author: FOTI, J. SPEAR, J.,

text:
    IN RE DEANA E. ET AL.

    (AC 20421)
    Foti, Spear and Pellegrino, Js.
    Argued October 16
    officially released December 26, 2000

      Reine C. Boyer, for the appellant (respondent father).

      Jane R. Rosenberg, 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

FOTI, J.

The respondent father, Magdiel F., appeals from the judgments of the trial court terminating his parental rights with respect to his three children, D, Y and M. On appeal, the respondent claims that (1) his due process rights were violated because the department of children and families (department) failed to give him adequate notice of either the neglect or the termination proceedings against him and (2) the court improperly proceeded to the dispositional phase of the termination proceeding because its finding that the respondent had abandoned his children was improper. We affirm the judgments of the trial court.

In its comprehensive November 15, 1999 memorandum of decision, the court recited the following facts and procedural history. On August 22, 1995, the petitioner, the commissioner of children and families (commissioner), filed neglect petitions alleging that the respondent denied his three children proper care and attention physically, educationally, emotionally or morally, and that the respondent permitted his children to live under conditions, circumstances or associations injurious to their well-being. On October 6, 1995, the court ordered that temporary custody of the children should be with the commissioner. On February 4,1997, the court committed the children to the care and custody of the commissioner as neglected children. On August 19, 1998, the commissioner filed petitions for the termination of the respondent’s parental rights. The petitions alleged that the respondent had failed to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the ages and needs of the three children, he could assume a responsible position in their lives. The petitions also alleged the absence of an ongoing parent-child relationship that ordinarily develops as a result of a parent having met, on a continuing day-today basis, the physical, emotional, moral or educational needs of the children. The commissioner alleged that allowing further time for the reestablishment of the parent-child relationship would be detrimental to the best interests of the children. See General Statutes § 17a-112 (c) (3) (D). Separate from the allegation that the court should terminate the respondent’s parental rights because he failed to achieve personal rehabilitation, the commissioner alleged that the court should terminate the respondent’s parental rights because he abandoned his children by failing to maintain a reasonable degree of interest, concern or responsibility for their welfare. See General Statutes § 17a-112 (c) (3) (A). The court terminated the respondent’s parental rights in his children on November 16, 1999, and this appeal followed.

The court found that the respondent’s relationship with the mother of his children began in the early 1980s and ended in the early 1990s. He abused her physically and emotionally. The respondent incurred a long prison record beginning in 1981. He began serving a six year sentence in 1991, and, after being released on probation, subsequently was incarcerated between 1995 and 1997. He was incarcerated once more in 1998 and released in November, 1999. The respondent has not played a role in his children’s lives. He did not attempt during his incarceration to locate, contact or visit his children. He also made little or no effort after his incarceration to spend time with them. At the time of the termination proceedings, D was thirteen years old, Y was eleven years old and M was nine years old.

“The standard for review on appeal [from a termination of parental rights] is whether the challenged findings are clearly erroneous. In re Luis C., [210 Conn. 157, 166, 554 A.2d 722 (1989)]; In re Christina V., 38 Conn. App. 214, 223, 660 A.2d 863 (1995). 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. In re Michael M., [29 Conn. App. 112, 121, 614 A.2d 832 (1992)]; In re Megan M., 24 Conn. App. 338, 342, 588 A.2d 239 (1991) .... We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached; Pandolphe’s Auto Parts, Inc. v. Manchester, [181 Conn. 217, 222, 435 A.2d 24 (1980)]; nor do we retry the case or pass upon the credibility of the witnesses. In re Christine F., 6 Conn. App. 360, 366-67, 505 A.2d 734, cert. denied, 199 Conn. 808, 809, 508 A.2d 769, 770 (1986). 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 re Tabitha P., 39 Conn. App. 353, 360, 664 A.2d 1168 (1995). 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 dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child. ... In re Danuael D., 51 Conn. App. 829, 835-37, 724 A.2d 546 (1999); In re Roshawn R., 51 Conn. App. 44, 51-52, 720 A.2d 1112 (1998). It is thus possible for a court to find that a statutory ground for termination of parental rights exists but that it is not in the best interests of the child to terminate the parental relationship, although removal from the custody of the parent may be justified. In re Baby Girl B., 224 Conn. 263, 279-80, 618 A.2d 1 (1992).

“In the dispositional phase of a termination of parental rights hearing, the trial court must determine whether it is established by clear and convincing evidence that the continuation of the parents’ parental rights is not in the best interests of the child. In arriving at that decision, the court is mandated to consider and make written findings regarding seven factors delineated in General Statutes (Rev. to 1997) § 17a-112 (e) [now § 17a-112 (d)].” (Internal quotation marks omitted.) In re Denzel A., 53 Conn. App. 827, 831-33, 733 A.2d 298 (1999).

I

The respondent claims that his due process rights were violated because he was not given adequate notice of the neglect and termination proceedings against him, and that we should reverse the court’s judgments on this account. We disagree.

The court concluded that the commissioner failed to show, by clear and convincing evidence, that the respondent failed to achieve personal rehabilitation within the meaning of General Statutes § 17a-112 (c) (3) (B). The court found it “particularly disturbing” that the department possessed the respondent’s incarceration record, yet failed to give the respondent actual notice of the neglect proceedings against him. The commissioner claimed that during the respondent’s incarceration, he was provided notification of the neglect proceeding by publication in the newspaper. We look unfavorably on this type of notice. We conclude, as did the trial court, that the respondent lacked an opportunity to achieve personal rehabilitation because he lacked the opportunity to participate in the neglect proceedings. As a result, he did not know what he needed to accomplish to achieve personal rehabilitation for purposes of the proceedings against him.

The fact that the respondent’s due process rights may have been violated because of the lack of notice of the neglect proceedings does not, however, impact the court’s finding “by clear and convincing evidence that the respondent abandoned his children long before [the department] ever became involved with the family.” An adjudication of neglect is not a prerequisite to an order terminating parental rights on the basis of abandonment. See General Statutes § 17a-112 (c). Lack of proper notice as to the neglect proceedings is irrelevant to the present termination proceedings.

The respondent also claims that his due process rights were violated because he was not given notice of the termination proceedings. We disagree.

On March 12, 1999, the court appointed counsel to represent the respondent. The respondent appeared before the court on June 10, 1999, for a preliminary hearing concerning the petitions for termination. Counsel for the respondent lacked notice of the hearing, and the court continued the matter, with notice to counsel, until October 18, 1999. The hearing on the petitions lasted five days, until October 22, 1999. The record discloses that the respondent and his counsel attended and fully participated in the proceeding and contested the department’s petitions. Nothing in the record suggests that the respondent lacked an opportunity either to be heard or to defend himself during the proceedings. Because the respondent’s actions clearly indicate that he submitted to the jurisdiction of the court, he waived any claim of lack of personal jurisdiction. See Pitchell v. Hartford, 247 Conn. 422, 432-33, 722 A.2d 797 (1999); In re Baby Girl B., supra, 224 Conn. 293.

II

The respondent next claims that there was insufficient evidence to support the court’s finding of abandonment, and, therefore, the court improperly proceeded to the dispositional phase of the termination proceeding. We disagree.

“Abandonment focuses on the parent’s conduct. . . . A lack of interest in the child is not the sole criterion in determining abandonment. . . . General Statutes 17a-112 (b) (1) [now § 17a-112 (c) (3) (A)] defines abandonment as the fail[ure] to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child .... Attempts to achieve contact with a child, telephone calls, the sending of cards and gifts, and financial support are indicia of interest, concern or responsibility for the welfare of a child. . . . Abandonment occurs where a parent fails to visit a child, does not display love or affection for the child, does not personally interact with the child, and demonstrates no concern for the child’s welfare. . . .

“Section 17a-112 (b) (1) does not contemplate a sporadic showing of the indicia of interest, concern or responsibility for the welfare of a child. A parent must maintain a reasonable degree of interest in the welfare of his or her child. Maintain implies a continuing, reasonable degree of concern. . . .

“The commonly understood general obligations of parenthood entail these minimum attributes: (1) express love and affection for the child; (2) express personal concern over the health, education and general well-being of the child; (3) the duty to supply the necessary food, clothing, and medical care; (4) the duty to provide an adequate domicile; and (5) the duty to furnish social and religious guidance.” (Citations omitted; internal quotation marks omitted.) In re Kezia M., 33 Conn. App. 12, 17-18, 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993).

A court may grant a petition to terminate parental rights after finding by clear and convincing evidence that (1) the department has made reasonable efforts to locate the parent and reunify the child with the parent, “unless the court . . . has determined at a hearing pursuant to subsection (b) of section 17a-110 . . . that such efforts are not appropriate”; General Statutes § 17a-112 (c) (1); (2) the parent has abandoned the child; and (3) termination is in the best interest of the child. See General Statutes § 17a-112 (c). As to the first of these requirements, the court noted that, pursuant to General Statutes § 17a-110 (b), a hearing was held by the court on February 23, 1999. At that hearing, the court “made the requisite finding that further efforts to unify” the parent and children were not appropriate.

The record supports the court’s decision that the respondent abandoned his children. While the respondent’s imprisonment alone does not constitute abandonment, it does not excuse his failure to attempt either to contact or to visit with his children. The record clearly demonstrates that, while in prison, the respondent made absolutely no effort to determine where his children were, to contact them or to have them visit with him. Even during the time when he had been released from prison, the respondent made few efforts to contact his children, and any visits he conducted with them were very brief. His efforts are best characterized as minimal. The court’s findings support its conclusion that the respondent manifested no reasonable degree of interest, concern or responsibility for the children. We conclude that the findings of subordinate fact amply support the court’s conclusion on the issue of abandonment and that the court did not apply an erroneous rule of law.

The respondent also claims that the court improperly concluded that it was in the best interests of the children to terminate his parental rights. The court’s findings in this regal'd are supported by the evidence in the record. The three children suffer from post-traumatic stress syndrome, along with other psychological and behavioral problems. The children are living in a secure foster home, and are attending therapy and counseling sessions. As a result, the children are coping with their problems and have bonded with their foster family. Furthermore, the children have requested to remain with their new foster parents, and their foster parents are contemplating adoption.

We conclude that the court’s findings support its conclusions, are legally correct and, thus, are not clearly erroneous.

The judgments are affirmed.

In this opinion PELLEGRINO, J., concurred.

SPEAR, J.,

concurring. I agree with the reasoning and the result in this case. I heartily endorse our disapproval of the newspaper notice that was given to the respondent when, as the trial court found, the department’s “own records clearly showed he was in prison.” I write separately to express my further disapproval of the commissioner’s cavalier disregard for the truth in the sworn termination petitions. Although a program supervisor signed and swore to the truth of all of the allegations in the petitions, four allegations are completely baseless.

First, the petitions alleged that the department “made reasonable efforts to locate” the respondent. That sworn allegation cannot be reconciled with the department’s resort to newspaper notice of the neglect proceedings despite the fact that the respondent’s incarceration record was in the department’s file and showed that he was in prison. It is inconceivable that this allegation could be made when the department failed to use the information in its own file to locate the respondent. Such a failure is the antithesis of reasonable efforts.

Second, the petitions alleged that the department “made reasonable efforts to reunify” the children with the respondent. Nothing in the record indicates any department activity that remotely resembles such an effort. Accordingly, the court found that the department “failed to offer or provide services to [the respondent].” This allegation should not have been made because it was clear that the department had done absolutely nothing.

The third troubling allegation is that the respondent was “unable or unwilling to benefit from reunification efforts.” Because there were no such efforts, this claim simply compounds the wrong.

The fourth and most egregious allegation is that the respondent was “provided specific steps to take to facilitate the return of the [children] and the [respondent] 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 [children, he] could assume a responsible position in the life of the [children].” (Emphasis added.) The department did not provide specific steps to the respondent. It did not provide anything.

The court stated: “Presumably, if [the respondent] had been located by [the department] in prison and given actual notice of the proceedings, he would have taken part in the neglect case and been represented by counsel. He also would have been given steps which would have provided him with a clear road map of what he would have needed to accomplish in order to be considered rehabilitated. Given [the department’s] failure to provide notice to [the respondent] even though its own records clearly showed he was in prison and its failure to provide steps or visitation, it would be fundamentally unfair for this court to make a finding that [the respondent] has failed to rehabilitate.” (Emphasis added.)

This is not a case where the commissioner simply was unable to satisfy the burden of proof. My concern is the complete lack of any facts upon which to base these four allegations. I am aware of the department’s daunting caseload and the need to use form petitions, such as the one used in this case. That need, however, does not mean that a department supervisor should go through the form, check off all possible allegations, regardless of the facts in the department’s file, and swear to their veracity. Such action is deplorable and the department should take steps to prevent it from occurring again.

       The court also terminated the parental rights of the respondent mother. She has not appealed from these judgments. We refer in this opinion to the respondent father as the respondent.

       The court’s memorandum of decision also addressed the termination of the parental rights of the respondent mother and a different father with respect to three other children. The opinion in the appeal by that father as to the termination of his parental rights with respect to the other children is reported as In re Deana E., 61 Conn. App. 197, 763 A.2d 45 (2000).

       General Statutes § 17a-112 (c) (3) (D) provides that the court may grant a petition to terminate parental rights if it finds by clear and convincing evidence that “there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent 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

       General Statutes § 17a-112 (c) (3) (A) provides that the court may grant a petition to terminate parental rights if it finds by clear and convincing evidence that “[t]he child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child . . .

       General Statutes § 17a-112 (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 act 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.”
      The court made the mandatory findings in its memorandum of decision. They have not been challenged on appeal.

       The commissioner argues that the respondent failed to appeal from the adjudication of the neglect proceeding and that he had “constructive notice” of that proceeding. We find this argument to be without merit. Because the respondent lacked adequate notice, he consequently lacked the opportunity to make a timely appeal. We note, however, that the respondent, even after being represented by counsel, never filed a motion to open or set aside the judgment in the neglect proceedings.

       We are mindful of the respondent’s argument that if he had received notice of the neglect proceedings, and subsequently had achieved rehabilitation, the commissioner might never have filed petitions for termination of Ms parental rights on the basis of abandonment. That argument delves into speculation, wMch neither we as an appellate court, nor the trial court, may properly consider.

       The respondent objected to the continuation of the termination proceedings because he lacked notice of the neglect proceedings. He also argued that he lacked notice of the termination proceedings, but never raised a claim that the court lacked personal jurisdiction.

       The respondent also claims that the court improperly proceeded to the dispositional phase of the termination proceeding to determine if termination was in the best interests of the respondent’s children because the respondent lacked notice of the adjudicative phase of the proceedings against him. In light of our conclusion in part I of this opinion, we need not address that further.

       See footnote 4.

       The court’s adoption of the February 23, 1999 finding, which the cotut made pursuant to § 17a-110 (b), is not challenged on appeal.

       The commissioner states that the respondent has not challenged the finding that termination was in the best interests of the children. We conclude that the issue was at least implicitly raised.


source: Caselaw Access Project

author: SPEAR, J.

license: Public Domain

text:
    IN RE DEANA E. ET AL.

    (AC 20376)
    Foti, Spear and Pellegrino, Js.

      Argued October 16
    officially released December 26, 2000

      Dale H. King, for the appellant (respondent father).

      Jane R. Rosenberg, 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

SPEAR, J.

The respondent father, Celso S., appeals from the judgments of the trial court terminating his parental rights with respect to his three children, C, S and A. The respondent claims that the court improperly (1) denied his motion to bifurcate the proceedings and (2) found that the commissioner of children and families (commissioner) proved by clear and convincing evidence that the respondent had failed to achieve personal rehabilitation within the meaning of General Statutes § 17a-112 (c) (3) (B). We affirm the judgments of the trial court.

In a comprehensive memorandum of decision, the court found the following facts. On March 10, 1995, the department of children and families (department) received a referral regarding D, a half sibling of the respondent’s children. The department ascertained that the mother and the respondent were living together in squalor. The house was infested with cockroaches, piles of clothes were strewn about the house and there were no mattresses or sheets for the children to sleep on. During a subsequent investigation, the department determined that the respondent had severely beaten D and two other half siblings, Y and M, with an electrical cord because they continued to jump on a bed after he had asked them to stop.

To prevent the removal of her children from her care, the mother signed an agreement with the department in which she agreed that the respondent would move out of the home for a period of time and would not have contact with the children. As a result of the beating incident, the respondent was charged with two counts of assault in the second degree, three counts of risk of injury to a child and one count of assault in the third degree. As part of the criminal proceeding, a restraining order was issued on March 21, 1995, which provided that the respondent was not to have any contact with the children during the pendency of his criminal case. The respondent violated the order almost immediately when he visited the mother and the children within a week of the order’s issuance. D, Y and M later revealed in therapy that the respondent continued to abuse them physically. The respondent was convicted on August 2, 1995, of one count of assault in the second degree and one count of risk of injury to a child.

On August 22, 1995, the commissioner filed neglect petitions alleging that D, Y and M and the respondent’s own children, C, S and A, were being denied proper care and attention physically, educationally, emotionally or morally and that the children were being permitted to live under conditions, circumstances or associations injurious to their well-being. Prior to the granting of the neglect petitions, an order of temporaiy custody was requested by the commissioner. Temporaiy custody of the children was granted by the court on October 6, 1995, after the mother left the children with an inappropriate caregiver whose own children recently had been removed from their home because of physical abuse. M reported that on the weekend prior to the granting of the temporaiy custody order, the respondent had pushed him against the wall several times and caused a large bump on his head that remained for more than one week. D stated that on that same weekend, the respondent had hit her on her back, legs and hands with the electrical cord and that he had done this on prior visits. Finally, Y reported that the respondent had also hit her on the back, legs and hands with the cord on numerous occasions. The children all confirmed that their mother had not kept them away from the respondent.

While in foster care, the children received therapy. During therapy, D and Y revealed other occurrences of abuse. D revealed that her mother forced her to cook for the children. On one occasion when her mother was dissatisfied with the meal, the mother threw the food on the floor, at which point the respondent beat D with an electrical cord. Y revealed that the respondent would also beat her mother if she tried to intervene while the respondent was beating Y.

The department offered the respondent extensive services, but he chose not to take advantage of the numerous opportunities that he was given to improve his parenting skills. The department offered him participation in a parent aid program that commenced in September, 1995, which he refused. In October, 1995, the department also referred him to Winthrop Family Support Center for anger management counseling and a men’s support group. He did not complete those programs. He received couples counseling until he moved to Puerto Rico in the spring of 1996. The department also referred him to a men’s support group and an English as a second language program offered in December, 1996. The respondent did not complete those programs. Furthermore, the respondent was offered individual counseling through Catholic Charities in 1997, but he did not attend. In addition, he failed to attend classes at the Institute for Hispanic Families. On February 4, 1997, a court committed the children to the care and custody of the commissioner as neglected children.

On August 19, 1998, the commissioner filed petitions for the termination of parental rights of the respondent with respect to his three children after reunification efforts with the mother had failed. With respect to the respondent, the petitions alleged that a court had found, in a prior proceeding, that his children were neglected and that the respondent had failed to achieve such a degree of personal rehabilitation as would encourage the belief that, within a reasonable time considering the age and needs of the children, he could assume a responsible position in the life of his children. General Statutes § 17a-112 (c) (3) (B).

On December 4,1998, the respondent moved to bifurcate the adjudicatory phase of the termination proceeding from the dispositional phase. The respondent claimed that to balance the interests involved, bifurcation of the proceedings was required. The court, Munro, J., denied the respondent’s motion to bifurcate.

The court, Rogers, J., found by clear and convincing evidence that the respondent had 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 . . . .” General Statutes § 17a-112 (c) (3) (B). The court found that “[a]s of the filing of the termination petitions, [the respondent] had failed to complete any of the parenting classes, parent aid programs, anger management courses, or men’s support groups that were offered to him by [the department. The respondent] has made numerous excuses for failing to complete any of these programs. These excuses included his moving to Puerto Rico as part of a plan to reunite him with the children once [the department] returned the children to the mother, his moving to Vernon to protect himself from the family of [the mother’s] boyfriend and, finally, timing conflicts between his employment and these programs. The fact still remains, however, that this father by his own choice of priorities has not taken advantage of any of the services that would demonstrate a genuine, sustained effort by him to become a competent parent.” The court terminated the parental rights of the respondent pursuant to § 17a-112 (c) (3) (B) for the failure of the respondent to achieve personal rehabilitation. This appeal followed.

I

“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 interests of the child.” (Internal quotation marks omitted.) In re Galen F., 54 Conn. App. 590, 594, 737 A.2d 499 (1999); see also In re Roshawn R., 51 Conn. App. 44, 52, 720 A.2d 1112 (1998). “A petition to terminate parental rights consists of two phases .... It is not necessary, however, that the two phases be the subject of separate hearings. One unified trial ... is permissible.” (Citations omitted.) In re Eden F., 48 Conn. App. 290, 305-306, 710 A.2d 771 (1998), rev’d on other grounds, 250 Conn. 674, 741 A.2d 873 (1999). Practice Book § 33-3 (b) provides that “[i]n the discretion of the judicial authority, evidence on adjudication and disposition may be heard in a non-bifurcated hearing, provided disposition may not be considered until the adjudicatory phase has concluded.”

Our standard of review of a court’s decision to bifurcate a termination of parental rights hearing is well settled. The decision whether to bifurcate a termination of parental rights proceeding lies solely within the discretion of the trial court. See State v. Anonymous, 179 Conn. 155, 172-74, 425 A.2d 939 (1979); see also In re Tabitha P., 39 Conn. App. 353, 360 n.6, 664 A.2d 1168 (1995). “In reviewing claims that the trial court abused its discretion the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness; the ultimate issue is whether the court could reasonably conclude as it did . . . .” (Internal quotation marks omitted.) In re Jose C., 11 Conn. App. 507, 508, 512 A.2d 1239 (1987).

The respondent claims that the court improperly denied his motion to bifurcate the adjudicatory phase of the termination proceeding from the dispositional phase. The respondent provides several arguments supporting his claim that the court’s denial was improper.

A

First, the respondent argues that when the state seeks to terminate the parent-child relationship, the court should employ the balancing test set forth in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), to determine whether bifurcation is necessary to satisfy the procedural safeguards required by the federal due process clause. See Santosky v. Kramer, 455 U.S. 745, 754, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); see also In re Alexander V., 223 Conn. 557, 560, 613 A.2d 780 (1992). The respondent thus argues that the court violated his right to due process under the fourteenth amendment to the United States constitution by failing to apply the Mathews test when it denied his motion to bifurcate. We disagree.

“[T]he United States Supreme Court has repeatedly held that the interest of parents in their children is a fundamental constitutional right that undeniably warrants deference and, absent a powerful countervailing interest, protection. Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); see also In re Juvenile Appeal (83-CD), 189 Conn. 276, 295, 455 A.2d 1313 (1983) (noting that it is both a fundamental right and the policy of this state to maintain the integrity of the family).” In re Eden F., supra, 48 Conn. App. 306-307. “Accordingly, it has been held that the due process clause of the fourteenth amendment to the United States constitution applies when a state seeks to terminate the relationship between parent and child.” In re Alexander V., supra, 223 Conn. 560. The United States Supreme Court has held that the clear and convincing standard “adequately conveys to the factfinder the level of subjective certainty about his factual conclusions necessary to satisfy due process.” Santosky v. Kramer, supra, 455 U.S. 769.

We conclude that the court did not abuse its discretion when it declined to apply the Mathews balancing test and in denying the respondent’s motion to bifurcate the termination hearing. The statute protects the due process rights of the respondent by requiring clear and convincing evidence in the adjudicatory phase. Using the balancing test of Mathews, therefore, is unnecessary and superfluous. In addition, Practice Book § 33-3 specifically allows the court, at its discretion, to combine both phases into one hearing. We find that it was reasonable for the court to conclude that another court would not consider evidence inappropriately. Moreover, there is nothing in the record to indicate that the court improperly considered dispositional evidence in the adjudicatory phase.

B

The respondent’s second argument in support of his claim that the court improperly denied his motion to bifurcate is that the court improperly disregarded testimony of a clinical psychologist regarding the court’s inability to separate adjudicatory and dispositional evidence. Specifically, the respondent argues that because the state did not rebut the clinical psychologist’s testimony, the court improperly rejected the respondent’s claim that in this case dispositional evidence would prejudice the court’s consideration of the grounds for termination in the adjudicatory phase. We do not agree.

“The trial court ... is not bound by the uncontra-dicted testimony of any witness . . . and is in fact free to reject such testimony. . . . The trier is the judge of the credibility of all the witnesses and the weight to be given their testimony and, therefore, has the right to accept part or disregard part of a witness’ testimony.” (Citations omitted.) In re Hector L., 53 Conn. App. 359, 366, 730 A.2d 106 (1999). Here, the court was not obligated to give particular weight to the psychologist’s testimony regarding the prejudicial effect of disposi-tional evidence on the decision of the court in the adjudicatory phase. The court, as the trier of fact, was in the best position to determine the credibility of the psychologist’s testimony.

The respondent also argues that the court improperly disregarded the psychologist’s testimony and denied the respondent’s motion to bifurcate because “ ‘[a] judge has not such control over his mental faculties that he can definitely determine whether or not inadmissible evidence he has heard will affect his mind in making his decision.’ Barbieri v. Cadillac Construction Corp., 174 Conn. 445, 451, 389 A.2d 1263 (1978).” We disagree.

The respondent’s reliance on Barbieri is misplaced, as the facts in Barbieri greatly differ from the facts in the present case. In Barbieri, the court’s finding that the plaintiff “ ‘had been Democratic Town Chairman of New Haven for many years and was an important and powerful political leader in the State of Connecticut’ ” was made without supporting evidence. Id., 450. The court improperly made this finding regarding character because it was not supported by the evidence and was not a finding that could be judicially noticed. Id. The finding was, thus, struck by the reviewing court. In contrast, evidence exists in the record to support all of the court’s findings in this case. Therefore, Barbieri does not apply.

Furthermore, the respondent concedes that the court has discretion in deciding whether to bifurcate a termination of parental rights hearing. In re Jose C., supra, 11 Conn. App. 508. He has shown no abuse of that discretion here.

C

The respondent’s third argument in support of his claim that the court improperly denied his motion to bifurcate is that the opportunity for the court to consider the best interests of the children in the adjudicatory phase is a structural defect in nonbifurcated hearings. Specifically, the respondent claims that the court’s refusal to bifurcate the trial created a structural defect that mandates reversal. He reasons that such a defect is not susceptible to an abuse of discretion or harmless error analysis because “structural error renders a trial fundamentally unfair.” Because the court had the opportunity to use dispositional evidence in the adjudicatory determination, the respondent argues that a consideration of the children’s best interests could have tainted the court’s finding that there were grounds for termination. The respondent posits that the opportunity to “become partial for the children” in the adjudicatory phase is equivalent to “the appearance of partiality which attacks the very foundation of our judiciary.” This claim is without merit.

In State v. Anderson, 55 Conn. App. 60, 72, 738 A.2d 1116, cert. granted on other grounds, 251 Conn 926, 742 A.2d 363 (1999), we stated: “There is a unique type of error that cannot be reviewed in terms of trial court discretion or abuse of discretion . . . because it is a defect in the trial mechanism itself that defies such an analysis and requires automatic reversal. In such cases, analysis in terms of whether discretion was abused cannot be utilized because the defect is incurable and not correctable.” Examples of such structural errors or defects axe “when the judge has a financial interest in the outcome of a trial despite the lack of any indication that his bias affected the outcome; Tumey v. Ohio, 273 U.S. 510, 535, 47 S. Ct. 437, 71 L. Ed. 749 (1927); or when there is a systematic exclusion from a grand jury of blacks; Vasquez v. Hillery, 474 U.S. 254, 263-64, 106 S. Ct. 617, 88 L. Ed. 2d 598 (1986); or when a defendant has been denied the assistance of counsel; Glasser v. United States, 315 U.S. 60, 76, 62 S. Ct. 457, 86 L. Ed. 680 (1942); or when inherently adverse publicity has tainted the trial; Sheppard v. Maxwell, 384 U.S. 333, 351-52, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966); or when there exists purposeful discrimination in the selection of jurors. Whitus v. Georgia, 385 U.S. 545, 549-50, 87 S. Ct. 643, 17 L. Ed. 2d 599 (1967).” State v. Anderson, supra, 73.

The respondent offers no authority, and we are not aware of any, to support his claim that the denial of his motion to bifurcate created a structural defect in the proceedings. Accordingly, the abuse of discretion standard applies here. See, e.g., State v. Davis, 51 Conn. App. 171, 180, 721 A.2d 146 (1998) (no abuse of discretion in denying motion to bifurcate criminal trial on count that required proof of prior felony); O'Shea v. Mignone, 50 Conn. App. 577, 579, 719 A.2d 1176, cert. denied, 247 Conn. 941, 723 A.2d 319 (1998) (no abuse of discretion where court bifurcated personal injury trial as to liability and damages).

Moreover, Practice Book § 33-3 (b) authorizes a non-bifurcated hearing. We decline to find that a court taints a proceeding with structural error when the rules of practice permit the court’s action. We are satisfied that no structural defect existed.

We conclude that none of the respondent’s bifurcation claims has merit. Accordingly, the court did not abuse its discretion in denying the respondent’s motion to bifurcate the hearing.

II

The respondent also claims that the court improperly found that the commissioner proved by clear and convincing evidence that the respondent failed to achieve personal rehabilitation within the meaning of § 17a-112 (c) (3) (B). 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.” (Citations omitted; internal quotation marks omitted.) In re John G., 56 Conn. App. 12, 16, 740 A.2d 496 (1999).

“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.” (Citations omitted; internal quotation marks omitted.) In re Danuael D., 51 Conn. App. 829, 836, 724 A.2d 546 (1999).

Section 17a-l 12 (c) (3) (B) allows a court to terminate parental rights when the parent 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 . . . .” General Statutes § 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. ” (Internal quotation marks omitted.) In re Migdalia M., 6 Conn. App. 194, 203, 504 A.2d 533, cert. denied, 199 Conn. 809, 508 A.2d 770 (1986). The statute does not “require the parent to be able to assume full responsibility for a child, without the use of available support programs.” Id. “Our Supreme Court has held that § [17a-112] (b) (2) [now § 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 farther, that such rehabilitation must be foreseeable within a reasonable time. ” (Internal quotation marks omitted.) In re Danuael D., supra, 51 Conn. App. 837-38; see also In re Eden F., 250 Conn. 674, 706, 741 A.2d 873 (1999).

After reviewing the court’s decision and the record, we conclude that there was sufficient evidence to support the court’s conclusion, by clear and convincing evidence, that the respondent had failed to achieve personal rehabilitation. The record shows that the respondent had ample opportunity during the adjudicatory period to rehabilitate himself, but chose not to do so. The court’s findings that the respondent had “failed to complete any of the parenting classes, parent aid programs, anger management courses, or men’s support groups that were offered to him by [the department]” and that the respondent “by his own choice of priorities has not taken advantage of any of the services that would demonstrate a genuine, sustained effort by him to become a competent parent” were not clearly erroneous.

The judgments are affirmed.

In this opinion the other judges concurred.

       The court also terminated the parental rights of the respondent mother. She has not appealed from these judgments. We refer in this opinion to the respondent father as the respondent.

       The court terminated the parental rights of the respondent mother with respect to her six children, three of whom, C, S and A, are children of the respondent father and are the subjects of this appeal. The other three children, D, Y and M, are children of the respondent mother and a different father. The opinion in the appeal by that father as to the termination of his parental rights with respect to D, Y and M is reported as In re Deana E., 61 Conn. App. 185, 763 A.2d 37 (2000). Our reference in this opinion to “the children” refers to all six children unless otherwise noted.

       General Statutes § 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 or section 17a-lllb 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 ... (2) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and such parent has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and 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 . . . .”

       A was not bom until October 2, 1995, after the commissioner had filed the neglect petitions concerning the other five children on August 22, 1995. The commissioner, therefore, filed a neglect petition with respect to A on October 6, 1995.

       The mother had completed numerous programs that she had been referred to by the department As part of the department’s reunification plan, on October 31, 1997, C and S were reunified with their mother, who was now living with a man named Jorge. Subsequently, A was reunified with her mother on December 25,1997. The mother had signed an agreement with the department that she would provide appropriate supervision, refrain from using physical discipline and provide a safe, stable and nurturing environment for her children.
      On January 9, 1998, the three children again were removed from their mother’s care the day after the department received a referral from child guidance regarding the respondent’s child, C. The mother had told one of the counselors at child guidance that she could not come to her appointment that day because a tall black man had beaten C. When the department worker went to the school, she found that C was absent and had missed the previous day as well. When the department worker arrived at the mother’s apartment, she found that the C had a large bruise, in the shape of an adult hand print, on his cheek. The mother stated that an eight year old child named Gabby had hit C when she left the child with a baby-sitter, Doris, whom the department had not approved as a caretaker. When questioned by the worker, the child first said that Gabby had hit him, but then C changed his story, saying that it was a tall white male who had hit him. A physician who examined C found numerous contusions on his face, back and thigh, and a bruise in the shape of an adult shoe print on the child’s buttocks.
      When the worker questioned Doris, against whom the commissioner had filed a neglect petition regarding her own children, she confirmed that she had been baby-sitting C on January 6, 1998. She stated that the child had no bruises when Jorge picked up the child at approximately 6:30 p.m. Significantly, Jorge confirmed that he did not observe any bruises on the child when he picked him up at Doris’ house. When Jorge picked up C, Doris told him that C had engaged in sexualized behavior and made several inappropriate comments. In the presence of Doris, Jorge slapped C on the mouth and told Doris that he would take care of the problem at home.The mother stated that she did not know how the child had gotten the bruises. Although C never confirmed that Jorge had beaten him, he did state that Jorge was “always mean” and yelled at him constantly.
      As a result of the failure of the efforts to reunify C, S and A with their mother, the commissioner filed petitions for the termination of the parental rights of the mother as to all of the children, of the parental rights of the respondent as to his three children and as to the father of the other three children as to them. See footnote 2.

       The petition also alleged the statutory grounds of abandonment and no ongoing parent-child relationship. At the conclusion of the trial, the petitioner withdrew the claim of abandonment, and the court rejected the no ongoing parent-child relationship claim.

       See footnote 3.

       The Mathews balancing test factors are: “First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews v. Eldridge, supra, 424 U.S. 335.

       The dispositional evidence that the respondent argues “severely prejudiced” the court during the adjudicatory phase was the testimony of the foster mothers. They testified that they would allow the respondent to visit his children after his parental rights were terminated and the foster families had adopted the children. The respondent argues that “[kjeeping the children with the foster mother where they have flourished and foreseeing visitation similar to a divorce situation with their father [whom] they very much enjoy [seeing] is just too tempting a resolution to allow a court to hear before deciding adjudication and should not have been permitted.”

       See footnote 3.


author: O’CONNELL, J.

text:
    THOMAS LOMEN v. COMMISSIONER OF MOTOR VEHICLES
    (AC 19047)
    Zarella, Pellegrino and O’Connell, Js.
    Argued September 21
    officially released December 26, 2000

      Jeffrey D. Brownstein, with whom, on the brief, was Gregory A. Thompson, for the appellant (plaintiff).

      Robert L. Marconi, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Opinion

O’CONNELL, J.

The plaintiff appeals from the judgment of the trial court dismissing his appeal from the decision of the defendant commissioner of motor vehicles (commissioner) suspending his license to operate a motor vehicle pursuant to General Statutes § 14-227b (c). The plaintiff claims that the court improperly concluded that (1) the hearing officer correctly admitted a state’s exhibit into evidence and (2) there was substantial evidence of the plaintiffs refusal to take a breath test. We affirm the judgment of the trial court.

The following facts and procedural history are necessary for our disposition of this appeal. On May 7, 1998, the plaintiff was at the Meriden police station as a result of having been arrested on a charge of operating a motor vehicle while under the influence of liquor in violation of General Statutes § 14-227a. The plaintiff agreed to take a breath test to determine his blood alcohol content. See General Statutes § 14-227b (c). Officer John Williams, a certified testing officer, administered the test with the arresting officer, Officer Michael Hadvab, acting as a witness. Williams instructed the plaintiff on how to perform the test but, contrary to Williams’ instructions, the plaintiff would blow into the tube of the intoxilyzer only for a second, stop, then blow again. Williams, while holding the tube for the plaintiff, noticed that he was blowing more air into Williams’ hand than into the tube. Despite repeated instructions, the plaintiff continued in his failure to comply with Williams’ instructions. He then complained that he wanted to go to the bathroom and stated that he did not want to take the test anymore. At that point, he refused to blow into the intoxilyzer again. Hadvab witnessed that refusal.

The police reported the plaintiffs arrest and refusal to participate in the test to the commissioner, who initiated the suspension action against the plaintiff. The plaintiff then requested an administrative hearing before the commissioner. The commissioner, acting through Charles G. Greenwald, his hearing officer, found, inter alia, that “the operator refused to submit to [a] test or analysis.” Over the plaintiffs objection, the hearing officer admitted state’s exhibit A into evidence. That exhibit consisted of a form A-44 together with a supplemental report from Hadvab and an affidavit by Williams. As a consequence of the hearing officer’s findings and conclusions, the commissioner suspended the plaintiffs motor vehicle operator’s license for six months.

I

The plaintiff first complains that the hearing officer should not have admitted the A-44 and its attachments into evidence. The plaintiffs principal claim, as argued in his brief, is that the A-44 and attachments should not have been admitted because only Hadvab, the arresting officer, and Williams, the testing officer, signed the A-44. In his brief, the plaintiff argues that the statute requires that a third person be present to witness his refusal and, in the absence of a third person’s signature, the hearing officer could not properly admit the exhibit into evidence.

Any merit that this argument may have had was emasculated by this court’s decision in Mailhot v. Commissioner of Motor Vehicles, 54 Conn. App. 62, 733 A.2d 304 (1999). Mailhot unequivocally put to rest any claim that more than two officers must be present in a refusal situation for an A-44 to be admitted into evidence. The Mailhot court enunciated: “We hold that § 14-227b (c), where there is a refusal to take the test by the party arrested, requires, at a minimum, the presence of three persons, i.e., the person charged, the arresting officer and a third party witness, who may or may not be the same person who took the arresting officer’s oath.

“Accordingly, we conclude that the trial court, in concluding that the hearing officer properly admitted into evidence the A-44 report and that the hearing officer properly suspended the plaintiffs driver’s license, acted reasonably and prudently in accordance with applicable law.” Id., 66.

Applying Mailhot to the present case, we find that three people were present during the testing—the plaintiff, arresting officer Hadvab and testing officer Williams. Hadvab swore to the A-44 in his capacity as arresting officer, and the plaintiffs refusal was witnessed by him and testing officer Williams, both of whom signed the A-44.

At oral argument, the plaintiff attempted to distinguish Mailhot by arguing that Hadvab could not sign the A-44 as both the arresting officer and as a witness to the refusal to take the test, even though Williams signed the A-44 as the testing officer. The plaintiff claims that this means the A-44 is not properly executed. We are not persuaded.

The court properly affirmed the hearing officer’s admission of state’s exhibit A into evidence.

II

The plaintiff next claims that even if state’s exhibit A was admissible, there was not substantial evidence of a refusal to take the test. Even though the plaintiff agreed to take a breath test, the state argues that his conduct amounted to a refusal. Refusal to take a breath test can be by conduct as well as express verbal refusal. Tompkins v. Commissioner of Motor Vehicles, 60 Conn. App. 830, 832, 761 A.2d 786 (2000).

In Bialowas v. Commissioner of Motor Vehicles, 44 Conn. App. 702, 714-15, 692 A.2d 834 (1997), this court held that “where it is undisputed that the motorist submitted to the chemical alcohol test, the fact that he failed to provide an adequate breath sample does not automatically constitute refusal within the meaning of § 14-227b. Such refusal must be supported by substantial evidence.” The gravamen of Bialowas is that, without more, an officer’s conclusory statement that the operator has refused the test does not constitute substantial evidence. In Bialowas, the officer failed to furnish supporting evidence for his conclusion that the plaintiff therein had refused to take the test. Id., 716-17; cf. Tompkins v. Commissioner of Motor Vehicles, supra, 60 Conn. App. 833 (officer provided supporting details).

As previously stated, the plaintiff in this case failed to comply with the officer’s repeated instructions as to how the test should be performed. The plaintiff improperly blew into the intoxilyzer and subsequently refused to blow into the intoxilyzer again.

Thus, we conclude in this case that the officer furnished supporting details “as contrasted with the naked conclusion of the police officer in Bialowas .... Factual determinations of the commissioner must be upheld if there is substantial evidence in the record to support such a finding. ... An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . Such a standard of review allows less room for judicial scrutiny than does the weight of the evidence rule or the clearly erroneous rule. ... In determining whether an administrative finding is supported by substantial evidence, a court must defer to the agency’s right to believe or disbelieve the evidence presented by any witness, even an expert, in whole or in part.” (Citation omitted; internal quotation marks omitted.) Tompkins v. Commissioner of Motor Vehicles, supra, 60 Conn. App. 833-34.

“Whether the plaintiffs actions constituted a refusal to submit to the test presented a question of fact, and, therefore, the trial court’s review was limited to determining whether the hearing officer’s finding was supported by substantial evidence.” Id., 834.

Pursuant to the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq., the court may not substitute its judgment for that of the commissioner and must affirm his decision unless it is clearly erroneous in view of the reliable, probative and substantial evidence on the whole record. General Statutes § 4-183 ©. In the present case, the court properly determined that there was substantial evidence to support the commissioner’s findings.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-227b (c) provides: “If the person arrested refuses to submit to such test or analysis or submits to such test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicate that the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight, the police officer, acting on behalf of the Commissioner of Motor Vehicles, shall immediately revoke and take possession of the motor vehicle operator’s license or, if such person is anonresident, suspend the nonresident operating privilege of such person, for a twenty-four-hour period and shall issue a temporary operator’s license or nonresident operating privilege to such person valid for the period commencing twenty-four hours after issuance and ending thirty days after the date such person received notice of his arrest by the police officer. The police officer shall prepare a written report of the incident and shall mail the report together with a copy of the completed temporary license form, any operator’s license taken into possession and a copy of the results of any chemical test or analysis to the Department of Motor Vehicles within three business days. The report shall be made on a form approved by the Commissioner of Motor Vehicles and shall be subscribed and sworn to under penalty of false statement as provided in section 53a-157b by the arresting officer. If the person arrested refused to submit to such test or analysis, the report shall be endorsed by a third person who witnessed such refusal. The report shall set forth the grounds for the officer’s belief that there was probable cause to arrest such person for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both or while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor, and shall state that such person had refused to submit to such test or analysis when requested by such police officer to do so or that such person submitted to such test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicated that the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight.”

       General Statutes § 14-227a provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug . . . .”

       Because the appeal was argued on the basis of a refusal by conduct, we will limit our analysis to that aspect of General Statutes § 14-227b (c). We note, however, ihat the plaintiff appears to have verbally refused to take the test. We also note that the plaintiff’s refusal to complete the first test could constitute a refusal to take the second test required by § 14-227b (k).

       Form A-44 is the report of the refusal to take the test. The form is required by General Statutes § 14-227b (c). See footnote 1.

       We are not critical of the plaintiffs counsel for making a “third person” argument in his brief. The brief was filed by the plaintiff on June 3, 1999, and the Mailhot decision was not decided until twenty-six days later on June 29, 1999. We do not expect prescience on the part of counsel.

       See footnote 3.


text:
    STATE OF CONNECTICUT v. ALWYN JOHNSON
    (AC 18986)
    Foti, Zaxella and O’Connell, Js.
    Argued October 25
    officially released December 26, 2000

      Arnold V. Amore II, special public defender, for the appellant (defendant).

      Lawrence J. Tytla, senior assistant state’s attorney, with whom was Kevin T. Kane, state’s attorney, for the appellee (state).
   Opinion

O’CONNELL, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134 (a) (4), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a) (4), burglary in the first degree as an accessory in violation of General Statutes §§ 53a-8 (a) and 53a-101 (a) (1), and conspiracy to commit burglary in the first degree in violation of General Statutes §§ 53a-48 and 53a-101 (a) (1). On appeal, the defendant claims that the trial court improperly denied his motion to suppress photographic identification evidence. We affirm the judgment of the trial court.

The following facts and procedural history are necessary for disposition of this appeal. On September 3, 1997, the defendant and four other males drove from Bridgeport to Norwich, intending to rob two drug dealers who lived at 39B Chestnut Street.

On the same day, Everose Colas, her three year old son, Elijah, and her friend, Asantewa Calaway, were visiting at the Chestnut Street address. That evening, Colas, Calaway, Elijah and the drug dealers were eating dinner in the apartment that was lit by candlelight. The drug dealers saw the men approaching the apartment and fled through the rear door. The defendant and his associates kicked in the front door and entered the premises. One man pointed a pistol at Elijah’s head in an effort to force Colas to disclose the location of money they wanted while the other men searched the apartment. Before fleeing the apartment, the men stole $10 from Colas’ purse.

Colas and Calaway left the apartment and immediately encountered two Norwich police officers. They gave the officers a description of the men and permitted the officers to inspect the apartment. The officers then transported Colas and Calaway to the Noiwich police department for additional questioning. At the police headquarters, the officers showed Colas and Calaway five Polaroid photographs of suspects who had just been apprehended in a car on a nearby interstate highway. Colas identified the defendant and one other man from the photographs as two of the men who broke into the apartment. The men were arrested and, during trial, the defendant moved to suppress the photographic identification as unduly suggestive and unreliable. Following a hearing, the court denied the motion.

The defendant claims that the court improperly denied his motion to suppress Colas’ photographic identification in violation of his substantive due process rights under the fourteenth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut. We disagree.

“Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record. . . . [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Internal quotation marks omitted.) State v. Story, 53 Conn. App. 733, 739, 732 A.2d 785, cert. denied, 251 Conn. 901, 738 A.2d 1093 (1999).

“[B]ecause the issue of the reliability of an identification involves the constitutional rights of an accused . . . we are obliged to examine the record scrupulously to determine whether the facts found are adequately supported by the evidence and whether the court’s ultimate inference of reliability was reasonable. . . . [T]he required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless rehable based on an examination of the totality of the circumstances. ... To prevail on his claim, the defendant has the burden of showing that the trial court’s determinations of suggestiveness and reliability both were incorrect. . . . An identification procedure is unnecessarily suggestive only if it gives rise to a very substantial likelihood of irreparable misidentification.” (Citations omitted; internal quotation marks omitted.) State v. Reid, 254 Conn. 540, 554-55, 757 A.2d 482 (2000).

The defendant argues that the procedure the police utilized in obtaining Colas’ identification of him was unnecessarily suggestive and that the identification itself was unreliable. Specifically, the defendant claims that the display of the five photographs was unnecessarily suggestive because Colas was aware that the police had just arrested the men in the photographs. The record does not support this claim. To the contrary, it shows that Colas did not know that the men had just been arrested on the highway. Under the circumstances, the court determined that the photographic display of only the five suspects was not suggestive.

Even if the court had found that the procedure was unnecessarily suggestive, the record is sufficient to show the reliability of Colas’ identification of the defendant. “To determine whether an identification that resulted from an unnecessarily suggestive procedure is reliable, the corruptive effect of the suggestive procedure is weighed against certain factors, such as the opportunity of the [victim] to view the criminal at the time of the crime, the [victim’s] degree of attention, the accuracy of [the victim’s] prior description of the criminal, the level of certainty demonstrated at the [identification] and the time between the crime and the [identification].” (Internal quotation marks omitted.) Id., 555; see Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977).

The defendant claims that the candlelit apartment was too dim and that Colas’ attention was so focused on the man holding a gun to her son’s head that she could not reliably identify the defendant. He also argues that Colas’ description of the defendant as wearing a blue shirt when in fact he was wearing a blue shirt with red film indicated the unreliability of her identification.

Our review of the record indicates that the identification took place one-half hour after the robbery, and that the lighting in the room was sufficient for Colas to see the men and that she had a high degree of certainty at the time of the identification. On the basis of those factors, the court found that Colas’ identification of the defendant was reliable. “The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses.” (Internal quotation marks omitted.) Biller Associates v. Peterken, 58 Conn. App. 8, 12, 751 A.2d 836, cert. granted on other grounds, 254 Conn. 914, 759 A.2d 506 (2000).

We conclude, therefore, that the court properly denied the defendant’s motion to suppress the photographic identification.

The judgment is affirmed.

In this opinion the other judges concurred.


text:
    IN RE STANLEY D.

    (AC 20366)
    Schaller, Spear and O’Connell, Js.
    Argued September 19
    officially released December 26, 2000

      Raymond J. Rigat, with whom, on the brief, was Matthew T. Gilbride, for the appellant (respondent father).

      Mary K. Lenehan, assistant attorney general, with whom, on the brief, were Richard Blumenlhat, 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

SPEAR, J.

The respondent father appeals from the judgment of the trial court terminating his parental rights with respect to his minor child, S, pursuant to General Statutes § 17a-112. The respondent’s sole claim is that the court improperly found that he had failed to achieve sufficient personal rehabilitation within the meaning of § 17a-112 (c) (3) (B). We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. After S’s birth, on November 17, 1994, his pediatrician immediately contacted the department of children and families (department), which then obtained an order of temporary custody. On June 14, 1995, the court adjudicated S as neglected and temporarily returned him to the care of his parents under an order of protective supervision. Soon thereafter, the mother left the respondent because he had abused her physically. On April 18, 1996, the court committed S to the care of the commissioner of children and families (commissioner) for a one year period, which was renewed each year until the adjudication and disposition hearing at issue.

Prior to the hearing, the respondent had a history of unlawful and irresponsible behavior interspersed with attempts at rehabilitation. Several years prior to S’s birth, the respondent, then sixteen years old, was convicted of sexual assault in the second degree for having sexual intercourse with a younger teenager. He received a five year prison sentence, suspended after two years, and three years of probation. Between 1994 and 1998, the respondent violated his probation three times. The violations included unsupervised contact with minors, breach of the peace for threatening to kill a department worker and carrying a dangerous weapon. After the third violation, he was placed on probation for an additional two years. At the time of the termination hearing, the respondent was on probation for the weapons charge. The terms of his probation required him to submit to sexual offender evaluation and prohibited him from residing with anyone under the age of sixteen.

In 1997, the respondent engaged in other irresponsible behavior. He refused to allow a parent aide to enter his home and, on several occasions, denied access to department workers. In one instance, the refusal to admit department workers directly violated a court order to permit their access. Thereafter, the department suspended all unsupervised visits with S at the respondent’s home. Eventually, a department worker was allowed into the home, and observed in the attic and basement a number of dogs, including pit bulls, that were covered with feces. Also during 1997, the respondent was discharged from the Catholic Charities therapy program because of poor attendance. In 1998, the respondent completed a parenting and visitation program, but directed several angry outbursts at caseworkers who gave him mixed reviews regarding his parenting abilities. Moreover, the respondent failed to acknowledge S’s fourth birthday and never inquired about S’s progress in the preschool programs that he attended.

At the time of the termination hearing, the respondent was living in a clean, safe home with his girlfriend and her four children. In addition, the court found that for three years prior to the hearing, the respondent was a reliable, hard-working employee of a small business. The respondent also made great efforts to obtain and attend individual therapy sessions with a licensed social worker concerning his anxiety and lack of parenting skills. At the hearing, his individual therapist testified that she was impressed by his progress during his year of therapy with her.

The respondent failed, however, to keep several scheduled appointments and an open-ended appointment with Robert D. Meier, a court-appointed psychologist. When Meier finally evaluated the respondent, he concluded that the respondent had a problem with anger, not limited to his conflicts with the department, and that he lacked insight about the impact of his anger on others, including S. Meier recommended that the respondent obtain anger management therapy with a psychologist or psychiatrist who would treat a hostile patient. Meier further recommended against granting joint custody of S to the respondent and S’s mother. The respondent visited S regularly at the department’s offices and showed affection for him. During some visits, S was excited to see the respondent; however, during others, S acted out in a physically aggressive manner, and was sometimes oppositional and defiant afterward.

From the beginning of 1997 until the time of the termination hearing, S lived in his current foster home and was very comfortable there. He associated well with the other children in the foster home. He referred to his foster parents, who wanted to adopt him, as “mommy” and “daddy.” S did not talk to the department worker about his biological parents.

On October 14, 1998, the commissioner filed a petition to terminate the parental rights of the respondent and the mother, alleging failure to achieve personal rehabilitation pursuant to § 17a-112 (c) (3) (B). At the same time, the respondent filed a motion to revoke the commitment of S to the commissioner. After a consolidated hearing, the court denied the motion and granted the termination petition. This appeal followed.

The respondent claims that the court improperly found by clear and convincing evidence that he had failed to achieve personal rehabilitation, and that it was not foreseeable for him to assume a responsible role in S’s life within a reasonable time pursuant to § 17a-112 (c) (3) (B). The respondent claims that he was “clearly closer to being able to provide satisfactorily for [S] on the adjudicatory date than he was on the date the child was removed from his custody” because he had (1) maintained a permanent job, (2) secured adequate housing after the filing of the petition, (3) visited S regularly, (4) attended individual therapy before and after the filing of the petition, and (5) not used illegal drugs at any time. We disagree.

Our standard of review is well settled in termination of parental rights cases. We will overturn a finding of fact that a parent has failed to achieve rehabilitation only if it is clearly erroneous in light of the evidence in the record. In re Eden F., 250 Conn. 674, 705, 741 A.2d 873 (1999). We construe the facts in favor of the court’s judgment because of the court’s opportunity as the trier of fact to scrutinize the evidence, and to hear and observe the witnesses during trial. Id. “We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached.” (Internal quotation marks omitted.) Id.; see In re Luis C., 210 Conn. 157, 166, 554 A.2d 722 (1989). Our function is to determine whether the court’s conclusions were legally correct and factually supported. In re Roshawn R., 51 Conn. App. 44, 51, 720 A.2d 1112 (1998).

Section 17a-112 (c) (3) (B) allows for the involuntary termination of parental rights when “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 . . . ,” A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. In the adjudicatory phase of the proceeding, the court must decide whether there is clear and convincing evidence that a statutory ground for the termination of parental rights exists. Id., 52. Practice Book § 33-3 (a) limits the time period reviewable by the court in the adjudicatory phase to the “events preceding the filing of the petition or the latest amendment.” If the court finds clear and convincing evidence of a statutory ground for termination, it then proceeds to the dispositional phase and determines whether termination is in the best interest of the child. In re Roshawn R., supra, 51 Conn. App. 52. The respondent’s challenge focuses on the adjudicatory phase of the proceedings.

Section 17a-112 (c) (3) (B) requires the court to determine whether the “degree of personal rehabilitation . . . encourage [s] the belief that within a reasonable time . . . such parent could assume a responsible position in the life of the child . . . .” “Personal rehabilitation” refers to the reasonable foreseeability of the restoration of a parent to his or her former constructive and useful role as a parent, not merely the ability to manage his or her own life. See In re Shyliesh H., 56 Conn. App. 167, 173, 743 A.2d 165 (1999). In the adjudicatory phase, the court may rely on events occurring after the date of the filing of the petition to terminate parental rights when considering the issue of whether the degree of rehabilitation is sufficient to foresee that the parent may resume a useful role in the child’s life within a reasonable time. See In re Amber B., 56 Conn. App. 776, 785, 746 A.2d 222 (2000); see also In re Sarah M., 19 Conn. App. 371, 377, 562 A.2d 566 (1989).

Rehabilitation “does not require the parent to be able to assume full responsibility for a child without the use of available support programs.” In re Luis C., supra, 210 Conn. 167; see also In re Migdalia M., 6 Conn. App. 194, 203, 504 A.2d 533, cert. denied, 199 Conn. 809, 508 A.2d 770 (1986). An inquiry regarding personal rehabilitation requires us to obtain a historical perspective of the respondent’s child-caring and parenting abilities. In re Galen F., 54 Conn. App. 590, 594, 737 A.2d 499 (1999). What constitutes a reasonable time is a factual determination that must be made on a case-by-case basis. In re Michael L., 56 Conn. App. 688, 694, 745 A.2d 847 (2000).

The respondent’s claim relates to the weight to be given to the evidence and testimony presented. The court, as the trier of fact, is in the best position to determine the weight of the evidence. Our review of the record discloses that in the adjudicatory phase, the court considered the evidence and determined that the respondent had failed to achieve personal rehabilitation sufficiently such that, within a reasonable time, he could assume a responsible role in S’s life. We are not persuaded that the court’s decision was clearly erroneous.

The court in its memorandum of decision stated: “The court cannot readily conclude that someone, such as the [respondent], who violates his criminal probation during the adjudicatory period has rehabilitated himself. . . . The [respondent], in fact, has a history of threatening and confrontational behavior with [department] workers and other service providers, and of defiance of court orders.” The court heard testimony from several department workers, the respondent’s individual therapist and a court-appointed psychologist whose testimony supports the court’s findings. Moreover, there was clear and convincing evidence that the respondent had threatened a department worker, had angry outbursts during therapy sessions or left sessions early because of his anger, refused to let department workers into his home despite a court order to do so and engaged in domestic violence. In addition, the psychological evaluation ordered by the court recommended long-term confrontational anger therapy.

The court further found in its memorandum of decision that the respondent “also was discharged from a therapy program for poor attendance, failed to attend a psychological evaluation on numerous occasions, engaged in domestic violence, did not develop his parenting skills and, for a period of time, maintained a home that was unsafe and unsanitary for children. For all these reasons, [the department] has proven [the respondent’s] failure to rehabilitate ... by clear and convincing evidence.” The court reasonably could have found that the respondent had failed to develop a relationship with or to bond with S on the basis of S’s lack of interest in talking about his parents, and the respondent’s failure to exhibit interest in his S’s schooling and to acknowledge his fourth birthday. We conclude that there was ample evidence to support the court’s findings.

The respondent argues that the “simple gauge” to determine whether a parent has achieved rehabilitation is “[whether] the parent, on the adjudicatoiy date, [is] any closer to being able to provide satisfactorily for the neglected child than [he] was on the date the child’s custody was removed . . . .” (Emphasis added.) In re Passionique T., 44 Conn. Sup. 551, 564, 695 A.2d 1107 (1996); see also In re Hector L., 53 Conn. App. 359, 367, 730 A.2d 106 (1999) (“ultimate issue [to determine personal rehabilitation] faced by the trial court was whether the respondent was better able to resume the responsibilities of parenting at the time of filing the termination petition than he had been at the time of the children’s commitment” [emphasis added]).

The respondent contends that In re Passionique T. and In re Hector L. together narrow the issue of personal rehabilitation to whether the parent was any closer to rehabilitation at the time of the filing of the petition than when the child was adjudicated neglected. Because the respondent was closer to resuming his responsibilities as S’s father at the time the commissioner filed the termination petition than he was at the time of S’s commitment, the respondent asserts that the court’s finding that he could not resume his parental role within a reasonable time was clearly erroneous. We disagree.

The respondent’s reliance on In re Hector L. and In re Passionique T. is misguided. Although the respondent did not have to attain such a degree of rehabilitation that he could resume taking care of the child without assistance, the degree must be more than “any" rehabilitation. See In re Migdalia M., supra, 6 Conn. App. 203; see also In re Michael M., 29 Conn. App. 112, 126, 614 A.2d 832 (1992). Section 17a-112 (c) (3) (B) specifically states that the parent must “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 . . . .” In re Hector L. and In re Passionique T. adhere to that statutory standard. The facts relied on by the respondent in his brief and during oral argument show only that from the adjudicatory date of July 14, 1995, to the filing of the termination petition on October 14, 1998, he improved his ability to manage his life. Although commendable, those improvements are not dispositive on the issue of his ability to care for S.

The record contains sufficient evidence to support the court’s conclusion that the respondent failed to achieve rehabilitation and could not, within a reasonable time, assume a responsible position in his son’s life. The finding that the respondent had not achieved sufficient personal rehabilitation is, therefore, not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court also terminated the parental rights of the respondent mother. Because this appeal concerns only the respondent father, we refer in this opinion to the father as the respondent.

       General Statutes § 17a-112 (c) provides in relevant part: “The Superior Court, upon hearing and notice . . . may grant a [termination of parental rights] petition ... 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, or (2) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and such parent has been provided specific steps to take to facilitate the return of the child to the parent . . . and 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 . . . .”

       Another female friend of the respondent also reported being physically abused by him.

       The respondent would often travel three hours by bus and on foot to make appointments.

       See footnote 2.

       General Statutes § 17a-112 (c) provides for the involuntary termination of parental rights in three additional situations that are not at issue in this case.