author: LAVINE, J.

text:
    STATE OF CONNECTICUT v. ANTWAN SEASE
    (AC 35554)
    Gruendel, Lavine and Pellegrino, Js.

      Argued December 10, 2013
    officially released January 28, 2014

      Christopher Y Duby, assigned counsel, for the appellant (defendant).

      Sarah Hanna, assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and David Zagaja, assistant state’s attorney, for the appel-lee (state).
   Opinion

LAVINE, J.

The defendant, Antwan Sease, appeals from the judgment of conviction, rendered after a jury trial, of felony murder in violation of General Statutes § 53a-54c, robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (2) and 53&-48. On appeal, the defendant claims that the court abused its discretion by admitting into evidence statements made by his coconspirator to a third party. The state claims that this evidentiary claim is not reviewable as the defendant failed to preserve it at trial. We agree that the claim was not preserved for appellate review and therefore affirm the judgment of the trial court.

The jury could have found the following facts beyond a reasonable doubt. On October 2, 2009, the defendant and his coconspirator, Quan Morgan (Quan), talked about committing a robbery. Quan talked about “getting some guy.” The defendant stated that he also “wanted to get at that” guy “for the longest” time. That same day, the defendant told his friend, Kevin Prude, that he was going to a club on Main Street in Hartford.

Later, the defendant and Quan met at the home of Quan’s mother, Shirley Williams, who lived on Westland Street in Hartford. At approximately 2:30 a.m. on October 3, 2009, the defendant and Quan left the Williams’ residence on foot under the guise of getting food for Courtney Morgan, who was Quan’s sister and the defendant’s girlfriend. They, however, walked toward Club Vibz on Main Street. The defendant was carrying a .38 caliber semiautomatic handgun, and he gave Quan a .38 caliber revolver.

Club Vibz had closed for the night. The victim, Edward Haslam, was sitting in the operator’s seat of a motor vehicle in the club’s parking lot talking to Erika Taylor, who was in the passenger’s seat. Dana Middleton was standing outside the vehicle on the passenger’s side. Rhonda McNickles, Tarsha Zenit, and Timothy Rush were seated in McNickles’ vehicle nearby.

As the two men approached the Club Vibz parking lot, the defendant stated to Quan, “that has to be him,” and asked Quan if he “ha[d] his back.” When they reached the parking lot of Club Vibz, Quan walked up to Middleton and, at gunpoint, demanded his cell phone and money. Quan took the cell phone and money, ordered Middleton to get on the ground, and walked away. The defendant walked to the victim’s vehicle, pointed his gun in the window, stated “empty your fucking pockets,” and fired one shot into the victim’s chest. He took the victim’s money and his cell phone. As a result of having been shot, the victim bled to death. Rush saw that both men had guns.

The defendant and Quan ran toward Westland Street. Along the way, the defendant took Quan’s gun from him and hid it in the basement of a friend’s home. When they arrived at the Williams residence, Quan asked the defendant why he had shot the victim. The defendant stated: “I had to. It was my reason. I got my reasons. I had to do it because something went wrong between us.” While the defendant was in the Williams residence, he dropped a gun on the floor, which made a loud noise heard by Courtney Morgan and Williams. The defendant gave Courtney Morgan a cell phone to hold and called Prude to pick him up because “it was hot outside,” which meant that some incident had just happened. Prude took the defendant to the home of Prude’s sister.

Williams gave a statement to the police on May 21, 2010, regarding the defendant’s and Quan’s being in her home on October 3, 2009. Williams had had no contact with the defendant after the night in question. After she gave a statement to the police, however, the defendant drove by her home while she was sitting on the porch. As he drove by, the defendant blew his vehicle’s horn, pointed his fingers as if they were a gun at Williams, and shook his head. The jury also heard evidence that, while he was incarcerated awaiting trial, the defendant discussed the robbery and shooting with Michael Lee.

At the conclusion of evidence on June 6,2011, counsel for the defendant made a motion for a judgment of acquittal and a motion to dismiss the charges on the basis of insufficient evidence. The court denied both motions. Prior to sentencing, the defendant filed a motion to set aside the verdict and a motion to dismiss the charges on the basis of insufficient evidence. Those motions, too, were denied. Thereafter, the defendant appealed. Additional facts will be addressed as needed.

On appeal, the defendant claims that the court abused its discretion by permitting Lee to testify as to statements made by Quan. At trial, Lee testified that he was a sentenced prisoner at MacDougall-Walker Correctional Institution and that, in the past, he had been convicted of a number of felonies. He testified that no promises had been made to him in exchange for his testimony. Lee is Quan’s cousin and knew of the defendant from outside of prison. He got to know the defendant because he was housed in the cell next to his. Lee reached out to law enforcement because the defendant had told him about a situation in which the defendant had “put work in.” The conversation between the defendant and Lee took place in the mess hall of the prison. Lee identified the defendant at trial and testified on direct examination, in part, as follows:

“[The Prosecutor]: How did the conversation go about this case?
“[The Witness]: He asked me did I know Quan, and I said what Quan and he was like Quan Morgan. And I said, yeah, that’s my cousin, and he was like—he was like, well while we was walking to the table, he was like your cousin crazy. I was like why my cousin crazy? He was like—I guess the day that had took place they was at my aunt house—
“[The Prosecutor]: You can only say what he told you about this incident.
“[The Witness]: Yeah, that’s what I’m sayin’.
“[The Prosecutor]: Okay.
“[The Witness]: He was like—they started talking about it when they was at his aunt house, I guess Quan or somethin’ like that and—which is on Enfield Street. And he said Quan started talking about some dude.
“[Defense Counsel]: Objection, Your Honor. I believe he’s testifying about a conversation between the defendant and Quan.
“The Court: Counsel, if you could clarify who is doing the discussion.
“[The Prosecutor]: And this is [the defendant] providing you with this information?
“[The Witness]: Yes.
“[The Prosecutor]: And is he telling you about a conversation that he’s having with Quan?
“[The Witness]: Yes.
“[The Prosecutor]: About this incident?
“[The Witness]: Yes.
“[The Prosecutor]: That day?
“[The Witness]: Yes.
“The Court: Is he allowed to discuss the conversation?
“[The Prosecutor]: Yes.
“The Court: That’s the question.
“[The Prosecutor]: Yes, in furtherance of the conspiracy, Your Honor.
“The Court: All right, as furtherance of the conspiracy, I’ll allow it.
“[The Prosecutor]: And they were talking about what was going to take place that day?
“[The Witness]: Yes.
“[The Prosecutor]: This is [the defendant] telling you this?
“[The Witness]: Yes. So he started telling me—he started telling me Quan started talking about some— getting some guy, and he was like what guy. And I guess—I guess Quan said—
“[The Prosecutor]: You can’t say I guess. You can only say what [the defendant] told you.
“[The Witness]: Well, he said Quan—well, he said Quan said—
“[Defense Counsel]: Objection, Your Honor. It’s hearsay what Quan said; Quan didn’t testify to it in this case at all.
“The Court: Counsel, your response to the hearsay objection.
“[The Prosecutor]: Is he saying what Quan is saying—
“[The Witness]: Yeah, [the defendant] said—
“[The Prosecutor]: About what’s going to happen later that night?
“[The Witness]: Yeah.
“[The Prosecutor]: It’s a statement of coconspirator in furtherance of the conspiracy, Your Honor.
“The Court: I’ll allow it, counsel.
“[The Witness]: So, he said Quan said the guy name. He was like, oh, yeah, yeah—he was like, oh yeah, I wanted to get at that—I don’t know, I can’t say the N-word in here, huh?
“[The Prosecutor]: Did he swear?
“[The Witness]: Yeah.
“[The Prosecutor]: You can swear, if that’s what he said.
“[The Witness]: Oh, okay. He was like—
“The Court: But, if you’re not comfortable saying it, you don’t have to say it.
“[The Witness]: He was, like, I wanted to get—get at that nigger for the longest and—
“[The Prosecutor]: Who said that?
“[The Witness]: That’s—that’s what [the defendant] said. And after that he said Quan left for like fifteen— fifteen to twenty minutes, and then went to his house and came back, and they met up, and that’s when he started walking away from the table. When he walked away from the table—before he walked away from the table to get on the phone, he was like, yeah, that was my work. That’s what [the defendant] said, that was my work.
“[The Prosecutor]: I’m sorry. You’re saying he walked away from a table?
“[The Witness]: Before he walked away—
“[The Prosecutor]: Is this the conversation he’s having with you?
“[The Witness]: Yeah.
“The Prosecutor: So before he walked away from the table—
“[The Witness]: [The defendant] said, that was my work.
“[The Prosecutor]: He said, that was ... his work?
“[The Witness]: Yeah. He was like—he was like, yeah, but that dude—that was my work.”

On appeal, the defendant claims that the court abused its discretion by permitting Lee to testify as to Quan’s statement about “getting some guy.” The defendant assumes that the evidentiary import of that statement was to provide a motive for shooting the victim. The defendant argues that the state failed to lay a factual predicate that the statement was made while the conspiracy was ongoing, and, therefore, the court abused its discretion by admitting the statement. See Conn. Code Evid. § 8-3 (1) (D); Macchio v. Breunig, 125 Conn. 113, 122, 3 A.2d 670 (1939). The state argues that the claim is not reviewable because the defendant did not preserve it at trial. We agree.

“[T]he standard for the preservation of a claim alleging an improper evidentiary ruling at trial is well settled. This court is not bound to consider claims of law not made at the trial. ... In order to preserve an eviden-tiary ruling for review, trial counsel must object properly. ... In objecting to evidence, counsel must properly articulate the basis of the objection so as to apprise the trial court of the precise nature of the objection and its real purpose, in order to form an adequate basis for a reviewable ruling. . . . Once counsel states the authority and ground of [the] objection, any appeal will be limited to the ground asserted. . . .

“These requirements are not simply formalities. They serve to alert the trial court to potential error while there is still time for the court to act. . . . Assigning error to a court’s evidentiary rulings on the basis of objections never raised at trial unfairly subjects the court and the opposing party to trial by ambush.” (Internal quotation marks omitted.) State v. Jorge P., 308 Conn. 740, 753, 66 A.3d 869 (2013). “[A] party cannot present a case to the trial court on one theory and then seek appellate relief on a different one . . . .” (Internal quotation marks omitted.) Council v. Commissioner of Correction, 286 Conn. 477, 498, 944 A.2d 340 (2008).

“[T]he sina qua non of preservation is fair notice to the trial court.” State v. Jorge P., supra, 308 Conn. 753. An appellate court’s “determination of whether a claim has been properly preserved will depend on a careful review of the record to ascertain whether the claim on appeal was articulated [in the trial court] with sufficient clarity to place the trial court on reasonable notice of that very same claim.” Id., 754.

We have reviewed the entire transcript of Lee’s testimony and find that at no time did the defendant obj ect to his testimony on the ground raised on appeal. Defense counsel twice objected to Lee’s testimony, but he never stated specifically that he objected on the failure of the state to demonstrate that the statement attributed to Quan was made while the conspiracy was ongoing. Had the defendant expressly objected that the state had failed to lay the required factual predicate for Lee’s testimony, the court would have been able to rule on the precise issue. Because the court was not provided with an opportunity to rule on the issue raised on appeal, we conclude that the defendant’s evidentiary claim on appeal was not preserved for our review.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant had been charged with murder in violation of General Statutes § 53a-54a, but the jury found him not guilty of that charge.

       Quan testified at trial. He was incarcerated on other charges and had a series of pending cases, including felony murder, robbery, and conspiracy charges related to the Club Vibz shooting at issue in the present case. Quan had a cooperation agreement with the state related to the Club Vibz charges, which could reduce his sentence from sixty years to twenty-five years in the custody of the Commissioner of Correction.

       Investigators determined that the bullet and its casing were fired from a .38 caliber semiautomatic handgun.

       “The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (1) Statement by a party opponent. A statement that is being offered against a party and is . . . (D) a statement by a coconspirator of a party while the conspiracy is ongoing and in furtherance of the conspiracy . . . .” Conn. Code Evid. § 8-3 (1) (D).

       See footnote 4 of this opinion.

       On cross-examination, Lee testified in part as follows:
      “[Defense Counsel]: All right. And your testimony was—is today that my client indicated when the conversation came up to this incident that it was his work?
      “[The Witness]: Yes.
      “[Defense Counsel]: Meaning that he was involved in it?
      “[The Witness]: Yes.
      “[Defense Counsel]: But he didn’t—he didn’t say he’s responsible in so many words, did he?

      “[The Witness]: No, he didn’t say those words.”

       In the alternative, the defendant seeks redress pursuant to the plain error doctrine. “[The plain error] doctrine, codified at Practice Book § 60-5, 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 reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Plain error is a doctrine that should be invoked sparingly.” {Internal quotation marks omitted.) State v. Sanchez, 308 Conn. 64 ,76-77, 60 A.3d 271 (2013). The defendant has failed to demonstrate why his evidentiary claim warrants plain error reversal. We therefore decline to review his claim.


source: Caselaw Access Project

author: SULLIVAN, J.

license: Public Domain

text:
    LARRY PERCY v. LAMAR CENTRAL OUTDOOR, LLC
    (AC 34960)
    Lavine, Beach and Sullivan, Js.

      Argued October 11, 2013
    officially released January 28, 2014

      John B. Kennelly, for the appellant (defendant).

      Donald E. Weisman, for the appellee (plaintiff).
   Opinion

SULLIVAN, J.

The defendant, Lamar Central Outdoor, LLC, appeals from the judgment of the trial court, following a hearing in damages upon default, awarding the plaintiff, Larry Percy, $68,837.34 for injury to his property. The defendant claims that (1) the court abused its discretion and violated the defendant’s due process rights by denying the defendant’s motion to open judgment and motions for reconsideration, and (2) the court’s damages award was excessive. We affirm the judgment of the trial court.

The following facts are set forth in the plaintiffs amended complaint. See Mountainview Plaza Associates, Inc. v. World Wide Pet Supply, Inc., 76 Conn. App. 627, 632-34, 820 A.2d 1105 (2003) (consequence of default, court bound by factual allegations outlined in plaintiffs amended complaint). The plaintiff is the owner of Percy’s Autobody Service, a business located at 247 Walnut Street, Hartford (property). On August, 31, 1998, Cornelius Percy, who at that time was the owner of the property and the business, entered into a lease with Patrick Media Group, Inc. Under the terms of the lease, Cornelius Percy leased large billboard signs to Patrick Media Group, Inc., as well as the entire roof, walls and surrounding surface area of the building located on the property, for advertising purposes. On or about February 29, 2000, Cornelius Percy sold the property and business to the plaintiff, also assigning ownership of the lease to the plaintiff. Patrick Media Group, Inc., subsequently assigned the lease to Martin Media Group, Inc., who then assigned the lease to the defendant.

In February of 2008, the defendant’s agents, servants, and/or employees leaned ladders against the canopy of the north side of the plaintiffs building in order to gain access to the building’s roof and billboard. The ladders caused the canopy to crack, sag, and deteriorate, and caused the edge flashing to loosen. As a result of the loosening of the edge flashing, water entered the roofing and seeped down into the interior of the building, causing damage to the building’s canopy, the roof, and the building itself.

The plaintiff brought this action for damages on October 26, 2009. On May 9, 2011, the court set a trial date of October 14,2011. On October 13,2011, the defendant filed a motion to dismiss and a motion for summary judgment, which led the court to postpone trial in order to address the jurisdictional issues raised in the motion to dismiss. The court denied the defendant’s motion to dismiss on November 21, 2011, and the court denied the motion for summary judgment on January 6, 2012. On February 24, 2012, the defendant failed to appear at scheduled pretrial, notice having been sent on January 20, 2012. The plaintiff filed a motion for default based upon this failure to appear at civil pretrial, which was denied by the court. On April 13, 2012, the defendant again failed to timely appear at scheduled pretrial, notice of which having been sent on March 23, 2012, instead arriving an hour late. On that date, the court granted the plaintiffs oral motion for default. The court denied the defendant’s motion to open default and motion for reconsideration. The defendant filed a second motion for reconsideration, which the court also denied.

A hearing in damages was held before the court on June 6, 2012. On August 7, 2012, the court, in a written decision, rendered judgment for the plaintiff, and awarded the plaintiff $68,837.34 in damages. This appeal followed. Additional facts will be presented as necessary.

I

The defendant first claims that the court abused its discretion and violated the defendant’s due process rights by denying the its motion to open default and motions for reconsideration. Specifically, the defendant asserts that (1) it demonstrated good cause to set aside the default, pursuant to Practice Book § 17-42, and (2) it was denied due process of law because any issues of liability would not be considered as a result of the default. We are not persuaded.

In its corrected articulation, dated November 15, 2012, the court detailed that it denied the defendant’s motion to open default, and subsequent motions for reconsideration, “[p]ursuant to the [c]ourt’s authority pursuant to Practice Book §§ 14-12 et. seq. and § 17-42, based on the defendant’s violation of scheduling orders, untimely filing of motions resulting in the delay of a long-scheduled trial, and for twice failing to appear for pre-trial conferences without good cause . . . .” The court noted in its articulation that “[t]he ‘eve of trial’ filings by the defendant required the [c]ourtto postpone the trial in order to address the jurisdictional issues in the [m]otion to [djismiss” and that “the plaintiff was trial-ready and had present in court his expert witness.” The court also noted that, after the defendant’s first failure to timely appear at civil pretrial, the court denied the plaintiffs subsequent motion for default “in an attempt to preserve the defendant’s right to a fair hearing on the merits.”

The court may set aside a default when no judgment has been rendered “for good cause shown upon such terms as it may impose.” Practice Book § 17-42. “[T]he determination of whether to set aside [a] default is within the discretion of the trial court . . . and will not be disturbed unless that discretion has been abused or where injustice will result. In the exercise of its discretion, the trial court may consider not only the presence of mistake, accident, inadvertence, misfortune or other reasonable cause . . . factors such as [t]he seriousness of the default, its duration, the reasons for it and the degree of contumacy involved . . . but also, the totality of the circumstances, including whether the delay has caused prejudice to the nonde-faulting party.” (Internal quotation marks omitted.) Bohonnon Law Firm, LLC v. Baxter, 131 Conn. App. 371, 381, 27 A.3d 384, cert. denied, 303 Conn. 902, 31 A.3d 1177 (2011).

The defendant argues that the court should have granted its motion to open because it sufficiently established that counsel’s errors were the result of mistake and accident; specifically, that counsel for the defendant did appear for the April 13, 2012, rescheduled pretrial, “albeit an hour late,” and that “late appearance does, in fact, constitute an appearance, and the mistake in time should serve as a defense against default.” Further, counsel asserts that his perpetual tardiness did “not signify an unwillingness to enthusiastically litigate the pending case,” and that “prior to the pretrial conference which was the reason for the default order, the defendant had attended previous pretrial conferences, had filed substantive motions for summary judgment and to dismiss, and had deposed the plaintiff. Additionally, on November [21] 2011, both parties were in court, ready to proceed with scheduled trial. On that date the defendant filed numerous motions in limine.” As to his claim that the court improperly denied his motions for reconsideration, the defendant reasserts these same arguments.

Considering the totality of the circumstances, the court’s determination that the defendant failed to establish good cause to set aside the default, pursuant to Practice Book § 17-42, was not an abuse of discretion. Counsel for the defendant exhibited a pattern of disregard for the court’s orders and procedures. First, the defendant simultaneously filed a motion for summary judgment and a motion to dismiss on the eve of trial, in direct violation of Practice Book §§ 10-30 and 17-44, and the scheduling order issued by the court. As articulated by the court, these filings impeded the operation of the court and the preparation of the plaintiff. Second, regardless of counsel’s sincerity as to his mistake, he failed to timely appear at two scheduled pretrial conferences ordered by the court, to which notice of the date and time as to each had been sent more than one mqnth prior. Third, after the court denied the plaintiffs first motion for default “in an attempt to preserve the defendant’s right to a fair hearing on the merits,” and counsel had notice of this leniency, counsel nevertheless failed to appear at the proper time for the rescheduled pretrial. See, e.g., Automotive Twins, Inc. v. Klein, 138 Conn. 28, 33, 82 A.2d 146 (1951) (“[Practice Book § 17-19] provides that a party who fails to comply with an order of the court may be defaulted. . . . The defendant’s failure to appear for trial was a failure to comply with an order of court and was ample cause for defaulting him.”).

The record indicates that counsel for the defendant received notice of the date and time of both pretrial conferences but failed to appear at the first, and arrived an hour late to the second, due to counsel's own inattentiveness. “This court repeatedly has stated that negligence is an improper ground on which to set aside a default.” Sessa v. Province, 98 Conn. App. 564, 566, 910 A.2d 992 (2006), cert. denied, 281 Conn. 912, 916 A.2d 51 (2007). As a result, the court’s decision to not set aside the default was not an abuse of its discretion. Compare id. (“The record indicates that the defendants received notice of [the court’s] orders regarding the mediation session and failed to comply with them. In light of the defendants’ negligence, [the court] reasonably concluded that the defendants had failed to demonstrate good cause to set aside the default.”), with Patterson v. Travelers Casualty & Surety Co., 104 Conn. App. 824, 827, 936 A.2d 241 (2007) (defendant’s failure to receive notice of date and time of pretrial conference constituted good cause for its nonappearance), cert. denied, 286 Conn. 920, 949 A.2d 481 (2008); see also Barton v. Barton, 123 Conn. 487, 489-91, 196 A. 141 (1937); Bohonnon Law Firm, LLC v. Baxter, supra, 131 Conn. App. 381-82.

The defendant also argues that the court’s denials of its motion to open and motions for reconsideration were a denial of due process. Specifically, it alleges that, by denying its motions, the court limited the issues that the defendant could bring forth in the hearing in damages in that any issues of liability would not be considered, thereby denying the defendant due process of law.

The defendant’s due process argument is unavailing. “After a default, a defendant may still contest liability. Practice Book §§ 17-34, 17-35 and 17-37 delineate a defendant’s right to contest liability in a hearing in damages after default. Unless the defendant provides the plaintiff written notice of any defenses, the defendant is foreclosed from contesting liability. ... If written notice is furnished to the plaintiff, the defendant may offer evidence contradicting any allegation of the complaint and may challenge the right of the plaintiff to maintain the action or prove any matter of defense. . . . This approximates what the defendant would have been able to do if he had filed an answer and special defenses.” (Citations omitted; footnote omitted; internal quotation marks omitted.) Schwartz v. Milazzo, 84 Conn. App. 175, 178-79, 852 A.2d 847, cert. denied, 271 Conn. 942, 861 A.2d 515 (2004); see also General Statutes § 52-221; Bank of New York v. National Funding, 97 Conn. App. 133, 139-40, 902 A.2d 1073, cert. denied, 280 Conn. 925, 908 A.2d 1087 (2006), cert. denied sub nom. Reyad v. Bank of New York, 549 U.S. 1265, 127 S. Ct. 1493, 167 L. Ed. 2d 229 (2007).

There is no indication in the record, and the defendant does not claim, that the court prevented the defendant from utilizing these available procedural remedies. “A party who allows the ten day period from the notice of default to expire without filing a notice of defenses does so at his peril.” Whalen v. Ives, 37 Conn. App. 7, 20, 654 A.2d 798, cert. denied, 233 Conn. 905, 657 A.2d 645 (1995); see also Practice Book § 17-35 (b). The court did not limit the defendant’s ability to be heard.

Accordingly, the court did not abuse its discretion and did not violate the defendant’s due process rights by denying the defendant’s motion to open judgment and subsequent motions for reconsideration.

II

The defendant also claims that the court’s damages award was clearly erroneous. Specifically, the defendant argues that (1) there is no evidence to support the court’s inclusion of the cost of a full new roof, $46,500, in its damages award of $68,837.74, and (2) the court’s damages award is excessive because it places the plaintiff in a better position than he would have been had the defendant not been negligent. We are not persuaded.

The following additional facts are relevant to this claim. Following the default, and the court’s denials of the defendant’s motion to open and motions for reconsideration, the court took evidence on June 6, 2012, at a hearing in damages. At the hearing in damages, the court heard testimony from the plaintiff, along with James Fitzgerald, president of The State Awning Company, and James Hopkins, chief executive officer of Rite-Way Restoration and Roofing Specialist, LLC, who testified as to the damage to the overhang and the roof, respectively. The only evidence provided by the defendant was that which could be gleaned through cross-examination of these witnesses.

As to the issue of the extent of the damage to the roof, the plaintiff submitted as evidence a copy of the bid created in 2012 by Hopkins, which called for the replacement of the roof. Hopkins testified that this bid was nearly the same as one which he had created for the plaintiff in 2009, but that the 2012 bid was slightly higher to account for the increased cost of materials. Testimony from both the plaintiff and Hopkins established that a portion of the roof was repaired in 2011 after it caved in from the weight of snow, and that this repair was paid for by insurance. There was no evidence provided as to the cost of the 2011 repair to the roof, and there was no evidence provided as to the cost to replace the portion of the roof that was not repaired in 2011.

The defendant first argues that there was no testimony elicited from Hopkins that established that it was necessary to replace the entire roof; instead, Hopkins’ quote was created out of a desire to perform the job properly, and not necessity. The defendant also argues that the court’s award was clearly erroneous because the court’s determination that the entire roof now needs to be replaced is undermined by evidence that established that the roof had been repaired in 2011.

“We first set forth our standard of review with respect to damages. [T]he trial court has broad discretion in determining damages. . . . The determination of damages involves a question of fact that will not be overturned unless it is clearly erroneous. . . . [W]hether the decision of the trial court is clearly erroneous . . . involves a two part function: where 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; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. ... In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witness and the weight to be given specific testimony. ... On appeal, we will give the evidence the most favorable reasonable construction in support of the verdict to which it is entitled. ... A factual finding may be rejected by this court only if it is clearly erroneous. ... A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Centimark Corp. v. Village Manor Associates Ltd. Partnership, 113 Conn. App. 509, 527-28, 967 A.2d 550, cert. denied, 292 Conn. 907, 973 A.2d 103 (2009). “Moreover, it is the exclusive province of the trier of fact to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness’ testimony. . . . Thus, if the court’s dispositive finding . . . was not clearly erroneous, then the judgment must be affirmed. . . . The function of the appellate court is to review, and not retry, the proceedings of the trial court.” (Internal quotation marks omitted.) Keith E. Simpson Associates, Inc. v. Ross, 125 Conn. App. 539, 543, 9 A.3d 394 (2010).

Hopkins testified that to repair the roof he “would have to rip it . . . down to the tongue and groove. . . . [A]nything . . . can penetrate right through the roof, it’s too heavy.” The defendant first argues that Hopkins based his quote upon a desire to perform a thorough job, and not out of necessity. To support this argument, the defendant cites the portion of the transcript in which Hopkins responded, when prompted by counsel for the defendant to address whether the repairs in 2011 had any effect on his current quote, “Well when I go in to do a job I don’t go in and do it half, I go in and I take it all off because I’m doing it now.”

On the other hand, although the defendant asserts throughout its brief that there was no testimony from Hopkins indicating that the entire roof needed to be replaced, this is inaccurate. Hopkins testified that the roof needed to be replaced because the damage to the canopy caused water to enter the roofs tongue and groove system and warp the boards. Accordingly, there was evidence before the court that the damage to the canopy necessitated replacement of the entire roof.

The defendant also argues that, because the 2012 quote did not take into account the 2011 repairs, the court’s reliance on the 2012 quote in its calculation of damages was clearly erroneous. We are not persuaded. The current cost of repair estimates can be evidence of the extent of earlier damage. See Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 246 Conn. 1, 60-61, 717 A.2d 77 (1998) (“In Whitman Hotel Corp. [v. Elliot & Watrous Engineering Co., 137 Conn. 562, 573, 79 A.2d 591 (1951)], we rejected the argument that permitting recovery for the actual cost of repairs puts the plaintiff in a better position than it was in before the damage was done. ... As we have stated, the cost of repairs is evidence of the diminution in value resulting from [the defendant’s] actionable conduct. [E]xpenditure for repairs would restore the building of the plaintiff to its condition of usefulness prior to the [damage] . . . .” [Citation omitted; emphasis in original; internal quotation marks omitted.]); see also Calderwood v. Bender, 189 Conn. 580, 584-85, 457 A.2d 313 (1983) (holding that actual cost of repairing faulty septic system was proper measure of damages). Here, Hopkins submitted a quote in 2009 for a new roof, and Hopkins testified that, when making his quote in 2012, he witnessed the 2011 repairs, but that these repairs did not affect his quote. It is unclear from the defendant’s brief why Hopkins testimony is evidence that the repairs in 2011 remedied the need to replace the roof in full; on the contrary, Hopkins testimony is evidence that the 2011 repairs did nothing to remedy the damage caused by water to the roofs tongue and groove system as a whole.

As his final argument, the defendant asserts that the court’s inclusion of the cost of a new roof in its damages award is excessive because it places the plaintiff in a better position than he would have been had the defendant not been negligent. We disagree.

“In determining the proper measure for damages to land, the legal effort ... is to compensate the landowner for the damage done. . . . This is essentially true whether the injury is redressed under a theory of tort or breach of contract. . . . The basic measure of damages for injury to real property is the resultant diminution in its value. . . . There is, however, a well established exception to this formula; such diminution in value may be determined by the cost of repairing the damage, provided, of course, that that cost does not exceed the former value of the property and provided also that the repairs do not enhance the value of the property over what it was before it was damaged.” (Citations omitted; internal quotation marks omitted.) Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., supra, 245 Conn. 59; see also Whitman Hotel Corp. v. Elliot & Watrous Engineering Co., supra, 137 Conn. 573.

Here, there was no evidence to indicate that the cost of replacing the full roof would exceed the purchase price of the property being repaired; see Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., supra, 245 Conn. 60; and there was no evidence that a new roof enhanced the value of the property over what it was before it was damaged. See Whitman Hotel Corp. v. Elliot & Watrous Engineering Co., supra, 137 Conn. 573-74. Accordingly, we axe not persuaded that the court’s inclusion of the cost of a full roof in its measure of damages was an improper measure of the diminution of the value of the plaintiffs property that resulted from the defendant’s negligence. See, e.g., Centimark Corp. v. Village Manor Associates Ltd. Partnership, supra, 113 Conn. App. 531-33. In consideration of this evidence, we are not left with a definite and firm conviction that a mistake has been made.

The judgment is affirmed.

In this opinion the other judges concurred.

       The parties agreed to file motions for summary judgment by January 14, 2011.

       The following colloquy occurred during the cross-examination and subsequent redirect examination of Hopkins.
      “[The Defendant’s Counsel]: [I]s the tongue and grove roofing failing due to the weight of the later roofing systems and the billboard, or because there’s some water had gotten in? . . .
      “[Hopkins]: [W]hen you disturb any part of the roofing system [in] which the awning [is] supposed to go underneath, you have to replace the whole thing. Because what he did was create a monster, because the water’s going to keep on, like the wind blowing and the rain it go in through that hole and it will start, and once the water get in . . . it’s a no brainer, it travels everywhere .... What it did throughout the years was got into that tongue and groove and the boards then got warped. So tongue and groove stick together like this, so now it’s separating them and it’s making an opening. .. .
      “[The Defendant’s Counsel]: And you had testified that ... it was because the roof was too heavy?
      “[Hopkins]: “Yes. But when I heard him talk about he messed with— whoever touched that awning, if it found an opening no telling where the water at. . . . [T]hat’s what I say, because I know the system. . . .
      “[The Plaintiffs Counsel]: Just to clarify this, you told me had there been no water damage the roof would not have to be replaced, is that correct?
      “[Hopkins]: That’s correct.”


author: KELLER, J.

text:
    IN RE KYARA H. ET AL.

    (AC 35573)
    Beach, Keller and Pellegrino, Js.

      Argued October 21, 2013
    officially released January 16, 2014

      James P. Sexton, assigned counsel, for the appellant (respondent mother).

      Susan T. Pearlman, assistant attorney general, with whom were Benjamin Zivyon, assistant attorney general, and, on the brief, George Jepsen, attorney general, and Michael J. Besso, assistant attorney general, for the appellee (petitioner).

      Raymond F. Parlato, for the minor children.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79a-12, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

       January 16, 2014, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

KELLER, J.

The respondent mother, Andrea K, has appealed to this court from the judgments of the trial court, Hon. Francis J. Foley III, judge trial referee, terminating her parental rights in her minor children, Kyara H., bom in 2004, Jahein H., bom in 2004, Trevon M., bom in 2009, and Kahlil M., bom in 2011. The respondent claims that, in light of the fact that the children have obvious and complex psychological issues, the court committed reversible error by failing, sua sponte, to order a psychological evaluation of the children for purposes of determining whether termination of the respondent’s parental rights was in their respective best interests. We affirm the judgments of the trial court.

On July 25, 2012, the petitioner, the Commissioner of Children and Families (commissioner) filed petitions to terminate the parental rights of the respondent and Tyrone H. in their children, Kyara and Jahein. On that same date, the commissioner filed petitions to terminate the parental rights of the respondent and Jose M. in their children Trevon and Kahlil. In each petition, the commissioner asserted that “[t]he child has been found in a prior proceeding to have been neglected and uncared for and [the respondent and the male biological parent of the child] has . . . failed to achieve the degree of personal rehabilitation that would encourage the belief that within a reasonable time, considering the age and needs of the child . . . they . . . could assume a responsible position in the life of the child . . . .” See General Statutes § I7a-112 (j) (3) (B) (i).

The court conducted a trial on the petitions, after which it rendered a thorough memorandum of decision that set forth its findings and conclusions. In the adjudicative phase of the proceeding, the court found in relevant part: “[The respondent] is presently twenty-eight years old. She was raised in Hartford and moved to Eastern Connecticut after she dropped out of school in the ninth grade. Her father was an active alcoholic; her mother was addicted to cocaine. She was sexually abused by her brother when she was twelve. She reports a strong relationship with her father who remains an active alcoholic. [The respondent] frequently left her children in the care of her father throughout the years.

“At eighteen years old, [the respondent] was arrested by the Putnam police for resisting arrest. She was convicted and received a nine month suspended sentence and [one] year probation. . . .

“[The respondent] met Tyrone when she was nineteen and soon got pregnant. Kyara was bom on January 22, 2004. The child tested positive for the presence of marijuana; [the respondent] admitted usage throughout her pregnancy. A continuing theme. [The respondent] transferred guardianship of Kyara to her father, Leander [K], where the child remained for the first three years of her life.

“[The respondent] gave birth to her second child, Jahein, on November 13, of the same year, 2004. Jahein also tested positive for marijuana. Two months later, on January 26, 2005, Tyrone was arrested for assault upon [the respondent] and was later convicted and sentenced to one year in jail, suspended with three years probation. He later violated the probation and was incarcerated. [The respondent] said that Tyrone left her shortly after this episode and since then he does not acknowledge his children in any way ... ‘he ignores his children.’

“From May 6, 2005, until the spring of 2006, neither of the children were with [the respondent]. Kyara was with [Leander K] and Jahein was removed from [the respondent’s] care by [the commissioner] after [the respondent] was found several miles from her home extremely intoxicated by alcohol while Jahein was with her. She lost her balance and fell while holding him and he hit his head. She was arrested and charged with risk of injury to a minor and disorderly conduct. [The Department of Children and Families (department)] offered services and [the respondent] was also required to [complete] court ordered treatment programs. Upon successful completion, the charges were reduced to disorderly conduct and she received an unconditional discharge from the criminal court on October 6, 2005, and Jahein was returned to her care.

“In the summer of 2008, [the respondent] met an undocumented man from Brazil, who was fifteen years her senior, Jose. Jose was, and remains, a functionally illiterate person in that he can neither read nor write in any language. Thus began a four year domestically violent, substance abusing relationship that produced three more children.

“On March 26, 2009, [the commissioner] sought and obtained temporary custody of Kyara and Jahein due again to [their] exposure to illegal substances, domestic violence and inadequate supervision. This was the second removal by [the commissioner]. Again, [the department] offered services to [the respondent] and also to Jose to address these issues. [The respondent] was pregnant again. Both [the respondent] and Jose participated in services resulting in the return of the two children, Kyara and Jahein, in October, 2009, under an order of protective supervision effective until April, 2010.

“In November, 2009, [the respondent] was again arrested, her third arrest, for disorderly conduct. She was fined $200. Apparently this arrest escaped the notice of [the department]. The following month, December 31, 2009, Trevon was bom.

“On April 11, 2011, Kahlil was bom. The child tested positive for marijuana. [The respondent] acknowledged to [the department] that she used marijuana and alcohol throughout her pregnancy. She admitted mutual domestic violence with Jose. She said she uses marijuana daily and that she drinks two or three times per week and will drink two or three forty ounce bottles of beer and a few shots.

“[The respondent] reports that she and Jose also smoked K-2, a synthetic drag chemically similar to marijuana. This drag can be four to a hundred times more potent than marijuana and is popular with marijuana users since it does not show up on drag screens unless used within the preceding two hours of testing. It can produce hallucinations, severe agitation, panic attacks, dangerously elevated heart rate and blood pressure and, seizures . . . .” (Citations omitted.)

In describing the circumstances surrounding the removal of the children from the care of the respondent, the court found in relevant part as follows: “Petitioner’s Exhibit B, an affidavit of a [department] social worker, describes an horrific and chaotic home life for [the respondent], Jose, the children and [the respondent’s] alcoholic father, Leander. The picture described is the daily use of marijuana by both parents, [the respondent] frequently drinking alcohol to the point of intoxication; her father drinking daily with his friends to intoxication and occasional domestic violence between Jose and [the respondent]. The [affidavit] describes events between August, 2030, and October 13, 2011, when [the commissioner] finally obtained an order of temporary custody.”

The court referred to a police report that described an incident that occurred on August 26, 2010, in which Jose struck the respondent in the kitchen of their residence, in the presence of Kyara, Jahein, and Trevon. The respondent told one of the police officers responding to this domestic disturbance that she was having difficulty coping with the recent suicide of her brother. She stated that, upon her return from a package store, she got into a disagreement with Jose and that he struck her using his hand as well as a roll of masking tape, and then dragged her down onto the floor. Subsequently, Jose was arrested and charged with disorderly conduct, assault in the third degree, and risk of injury to minor children. The criminal charges were dismissed following Jose’s completion of a family violence education program.

The court found: “In April, 2011, upon the birth of Kahlil, bom positive for marijuana, [the commissioner] filed a petition alleging neglect but did not seek removal of the children. [The department] again offered services to both parents through [the] Stonington Institute, Community Prevention and Addiction substance abuse evaluation and treatment, New Perceptions counseling, individual counseling for [the respondent] with [counselor] Cam Morin-Bounds and others. . . .

“[0]n September 6, 2011, after Jose was arrested and held in jail [on] motor vehicle charges, [a department] social worker learned that [the respondent] had reported that seven year old Kyara was [engaging in inappropriate sexual conduct with her] then six year old brother, Jahein. [The respondent] was receiving services from a Community Resources, Inc. (CRI) behaviorist and clinician. The clinician told [the department] that [the respondent] says that Kyara roams the house in the middle of the night, urinating in her room and that [the respondent] fears leaving Kyara and Jahein alone together.”

The court went on to discuss a police report concerning an incident on October 1, 2011. During the incident, the respondent was taken into custody incident to a traffic stop. The respondent acted in a physically and verbally combative manner toward the police. Additionally, she vomited in a police cruiser and shouted profanity at the police. Upon her arrival at the police station, the respondent continued to act in a combative manner and disregarded police commands that she undergo processing calmly. The respondent was charged with violations of motor vehicle laws, interfering with an officer, and breach of peace.

The court went on to find: “On October 12, 2011, a [department] social worker observed [twenty-two] month old Trevon with two black eyes. According to [the respondent] and her father, Leander, Trevon fell on a piece of furniture. The next day, Jose and a friend went to [the respondent’s] home. They report that [the respondent] had been drinking beer when they arrived. They said that [the respondent] continued to drink throughout the afternoon and evening, [having stolen vodka and wine from another person]. The report [submitted as an exhibit] indicates that Jose and [the respondent] then went to [a motel] with [twenty-two] month old Trevon and [six] month old Kahlil. During the time at the motel, Jose reports that [the respondent] was so drunk that she dropped Kahlil twice, [and] left the hotel to start walking on Route 6 wearing no shoes and having unzipped pants. Jose called the police and [the respondent] was subsequently arrested for breach of peace and resisting arrest.

“Both Jose and [the respondent] reported to the social worker that Jose had been unfaithful to [the respondent] with a neighbor and that this infidelity had caused further strife in their relationship. Jose admitted it was poor judgment to go to the hotel with [the respondent] while she was intoxicated and angry over his infidelity. Two days later, [the commissioner] sought and obtained an order of temporary custody of the children.”

The court observed that specific steps were entered for all parties on October 14, 2011, at the time of the initial order of temporary custody, and later, on February 1, 2012. With regard to the respondent, the court found: “It must be recalled that [the department] began offering services to [the respondent] in 2004. The children had been previously removed on two occasions. Within the past two years and prior to the most recent third removal of the children, [the department] had engaged CRI for intensive family preservation services for [the respondent] and the children. This was a program designed to keep the family together and provided needed services for the family. In May, 2011, [the department] engaged a Family Based Recovery program for [the respondent] and the children. [The respondent] met with these providers nine times while they were attempting to help her. [The respondent] consistently tested positive for marijuana during those services. She quit the program [on] June 24, 2011, and began a day treatment program for substance abuse. She did not complete the program.

“After her arrest on October 1, 2011, and after the children were removed on October 14,2011, she entered Stonington Institute Partial [H]ospitalization and Intensive Outpatient treatment on October 25. She completed the program for the second or third time and was released on December 6, 2011. Jose was there to pick her up. Jose and [the respondent] said they were going to resume living together at [the respondent’s] apartment .... [The respondent] was supposed to attend [Alcoholics Anonymous (AA)] meetings. She did not. There is evidence that she and Jose were using illegal drugs, marijuana and K-2, and/or drinking alcohol at least through the end of April and into the beginning of May, 2012, more than six months after the children were removed.

“In February, 2012, she resumed her individual counseling with Cam Morin-Bounds, a licensed alcohol and drug counselor. This counselor testified that she has been treating [the respondent] off and on for more than [seven] years. She knows that [the respondent] is an alcoholic. She describes alcoholism as a disease with strong genetic predisposition. She appears very forgiving of [the respondent], describing many episodes of relapse over the years. She said that [the respondent] began AA meetings in 2011, but that is inconsistent with other evidence including self-reports. She testified that [the respondent] has been making improvements. She seemed pleased with [the respondent’s] progress in her personal rehabilitation. She testified that she last saw [the respondent] in March, 2012. [The respondent] stopped attending counseling with her after one month of visits; she began in February and ended in March.

“[The respondent] entered a residential substance abuse program known as New Life on March 20, 2012. She told the intake worker that she had been using drugs while in her last program, she reported drinking alcohol every three days. Cam Morin-Bounds did not report that [the respondent] was drinking in February. [The respondent] stayed in this program until she was discharged on April 30, 2012, after she was found to have K-2 in her room.

“[The department] found another program for her. On May 1, 2012, [the respondent] was scheduled to enter Mother’s Retreat in Groton, a program that works with [a] substance abusing [woman] and if successful allows [her] children to be reunited with her in treatment. [The respondent] failed to attend the intake session. On May 22, 2012, [the respondent] entered yet another program known as Fresh Start in Hartford.

“[The respondent] had failed to remain sober even after a multitude of detoxification and impatient programs through eight years of various programs. Her children have been removed three times from her care. On July 25, 2012, [the commissioner] filed [petitions] to terminate her parental rights.” (Footnotes altered.) The court went on to find that the children had been found in a prior proceeding to have been neglected and that the respondent had failed to achieve such degree of personal rehabilitation that would encourage the belief that within a reasonable time, considering the ages and needs of the children, she could assume a responsible position in the life of the children. In this appeal, the respondent does not challenge the court’s finding that she has failed to achieve personal rehabilitation.

In the dispositional phase of the proceeding, the court addressed and considered the seven factors specified in § 17a-112 (k). Additionally, the court considered the best interests of the children, concluding: “Clear and convincing evidence establishes that it is in the children’s best interest to grant the petition and terminate the parental rights of the biological parents. Thus, in consideration of all the factors relevant here to the children’s needs and best interests], it was proven by clear and convincing evidence that terminating the parental rights is in the children’s best interests.” See General Statutes § 17a-112 (j) (2). This appeal followed.

The respondent claims that the guarantee of procedural due process under the United States constitution required the court, sua sponte, to order a psychological evaluation of the children for the purpose of determining whether termination of the respondent’s parental rights was in their best interests. The respondent asserts that “this case presents the type of complex psychological issues that required the trial court to order psychological evaluations prior to making any determination as to the children’s best interests.” The respondent argues in relevant part: “[D] espite the obvious potential for these issues to impact the dispositional outcomes that might best advance their respective needs, the trial court, [Hon. Francis J. Foley III, judge trial referee], never ordered a psychological evaluation before concluding that terminating the respondent’s parental rights was uniformly in the best interest of all four children. . . . [B]ecause the failure to order a psychological evaluation in this case created an unacceptably high risk of the court unnecessarily terminating the fundamental liberty interests of both the respondent and her children when it may well not be necessary to do so, the court ran afoul of the respondent’s due process rights.” Underlying the respondent’s novel claim is her supposition that trial courts lack formal training in medicine and psychology and, in cases such as the present, are not competent to engage in a best interest analysis without relying on expert opinion concerning multiple child attachment theories and their application in each case.

Our review of the record reflects, and the respondent acknowledges, that this issue of procedural due process was not raised before the trial court. Although deeming it necessary to a proper resolution of the case, the respondent did not ask the court to order a psychological evaluation of her children. In her principal appellate brief, the respondent affirmatively requests extraordinary review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Under Golding, “a defendant 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 defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Emphasis in original; footnote omitted.) Id. “The first two prongs of Golding address the reviewability of the claim, and the last two involve the merits of the claim.” State v. Brown, 56 Conn. App. 26, 31, 741 A.2d 321 (1999), cert. denied, 252 Conn. 927, 746 A.2d 790 (2000).

I

As a preliminary matter, the respondent’s resort to Golding review is unavailing because the record belies the factual premise of the claim. In Golding, our Supreme Court stated that “[t]he defendant bears the responsibility for providing a record that is adequate for review of his claim of constitutional error. If the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred, we will not attempt to supplement or reconstruct the record, or to make factual determinations, in order to decide the defendant’s claim.” State v. Golding, supra, 213 Conn. 240.

The respondent has premised her invocation of Golding on the existence of “complex” and “obvious” psychological issues related to Kyara, Jahein, Trevon, and Kahlil. To prevail under Golding, therefore, the record must reflect that such issues exist with respect to each of the respondent’s children. In support of her claim that the “psychological issues” of the children required that the court, sua sponte, order a psychological evaluation, the respondent refers to several matters in evidence. First, she refers to “inappropriate sexual acts” between Kyara and Jahein. In its decision, the court referred to a department social worker’s report, which included the respondent’s observation that, while living with the respondent, Kyara was engaging in inappropriate sexual behavior with Jahein. The court observed, as well, the respondent’s representation that Kyara “roams the house in the middle of the night” and “urinates in her room.” This behavior was not corroborated by any other source. A July 24, 2012 social study prepared by a department social worker, submitted in support of the petitions, states that, since her placement in a foster home, Kyara “has not displayed any sexualized behaviors” and has adjusted well in her foster home. At school, she performs at grade level and does not have any behavioral problems.

Second, the respondent refers to “Attention Deficit Hyperactivity Disorder.” In the department social worker’s report, it states that an “art therapist” who has been working with Kyara reported that she was “very loud” and “clumsy.” The therapist reported that “she could have Attention Deficient Hyperactive Disorder or these could be symptoms of other things.” There is no evidence that any diagnosis by a medical professional was made in this regard. Additionally, in the department social worker’s report, it refers to Jahein’s history of “Attention Deficient Hyperactive Disorder.” The report goes on to state that, at this time, the group of evaluators that had studied his case determined that this issue need not be addressed. Although the respondent reported difficulties with Jahein’s behavior in the home, including his tendency to spend time alone, the report states that Jahein “has made a lot of progress since being placed in the foster home,” he “has been doing excellent in school,” his teacher “is very happy with him and his progress . . . and enjoys having him in his class,” and that he has been “doing better with his hygiene . . . showering . . . and brushing his teeth.”

Third, with regard to the other two children, Trevon and Kahlil, the respondent acknowledges in her brief that “[they] do not appear to have the same psychological issues at this time, but both are deemed ‘medically complex’ by the [commissioner].” In this regard, the respondent goes on to state that “[b]oth children have asthma, requiring nebulizer treatments, and Kahlil has Hepatitis C, which can be a life-threatening disease.” Additionally, the respondent relies on evidence that Trevon experienced some regression in his potty training after being placed in foster care.

The department social worker’s report submitted in evidence states that “Trevon presents as a happy and easy going toddler. Once he warms up he is easily engaged and smiles often.” Initially after being placed with his foster family, Trevon had a “flat affect” and had difficulty sleeping through the night. Those problems have disappeared and he is engaging in activities that are developmentaily appropriate for his age. Further, “Birth to Three made an assessment of Trevon and deemed that he did not qualify for their services.” The department social worker’s report states that upon joining his foster home Kahlil “is a happy baby who smiles and babbles often. There are not any concerns regarding Kahlil’s developmental milestones. He is crawling and almost walking by himself. [He] was evaluated by Birth to Three services and they reported that he does not meet the qualifications for services.”

In a purely subjective manner, the respondent has labeled certain conduct, medical conditions and diagnoses as “complex” and “obvious psychological issues.” She has not demonstrated, by reference to findings of fact or competent evidence, that any of these things constitute obvious psychological issues that were of such a complex nature that they should have triggered the court, sua sponte, to order a psychological evaluation. The respondent has not established a necessary factual predicate in support of her claimed entitlement to review under Golding because there is no finding or evidence that at the time that the court rendered its decision, any of the four children at issue suffered from obvious and complex psychological issues. The respondent effectively conceded that there are medical issues involving Trevon and Kahlil; she has failed to demonstrate by reference to competent evidence that they are psychological issues that should affect a best interest analysis. With respect to Kyara, the respondent relies on her own observation of sexual conduct and other activities, yet there is no evidence of any diagnosis of any psychological disorder by a medical professional, let alone findings by the court that such issues existed. To the contrary, the evidence demonstrates that Kyara was performing well apart from the respondent. Finally, with respect to Jahein, the respondent points to his historical diagnosis with a psychological issue, namely, Attention Deficient Hyperactive Disorder. The evidence, which was credited by the court, unambiguously reflects that this disorder was not an area of concern at this time for the department social workers who studied Jahein. Rather, he, like all of his siblings, had been making excellent progress in almost all areas after being distanced from the respondent and entering foster care. Absent a sufficient showing in the record that obvious and complex psychological issues existed, the factual predicate for the respondent’s claim is lacking. See In re Amanda A., 58 Conn. App. 451, 458, 755 A.2d 243 (2000) (claim of constitutional error not reviewable where record insufficient to substantiate factual basis of claim).

II

In part I of this opinion, we concluded that the factual predicate underlying the respondent’s claim, which is of constitutional magnitude, was not apparent in the record. Even were we to conclude that the record supported the factual premise of the claim—or the claim was based on the facts apparent in the record—the respondent’s Golding claim is unavailing because she is unable to demonstrate that due process required the court, sua sponte, to order a psychological evaluation of the children for purposes of determining whether termination of her parental rights was in their respective best interests.

“In reviewing a procedural due process claim, we must first determine whether a protected liberty or property interest is involved. If it is, then we must determine the nature and extent of the process due.” (Internal quotation marks omitted.) In re Tayler F., 296 Conn. 524, 553, 995 A.2d 611 (2010). The present appeal arises from the termination of the respondent’s parental rights and, as this court has recognized, “[t]he right of a parent to raise his or her children has been recognized as a basic constitutional right.” (Internal quotation marks omitted.) In re Tremaine C., 117 Conn. App. 521, 529, 980 A.2d 317, cert. denied, 294 Conn. 920, 984 A.2d 69 (2009).

Whether the process due the respondent required the court, sua sponte, to order a psychological evaluation of her children, is governed by the balancing test set forth by the United States Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). See In re Alison M., 127 Conn. App. 197, 219-20, 15 A.3d 194 (2011) (Mathews balancing test applies in context of proceeding to terminate parental rights). “Under this test, [t]he 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.” (Internal quotation marks omitted.) Barros v. Barros, 309 Conn. 499, 509, 72 A.3d 367 (2013).

The first factor of the Mathews balancing test, concerning the private interest at stake, weighs in the respondent’s favor. “A petition to terminate parental rights threatens the respondent’s constitutionally protected interest [in retaining her parental rights in her children].” In re Tremaine C., supra, 117 Conn. App. 530.

The second factor, consideration of the efficacy of current procedural safeguards and the efficacy of any additional or alternate procedural safeguards, does not weigh in the respondent’s factor. As discussed previously in this opinion, the respondent argues, essentially, that courts commonly do not rely on appropriate psychological theories when undertaking best interest analyses, that courts are ill-equipped to evaluate the myriad of proper considerations that are relevant to a best interest analysis, and that proper best interest analyses should be influenced by child psychology that favors continued contact between children and biological parents. The respondent argues that, given the facts of the present case, the court was obligated sua sponte to order a psychological evaluation of the children because “the trial court [had] no reliable assessment of how well bonded the children were to their foster parents or what type of damage would be occasioned by terminating parental rights at this time. . . . Absent that type of information, there is a significant risk that the trial court rendered a decision that unnecessarily destroyed this family or was affirmatively detrimental to the children, and that is a risk that due process forbids in light of the easy access to psychological evaluations that are so commonly used in these types of cases.”

An evaluation of current procedural safeguards reflects that the respondent’s parental rights were terminated following numerous court proceedings and a lengthy trial, during which the respondent was represented by counsel. Current procedural safeguards include the court’s statutory authority, exercised whether on motion by a party or on its own initiative, to order a psychological evaluation of a child that is the subject of a termination of parental rights proceeding. General Statutes § 45a-717. The record reflects that the respondent did not raise such a motion in the present proceeding and the respondent has not suggested that the court precluded her from doing so. The respondent’s argument is premised on an assumption, the support for which is uncertain, that the outcome of a psychological examination in the present case would have weighed in her favor. That is, the respondent merely speculates that an expert would have formulated an opinion that did not weigh in favor of the termination of her parental rights. In no manner does the respondent address the issue of why she failed to attempt to present such a favorable alternative theory before the trial court. In argument, she alludes to evidence of an ongoing bond with her two oldest children, Kyara and Jahein, and suggests that the court was unaware of contemporary research noting “the importance of continued contact between children and their biological parents . . . .” Yet, “[o]ur courts consistently have held that even when there is a finding of a bond between parent and a child, it still may be in the child’s best interest to terminate parental rights.” In re Rachel J., 97 Conn. App. 748, 761, 905 A.2d 1271, cert. denied, 280 Conn. 941, 912 A.2d 476 (2006). Certainly, apart from any issues related to the existence of a bond between the respondent and any or all of her biological offspring, the court was free to rely instead on the evidence that it amply discussed in its thorough memorandum of decision regarding the many ways in which the respondent has failed to behave as a responsible parent or to provide any semblance of a stable and safe home environment for the children at issue. See, e.g., In re Devon W., 124 Conn. App. 631, 649, 6 A.3d 100 (2010).

Furthermore, our courts have consistently eschewed the notion that judges lack the ability to weigh the evidence and make correct best interests determinations in termination of parental rights cases. As our state’s highest court has observed: “Although we often consider the testimony of mental health experts . . . such expert testimony is not a precondition of the court’s own factual judgment as to the child’s best interest.” (Citations omitted; internal quotation marks omitted.) In re Jeisean M., 270 Conn. 382, 398, 852 A.2d 643 (2004); see also In re Teshea D., 9 Conn. App. 490, 493, 519 A.2d 1232 (1987) (same). Thus, the respondent’s claim, itself, is based on an assessment of the capability of the trial court that is without support in our case law.

Here, the respondent urges us to conclude that an added procedural safeguard, namely, a psychological evaluation of the children ordered, sua sponte, by the court, was part of the process that was due in the present case. The respondent had the right to move the court to order such an evaluation but did not exercise such right. Moreover, the respondent, in a purely speculative manner, suggests that such an evaluation would have yielded expert opinion, based on psychological theories of which, she supposes, the court was unaware, that would have stressed the importance of maintaining a bond between the respondent and, perhaps, some of her children. The court, however, in undertaking a proper analysis that focused on the totality of the material considerations relevant to a best interest analysis, would not be bound by such expert opinion or by the nature of the bond between the respondent and any of her children. After considering the existing procedures, we are not persuaded by any of the respondent’s arguments that they are not adequate or that alternate procedural safeguards would have eliminated the risk of an erroneous deprivation of the respondent’s private interest in parenting her children.

Finally, we consider the state’s interest in the procedures used, including the fiscal and administrative burdens attendant to any additional or substitute procedures advocated by the respondent. There can be no dispute that the type of expert psychological evaluation advocated by the respondent entails a significant financial cost, one that would be borne by the petitioner. See General Statutes § 45a-717 (d), set forth in footnote 15 of this opinion. As our Supreme Court has observed, “the state has a fiscal and administrative interest in lessening the cost involved in termination proceedings.” (Emphasis added.) In re Alexander V., 223 Conn. 557, 565, 613 A.2d 780 (1992). The respondent posits that “such due process concerns would not be implicated in every termination case” and that “it is unlikely there would be many cases where due process required an evaluation where the court did not use its discretion to order such an evaluation.” Although the respondent urges us to recognize that such a constitutionally warranted procedural safeguard applies to cases, similar to the present cases, in which the court is presented with evidence that one or more children have obvious and complex psychological issues, this class of cases is ill-defined and, thus, potentially large. Indeed, were we to accept as accurate the respondent’s central premise, that a psychological evaluation is a precondition to the court undertaking a best interest analysis in the present cases, which do not present obvious or complex psychological issues, it certainly would not be hard to envision that such an evaluation would be necessary in the vast majority of termination cases.

Apart from the financial burden attendant to the added procedural safeguard at issue comes the delay that would be occasioned by such a safeguard. The respondent argues that “there is no indication that requiring courts to use psychological evaluations would delay permanency for children.” Our Supreme Court has observed: “[A]s 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. . . . [B]ecause 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.” (Citation omitted; internal quotation marks omitted.) In re Alexander V., supra, 223 Conn. 565. The state’s interest in expediting termination proceedings would be adversely affected by any delay necessitated by the ordering of psychological evaluations of children in termination of parental rights cases, especially after the trial has commenced.

Having considered the Mathews factors, we are not persuaded that due process required the court, sua sponte, to order a psychological evaluation in the present cases. The respondent’s interest in parenting her biological offspring is significant, yet she has not demonstrated that the process afforded her in the present case risked an erroneous deprivation of that interest. Current procedural safeguards afford the respondent a mechanism to seek a psychological evaluation and afford the court, in its discretion, a means of obtaining such an evaluation. Furthermore, the respondent has not demonstrated that, even if she presented the results of such an evaluation in the present cases, it likely would have affected the outcome of the trial and, thus, that it would have eliminated the risk of an erroneous deprivation of the right at issue. Finally, both in terms of cost and delay, the consequences of the added safeguard weigh against its recognition.

In light of the foregoing analysis, we conclude that the respondent is unable to demonstrate that a constitutional violation clearly exists and clearly deprived her of a fair trial. See State v. Golding, supra, 213 Conn. 240. Accordingly, we cannot conclude that the court erred in terminating the respondent’s parental rights with respect to her minor children.

The judgments are affirmed.

In this opinion the other judges concurred.

       The respondent father, Tyrone H., has brought a separate appeal from the trial court’s judgment terminating his parental rights in Kyara and Jahein. See In re Kyara H., 147 Conn. App. 855, 83 A.3d 1264 (2013). We refer in this opinion to the respondent mother as the respondent.

       The court terminated Jose’s parental rights in Trevon and Kahlil. Jose is not a party to this appeal. The court found that the respondent and Jose also had another child in 2012, who, as of the time of trial, was in the care of one of the respondent’s relatives. That child is not a subject of the present appeal.

       There was evidence that, in addition to being removed from the respondent’s home on two separate occasions pursuant to the commissioner’s motions for orders of temporary custody, Kyara and Jahein, with the acquiescence of the department, were voluntarily placed with a paternal uncle after the department reopened their cases due to domestic violence occurring between the respondent and Jose in February, 2009. This arrangement only lasted about one month and the uncle returned the children to the respondent without notifying the department. The department learned that the children were back in the respondent’s care when Jahein told school staff that he played with a gun and bullets at her home.

       Despite these findings and the additional finding that eight year old Kyara spent the first three years of her life in the care of her grandfather, none of which are in dispute, the respondent incredibly asserts in argument before this court that she has been “[the] only constant in [Kyara’s] life.”

       “This court has noted consistently the importance of permanency in children’s lives. . . . Virtually all experts, from many different professional disciplines, agree that children need and benefit from continuous, stable home environments. . . .
      “[S]table and continuous care givers are important to normal child development. Children need secure and uninterrupted emotional relationships with the adults who are responsible for their care.” (Citations omitted; internal quotation marks omitted.) In re Davonta V., 285 Conn. 483, 494-95, 940 A.2d 733 (2008).

       The respondent does not merely assert that the court was obligated to order a psychological evaluation, but that in a case involving “complex psychological issues,” such as the present case, it is necessary that the court consider “multiple psychological theories” and not merely the “the very psychological theories most commonly relied upon by trial courts” in undertaking a best interest analysis. Presumably, this then would require multiple evaluations from a variety of experts espousing competing theories. In the case of indigent parents, as here, the state would bear this cost. See Practice Book § 34a-21 (f). Absent from the respondent’s brief is any explanation as to how the judicial authority, which the respondent believes to be untrained and incompetent in evaluating such matters in the field of psychology, would resolve the issue of which theory is correct.

       The record reflects that, before the trial court, the respondent argued that the evidence was insufficient to demonstrate that termination was in the children’s best interest because the court did not have before it a psychological evaluation of the children in support of such a conclusion. The commissioner argues that because the respondent’s litigation strategy before the trial court was to rely on the lack of a psychological evaluation as a means of challenging the sufficiency of the evidence, she is precluded on appeal from seeking review under State v. Golding, supra, 213 Conn. 239-40, on the ground that it was the responsibility of the trial court to order such an evaluation. The commissioner’s argument is based on the principle that to permit review would sanction an ambush of the trial court and is based on the principle of appellate review that “a party cannot submit a case to the trial court on one theory and then seek a reversal in the reviewing court on another.” In re James L., 55 Conn. App. 336, 348, 738 A.2d 749, cert. denied, 252 Conn. 907, 743 A.2d 618 (1999).
      Although the respondent did not request that the court order a psychological evaluation of the children, we are not persuaded that her arguments before the court related to the lack of a psychological report necessarily are inconsistent with her appellate claim that it was the obligation of the court to ensure that such an evaluation was part of the evidence before it. Contrary to the commissioner’s arguments, this is not a situation in which the respondent took a position at trial that was contrary to the claim raised on appeal, such as by indicating before the trial court that a psychological evaluation was unnecessary in this case or that it would have been inappropriate for the court sua sponte to order one.

       The report was prepared by department social worker Shannon Bienkow-ski, who the court found “has had sufficient formal education and experience in the behavioral sciences to express an expert opinion as a social worker on such matters.” At trial, Bienkowski testified that she held a bachelor’s degree in human development as well as a master’s degree in social work. Bienkowski testified that, at the time of trial, she had eleven years of professional experience in social work, which encompassed five years as a department employee, and six years as an employee of a psychiatric hospital, where, among other things, she was a clinician for their pediatric intensive outpatient and partial hospitalization programs.

       The report states that the respondent was referred to CRI, which worked with Jahein on a biweekly basis and continues to work with Jahein and his foster family to assist with behavioral issues.

       “The Birth to Three program offers early childhood intervention services for children under three years of age that show significant delays in development.” In re Keyashia C., 120 Conn. App. 452, 456 n.10, 991 A.2d 1113, cert. denied, 297 Conn. 909, 995 A.2d 637 (2010).

       Thus, the present case is somewhat analogous to In re Azareon Y., 309 Conn. 626, 636-39, 72 A.3d 1074 (2013) (concluding that review under Golding inappropriate where factual predicate underlying substantive due process claim not supported by record). We note that the respondent’s procedural due process claim is not merely grounded in a certain process applicable in all cases, in which case the proof of its application would establish the alleged constitutional violation, but in the application of a process that was defective given the circumstances of the present case in which, she alleges, the respondent’s children were affected by obvious psychological issues that wer-e relevant to the trial court’s best interest analysis.

       The commissioner argues that the respondent’s claim does not satisfy Golding's second prong because, following the outcome of the adjudicatory phase of the proceeding, the respondent did not have afundamental interest in the dispositional phase of the proceeding, the subject of which was the best interest of her children. In support of this proposition, the commissioner relies primarily on the analysis of the United States Supreme Court in Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). The language relied on by the commissioner states: “At the factfinding, the State cannot presume that a child and his parents are adversaries. After the State has established parental unfitness at that initial [adjudicative] proceeding, the court may assume at the dispositional stage that the interests of the child and the natural parents do diverge. See Fam. Ct. Act § 631 (judge shall make his order ‘solely on the basis of the best interests of the child,’ and thus has no obligation to consider the natural parents’ rights in selecting dispositional alternatives). But until the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship.” (Emphasis in original.) Id., 760.

        We do not share the commissioner’s interpretation of Santosky, which does not find support in our case law. In our view, the subject language does not stand for the proposition that, following an adverse determination in the adjudicative phase, a biological parent lacks a fundamental interest in the outcome of the dispositional phase of the proceeding. Rather, the language at issue appears to emphasize that the sole consideration in the dispositional phase of the proceeding is the best interest of the child and not the natural rights of the biological parent. As our Supreme Court has observed: “Under § 17a-112, a hearing on a petition to terminate parental rights consists of two phases: the adjudicatory phase and the dispositional phase. During the adjudicatory phase, the trial court must determine whether one or more of the . . . grounds for termination of parental rights set forth in § 17a-112 [(j) (3)] exists by clear and convincing evidence. The commissioner ... in petitioning to terminate those rights, must allege and prove one or more of the statutory grounds. In contrast to custody proceedings, in which the best interests of the child are always the paramount consideration and in fact usually dictate the outcome, in termination proceedings the statutory criteria must be met before termination can be accomplished and adoption proceedings begun. . . . Section [17a-112 Q) (3)] carefully sets out . . . [the] situations that, in the judgment of the legislature, constitute countervailing interests sufficiently powerful to justify the termination of parental rights in the absence of consent. . . . Because a respondent’s fundamental right to parent his or her child is at stake, [t]he statutory criteria must be strictly complied with before termination can be accomplished and adoption proceedings begun.” (Citation omitted; footnote omitted; internal quotation marks omitted.) In re Elvin G., 310 Conn. 485, 500-501, 78 A.3d 797 (2013).

       General Statutes § 45a-717 (d) provides in relevant part: “Upon finding at the hearing or any any time during the pendency of the petition that reasonable cause exists to warrant an examination, the court, on its own motion or on motion by any party, may order the child to be examined at a suitable place by a physician, psychiatrist or licensed clinical psychologist appointed by the court. The court may also order examination of a parent or custodian whose competency or ability to care for a child before the court is at issue. The expenses of any examination if ordered by the court on its own motion shall be paid for by the petitioner or, if ordered on motion by a party, shall be paid for by the party moving for such an examination unless such party or petitioner is unable to pay such expenses in which case, they shall be paid for by funds appropriated to the Judicial Department .... The court may consider the results of the examination in ruling on the merits of the petition.”

       The language of § 45a-717 (d), specifically the legislature’s use of the word “may,” reflects that the statute calls on the court to exercise its sound discretion in ordering examination on its own initiative or on motion by a party. See In re Cynthia A., 8 Conn. App. 656, 663, 514 A.2d 360 (1986) (interpreting legislature’s use of “may” in General Statutes § 17-38a). In an analogous context, related to the denial of a request for independent psychiatric evaluations of respondents, this court observed, “[t]he trial court’s decision whether to order a psychological evaluation in a termination of parental rights proceeding will not be disturbed unless that judicial discretion was clearly abused.” In re Daniel C., 63 Conn. App. 339, 365, 776 A.2d 487 (2001); see also In re David E., 4 Conn. App. 653, 658, 496 A.2d 229 (1985) (same).

       As discussed previously in this opinion; see footnote 6 of this opinion; the respondent emphasizes a reliance not merely on psychological evaluation, but psychological evaluation of a type favored by her, namely, that which focuses on and relies heavily on certain relevant psychological theories related to continued contact, bonding and attachment between parent and child.

       A careful review of the court’s thorough memorandum of decision belies any argument that the court was unconcerned with the children’s connection to the respondent or to the feelings of attachment experienced by the children. In evaluating § 17a-112 (k) (4), the court noted the fact that the guardian ad litem reported that Kyara and Jahein expressed “[an] understandable wish to be reunited with their mother.” The court went on to observe that the respondent’s younger children were bonded with their foster parents. Further, in discussing the best interests of the children, the court stated: “The court has also balanced the children’s intrinsic need for stability and permanency against the potential benefit of maintaining a connection with the biological parents, especially the mother.” The court found that none of the children had expressed an interest in living with Jose.