulting from guilty pleas, we apply the standard set forth in Hill . . . which modified Strickland’s prejudice prong. . . .

“To satisfy the performance prong, the petitioner must show that counsel’s representation fell below an objective standard of reasonableness. ... To satisfy the prejudice prong, the petitioner must show a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. ... A reviewing court can find against a petitioner on either ground, whichever is easier.” (Citations omitted; internal quotation marks omitted.) Leatherwood v. Commissioner of Correction, 105 Conn. App. 644, 647, 938 A.2d 1285, cert. denied, 286 Conn. 908, 944 A.2d 979 (2008).

The petitioner does not dispute the court’s findings of fact on appeal; rather, the petitioner challenges the court’s legal analysis. After reviewing the record and the court’s memorandum of decision, we conclude that the court properly applied the Strickland-Hill test. In addition, the court’s conclusion that Conroy’s performance was not deficient is supported by the facts. As the court found, Conroy was able to communicate with the petitioner regarding his criminal case and spoke to the petitioner’s mother on a regular basis. There was no indication that the trial court, the prosecutor or Conroy had or reasonably should have had any concerns regarding the petitioner’s mental abilities, such that a competency evaluation or the appointment of a guardian ad litem was needed. Additionally, although Judge Iannotti permitted the petitioner’s mother to address the court and interact with the petitioner, he did not permit the petitioner’s mother to speak for the petitioner in any representative capacity. Moreover, the petitioner conferred with Conroy and addressed the court himself on several occasions, during which he discussed the concerns he had regarding the resolution of his matters. Finally, there was no evidence presented at the habeas trial or in the record that indicates that the petitioner’s mother would have advised the petitioner to accept the twelve year offer had she been present in court on September 26, 2003. In fact, the opposite conclusion could be deduced from the evidence presented, given that on three occasions, when his mother was present, the petitioner failed to accept the twelve year offer. See footnote 1. Accordingly, the petitioner’s claim that Conroy’s assistance was ineffective fails under the performance prong of the Strickland-Hitt test.

The judgment is affirmed.

In this opinion the other judges concurred.

       On at least three occasions prior to September 26, 2003, the petitioner, accompanied by his mother and his attorney, attended proceedings before the trial court, Iannotti, J., relating to the robbery of the credit union. At those proceedings, the petitioner’s mother was permitted to address the court. The petitioner’s mother told the court that the petitioner was “slow,” that he has a “mental illness" and that he had attended special schools all of his life. The petitioner did not take advantage of the twelve year plea offer on those prior occasions.

       As the court noted: “The petitioner’s history of limited mental health and limited mental functioning is documented in the records from Harmony Hill School in Rhode Island. The records document his hospitalizations at Elmcrest at the age of six, followed by Mount Sinai Hospital and Riverview [Hospital]. His mental limitations are documented in a psychiatric evaluation at the age of nine.”

       Cudrin testified: “This is a diagnosis that’s given to people who show repeated disregard for social rules, who participate in criminal behavior, who [are not] terribly concerned about relationships or the effect of then-behavior on relationships.”

       The petitioner has not raised or briefed the remaining claims in count one of his petition for a writ of habeas corpus, i.e., that trial counsel failed to use mitigating factors in negotiating a fair plea bargain and to ask for a guardian ad litem, nor has he raised or briefed the due process claim asserted in count two of the petition. Therefore, these claims are deemed abandoned. See State v. Ouellette, 110 Conn. App. 401,407 n.1, 955 A.2d 582, cert. granted on other grounds, 289 Conn. 951, 961 A.2d 417 (2008).

       The petitioner also claims that the court improperly relied on Groomes v. Commissioner of Correction, 86 Conn. App. 486, 490, 862 A.2d 305 (2004), cert. denied, 273 Conn. 907, 868 A.2d 747 (2005), for the proposition that, if a claim of ineffectiveness of counsel is based on the petitioner’s disabilities, then the petitioner must show that his disabilities are “legally significant.” We disagree.
      The petitioner appears to overstate the court’s reliance on Groomes. The court correctly observed that to be relevant to its analysis, any disability the petitioner was attempting to establish at the habeas trial (i.e., the inability to make decisions without his mother’s assistance) would have had to have been severe enough to prevent the petitioner from entering a knowing, intelligent and voluntary plea. If the petitioner was able to show that his disability greatly affected his ability to enter a knowing, intelligent and voluntary plea, then his disability would be legally significant because such disability would affect the validity of the petitioner’s plea.
      As discussed previously, the court found that the petitioner’s alleged mental defects did not rise to a level that Judge Iannotti, the prosecutor or trial counsel believed required an evaluation or the appointment of a guardian ad litem, and Judge Iannotti thoroughly canvassed the petitioner and found his pleas to be knowing, intelligent and voluntarily. Therefore, any disability that the petitioner may have had was not legally significant because it did not prevent him from entering a knowing, intelligent and voluntary plea. The court properly applied the relevant law in considering the petitioner’s claim of disability.

       The petitioner further asserts that Conroy’s assistance was ineffective because Conroy should have “at least asked the judge to keep the [twelve year] plea [offer] open for one day.” Because the court did not address this claim and the petitioner failed to request an articulation with regard to the issue, “we cannot review [the claim] because to do so would result in an ambuscade of the habeas court.” Newsome v. Commissioner of Correction, 109 Conn. App. 159, 165 n.4, 951 A.2d 582, cert. denied, 289 Conn. 918, 957 A.2d 878 (2008).

       Because we have rejected the petitioner’s claim of ineffective assistance of counsel under the first prong of the Strickland-Hill test, we need not reach the second prong of that test regarding prejudice. See Leatherwood v. Commissioner of Correction, supra, 105 Conn. App. 647.


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    IN RE TREMAINE C.

    (AC 30083)
    Beach, Robinson and Schaller, Js.

      Argued June 2
    officially released October 13, 2009

      David J. Reich, for the appellant (respondent father).

      Michael J. LaMonica, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman and Renee Bevacqua Bollier, assistant attorneys general, for the appellee (petitioner).

      John Anthony Radziunas, for the minor child.

       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

SCHALLER, J.

The respondent father appeals from the judgment of the trial court terminating his parental rights with respect to his minor son, Tremaine. On appeal, the respondent claims that his constitutional due process rights to be present at trial and to confront witnesses were violated. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the respondent’s appeal. Trem-aine was bom in June, 2006. The respondent was incarcerated at the time of Tremaine’s birth, and the child was removed from the mother’s care when he was bom because he tested positive for cocaine. After Tremaine’s birth, the respondent visited with him monthly until the respondent was released from prison in November, 2006. He continued to visit consistently with Tremaine in December, 2006, and the first two weeks of January, 2007. The respondent’s last visit with Tremaine was on January 8, 2007. After January 8,2007, the respondent had no contact with Tremaine or with the department of children and families (department) concerning Tremaine’s well-being.

On June 22, 2007, the petitioner, the commissioner of children and families, filed a termination of parental rights petition as to both parents. The respondent properly was served with the termination of parental rights petition. On July 22,2007, the respondent was defaulted for nonappearance.

On November 7, 2007, the hearing on the termination of parental rights petition commenced as to the mother. During the hearing, the court noted the respondent’s absence from the proceedings, and the default was noted on the record. Lakesha Smith, a social worker for the department, testified that she had been unable to locate the respondent because, she believed, he was attempting to evade the authorities because of an outstanding arrest warrant for a violation of probation. Smith testified that in September, 2007, she checked the department of correction Internet site for information regarding the respondent’s whereabouts, but the site indicated that the respondent was unaccounted for as an “absconder.” Smith also testified that she then contacted the respondent’s parole officer, who informed her that the respondent was on the run from authorities. Smith testified that after the respondent was released in November, 2006, on special probation, he was arrested in the summer of 2007 and did not report for his court appearance. Finally, Smith testified that she had checked the department of correction Internet site on November 6, 2007, and determined that the respondent was still “on the run.”

Smith testified that after January 8, 2007, the respondent had not seen Tremaine, had not inquired of the department or Tremaine’s foster parents for information about Tremaine, had not sent letters, cards or gifts and had not sent financial support. She also testified that the respondent participated in the substance abuse evaluation to which she referred him and attended his intake appointment at New Haven Family Alliance but that he did not return for parenting services. In addition, Smith testified that the department had not been permitted to check the home listed as the respondent’s mailing address to determine if it was an appropriate setting for Tremaine.

The hearing was continued to November 27, 2007, for additional testimony. On November 27, 2007, however, the hearing was continued again, this time to January 29, 2008, due to the mother’s hospitalization. On January 29, 2008, Smith testified that she had had no contact with the respondent since the November 7,2007 hearing, that the respondent had made no inquiry to her office concerning the well-being of Tremaine and that she had not received any Christmas presents, cards or letters for Tremaine from the respondent. Smith also testified that the respondent had not provided any financial support for Tremaine since the November 7, 2007 hearing. The remainder of Smith’s testimony on that date related to the petition to terminate the mother’s parental rights. Lauralee Candelario, a substance abuse counselor, also testified on January 29, 2008, about the mother’s substance abuse issues. During closing argument, the petitioner’s counsel did not address the termination of the respondent’s parental rights.

On February 14, 2008, the petitioner filed a motion to open the evidence because Smith had checked the department of correction Internet site on January 30, 2008, and discovered that the respondent had been incarcerated on or about January 18, 2008. On February 26, 2008, an attorney was appointed to represent the respondent. The respondent was provided with the transcripts of both the November 7, 2007 and January 29, 2008 proceedings. The court informed the respondent that he was free to call or recall any witness to the witness stand. On April 15, 2008, the court granted the petitioner’s motion to open the evidence and was ready to proceed with the termination hearing. The respondent’s attorney requested a continuance to prepare adequately. The court granted the continuance, and trial was scheduled to resume on May 19, 2008.

On May 19, 2008, the respondent called Smith for purposes of cross-examination. Smith testified that she had made efforts to contact the respondent prior to November 7, 2007. Specifically, she contacted the respondent’s family members and his probation officer, and she sent letters to the respondent’s home. Between November 7, 2007, and January 29, 2008, Smith continued to attempt to locate the respondent. She checked the department of correction Internet site twice a month. She tried checking the department of correction site on January 28, 2008, to locate the respondent, but the site was not functioning. The respondent never informed Smith that he was incarcerated in January, 2008. Smith discovered that the respondent was incarcerated when she checked the department of correction Internet site again on January 30, 2008. On May 19, 2008, Smith also testified that although the respondent visited Tremaine in December, 2006, and January, 2007, he did not help care for Tremaine.

During closing arguments, the respondent’s attorney argued for a new trial, but when questioned by the court, he withdrew the request. Instead, the respondent’s attorney argued that the court should deny the petition for the termination of parental rights on the ground that the petitioner did not make reasonable efforts to locate the respondent.

On May 19, 2008, the court found that the petitioner had made reasonable efforts to locate the respondent. The fact that the petitioner did not discover until January 30, 2008, that the respondent had been incarcerated sometime around January 18, 2008, did not change the court’s conclusion that the petitioner had made reasonable efforts to locate the respondent. Furthermore, the court found that the respondent evaded the petitioner’s attempts to locate him, presumably because he feared reincarceration, and that the respondent could not be located by the petitioner because the respondent did not want to be found. The court terminated the respondent’s parental rights after finding that he had abandoned Tremaine.

The respondent’s claim on appeal is that the court deprived him of his constitutional due process rights to be present at trial and to confront witnesses. Specifically, he claims that “he had a due process right to be at trial once he was apprehended and incarcerated and has the right to have a new trial even if [the department] and the court were unaware that he was incarcerated.” We disagree.

Because the respondent did not preserve his claim at trial, he requests review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and the plain error doctrine. See Practice Book § 60-5. Under Golding, a party “can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the [respondent] of a fair trial; and (4) if subject to harmless error analysis, the [petitioner] has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the [respondent’s] claim will fail. The appellate tribunal is free, therefore, to respond to the [respondent’s] claim by focusing on whichever condition is most relevant in the particular circumstances.” (Emphasis in original.) State v. Golding, supra, 239-40.

In this case, there is an adequate record and a claim of constitutional magnitude implicating a fundamental right. “The right of a parent to raise his or her children has been recognized as a basic constitutional right. Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); Lehrer v. Davis, 214 Conn. 232, 236, 571 A.2d 691 (1990); In re Juvenile Appeal (Docket No. 10155), 187 Conn. 431, 435, 446 A.2d 808 (1982); State v. Anonymous, 179 Conn. 155, 162-63, 425 A.2d 939 (1979).” In re Alexander V., 25 Conn. App. 741, 743, 596 A.2d 934 (1991), aff'd, 223 Conn. 557, 613 A.2d 780 (1992). Thus, the first two Golding conditions are met, and we next consider whether a constitutional violation clearly exists and whether the respondent was clearly deprived of his right to a fair trial.

The respondent’s claim fails under the third Golding prong because the constitutional violation does not clearly exist, and the respondent was not clearly deprived of a fair trial. “The United States Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), established a three part test to determine whether the actions of the court violated a party’s right to procedural due process. The three factors to be considered are (1) the private interest that will be affected by the state action, (2) the risk of an erroneous deprivation of such interest, given the existing procedures, and the value of any additional or alternate procedural safeguards, and (3) the government’s interest, including the fiscal and administrative burdens attendant to increased or substitute procedural requirements. . . . Due process analysis requires balancing the government’s interest in existing procedures against the risk of erroneous deprivation of a private interest inherent in those procedures.” (Citation omitted; internal quotation marks omitted.) Foster v. Foster, 84 Conn. App. 311, 319, 853 A.2d 588 (2004).

The respondent’s interest in retaining his parental rights as to the child is a constitutionally protected interest. A petition to terminate parental rights threatens the respondent’s constitutionally protected interest. Accordingly, the first factor of the Mathews balancing test weighs in favor of the respondent. See In re Candids E., 111 Conn. App. 210, 216-17,958 A.2d 229 (2008).

The respondent argues that the second factor of the balancing test is not applicable to the facts of this case because he does not ask this court to enforce additional safeguards, but, rather, he asks us to afford him the benefit of the safeguards already in place in our statutes and rules of practice. The petitioner argues that the respondent is in fact seeking additional safeguards, namely, a new trial. We agree with the petitioner that the respondent is seeking additional safeguards that are not provided by our statutes or rules of practice. See id., 217 (no violation of statutes, rules of practice or due process when hearing conducted in represented respondent’s absence, rather than rendering of default judgment, because “the court required the petitioner to prove by clear and convincing evidence not only the ground for termination, but that it was in the child’s best interest for the respondent’s parental rights to be terminated”).

We must, therefore, consider the risk of an erroneous deprivation of the respondent’s interest, given the existing procedures, and the value, if any, of the additional safeguard of a new trial. In this case, the petitioner properly served the respondent with notice of the petition. After the respondent failed to appear and was defaulted, the petitioner, aware of the outstanding warrants for the respondent’s arrest, continuously inquired at the department of correction Internet site to determine whether the respondent was incarcerated. When the petitioner learned that the respondent was incarcerated, she moved to open the evidence and requested that the respondent be appointed counsel. Additionally, the court opened the evidence, provided transcripts for the respondent’s counsel, permitted a continuance to allow the respondent’s counsel to meet with his client and to prepare for trial, and allowed the respondent to call or recall witnesses and to present evidence during the hearing. Finally, the court found that the petitioner proved by clear and convincing evidence the ground for termination and that it was in the child’s best interest for the respondent’s parental rights to be terminated. Accordingly, the risk of an erroneous deprivation under these circumstances is very low. Furthermore, the value of a new trial would be minimal. Other than the statement that he was not able to participate adequately in the hearing by having spontaneous input, the respondent has failed to articulate any support for his argument that a new trial would provide him with greater protection of his parental rights than the procedural protections with which he was afforded.

The respondent argues that the court was required to order a new trial in this case on the basis of our decision in In re Jonathan P., 23 Conn. App. 207, 579 A.2d 587 (1990). In that case, we found that the respondent was entitled to a new hearing because his due process rights to be present at trial and to confront witnesses were violated when the court proceeded with the termination of parental rights hearing without the incarcerated respondent’s presence when a writ of habeas corpus had been issued to enable the respondent to be in court that day. Id., 209-12.

The respondent’s reliance on In re Jonathan P. is misplaced. The respondent’s due process rights were violated in that case because the respondent, who was incarcerated, was prevented from participating in the termination of parental rights trial on the basis of state sanctioned action. Id., 213-14. In that case, the respondent had not been transported by the department of correction to court even though a habeas writ had been issued for him to be present that morning. Id., 213. In this case, even though the respondent was incarcerated, the state did not prevent him from appearing in court. There is no indication in the record that the court or the parties were aware that the respondent was incarcerated and no indication that the department of correction was aware that the respondent wanted to be transported to court for the hearing.

The present case is more analogous to McDuffee v. McDuffee, 39 Conn. App. 412, 664 A.2d 1164 (1995), in which the plaintiff challenged the court’s denial of a continuance for a custody hearing because she was involved in a criminal matter in a different state. In McDuffee, we stated: “The plaintiffs claim that her due process rights were violated is without merit. She confuses her own inaction in failing to arrange to be present or to provide testimony at the hearing with an affirmative action by the trial court denying her the right to be present. This is a private custody dispute, and the court did nothing to prevent the plaintiff from appearing. The record is devoid of any indication that the plaintiff availed herself of any of the procedures that would have allowed her to provide evidence or to be present. We conclude, therefore, that the trial court did not violate the plaintiffs due process rights.” Id., 416. Similarly, in this case, the respondent failed to notify any parties or the court of his incarceration, and, furthermore, there is no indication in the record that the respondent availed himself, either prior or subsequent to his incarceration, of any of the procedures that would have allowed him to be present for the termination of parental rights trial and to confront witnesses. There was no affirmative act by the court to deny the respondent the opportunity to be present at the termination proceedings. Furthermore, the record is clear that the respondent voluntarily chose not to be present for the termination proceedings, as evidenced by his (1) never contacting the petitioner after being served properly with notice of the termination proceedings, resulting in his being defaulted, and (2) missing two scheduled trial dates during the termination proceedings while he was not incarcerated. Accordingly, the second factor of the Mathews balancing test weighs in favor of the petitioner.

The third factor of the Mathews balancing test concerns the government’s interest, including the economic and administrative burdens associated with increased or substitute procedural requirements. There are two important interests of the government that we must consider in this case. First, the petitioner has an interest in lessening the costs of a termination trial. Beginning the trial anew would substantially increase the cost to the petitioner and would have “resulted in the very economic and administrative burdens on resources considered by this prong.” In re Candids E., supra, 111 Conn. App. 218. Additionally, “as parens patriae, the state is . . . interested in the accurate and speedy resolution of termination litigation in order to promote the welfare of the affected child. ... As [this court has] correctly noted, because of the psychological effects of prolonged termination proceedings on young children, time is of the essence. Any significant delay would undermine the state’s important interest in protecting the welfare of children. This cost, and the state’s interest in avoiding it, would rise as the delay increased. Accordingly, we recognize that the state has a vital interest in expediting the termination proceedings . . . .” (Internal quotation marks omitted.) Id. Delaying this matter for a trial de novo would place an unnecessary burden on the petitioner’s interest in furthering a permanency plan for Tremaine. Therefore, the third factor of the Mathews balancing test favors the petitioner. After carefully considering the three factors of the Mathews balancing test, we conclude that the court did not violate the respondent’s due process rights by failing sua sponte to order a new hearing on the petition. The respondent had no due process right to a new trial under these circumstances. Accordingly, the respondent has not shown that a constitutional violation clearly exists, and his claim fails under the third prong of Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court also terminated the parental rights of the child’s mother, who has filed a separate appeal from that judgment. See In re Tremaine C., 117 Conn. App. 590, 980 A.2d 330 (2009). We therefore refer in this opinion to the respondent father as the respondent.

       The respondent also argues that his trial counsel’s failure to preserve his claim regarding his constitutional due process rights to be present at trial and to confront witnesses amounted to ineffective assistance of counsel. Because we find no violation of a fundamental right after affording the respondent review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), he cannot demonstrate prejudice. See In re Matthew S., 60 Conn. App. 127, 132, 758 A.2d 459 (2000) (showing of incompetence without showing of resulting prejudice does not amount to ineffective assistance of counsel). Accordingly, this claim has no merit.

       The department of children and families transported Tremaine to visit the respondent in prison. The respondent did not, however, participate in any services or parenting classes during that time.

       The petition alleged, as grounds for the terminations, abandonment, failure to achieve sufficient rehabilitation and an absence of parent-child relationships.

       Smith testified that the respondent listed his wife’s residence as his home address.

       The mother was hospitalized in connection with the birth of another child, due in December, 2007.

       On May 19, 2008, the following exchange occurred:
      “[The Respondent’s Counsel]: Well, I wasn’t here last time. I can just make a brief statement, if that’s all—
      “The Court: All right.
      “[The Respondent’s Counsel]: Right. ... I find it very interesting that . . . time elapsed between January 18 and January ... 19, 2008, that there was only an effort made to locate my client the day before the second date of trial. If the efforts had been made prior to that, after the eighteenth, and the [Internet site] wasn’t down, he would have been able to be present for the second day of trial. I know that he has been given the opportunity to cross-examine [Smith], but he still was not present and was not able to partake in the trial. Maybe things would have been a little different, I’m not sure. But I would ask that a new trial be set in this matter because my client was not present and that we start all over again.
      “The Court: Is that in a written motion anywhere?
      “[The Respondent’s Counsel]: No, that’s not in a motion.
      “The Court: That’s news to the court. I thought there was an agreement that we would reopen this case to allow any—
      “[The Respondent’s Counsel]: Which is what we—yeah.
      “The Court,: testimony. Why would we start all over again with a new trial?
      “[The Respondent’s Counsel]: Well, no, I’ll—I’ll withdraw that request.
      “The Court: Oh.
      “[The Respondent’s Counsel]: What we did was, we reopened it to allow the testimony, and that was the agreement.
      “The Court: You’re just asking the court to deny the termination of parental rights petition?
      “[The Respondent’s Counsel]: Absolutely, because of this.
      “The Court: Because—
      “[The Respondent’s Counsel]: Because my client was not present during the second—
      “The Court: And, so—
      “[The Respondent’s Counsel]: day of trial.
      “The Court,: The argument is [that the department] did not—
      “[The Respondent’s Counsel]: Make—make the efforts to . . . enough efforts to locate my client—

        “The Court: Reasonable efforts?
      “[The Respondent’s Counsel]: During that—reasonable efforts during the eleven day period.
      “The Court: All right. So, that’s—that is—
      “[The Respondent’s Counsel]: That is the crux to my argument.
      “The Court: Your argument? All right.”

       Given the court’s finding that the respondent had abandoned Tremaine, it did not reach the alternative statutory grounds alleged by the petitioner.

        Golding review applies in civil as well as criminal cases. Perricone v. Perricone, 292 Conn. 187, 212 n.24, 972 A.2d 666 (2000).

       The respondent asserts that the court’s proceeding in his absence was in direct contravention of the mandates of General Statutes §§ 45a-716 (b) (1) and 46b-135 (b), as well as the rules set out in Practice Book §§ 26-1 (h) (2) and33a-7 (a) (1). These provisions support the respondent’s argument that he was a legally necessary party with a right of confrontation. Those provisions, however, do not announce any requirement that the court or the petitioner repeatedly attempt to locate a properly served, nonappearing, defaulted respondent throughout a hearing on a petition for a termination of parental rights. The provisions also do not state a requirement that a new trial must be ordered when a nonappearing, defaulted respondent is incarcerated after the beginning of a hearing, makes no attempt to contact the court or any party and is later located by the petitioner.

       The respondent does not claim that the court’s findings of fact were clearly erroneous or that its rulings, as to either the ground for termination or whether termination was in the child’s best interest, were an abuse of discretion.

       Indeed, the respondent’s attorney stated: “I know that [the respondent has] been given the opportunity to cross-examine this witness that testified today, but he still was not present and was not able to partake in the trial. Maybe things would have been a little different, I’m not sure.” (Emphasis added.)

       The respondent also requests review under the plain error doctrine. Practice Book § 60-5 provides in relevant part: “The court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law. . . . The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”
      The plain error doctrine “is an extraordinary remedy used by appellate courts to rectify errors committed at trial that, although unpreserved, are of such monumental proportion that they threaten to erode our system of justice and work a serious and manifest injustice on the aggrieved party. [T]he plain error doctrine ... is not ... a rule of reviewability. It is a rale of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy.” (Internal quotation marks omitted.) State v. Myers, 290 Conn. 278, 289, 963 A.2d 11 (2009). In light of our conclusion that the respondent’s constitutional right to due process was protected adequately, we conclude that the court’s failure sua sponte to order a new hearing did not result in manifest injustice.


author: BISHOP, J.

text:
    RICHARD BENNETT, JR., ADMINISTRATOR (ESTATE OF RICHARD BENNETT, SR.) v. NEW MILFORD HOSPITAL, INC., ET AL.
    (AC 29944)
    Bishop, Beach and Foti, Js.

      Argued April 22
    officially released October 13, 2009

      Andrew J. Pianka, for the appellant (plaintiff).

      Bruce F. Gilpatrick, with whom, on the brief, was Matthew M. Sconziano, for the appellees (defendants).
   Opinion

BISHOP, J.

The plaintiff, Richard Bennett, Jr., the administrator of the estate of the decedent, Richard Bennett, Sr., appeals from the judgment of the trial court dismissing in part his medical malpractice action against the defendants, New Milford Hospital, Inc. (hospital), and Frederick Lohse, a physician, on the basis of the plaintiffs failure to comply with the requirements of General Statutes § 52-190a. The plaintiff claims that because he attached to his complaint a good faith certificate from his attorney in addition to a letter from a similar health care provider stating the belief that there existed evidence of medical negligence, the court improperly granted Lohse’s motion to dismiss pursuant to § 52-190a (c). Because we conclude that the opinion letter submitted by the plaintiff was not from a similar health care provider, we affirm the judgment of the trial court as to Lohse. We also dismiss the appeal as to the hospital for lack of a final judgment. See footnote 5.

In his complaint, the plaintiff alleged the following facts, the truth of which we assume for purposes of his appeal. On November 28, 2006, the decedent suffered a diabetic seizure while operating his motor vehicle. Consequently, his vehicle left the road and collided with a concrete wall. He was extracted from his vehicle and transported to New Milford Hospital. He was treated in the emergency department by Lohse, who stabilized the decedent’s blood sugar and medicated him for back pain. He was discharged and advised to follow up with his primary care physician. Thereafter, the decedent’s primary care physician directed him to return to the hospital for further testing where it was discovered that the decedent had sustained a compression fracture of his lumbar spine, an impact fracture of the proximal tibia and right knee effusion. As a consequence of the significant pain that he suffered due to the untreated fractures of the spine and leg, the decedent sustained myocardial ischemia, which resulted in his death on January 9, 2007.

The first two counts of the plaintiffs complaint were against Lohse, and the remaining two counts were against the hospital. Pursuant to § 52-190a (a), the plaintiff attached a good faith certificate from his attorney and a written opinion from a physician. On March 27, 2008, Lohse moved to dismiss counts one and two of the plaintiffs complaint pursuant to § 52-190a (c) on the basis that the plaintiff did not comply with § 52-190a (a). Specifically, Lohse claimed that the author of the opinion letter attached to the plaintiffs good faith certificate was not a similar health care provider and that the opinion failed to provide a “detailed basis” for its formation; see General Statutes § 52-190a (a); as it failed to refer specifically to Lohse. According to the plaintiffs complaint, Lohse specializes in emergency medicine. As to the qualifications of the author of the opinion letter submitted by the plaintiff, the letter stated: “As a practicing and [b]oard certified [gjeneral [sjurgeon with added qualifications in [sjurgicaJ [c]ritical [c]are, and engaged in the practice of trauma surgery, I believe that I am qualified to review the contents of these records for adherence to the existing standard of care. One should note that I regularly evaluate and treat injured patients in the [ejmergency [department including those who are discharged from the [emergency department] as well as those who require inpatient care. The overwhelming majority of my time at work is spent providing clinical care in the [emergency department], general ward, intensive care unit and operating room over the last [twelve] years.” Lohse claimed that the opinion is not from a similar health care provider as defined in General Statutes § 52-184c because the opinion author is not board certified in emergency medicine and, therefore, fails to comply with the requirements of § 52-190a (a). On May 5, 2008, the court granted Lohse’s motion to dismiss and this appeal followed.

On appeal, the plaintiff claims that because he attached to his complaint both a good faith certificate from his attorney and an opinion letter from a similar health care provider, his complaint was not subject to dismissal pursuant to § 52-190a (c). The plaintiff asserts that the dismissal sanction in § 52-190a (c) applies only in those instances in which the plaintiff fails to attach a good faith certificate and an opinion letter to his or her complaint. This contention gives rise to the question of when the sufficiency or validity of an opinion letter may properly be attacked. The plaintiff also claims that he did comply with § 52-190a (a) because his opinion letter was authored by a physician who comported with the requirements of § 52-184c (d) and that it was sufficiently detailed.

We begin by noting the well established standard of review on a challenge to a ruling on a motion to dismiss. “When the facts relevant to an issue are not in dispute, this court’s task is limited to a determination of whether, on the basis of those facts, the trial court’s conclusions of law are legally and logically correct.” (Internal quotation marks omitted.) Tellar v. Abbott Laboratories, Inc., 114 Conn. App. 244, 249, 969 A.2d 210 (2009). Because there is no dispute regarding the basic material facts, this case presents an issue of law, and we exercise plenary review. See id. Similarly, the meaning of a statute is a question of law over which our review is plenary. State v. Peters, 287 Conn. 82, 87, 946 A.2d 1231 (2008).

When we interpret a statute, “[o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . .” (Internal quotation marks omitted.) Southern New England Telephone Co. v. Cashman, 283 Conn. 644, 650-51, 931 A.2d 142 (2007).

In establishing the requirements of the prelitigation opinion letter, § 52-190a (a) specifically requires that the opinion be authored by a similar health care provider as defined in § 52-184c. Thus, in resolving the issues presented in this appeal, we must examine both statutes. We begin with a review of § 52-190a. Section 52-190a (a) provides that before filing a personal injury action against a health care provider, a potential plaintiff must make “a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. . . .” To show good faith, the complaint, initial pleading or apportionment complaint is required to contain a certificate of the attorney or party filing the action stating that “such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant . . . .” General Statutes § 52-190a (a). Prior to its amendment in 2005 by Public Acts 2005, No. 05-275, § 2 (P.A. 05-275), the statute did not require a plaintiff to include with the complaint a written opinion of a similar health care provider attesting to a good faith basis for an action.

Effective October 1, 2005, the statute was amended by P.A. 05-275 to require, to demonstrate good faith, that plaintiffs or their counsel, prior to filing suit, “shall obtain a written and signed opinion of a similar health care provider . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion. ...” General Statutes § 52-190a (a). The amended statute also provides that plaintiffs or their counsel “shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate. . . .” General Statutes § 52-190a (a). Subsection (c) of § 52-190a, which was added by P.A. 05-275, § 2, provides that “[t]he failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action.”

Thus, the main differences between the 2005 revision and the present version of the statute are that the 2005 revision did not require the plaintiff to obtain a written opinion from a similar health care provider prior to filing the action or to attach a written opinion to the certificate. Nor, of course, did it contain a remedy for a plaintiffs failure to do so. The written opinion now required, like the certificate, provides the defendant with some evidence that the plaintiff conducted an inquiry prior to filing the complaint and that the inquiry gave the plaintiff a good faith belief that the defendant was negligent. As this court held in Rios v. CCMC Corp., 106 Conn. App. 810, 822, 943 A.2d 544 (2008), “[t]he plain language of [§ 52-190a (c)] . . . expressly provides for dismissal of an action when a plaintiff fails to attach a written opinion of a similar health care provider to the complaint, as required by § 52-190a (a).” See also Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn. App. 569, 582, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009).

Lohse invites us to construe the dismissal provision of § 52-190a (c) to include opinion letters, which, although attached to the complaint, are inadequate or insufficient. He contends that the plaintiffs complaint properly was dismissed because the opinion letter was not authored by a similar health care provider pursuant to § 52-184c and that it was not sufficiently detailed because it did not specifically mention him. The plaintiff, in response, contends that because § 52-190a (c) does not explicitly indicate that an insufficient opinion is a ground for dismissal of an action, only the lack of an opinion letter renders a complaint subject to dismissal. In support of his claim, the plaintiff notes that “[t]he underlying purpose of the legislature in enacting ... § 52-190a was to discourage the filing of baseless lawsuits against health care providers.” See Gabrielle v. Hospital of St. Raphael, 33 Com. App. 378, 383, 635 A.2d 1232, cert. denied, 228 Com. 928, 640 A.2d 115 (1994). “The purpose of the certificate is to evidence a plaintiffs good faith derived from the precomplaint inquiry. It serves as an assurance to a defendant that a plaintiff has in fact made a reasonable precomplaint inquiry giving him a good faith belief in the defendant’s negligence.” LeConche v. Elligers, 215 Com. 701, 711, 579 A.2d 1 (1990).

Although Gabrielle and LeConche were premised on an earlier version of the statute, the plaintiff asserts that they are nevertheless instructive on the issue presently before us because the requirement that a medical opinion be attached to the attorney’s good faith certificate is in furtherance of the same public policy goal of ensuring that a reasonable inquiry into the merits of the claim has been made. Here, the plaintiff contends that the certification and the opinion letter serve as evidence that he has, in fact, made a reasonable precomplaint inquiry giving him a good faith basis to believe that Lohse was negligent.

The plaintiffs policy argument, however, is trumped by the plain language of § 52-190a (c). Section 52-190a (c) provides: “The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action.” (Emphasis added.) A plain reading of this subsection indicates that the letter must comply with subsection (a) to avoid potential dismissal. Thus, an action is subject to dismissal under subsection (c) if the opinion letter is not from a similar health care provider or does not give a detailed basis for the opinion.

We now turn to Lohse’s claim that the opinion letter submitted by the plaintiff was not authored by a similar health care provider as defined in § 52-184c. Lohse claims that the letter fails to comply with the requirements of § 52-190a (a) because it was not authored by a similar health care provider. The plaintiff claims that he complied with § 52-190a(a) because his expert meets the requirements of § 52-184c (d). We agree with Lohse.

To interpret the requirements of § 52-190a (a), we must read it together with § 52-184c, the statute regarding similar health care providers. Subsections (b) and (c) of § 52-184c define a “similar health care provider” for purposes of the statute. For physicians who are board certified or hold themselves out as specialists, subsection (c) of § 52-184c defines “similar health care provider” as “one who: (1) [i]s trained and experienced in the same specialty; and (2) is certified by the appropriate American board in the same specialty . . . .” This definition fits the facts at hand. Thus, pursuant to the plain language of §§ 52-190a (a) and 52-184c (c), a “similar health care provider” with respect to Lohse would be one who is trained and experienced in emergency medicine and is certified in emergency medicine. Accordingly, before bringing an action alleging medical negligence on Lohse’s part, the plaintiff or his attorney must obtain and file a written and signed opinion from such a physician that there appears to be evidence of such negligence. Because the plaintiffs expert is not certified in emergency medicine, he does not fall within the statutory definition of a similar health care provider as set forth in § 52-184c (c).

The plaintiff contends, however, that in seeking to define “similar health care provider” as it is contemplated in § 52-190a (a), we must consider § 52-184c in its entirety and that, although his expert is not a similar health care provider pursuant to subsections (b) or (c) of § 52-184c, his expert is qualified to testify as to the standard of care pursuant to subsection (d) and should, therefore, be permitted to author an opinion letter that fulfills the requirements of § 52-190a (a). After defining “similar health care providers] ” in subsections (b) and (c) , § 52-184c (d) goes on to provide in relevant part: “Any health care provider may testify as an expert in any action if he: (1) [i]s a ‘similar health care provider’ pursuant to subsection (b) or (c) of this section; or (2) is not a similar health care provider pursuant to subsection (b) or (c) of this section but, to the satisfaction of the court, possesses sufficient training, experience and knowledge as a result of practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine. ...”

The parties do not dispute that, pursuant to § 52484c (d) , a nonsimilar health care provider may testify at trial so long as the witness is qualified to do so. Lohse contends, however, that, by its own language, subsection (d) pertains to those witnesses who are not similar health care providers and, therefore, do not meet the requirements of § 52-190a (a) because such an expert is not a statutorily defined similar health care provider. In response, the plaintiff argues that it would be absurd to interpret § 52-190a (a) as setting a higher bar for an expert authoring a prelitigation opinion letter than one who is testifying at trial. In other words, the plaintiff claims that if an expert is sufficiently qualified to testify as to the standard of care at trial, then that expert should be permitted to author an opinion letter. The plaintiff contends that his expert is qualified to opine on the standard of care of an emergency room physician and, thus, adequately fulfills the gatekeeper function of the certificate of good faith.

At first blush, the plaintiffs position appears to have merit, particularly in light of the statutory scheme and its underlying purpose of ensuring good faith in the filing of malpractice actions. The plain language of the statute, however, belies the plaintiffs policy argument. Section 52-184c (d) specifically addresses those experts who are not similar health care providers. If the legislature intended to include this category of health care providers within the parameters of § 52-190a (a), it easily could have done so. For example, the legislature could have allowed opinion letters to be authored by a “qualified health care provider,” thereby allowing either similar or nonsimilar health care providers to author opinion letters in compliance with § 52-190a (a). Rather, when establishing the guidelines for the opinion letter, the legislature clearly and unambiguously referred to a “similar health care provider.” By the plain language of the statutes, as to a defendant health care provider who is a physician, the similar health care provider contemplated in § 52-190a (a) is one defined in either subsection (b) or (c) of § 52-184c.

We agree that it may seem incongruous that a physician whose qualifications do not strictly mirror the applicable definitions of a similar health care provider may testify at trial as an expert as to the prevailing professional standard of care pursuant to § 52-184c (d) but may not provide a prelitigation opinion for the purposes of satisfying the § 52-190a requirement. We further agree that, arguably, § 52-190a sets the bar higher to get into court than to prevail at trial. Although this result may be harsh to would-be plaintiffs, we cannot conclude that it is absurd or unworkable. Section 52-184c (d) affords the court discretion in determining whether an expert may testify, while § 52-190a establishes objective criteria, not subject to the exercise of discretion, making the prelitigation requirements more definitive and uniform. “Where the language of the statute is clear and unambiguous, we have refused to speculate as to the legislative intention, because it is assumed that the words express the intention of the legislature.” (Internal quotation marks omitted.) State v. Snook, 210 Conn. 244, 267, 555 A.2d 390, cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989). We are, therefore, bound by the plain language of the statute. To the extent that the plaintiffs claims raise legitimate policy concerns that warrant a different outcome, it is the role of the legislature, not this court, to address those policy considerations.

On the basis of the foregoing, because the opinion letter submitted by the plaintiff was not authored by a similar health care provider, the court properly dismissed the counts against Lohse.

The appeal is dismissed with respect to the hospital for lack of a final judgment. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       General Statutes § 52-190a (a) provides: “No civil action or apportionment complaint shall be filed to recover damages resulting from personal ipjuiy or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action or apportionment complaint has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint, initial pleading or apportionment complaint shall contain a certificate of the attorney or party filing the action or apportionment complaint that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant or for an apportionment complaint against each named apportionment defendant. To show the existence of such good faith, the claimant or the claimant’s attorney, and any apportionment complainant or the apportionment complainant’s attorney, shall obtain a written and signed opinion of a similar health care provider, as defined in section 52-184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion. Such written opinion shall not be subject to discovery by any party except for questioning the validity of the certificate. The claimant or the claimant’s attorney, and any apportionment complainant or apportionment complainant’s attorney, shall retain the original written opinion and shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate. The similar health care provider who provides such written opinion shall not, without a showing of malice, be personally liable for any damages to the defendant health care provider by reason of having provided such written opinion. In addition to such written opinion, the court may consider other factors with regard to the existence of good faith. If the court determines, after the completion of discovery, that such certificate was not made in good faith and that no justiciable issue was presented against a health care provider that fully cooperated in providing informal discovery, the court upon motion or upon its own initiative shall impose upon the person who signed such certificate or a represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney’s fee. The court may also submit the matter to the appropriate authority for disciplinary review of the attorney if the claimant’s attorney or the apportionment complainant’s attorney submitted the certificate.”

       General Statutes § 52-190a (c) provides: “The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action.”

       Although the plaintiffs complaint does not indicate whether Lohse is board certified, it is undisputed that he is not

       The plaintiffs attorney filed an affidavit in support of his objection to Lohse’s motion to dismiss. The affidavit indicated, inter alia, that both Lohse and the expert are trained general surgeons. The affidavit further provided that the expert: is board certified by the American Board of Surgery; practices regularly in the emergency room of a level one trauma center; has spent the majority of his time providing clinical care in the emergency department, general ward, intensive care unit and operating room over the past twelve years; teaches as a professor of emergency medicine; has sat on the emergency care committee and the emergency department observation unit steering committee, among many other committees at a university medical school; has been the conference section chairman for the emergency medicine session of an annual international congress of medical syndicate; has taught and developed courses at medical colleges covering various seminars for emergency medicine; has authored educational materials in the area of emergency medical services and coauthored publications published in various medical journals, including the Journal of Emergency Medicine; and has coauthored books and chapters or contributed to publications on the topics of trauma resuscitation, expert rapid response and published on the topic of clinical procedures in emergency medicine, as well as others. It would appear from this recitation that the plaintiffs expert may be qualified to testify at trial as a nonsimilar health care provider pursuant to General Statutes § 52-184c (d).

       On May 27,2008, the hospital moved to dismiss count four of the plaintiffs complaint because it sounded in vicarious liability for the alleged negligence of Lohse, and the counts against Lohse had been dismissed. On September 29, 2008, the court granted the hospital’s motion to dismiss. On October 15, 2008, the plaintiff amended his appeal to challenge the court’s dismissal of count four against the hospital. Because there is still a viable count against the hospital, namely, count three of the plaintiffs complaint, there is no final judgment as to the hospital. See Practice Book § 61-3; Craig v. Driscoll, 64 Conn. App. 699, 703 n.4, 781 A.2d 440 (2001), aff'd, 262 Conn. 312, 813 A.2d 1003 (2003). Accordingly, the plaintiffs appeal as to the court’s dismissal of the fourth count against the hospital must be dismissed. See State v. Curdo, 191 Conn. 27, 31, 463 A.2d 566 (1983).

         We note that our Supreme Court recently decided Dias v. Grady, 292 Conn. 350, 972 A.2d 715 (2009). Although Dias does not explicitly address the issue of whether an inadequate opinion letter would subject an action to dismissal, the court appears to have answered that question in the affirmative by reason of the fact that the court reached the merits of the defendant’s claim.

       General Statutes § 52-184c provides: “(a) In any civil action to recover damages resulting from personal injury or wrongful death occurring on or after October 1,1987, in which it is alleged that such injury or death resulted from the negligence of a health care provider, as defined in section 52-184b, the claimant shall have the burden of proving by the preponderance of the evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.
      “(b) If the defendant health care provider is not certified by the appropriate American board as being a specialist, is not trained and experienced in a medical specialty, or does not hold himself out as a specialist, a ‘similar health care provider’ is one who: (1) Is licensed by the appropriate regulatory agency of this state or another state requiring the same or greater qualifications; and (2) is trained and experienced in the same discipline or school of practice and such training and experience shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim.
      “(c) If the defendant health care provider is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist, a ‘similar health care provider’ is one who: (1) Is trained and experienced in the same specialty; and (2) is certified by the appropriate American board in the same specialty; provided if the defendant health care provider is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a ‘similar health care provider’.
      “(d) Any health care provider may testify as an expert in any action if he: (1) Is a ‘similar health care provider’ pursuant to subsection (b) or (c) of this section; or (2) is not a similar health care provider pursuant to subsection (b) or (c) of this section but, to the satisfaction of the court, possesses sufficient training, experience and knowledge as a result of practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine. Such training, experience or knowledge shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim.”

       Lohse also claims that the plaintiffs opinion letter was deficient in that it did not specifically mention him. Because we conclude that the court properly dismissed the plaintiffs complaint on the ground that the letter was not authored by a similar health care provider, we need not address this claim.

       Subsection (b) of § 52-184c pertains to those defendants who are not board certified or do not hold themselves out as specialists.

       In resolving the issues presented in this appeal, we need not address medical malpractice claims against institutional defendants. We note, however, that there may be a gap in § 52-190a regarding such defendants appropriate for the legislature to address because this is an area that, to the extent possible, should be addressed by specific statutory language rather than by judicial interpretation. See Finan v. Finan, 287 Conn. 491, 501 n.7, 949 A.2d 468 (2008).

         Dias v. Grady, 292 Conn. 350, 972 A.2d 715 (2009), contains language that, out of its context, provides support for both parties’ positions in the case at hand. In Dias, the defendants claimed that the term “negligence” in § 52-190a imported the broad notion of negligence to include causation. Id., 353-54. The court disagreed, finding rather that the term in the context of § 52-190a related only to a breach of the standard of care. Id., 359. The court in Dias concluded that acceptance of the broad construction of the term “negligence” urged by the defendants would result in an absurdity on the basis of its conclusion that often similar health care providers are not able to opine regarding causation even though they are competent to address the question of appropriate care. Id., 361. The court observed that “there is no statutory mechanism by which a plaintiff can introduce the written opinion of a nonsimilar health care provider regarding causation. Accordingly, a requirement that the plaintiff attach a written opinion of a similar health care provider that there appears to be evidence of proximate causation would, in many cases, be an insurmountable obstacle to bringing an action.” Id., 359. We glean from this language that the Supreme Court has determined, albeit obliquely, that § 52-190a requires that an opinion letter be written by a similar health care provider.
      On the other hand, the court also stated that “requiring a similar health care provider to give an opinion as to causation at the prediscoveiy stage of litigation pursuant to § 52-190a when a similar health care provider is not required to give such an opinion at trial pursuant to § 52-184c would bar some plaintiffs who could prevail at trial from even filing a complaint. Because this would be a bizarre result, we reject this claim.” Id., 361. Although the plaintiff here could argue that it would be equally bizarre if a physician whose qualifications do not meet the applicable definitions of a similar health care provider could testify at trial as an expert as to the prevailing professional standard of care pursuant to § 52-184c (d) but, nevertheless, may not provide a prelitigation opinion for the purposes of satisfying the § 52-190a requirement, the distinction between this case and Dias is that an interpretation of the plain language of § 52-190a as applied here does not lead to an absurd result. The requirement that a similar health care provider be the author of the opinion letter contemplated by § 52-190a does not present a bar to the courthouse even though it may create a hurdle greater than that required to get to the jury once entry to the courthouse has been secured.