author: DRANGINIS, J.

text:
    IN RE GARY B. ET AL.

    (AC 20822)
    SchaUer, Dranginis and Stoughton, Js.
    Argued April 24
    officially released October 16, 2001

      Bradford J. Chaucer, for the appellant (respondent father).

      Steven G. Vitelli, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

DRANGINIS, J.

The respondent father appeals from the judgments of the trial court terminating his parental rights with respect to his two minor children. The respondent claims that the court improperly found that (1) the department of children and families (department) had made reasonable efforts to reunite him with his children, and (2) the commissioner of children and families (commissioner) proved by clear and convincing evidence that the respondent had failed to achieve a sufficient degree of personal rehabilitation pursuant to General Statutes (Rev. to 1999) § 17a-112 (c) (3) (B), now (j) (3) (B). We affirm the judgments of the trial court.

The following facts and procedural history are relevant to the respondent’s appeal. On December 15,1995, the commissioner filed neglect petitions on behalf of the children. The petitions alleged that the children’s mother chronically abused substances, failed to provide stable or adequate housing and left the children in the care of inappropriate caregivers. On April 11, 1996, the children were committed to the care and custody of the commissioner. At the time of the 1996 removal, the respondent was incarcerated for the sale of narcotics and was not released until July, 1998. On June 4, 1998, the court concluded that reunification efforts with the parents were no longer appropriate. On September 27, 1998, the respondent filed a motion seeking to vacate the June 4, 1998 finding. He sought to reinstate the requirement that the department make reasonable efforts to reunify him with the children. On October 21,1998, the respondent had the motion marked off the short calendar. On May 13, 1999, the respondent was reincarcerated for violating the terms of his probation. He is currently serving a six year sentence and has a potential discharge date of May 12, 2002.

On June 16,1999, the court approved the permanency plan for the children, which recommended termination of parental rights. On July 1, 1999, the commissioner filed petitions for the termination of the respondent’s parental rights on behalf of the children. On March 10, 2000, the court granted the petitions. This appeal followed.

“Our standard of review on appeal from a termination of parental rights is whether the challenged findings are clearly erroneous. In re Christina V., 38 Conn. App. 214, 223, 660 A.2d 863 (1995). The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). In re Juvenile Appeal (84-3), 1 Conn. App. 463, 478, 473 A.2d 795, cert. denied, 193 Conn. 802, 474 A.2d 1259 (1984). In re Luis C., [210 Conn. 157, 166, 554 A.2d 722 (1989)].

“On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. In re Michael M., [29 Conn. App. 112, 121, 614 A.2d 832 (1992)]; In re Megan M., 24 Conn. App. 338, 342, 588 A.2d 239 (1991); In re Davon M., 16 Conn. App. 693, 696, 548 A.2d 1350 (1988). We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached; Pandolphe’s Auto Parts, Inc. v. Manchester, [supra, 181 Conn. 222]; nor do we retry the case or pass upon the credibility of the witnesses. In re Christine F., 6 Conn. App. 360, 366-67, 505 A.2d 734, cert. denied, 199 Conn. 808, 809, 508 A.2d 769, 770 (1986). Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling. State v. Jones, 205 Conn. 638, 660, 534 A.2d 1199 (1987). In re Kezia M., 33 Conn. App. 12, [17], 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993); In re Felicia D., 35 Conn. App. 490, 499, 646 A.2d 862, cert. denied, 231 Conn. 931, 649 A.2d 253 (1994). ... In re Eden F., 48 Conn. App. 290, 309, 710 A.2d 771 [(1998), rev’d on other grounds, 250 Conn. 674, 741 A.2d 873 (1999)].” (Internalquotation marks omitted.) In re Sheila J., 62 Conn. App. 470, 476-77, 771 A.2d 244 (2001).

“A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. In re Tabitha P., 39 Conn. App. 353, 360, 664 A.2d 1168 (1995). In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights [under General Statutes (Rev. to 1999) § 17a-112 (c), now (j)] exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child.” (Internal quotation marks omitted.) In re Sheena I., 63 Conn. App. 713, 720-21, 778 A.2d 997 (2001).

I

The respondent first claims that the court improperly concluded that the requirements of § 17a-112 (c) (1), now (j) (1), had been satisfied. Specifically, he argues that the court improperly found that the department was relieved of the responsibility to prove by clear and convincing evidence that it had made reasonable efforts to reunify him with the children.

Termination of parental rights cannot occur absent strict compliance with the criteria set forth by statute. In re Amanda A., 58 Conn. App. 451, 454-55, 755 A.2d 243 (2000). Prior to granting a petition for the termination of parental rights, § 17a-112 (c) (1), now (j) (1), requires the court to find, by clear and convincing evidence, that the department has made reasonable efforts to locate the parent and to reunify the children with the parent. A court need not make that finding, however, if the evidence establishes that the parent is unable or unwilling to benefit from reunification efforts or if the court determines at a hearing pursuant to General Statutes § 17a-110 (b) or General Statutes § 17a-lllb that such efforts are inappropriate. General Statutes (Rev. to 1999) § 17a-112 (c) (1), now Q) (1).

The court stated in its response to the commissioner’s motion for articulation: “The court concluded under General Statutes § 17a-112 (c) (1) [now (j) (1)] that a finding of reunification efforts by clear and convincing evidence was not required because the court had determined at a hearing pursuant to subsection (b) of § 17a-110 . . . that such efforts are not appropriate . . . .” (Internal quotation marks omitted.) On June 4, 1998, and on February 7, 2000, the court made findings that further efforts at reunification between the respondent and the children were not required because the respondent had failed to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the children, he could assume a reasonable position in the life of the children. General Statutes (Rev. to 1999) § 17a-112 (c) (3) (B), now (j) (3) (B).

Our review of the record discloses that the court correctly concluded by clear' and convincing evidence that it was not required to make a finding that the department had made reasonable reunification efforts because the court had determined at prior hearings pursuant to § 17a-110 that such efforts were not appropriate. We cannot characterize the court’s findings and conclusions as either legally incorrect or not factually supported.

II

The respondent next claims that the court improperly terminated his parental rights on the ground of failure to achieve a sufficient degree of personal rehabilitation. We disagree.

Failure of a parent to achieve a sufficient degree of personal rehabilitation is one of the statutoiy grounds on which a court may terminate parental rights pursuant to § 17a-112. General Statutes (Rev. to 1999) § 17a-112 (c) (3) (B), now (j) (3) (B). That ground exists when a parent of a child whom the court has found to be neglected fails to achieve such a degree of rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, the parent could assume a responsible position in the life of that child.

“Personal rehabilitation as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as a parent. . . . [Section 17a-112] requires the trial court to analyze the [parent’s] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time. . . . [The statute] requires the court to find, by clear and convincing evidence, that the level of rehabilitation [he] has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date [he] can assume a responsible position in [his] child’s life. ... In re Eden F., [250 Conn. 674, 706, 741 A.2d 873 (1999)]. This court recently explained that in assessing rehabilitation, the critical issue is not whether the parent has improved [his] ability to manage [his] own life, but rather whether [he] has gained the ability to care for the particular needs of the child at issue. ... In re Shyliesh H., [56 Conn. App. 167, 180, 743 A.2d 165 (1999)].” (Internal quotation marks omitted.) In re Sarah Ann K., 57 Conn. App. 441, 448, 749 A.2d 77 (2000). A court’s determination “that the evidence is clear and convincing that the parent has not rehabilitated [himself] will be disturbed only if that finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous.” (Internal quotation marks omitted.) In re Tabitha T., 51 Conn. App. 595, 602-603, 722 A.2d 1232 (1999).

The respondent was incarcerated in 1995 and released in July, 1998. The children have been in the department’s care since February, 1996. Upon the respondent’s release in 1998, the department provided supervised visitation. Three visits took place (November and December, 1999, and January, 2000); however, the respondent arrived late for each visit and, according to the department, interacted poorly with the children. The respondent was also provided clinically supervised visitation by Southern Connecticut State University. For those visits, he also was late, interacted poorly and exhibited little interest or improvement in his ability to parent the children.

The court considered the services made available to the respondent and stated: “[T]here is an effort to comply by [the respondent] in part. But he never really finished anything. He started but he did not finish. . . . The [respondent] tried, but he did not make a sustained effort to conform his conduct to the acceptable parenting standards. Giving him additional time will not likely bring his performance as a parent within acceptable standards sufficient to make it in the best interests of the children to be reunited.” We conclude, therefore, that the court’s finding that the respondent had failed to achieve a sufficient degree of personal rehabilitation was fully supported in the record.

The judgments are affirmed.

In this opinion the other judges concurred.

       On March 10, 2000, the children’s molher failed to appear for the trial on the petitions for the termination of her parental rights with respect to the two minor children. Her parental rights thereafter were terminated in an oral decision read from the bench on the grounds of abandonment and failure to achieve a sufficient degree of personal rehabilitation. Only the respondent, father has appealed from the judgments. We therefore refer to him in this opinion as the respondent.


source: Caselaw Access Project

author: SPEAR, J.

license: Public Domain

text:
    GILBERT HAYES v. MARK J. DECKER
    (AC 20918)
    Foti, Spear and Flynn, Js.

      Argued June 11
    officially released October 16, 2001

      Gary J. Strickland, for the appellant (plaintiff).

      Lorinda S. Coon, with whom was Paul T. Nowosadko, for the appellee (defendant).
   Opinion

SPEAR, J.

In this medical malpractice action, the plaintiff, Gilbert Hayes, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendant, Mark J. Decker, a physician. He claims that the court improperly granted the defendant’s motions (1) to exclude scientific testimony and (2) to preclude evidence of a commonality of insurance interests between the defendant and the defendant’s expert. We agree with the plaintiffs first claim and reverse the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. On May 12, 1995, the plaintiff, who was fifty years old, went to the defendant, an internist, for a physical examination. During the examination, he reported sexual dysfunction and multiple cardiac risk factors, including age greater than forty, high cholesterol, overweight, chest pain, smoking, and a family history of vascular disease and hypertension, for which he was taking Procardia XL as prescribed by his kidney physician. The defendant suggested that the plaintiff lose weight to control his blood pressure and that he stop taking Procardia for a trial period as a possible solution to his impotence problem.

By the time of his next visit to the defendant’s office on June 2, 1995, the plaintiff had lost fifteen pounds and his systolic and diastolic blood pressure reading had dropped from 160 over 110 to 120 over 90. The defendant again suggested that the plaintiff stop taking Procardia as a possible cure for his impotence. The defendant did not consult with the plaintiffs kidney physician before making this recommendation and did not prescribe any substitute blood pressure medication, as he apparently believed that the plaintiffs blood pressure could be controlled adequately by weight reduction and exercise. Approximately one week later, the plaintiff stopped taking Procardia. Two weeks later, his blood pressure reading was 140 over 95.

On July 9,1995, the plaintiff suffered a massive heart attack. During the attack, his diastolic pressure rose to 120. At the hospital, he underwent catheterization and primary angioplasty. In performing this procedure, physicians discovered that his left anterior descending artery was totally occluded and that there was significant stenosis of the right coronary artery. Two months later, the plaintiff underwent triple bypass surgery.

In his complaint dated June 30, 1997, the plaintiff claimed that the defendant negligently failed to recognize and treat symptoms of cardiac ischemia and permitted him to discontinue the Procardia without substituting another blood pressure medication. The case was tried to a jury, which returned a verdict for the defendant. Thereafter, the court denied the plaintiffs motion to set aside the verdict and rendered judgment for the defendant. This appeal followed.

The plaintiff claims that the court improperly excluded testimony that the discontinuation of his blood pressure medication increased the severity of his heart attack. We agree.

At trial, the defendant filed a motion to exclude proposed testimony by the plaintiffs expert witness, Richard Friedlander, pursuant to State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) (en banc), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998). Friedlander was a board certified physician in internal medicine and cardiology who had treated hundreds, perhaps thousands, of patients during his career, and who at one time directed cardiovascular clinical research for a pharmaceutical company. At the hearing on the motion, Friedlander stated his “behef ’ and “opinion” that, although the discontinuation of the plaintiffs blood pressure medication did not cause his heart attack, it did cause his blood pressure to rise and resulted in more tissue damage than otherwise would have occurred had he not stopped taking the medication. Friedlander based his opinion on the fact that numerous studies show, and it is generally accepted within the scientific community, that an increase in blood pressure results in an increase in the demand of heart muscle tissue for oxygen, and that increased blood pressure and oxygen demand during the acute phase of a heart attack result in increased tissue death. He also testified that studies have shown that Procardia, a well known blood pressure medication, lowers blood pressure in most individuals.

Friedlander acknowledged, however, that he did not know of any research or completed study documenting a link between the discontinuance of blood pressure medication and an increase in the severity of a subsequent heart attack. He also could not point to any scientific articles, studies or treatises concluding that specific increases in blood pressure result in specific amounts of heart muscle damage. He testified that such studies would be impossible to conduct because “you are comparing what is to what would have been” in a single heart attack patient. Moreover, he did not attempt to quantify how much additional heart muscle damage the plaintiff might have suffered as a result of discontinuing his medication.

The court “reluctantly” ruled, on the basis of the standard articulated in Porter for the admissibility of scientific evidence, that because there was no study concluding that the withdrawal of Procardia will increase the severity of a heart attack, Friedlander’s proposed testimony was “speculative” and hence inadmissible. In denying the plaintiffs subsequent motion to set aside the verdict, the court similarly stated that, in the absence of any evidence in the form of treatises or publications establishing that the withdrawal of Procardia increases the severity of a heart attack, it saw no reason to change its opinion.

As a threshold matter, we set forth the standard by which we review the trial court’s determinations concerning the admissibility of evidence. “A trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and . . . evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of a substantial prejudice or injustice.” (Citation omitted; internal quotation marks omitted.) State v. Jordan, 64 Conn. App. 143, 154, 781 A.2d 310 (2001).

“Concerning expert testimony specifically, we note that the trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court’s decision will not be disturbed.” (Internal quotation marks omitted.) State v. Wargo, 255 Conn. 113, 123, 763 A.2d 1 (2000).

“In State v. Porter, [supra, 241 Conn. 66-68] . . . [our Supreme Court] adopted the standard for admissibility of scientific evidence as set forth by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 587-89, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) ....

“Under Daubert, before proffered scientific evidence may be admitted, the trial court must determine whether the proffered evidence will assist the trier of fact .... This entails a two part inquiry: whether the reasoning or methodology underlying the [scientific theory or technique in question] is scientifically valid and . . . whether that reasoning or methodology properly can be applied to the facts in issue. ... In other words, before it may be admitted, the trial judge must find that the proffered scientific evidence is both reliable and relevant. More specifically, the first requirement for scientific evidence to be admissible ... is that the subject of the testimony must be scientifically valid, meaning that it is scientific knowledge rooted in the methods and procedures of science . . . and is more than subjective belief or unsupported speculation. . . .

“The [Daubert] court listed four nonexclusive factors for federal judges to consider in determining whether a particular theory or technique is based on scientific knowledge: (1) whether it can be, and has been, tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error, including the existence or maintenance of standards controlling the technique’s operation; and (4) whether the technique is, in fact, generally accepted in the relevant scientific community. . . . The court in Daubert further articulated, however, that the inquiry is ... a flexible one. ... To the extent that they focus on the reliability of evidence as ensured by the scientific validity of its underlying principles, [other factors] may well have merit ....

“Under Daubert, scientific evidence must also fit the case in which it is presented. ... In other words, proposed scientific testimony must be demonstrably relevant to the facts of the particular case in which it is offered, and not simply be valid in the abstract. . . . Finally, the Daubert court emphasized that even if a scientific theory or technique would be admissible under the aforementioned criteria, it can still be excluded for failure to satisfy some other federal rule of evidence. . . . Most important, proffered scientific testimony can still be excluded for failure to satisfy rule 403 of the Federal Rules of Evidence, which allows for the exclusion of relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . . (Citations omitted; internal quotation marks omitted.) State v. Kelly, 256 Conn. 23, 72-74, 770 A.2d 908 (2001).

We conclude that the court incorrectly applied the law as set forth in Porter. Friedlander’s testimony as to whether the discontinuation of the plaintiffs blood pressure medication increased the severity of his heart attack should have been considered under the standards for the admissibility of expert opinion testimony; his testimony on the well documented effect of Procardia in lowering blood pressure and the relationship between blood pressure and tissue damage during a heart attack should have been considered under the standard for the admissibility of scientific evidence under Porter, or simply admitted on a showing of relevance. The court never made this crucial distinction and, in applying the Porter analysis to Friedlander’s opinion rather than to the scientific evidence on which it was based, improperly excluded all of his proposed testimony on Procardia, blood pressure and the amount of tissue damage that may occur during a heart attack.

We turn first to Friedlander’s opinion that the plaintiffs heart attack was more severe than it would have been had he not discontinued the Procardia. “Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues. . . . Furthermore, [t]he proffering party bears the burden of establishing the relevance of the offered testimony. Unless such a proper foundation is established, the evidence ... is irrelevant. . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative.” (Citations omitted; internal quotation marks omitted.) Daley v. Wesleyan University, 63 Conn. App. 119, 135-36, 772 A.2d 725, cert. denied, 256 Conn. 930, 776 A.2d 1145 (2001).

“An expert witness ordinarily may not express an opinion on an ultimate issue of fact, which must be decided by the trier of fact. ... An expert may, however, give an opinion on an ultimate issue where the trier, in order to make intelligent findings, needs expert assistance on the precise question on which it must pass.” (Citation omitted; internal quotation marks omitted.) Id., 138.

In rejecting the proffered testimony because it was not directly supported by treatises or publications, the court misapplied the law. The fact that Friedlander described his testimony as an “opinion” and conceded that it could not be directly tested because conducting a study on an individual patient would be impossible does not mean that it should not have been considered by the jury. An opinion, by definition, consists of “[e]vidence of what the witness thinks, believes, or infers in regard to facts in dispute.” Black’s Law Dictionary (6th Ed. 1990). “An opinion is ... an interpretation of facts . . . .” Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 119 n.10, 438 A.2d 1317 (1982). “To allow ... an expert witness to express his opinion ... is not error [where the] opinion is premised on subordinate facts and is not based on mere conjecture or surmise.” State v. Wallace, 181 Conn. 237, 242, 435 A.2d 20 (1980). Friedlander claimed that his opinion was based on generally accepted scientific principles regarding the relationship between high blood pressure and tissue damage during a heart attack and the effect of Procardia on blood pressure. According to Friedlander, these principles have been thoroughly studied and are well documented.

Moreover, “the jury is free to accept or reject each expert’s opinion in whole or in part.” (Internal quotation marks omitted.) Amsden v. Fischer, 62 Conn. App. 323, 332, 771 A.2d 233 (2001). “The credibility of expert witnesses and the weight to be given to their testimony and to that of lay witnesses ... is determined by the trier of fact. ... In its consideration of the testimony of an expert witness, the trial court might weigh, as it sees fit, the expert’s expertise, his opportunity to observe the defendant and to form an opinion, and his thoroughness. It might consider also the reasonableness of his judgments about the underlying facts and of the conclusions which he drew from them. . . .

“It is well settled that the trier of fact can disbelieve any or all of the evidence proffered . . . including expert testimony, and can construe such evidence in a manner different from the parties’ assertions.” (Internal quotation marks omitted.) State v. Alvarado, 62 Conn. App. 102, 112, 773 A.2d 958, cert. denied, 256 Conn. 907, 772 A.2d 600 (2001).

Our Supreme Court in Porter similarly referred to the “distinction under the Daubert approach between the methodologies underlying an expert’s scientific testimony and the expert opinion itself. As the court in Daubert noted, the focus of a validity assessment must be solely on principles and methodology, not on the conclusions that they generate. ... So long as the methodology underlying a scientific opinion has the requisite validity, the testimony derived from that methodology meets the Daubert threshold for admissibility, even if the judge disagrees with the ultimate opinion arising from that methodology, and even if there are other methodologies that might lead to contrary conclusions. Thus, a judge should admit scientific testimony when there are good grounds for [the] expert’s conclusion, even if the judge thinks that there are better grounds for some alternative conclusion . . . .” (Citation omitted; internal quotation marks omitted.) State v. Porter, supra, 241 Conn. 81-82.

To underscore this point, the court pointed to a case from the United States Court of Appeals for the Seventh Circuit, Cella v. United States, 998 F.2d 418, 420 (7th Cir. 1993), in which a federal trial court permitted testimony by the plaintiffs expert witness that was contrary to the testimony of the defendant’s multiple medical experts and the “abundance of medical literature.” (Internal quotation marks omitted.) State v. Porter, supra, 241 Conn. 82. The court quoted Celia with approval in concluding that it is not error to admit possible controversial opinion evidence, because “although there was little support in the literature for the physician’s specific conclusion regarding the cause of the plaintiffs injury, the court found that he had employed a proper and thorough diagnostic methodology. Accordingly, it was not error to admit the physician’s testimony, because [a]s long as the expert’s methodology is well founded, the nature of the expert’s conclusion is generally irrelevant, even if it is controversial or unique. . . . Once the methodology underlying an expert conclusion has been sufficiently established, the mere fact that controversy, or even substantial controversy, surrounds that conclusion goes only to the weight, and not to the admissibility, of such testimony.

“Of course, even where a particular technique has been shown to satisfy Daubert, the proponent must also establish that the specific scientific testimony at issue is, in fact, derived from and based upon that methodology. The Supreme Court in Daubert referred to this concept as the fit requirement. . . . [Although some conclusions can be reasonably inferred from the methodology employed, others cannot. . . . When an expert’s conclusions are not commensurate with the underlying methodology, they may be properly excluded under Daubert because they do not rely on scientific knowledge and are thus unhelpful to the jury. ” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 83-84. Accordingly, the court improperly excluded Friedlander’s opinion testimony under Porter and never reached the question of whether the underlying scientific evidence and methodology was admissible.

In determining the admissibility of scientific evidence, the court first must decide whether a Porter analysis is even appropriate. “In Porter, [our Supreme Court] said that ‘[a]s science and technology have advanced and become increasingly prevalent in our society, the number of cases, both civil and criminal, in which scientific testimony plays a role has also grown.’ . . . [Our Supreme Court] explicitly acknowledged, however, that ‘some scientific principles have become so well established that an explicit Daubert analysis is not necessary for admission of evidence thereunder. . . . Evidence derived from such principles would clearly withstand a Daubert analysis, and thus may be admitted simply on a showing of relevance.’ ” (Citation omitted.) State v. Reid, 254 Conn. 540, 545, 757 A.2d 482 (2000).

Here, Friedlander proposed to offer scientific evidence that higher blood pressure results in a greater demand for oxygen by heart muscle tissue than lower blood pressure, and that higher blood pressure and oxygen demand during the acute phase of a heart attack cause increased tissue death. He also proposed to offer evidence that Procardia lowers blood pressure in most individuals. According to Friedlander, all of this evidence is well documented and generally accepted by the scientific community. The court below should have admitted the scientific evidence simply on a showing of relevance or, alternatively, conducted a full scale analysis of its admissibility under Porter. We, therefore, conclude that the court not only incorrectly applied Porter to Friedlander’s opinion testimony, but also failed to apply Porter, or the relevancy test, to the scientific evidence on which his opinion was based.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       In light of our reversal, we do not review the plaintiffs second claim. Although this issue is likely to arise in the new trial, the record is inadequate for review. State v. Talton, 63 Conn. App. 851, 861, 779 A.2d 166 (appellant must provide record adequate to review his claims), cert. denied, 258 Conn. 907, 782 A.2d 1250 (2001). Even if we were to agree that the court improperly excluded the evidence of insurance interests, we cannot determine whether such exclusion was harmful because the relevant transcripts of testimony by the defendant’s three expert witnesses are not included in the record or court files. Without the relevant transcripts, we cannot assess whether the disputed expert testimony was merely cumulative or whether it was likely to have affected the result of the trial.

       This information was contained in a report dated August 22, 1995, by Arthur Landry, Jr., a physician who examined the plaintiff after his heart attack.

       Friedlander testified that he had participated as a research fellow in a study of the use of nitroglycerin to reduce the size of a heart attack, but that the study was never completed.


author: LANDAU, J.

text:
    IN RE SHAWN S. ET AL.

    (AC 21192)
    (AC 21193)
    Lavery, C. X, and Landau and Peters, Js.
    Argued June 5
    officially released October 16, 2001

      Douglas M. Crockett, with whom was Anne Louise Blanchard, for the appellant (respondents).

      Lorri A. Massa, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

LANDAU, J.

The respondent parents appeal from the judgment of the trial court committing their minor children, S and D, to the custody of the commissioner of children and families (commissioner). On appeal, the respondents claim that the commitments violate the prohibitions against (1) conditioning the provision of services on commitment as set forth in General Statutes § 17U-129, (2) unwarranted state interference in family relationships as embodied in article first, §§ 1 and 10, and § 20, as amended by articles five and twenty-one of the amendments to the constitution of Connecticut, and (3) unwarranted state interference in family relationships as embodied in the ninth and fourteenth amendments to the United States constitution. The commissioner challenges this court’s subject matter jurisdiction, claiming that the respondents (1) have failed to exhaust their administrative remedies and (2) are not aggrieved by the order of commitment. In response, the respondents assert that resort to administrative remedies would be futile because the department of children and families (department) (1) lacks authority to revoke the commitment, (2) has failed to promulgate the necessary regulations to facilitate the voluntary services program, and (3) cannot resolve the statutory and constitutional claims raised on appeal. We dismiss the appeals because the respondents have failed to exhaust their administrative and statutory remedies.

The following facts and procedural history are relevant to the respondents’ appeals. S, bom in 1991, and D, born in 1987, are nonverbal, autistic brothers with developmental delays. On February 17, 1999, the commissioner filed separate petitions, pursuant to General Statutes § 46b-129, alleging that the children were neglected and uncared for because the respondents could not provide the specialized care that the children’s physical, emotional or mental conditions required. The respondents filed a motion for injunctive relief on July 28, 1999, requesting the court (1) to order the commissioner to provide appropriate residential placements for S and D, and (2) to enjoin the commissioner from pursuing commitment of the children.

The court heard testimony over three days, and on August 2, 1999, the respondent mother entered an unconditional plea of nolo contendere that S and D were uncared for because of their special needs. The court canvassed the respondent mother to confirm that she understood that the plea would operate as a waiver of her right to challenge the allegations that the children were uncared for as defined by statute. The court found that the plea was voluntarily, knowingly and intelligently made with the assistance of counsel. Although the respondent father was not present, counsel indicated that he agreed with the adjudication. Accordingly, the court found that both D and S had special needs, that they were being denied the proper care and attention that they required, and that they were being permitted to live under conditions or circumstances that were injurious to their well-being.

During the period that hearings were being conducted, the department and the respondents investigated and pursued placement for S and D. At some time prior to the March 7, 2000 hearing, a placement was found at a residential facility in Pennsylvania. At the start of the March 7, 2000 hearing, the respondents marked off their motion for injunctive relief, allowing an order of commitment to be entered essentially unchallenged and allowing the children to be placed at the facility the next day. In entering the order of commitment, the court found that the department had made reasonable efforts to prevent the removal of the children. Although the respondents withdrew their motion to enjoin the commitment, their counsel made a brief statement on the record expressing his clients’ unhappiness with the commitment.

The original commitment was for a period not to exceed twelve months, effective March 8,2000. On that day, the commissioner placed the children at Devereaux, a residential facility in Pennsylvania that specializes in the treatment of autistic children. These appeals followed.

Before we can consider the respondents’ claims, we must address the commissioner’s challenge to our jurisdiction. “[B]ecause the exhaustion doctrine implicates subject matter jurisdiction, we must decide as a threshold matter whether that doctrine requires dismissal of the [respondents’] claim.” (Internal quotation marks omitted.) Fish Unlimited v. Northeast Utilities Service Co., 254 Conn. 1, 12, 756 A.2d 262 (2000). Questions of subject matter jurisdiction may be raised at any time in the proceedings, either by a party or sua sponte by the court. Daley v. Hartford, 215 Conn. 14, 27-28, 574 A.2d 194, cert. denied, 498 U.S. 982, 111 S. Ct. 513, 112 L. Ed. 2d 525 (1990). “[Wjhenever a court discovers that it has no jurisdiction, it is bound to dismiss the case, without regard to [its] previous rulings.” (Internal quotation marks omitted.) Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 557, 529 A.2d 666 (1987).

“It is a settled principle of administrative law that if an adequate administrative remedy exists, it must be exhausted before [a court will] obtain jurisdiction to act in the matter. . . . [W]here a statute has established a procedure to redress a particular wrong a person must follow the specified remedy and may not institute a proceeding that might have been permissible in the absence of such a statutory procedure. ” (Citations omitted; internal quotation marks omitted.) Fish Unlimited v. Northeast Utilities Service Co., supra, 254 Conn. 11-12. Moreover, “[s]imply bringing a constitutional challenge to an agency’s actions will not necessarily excuse a failure to follow an available statutory appeal process. . . . [D]irect adjudication even of constitutional claims is not warranted when the relief sought by a litigant might conceivably have been obtained through an alternative [statutory] procedure . . . which [the litigant] has chosen to ignore.” (Citation omitted; internal quotation marks omitted.) Polymer Resources, Ltd. v. Keeney, 227 Conn. 545, 563, 630 A.2d 1304 (1993).

“The doctrine of exhaustion is grounded in a policy of fostering an orderly process of administrative adjudication and judicial review in which a reviewing court will have the benefit of the agency’s findings and conclusions. . . . The doctrine of exhaustion furthers the salutary goals of relieving the courts of the burden of deciding questions entrusted to an agency ... in advance of possible judicial review. . . .

“In addition, the administrative agency may be able to resolve the issues, making judicial review unnecessary. ... [A] complaining party may be successful in vindicating his rights in the administrative process. If he is required to pursue his administrative remedies, the courts may never have to intervene.” (Citations omitted; internal quotation marks omitted.) Fish Unlimited v. Northeast Utilities Service Co., supra, 254 Conn. 12-13.

The respondents assert that the exhaustion doctrine is inapplicable to the present action because the relief they seek is not available through the administrative process. Specifically, they contend that any resort to administrative remedies would be futile because (1) revocation of the commitment order is not available through any administrative proceeding but only through the judicial process, (2) the department has failed to enact the regulations required to establish a voluntary services program outside of the commitment framework and (3) the department cannot resolve the constitutional claims raised by the respondents.

I

Although we agree with the respondents that the department is without the statutory authority to revoke an order of commitment unilaterally, that alone does not dispose of the jurisdictional issue. “[Wjhere a statute has established a procedure to redress a particular-wrong a person must follow the specified remedy and may not institute a proceeding that might have been permissible in the absence of such a statutory procedure.” (Internal quotation marks omitted.) Id., 12.

General Statutes § 46b-129 (m) provides the procedure by which a commitment may be challenged and vests primary authority for revocation of commitment in the trial court. Section 46b-129 (m) specifically provides: “The commissioner, a parent or the child’s attorney may file a motion to revoke a commitment, and, upon finding that cause for commitment no longer exists, and that such revocation is in the best interest and welfare of such child . . . the court may revoke the commitment . . . .” (Emphasis added.) Thus, the proper course of action for the respondents was to file motions seeking revocation. The fact that the agency may not grant, independently, the relief that the respondents seek is not a sufficient condition to preclude application of the exhaustion doctrine and to vest appellate jurisdiction at this stage of the proceedings.

Not only did the respondents fail to file a motion for a revocation of the original commitment order, they failed to oppose the commissioner’s application for an extension of the commitment to a second twelve month term. The General Assembly has provided a statutoiy procedure by which to challenge orders of commitment. Accordingly, the respondents must avail themselves of the statutory remedy before seeking appellate review. See Fish Unlimited v. Northeast Utilities Service Co., supra, 254 Conn. 11-12. Because the respondents have not exhausted their statutory remedy of moving to revoke the commitment pursuant to § 46b-129, this court lacks jurisdiction over the respondents’ claim.

II

We next address the respondents’ second claim, specifically, that administrative action would be futile because the department has failed to enact regulations implementing its voluntary services program. An administrative remedy is futile only if the administrative agency lacks authority to grant the desired relief. Id., 14. In this case, the department has the authority to grant the respondents’ requested relief of placing S and D in its voluntary services program.

Despite the respondents’ conclusory allegations to the contrary, the record before us indicates that the department has promulgated regulations with respect to its voluntary services program. See Regs., Conn. State Agencies § 17a-ll-l et seq. The regulations provide a right to an administrative review of denials of admission to the program. Regs., Conn. State Agencies § 17a-ll-3. Although the department currently is in the process of revising and expanding its regulations concerning the program, the extant regulations remain in force. The commissioner has stated on the record that the regulations may be relied on in applying for the voluntary services program. Thus, there does not appear to be any barrier to the respondents’ applying for admission to the program if the commitment were to be revoked.

To date, the respondents have made no effort to take advantage of the voluntary services program. Thus, the respondents have not exhausted their administrative remedies, and this court lacks jurisdiction over their appeals.

Ill

Finally, we address the respondents’ concern that the department is without authority to resolve the statutory and constitutional questions raised on appeal.

“Simply bringing a constitutional challenge to an agency’s actions will not necessarily excuse a failure to follow an available statutory appeal process.” LaCroix v. Board of Education, 199 Conn. 70, 79, 505 A.2d 1233 (1986), citing Sullivan v. State, 189 Conn. 550, 554, 457 A.2d 304 (1983). Our Supreme Court has allowed such collateral challenges under certain special circumstances that operated to excuse the challenger’s failure to comply with the statutory process. LaCroix v. Board of Education, supra, 80. Such appeals, however, have been allowed only where the challenger has not deliberately decided to bypass the statutory appeal route. Connecticut Light & Power Co. v. Norwalk, 179 Conn. 111, 117, 425 A.2d 576 (1979).

In the case before us, the respondents concede that they have made no attempt to avail themselves of the appropriate statutory and administrative remedies. Rather, they have deliberately chosen to bypass both the statutory procedures for vacating commitments to the department and the agency’s own regulations regarding voluntary placement. Further, they have not shown that exercising those options would be futile, thereby excusing their dereliction. See parts I and II of this opinion. In light of the respondents’ failure to exhaust their statutory and administrative remedies, it would be premature for us consider their constitutional claims.

We conclude that because the respondents have failed to exhaust the administrative and statutory remedies available to them, we lack the requisite subject matter jurisdiction to entertain their appeals.

The appeals are dismissed.

In this opinion the other judges concurred.

       General Statutes § 17a-129 provides in relevant part: “There shall be no requirement for the Department of Children and Families to seek custody of any child . . . with mental illness, emotional disturbance, a behavioral disorder or developmental or physical disability if such child is voluntarily placed with the department by a parent ... for the purpose of accessing an out-of-home placement or intensive outpatient service .... Commitment to or protective supervision or protection by the department shall not be a condition for receipt of services or benefits delivered or funded by the department.”

       The commissioner did not pursue the allegations of neglect.

       The respondent mother’s plea was entered pursuant to Practice Book § 33-1 (c).

         The respondent father is on active duty in the United States Navy.

       Prior to the expiration of the original commitment, the commissioner, pursuant to General Statutes § 46b-129 (k), sought to extend the commitment for a second twelve month period. That motion was unopposed by the respondents and was granted by the court.

       The administrative review provided under the regulations is in addition to the judicial review provided for by General Statutes § 4-183. Section 4-183 (a) provides in relevant part: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section. . . .”


author: PER CURIAM.

text:
    THOMAS J. NIEHAUS v. COWLES BUSINESS MEDIA, INC.
    (AC 20660)
    Landau, Dranginis and Peters, Js.
    Argued March 23
    officially released October 16, 2001

      Sabato P. Fiano, with whom, on the brief, was Jonathan D. Elliot, for the appellant (plaintiff).

      Kenneth W. Gage, for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Thomas J. Niehaus, appeals from the summary judgment rendered in favor of the defendant, Cowles Business Media, Inc. The plaintiff claims that the trial court improperly concluded that there was no genuine issue of material fact after finding, as a matter of law, that a contract, pursuant to which the plaintiff participated in the sale to the defendant of the company that employed him, was clear and unambiguous on its face, and was not susceptible to more than one possible interpretation. We dismiss the appeal.

The following facts and procedural history are undisputed. In 1995, the plaintiff negotiated with his then employer, Simba Information, Inc. (Simba), for additional compensation to be paid to him in the event that Simba sold its stock to the defendant, depending on the time of the sale. The negotiations led the plaintiff and Simba to enter into a participation agreement (agreement), dated June 16, 1995, at which time the plaintiff had been employed by Simba for nearly two years. The agreement provided for the payment of a valuation amount to the plaintiff if a sale of Simba stock occurred. The participation period began on the date of the agreement and ended on March 31, 1999. The sale of Simba in fact occurred, and was completed and closed on January 16, 1996, when the defendant purchased all of the stock of Simba.

On March 19, 1997, the defendant terminated the plaintiffs employment without cause. On or about April 1, 1997, the plaintiff received $151,229, less applicable taxes, as payment under the terms of the agreement. On June 15, 1999, the plaintiff commenced this action. The complaint alleges one count of breach of contract and one count of breach of the implied covenant of good faith and fair dealing. The complaint alleges that the plaintiff is entitled to receive an additional $151,229 under the terms of the participation agreement between him and Simba. On January 13,2000, the defendant filed a motion for summary judgment as to both counts of the complaint. The defendant claimed that there was no genuine issue of material fact because the participation agreement was unambiguous and, therefore, as a matter of law, the plaintiff was not entitled to additional sums. On March 7, 2000, the court granted the motion and rendered judgment for the defendant. This appeal followed.

On appeal, the plaintiff claims that the court improperly concluded that the agreement was clear and unambiguous. Specifically, the plaintiff argues that paragraph three of the agreement requires payment of 50 percent of the valuation amount on March 31, 1997, and the remaining 50 percent on March 31, 1999, and that he therefore is entitled to the full valuation amount of $302,458 because the sale was completed prior to March 31, 1997, the date on which he was terminated. The plaintiff also argues that the parenthetical phrase in the agreement, “if and at the time a Sale occurs,” should be interpreted to limit the applicability of paragraph 4 (c) to circumstances in which the sale occurs after termination.

The defendant, however, argues that the plaintiffs interpretation completely ignores other terms in the agreement. The court did not issue a memorandum of decision, but noted as its decision: “The language of the participation agreement is clear and unambiguous, especially paragraph 4 (c). Therefore, there are not any genuine issues of fact.” On the basis of that determination, the court granted the defendant’s motion for summary judgment.

In this case, the court did not write a memorandum of decision and the plaintiff did not file a motion for articulation. “The duty to provide this court with a record adequate for review rests with the appellant.” Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 607, 710 A.2d 190 (1998). “It is incumbent upon the appellant to take the necessary steps to sustain its burden of providing an adequate record for appellate review. Practice Book § [60-5] .... It is not the function of this court to find facts.” (Citations omitted.) State v. Rios, 30 Conn. App. 712, 715-16, 622 A.2d 618 (1993). “Our role is ... to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the plaintiffs claims] would be entirely speculative.” (Internal quotation marks omitted.) Chase Manhattan Bank/City Trust v. AECO Elevator Co., supra, 608-609.

With respect to the plaintiffs claim that the court improperly determined that the participation agreement was unambiguous and not susceptible to more than one reasonable interpretation, we are unable to discern the factual and legal basis of the court’s decision from the two sentences noted as its decision. This court has no way of knowing the basis of the trial court’s ruling. The record contains the agreement and the plaintiffs deposition testimony.

“The trial court did not prepare a written memorandum of decision and did not sign the transcript of its oral decision, as required by Practice Book § 64-1. The duty to provide [the Appellate Court] with a record adequate for review rests with the appellant. . . . We have frequently declined to review claims where the appellant has failed to provide the court with an adequate record for review.” (Citation omitted; internal quotation marks omitted.) Bank of America, FSB v. Franco, 57 Conn. App. 688, 691 n.l, 751 A.2d 394 (2000); Centerbank v. Gross, 31 Conn. App. 38, 39-40, 622 A.2d 1066 (1993) (no review because unsigned transcript did not reveal basis of trial court’s factual conclusion). We therefore decline to review the plaintiffs claims.

The appeal is dismissed.


author: LAVERY, C. J. SCHALLER, J.,

text:
    PATRICIA GARRISON v. PLANNING BOARD OF THE CITY OF STAMFORD ET AL.
    (AC 20900)
    Lavery, C. J., and Schaller and Flynn, Js.

      Argued June 1
    officially released October 16, 2001

      Brenden P. Ley don, for the appellant (plaintiff).

      James V. Minor, assistant corporation counsel, for the appellees (defendants).
   Opinion

LAVERY, C. J.

The plaintiff, Patricia Garrison, appeals from the judgment of the trial court dismissing her appeal from the decision by the defendant planning board of the city of Stamford (board) denying her subdivision application. On appeal, the plaintiff claims that (1) the court improperly affirmed the board’s denial of her application on the basis of an anticipated zoning use violation that was not inherent in the application as submitted, (2) the court improperly refused to consider her challenges to the validity of land use regulations because they were not brought in a declaratory judgment action, (3) the Stamford zoning regulations are void for vagueness and (4) the zoning regulations constitute an excessive fine. Because we agree with the plaintiffs first claim, we reverse the judgment of the trial court.

The following facts and procedural history are necessary for a proper consideration of the plaintiffs claims. The plaintiff is the owner of improved real property at 925 Long Ridge Road in Stamford. The building on the property has been leased to Coldwell Banker as a real estate office for a substantial period of time. On January 25,1999, the plaintiff filed with the board an application for a subdivision of the subject property into three lots. The board held a public hearing on the application on May 25, 1999, and subsequently voted unanimously to deny the application on June 1, 1999. The reason given by the board in its letter notifying the plaintiff of the denial was “existing flagrant and specific zoning violations which would be intensified” by the subdivision.

The zoning use violation was that the real estate office expanded beyond the permitted accessory use of a real estate office to a residence. There has been a longstanding dispute with the city over that violation. The plaintiff had obtained a variance in 1982 to have not more than eight nonresident persons be employed as brokers. Evidence introduced at the public hearing showed that there were thirty-seven brokers who are nonresidents. That was a violation of § 19.2.2 of the zoning regulations, which provides that any grant of a variance is deemed to grant only the particular use and that any changes in the approved plan that materially affect an approved variance shall require further approval of the board.

The plaintiff thereafter appealed from that decision to the Superior Court. Following a one day trial, the court dismissed the appeal, finding that “the planning board lacked the authority pursuant to General Statutes § 8-26 to approve the application because the subject property has outstanding zoning violations.” The plaintiff thereafter applied to this court for certification to appeal, which was granted. This appeal followed.

The plaintiff claims that the trial court improperly upheld the planning board’s denial of her subdivision application on the basis of a claimed or anticipated zoning use violation that was not inherent in the application as submitted, where no regulation authorized the denial of a subdivision application on such a basis. We agree and accordingly reverse the judgment of the trial court.

“At the outset, we note that the [board] acted in its administrative capacity. Reed v. Planning & Zoning Commission, 208 Conn. 431, 433, 544 A.2d 1213 (1988). As such, it has no discretion or choice but to approve a subdivision if it conforms to the regulations adopted for its guidance.” (Emphasis added; internal quotation marks omitted.) Paige v. Town Plan & Zoning Commission, 35 Conn. App. 646, 657, 646 A.2d 277 (1994), rev’d on other grounds, 235 Conn. 448, 668 A.2d 340 (1995); see also RK Development Corp. v. Norwalk, 156 Conn. 369, 375-76, 242 A.2d 781 (1968); Forest Construction Co. v. Planning & Zoning Commission, 155 Conn. 669, 674-75, 236 A.2d 917 (1967). “In the context of review of subdivision applications, [proceedings before planning and zoning commissions are classified as administrative.” (Internal quotation marks omitted.) Property Group, Inc. v. Planning & Zoning Commission, 226 Conn. 684, 696-97, 628 A.2d 1277 (1993).

The principal issue in this appeal is whether the planning board acted within its authority when it denied the plaintiffs subdivision application on the basis of alleged, existing zoning use violations on that part of the property occupied by Coldwell Banker. The defendant claims that § 8-26 precludes the board from approving a proposed subdivision where the property proposed to be subdivided has existing zoning use violations. We disagree.

General Statutes § 8-26 provides in relevant part: “[N]othing in this section shall be deemed to authorize the commission to approve any such subdivision or resubdivision which conflicts with applicable zoning regulations. . . .” (Emphasis added.)

It is well settled that one of the primary guides for interpreting a statute, indeed the first guide to be consulted, is the language of the statute itself. See, e.g., Taravella v. Stanley, 52 Conn. App. 431, 439, 727 A.2d 727 (1999); Keeney v. Fairfield Resources, Inc., 41 Conn. App. 120, 131, 674 A.2d 1349 (1996). The interpretation of the language often has led our Supreme Court to choose between the interpretations of a statute contended for by the parties on the basis of rules of English grammar. See, e.g., Gonsalves v. West Haven, 232 Conn. 17, 22, 653 A.2d 156 (1995) (statutory definition must be read in light of “ordinary rules of English grammar and sentence structure”); Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Information Commission, 227 Conn. 848, 852, 633 A.2d 305 (1993) (reading statute “in the light of ordinary rules of English grammar and sentence structure”).

Applying the ordinaiy rules of English grammar and sentence structure to § 8-26, the clause, “which conflicts with applicable zoning regulations,” has as its antecedent not “the property,” as the defendant would have it, but “any such subdivision or resubdivision.”

In addition, our courts have had occasion to interpret § 8-26, including the provision at issue here regarding a municipality’s authority to reject a subdivision plan that conflicts with applicable zoning regulations. In Krawski v. Planning & Zoning Commission, 21 Conn. App. 667, 672, 575 A.2d 1036, cert. denied, 215 Conn. 814, 576 A.2d 543 (1990), we noted that our function is “to decide whether the commission correctly determined that this subdivision application contains an existing violation of the town zoning regulations. . . . A commission may legally base subdivision application denials on zoning violations ‘inherent in the plan itself as submitted’ . . . (Citations omitted; emphasis added.) Accordingly, we reversed the trial court’s judgment sustaining the plaintiffs appeal in Krawski because the “violations are apparent on the face of the submitted subdivision plan.” (Emphasis added.) Id., 673.

In Federico v. Planning & Zoning Commission, 5 Conn. App. 509, 500 A.2d 576 (1985), we clearly stated the proper application of the provision of § 8-26 at issue here: “These regulatory and statutory requirements must be read to concern zoning violations inherent in the plan itself as submitted and not . . . use violations. Such requirements relate to subdivision plans which in and of themselves would violate zoning regulations. Examples of such conflicts include approval of a subdivision plan involving one-half acre lots in a one acre zone, or approval of a plan for a residential subdivision in an industrial area which prohibited such use.” (Emphasis added.) Id., 515.

We stated in Federico that only zoning violations that are inherent in the plan as submitted may be a basis for denying the subdivision application. The defendant’s claim that the zoning violations in this case are inherent in the application as submitted is further undercut by the comments of the defendant’s own zoning enforcement officer on the plaintiffs application. After reviewing the subdivision application, he stated in a letter to the planning board: “This property has outstanding zoning violations upon it which should be corrected prior to the granting of any subdivision or building permits.” (Emphasis added.) That statement plainly indicates that the zoning enforcement officer’s concerns, mirrored by the planning board, were not about the subdivision plan itself, but were geared toward having the outstanding zoning violations corrected. That statement by the zoning enforcement officer, who is charged with ensuring that the city’s zoning regulations are adhered to by property owners, demonstrates that the city’s concerns were not with the actual subdivision, but with remedying a previously existing zoning use violation in a portion of the property that was sought to be subdivided.

The defendant also points to an opinion of the city’s law department, the multiple listing service document concerning the property and evidence of traffic problems because of the use violation as further support for its decision to deny the plaintiffs subdivision application. Although the concerns raised by the city clearly are valid, and we do not here endorse the plaintiffs apparent continuing violation of the zoning regulations, they do not permit the city to use the separate subdivision plan approval process as a lever to get the plaintiff to abate her zoning violations.

In further support of its denial of the plaintiffs subdivision application, the defendant includes in its brief several quotations from the public hearing that took place to consider the subject subdivision application. Although those quotations are replete with references to the existing zoning violations on the property, the existence of which the plaintiff does not here contest, the defendant does not make reference to any testimony about zoning violations distinctly inherent in the subdivision application. The absence of any complaints about what would happen if the subdivision application were granted, which is proper to consider when deciding whether to approve such an application, combined with the multitude of complaints about the present situation, indicates that the city’s complaints are with the existing situation, not with the proposed subdivision plan.

The statute permitting a planning board to disapprove a subdivision application that conflicts with applicable zoning regulations cannot be used to justify a planning board’s action in disapproving a subdivision application that, although not itself in conflict with applicable zoning regulations, is proffered by a landowner who often has been in conflict with existing zoning use regulations. As this court and our Supreme Court often have stated in acting on appeals involving subdivision applications, the planning board’s responsibilities are purely ministerial — if the applicable requirements are complied with, the application must be approved. The defendant here is attempting to engraft the additional requirement of the absence of prior zoning use violations onto the statutory requirements. That it cannot do. The existing use violation is not a violation of zoning regulations that is contemplated by § 8-26 to defeat the subdivision application. The application itself does not contain an existing zoning violation on its face, as is contemplated by § 8-26.

Finally, we note that our decision here, that the city cannot reject a subdivision application on the basis of existing zoning violations, where the violations are not inherent in the application, does not leave the city without a remedy for the alleged flagrant zoning violations being committed by the plaintiff. General Statutes § 8-12 provides a number of ways that a city can punish flagrant zoning scofflaws: Cease and desist orders, fines and, even in certain cases, imprisonment. The zoning enforcement officer did not use any of those statutory tools, which are available to abate the zoning violations of which the city now complains. Those tools do not, however, include denial of an otherwise lawful subdivision application.

The judgment is reversed and the case is remanded with direction to sustain the plaintiffs appeal from the defendant’s denial of her application for a subdivision.

In this opinion FLYNN, J., concurred.

SCHALLER, J.,

dissenting. The majority reverses the judgment on the basis of its determination that the trial court incorrectly upheld the decision by the defendant planning board of the city of Stamford (board) that the subdivision application by the plaintiff, Patricia Garrison, contained an inherent violation of “applicable zoning regulations.” I conclude that the board’s determination was correct and that the trial court properly upheld the board’s denial of the application. I further conclude that the trial court’s disposition of the plaintiffs remaining claims is correct and would affirm the judgment of the trial court.

As a threshold matter, I reiterate our standard of review on appeals from the decisions of zoning boards on subdivision applications. “Conclusions reached by the [board] must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [board]. The question is not whether the trial court would have reached the same conclusion, but whether the record before the [board] supports the decision reached. . . . The action of the [board] should be sustained if even one of the stated reasons is sufficient to support it. . . . The evidence, however, to support any such reason must be substantial . . . .” (Citations omitted; internal quotation marks omitted.) Property Group, Inc. v. Planning & Zoning Commission, 226 Conn. 684, 697, 628 A.2d 1277 (1993).

The issue decided by the majority turns on the meaning of an “inherent” violation. The majority relies on our decision in Federico v. Planning & Zoning Commission, 5 Conn. App. 509, 500 A.2d 576 (1985), to support its position that the zoning violations in this case do not constitute “inherent” violations in the subdivision for which the plaintiff applies. The majority claims, in fact, that, to provide a basis for rejecting a subdivision application, the violations must appear on the face of the subdivision application. Neither the applicable statute nor Federico supports that interpretation. A planning board is authorized to deny a subdivision on that ground as long as such application violates any applicable zoning regulation. Such a violation involves virtually any applicable zoning regulation because the zoning regulations are incorporated in the subdivision regulations. See Krawski v. Planning & Zoning Commission, 21 Conn. App. 667, 670-71, 575 A.2d 1036 (upholding denial of subdivision application on ground of applicable existing zoning violation incorporated by reference in subdivision regulations), cert. denied, 215 Conn. 814, 576 A.2d 543 (1990). Our Supreme Court has stated that “[w]e also must look to the overall intent of the applicable regulations in considering subdivision applications. . . . Regulations, like statutes, do not exist in a vacuum.” (Citation omitted; internal quotation marks omitted.) Smith v. Zoning Board of Appeals, 227 Conn. 71, 92, 629 A.2d 1089 (1993) (reversing judgment of this court, which held that planning and zoning board of appeals did not have authority to consider historical factors in granting or denying subdivision application), cert. denied, 510 U.S. 1164, 114 S. Ct. 1190, 127 L. Ed. 2d 540 (1994).

Although in Federico we upheld a planning and zoning commission’s granting of approval for a subdivision, and rejected the trial court’s determination that the subdivision at issue in that appeal violated zoning regulations, the reasoning of Federico supports my conclusion. The Federico court stated that “[a]t the time of the trial, any claimed violations of zoning regulations were entirely speculative. Zoning concerns use . . . and until residential use of the lot is attempted it cannot ordinarily be known what yard or frontage requirements might be violated.” (Citation omitted.) Federico v. Planning & Zoning Commission, 5 Conn. App. 514-15.

In Federico, the potential use in question would have been the residential use of the lot. If existing, the residential use would have triggered and, presumably, violated the applicable yard and frontage regulations. The court stated that “[u]ntil a building permit application is filed in the future, there are no ‘applicable’ yard and frontage requirements.” Id., 515. The court indicated that if a use implicates zoning issues properly considered for a subdivision application, and if that use is an existing and not merely a potential use, that would be a proper ground for denial of the application. The court stated “[e]xamples of such conflicts include . . . approval of a plan for a residential subdivision in an industrial area which prohibited such use. ” Id. The court rejected only “[i]nchoate violations involving the use of the lot in question, which may never occur . . . .” Id.

In the present case, an actual, existing use (a commercial real estate office that had expanded beyond the use authorized by a variance) caused the board to find that the proposed subdivision violated an applicable regulation. Section 3.6.3 of the Stamford subdivision regulations provides: “The Board shall consider the layout of the proposed subdivisions with due regard to . . . traffic . . . and shall take into consideration the general health, safety and welfare of both the existing residents of the neighborhood, and future residents of the proposed subdivision.”

In its statement of facts in its brief, the board cites statements of a resident at the public hearing describing “traffic problems in the area, and the intensive traffic caused by the real estate broker’s office.” Also at the hearing, the city’s land use bureau chief “noted that if the subdivision was granted, then the zoning violation would be exacerbated, since the addition of two single-family houses would increase traffic . . . .” The decision by the board to reject the application stated that it was “based on existing flagrant and specific zoning violations which would be intensified due to the reduced size of the existing parcel and the addition of two new lots.”

In seeking to uphold the board’s disapproval of the application, the defendant argues in its brief: “Instead of having 1.5 acres with a large, flagrant zoning violation, the planning board was being asked to condone or ignore the zoning violation in order to allow two more lots, with the increase in traffic from adding two single-family residences, and with the reduction of the size of lot with the zoning violation by 50 percent (from over 1.5 acres to over one acre). Therefore, [General Statutes § 8-26] required that the planning board deny the subdivision application. The trial court properly upheld the decision of the planning board, and properly rejected the claim that the violation didn’t exist, or was beyond the control of the plaintiff.”

The defendant’s concern with the use issue compounded by the traffic congestion that would result appears to be exactly the type of inherent violation contemplated by the Federico court. It is beyond dispute that a problem of excessive traffic will not be cured by reducing the area occupied by the offending business; the board properly considered that in denying the subdivision application. The relevant question in our review of the decision is not whether we arrive at the same conclusion as the board under the facts as presented, but whether the record before the board supports the decision reached. Pelliccione v. Planning & Zoning Commission, 64 Conn. App. 320, 333, 780 A.2d 185, cert. denied, 258 Conn. 915, 782 A.2d 1245 (2001). Accordingly, I conclude that the decision of the board in rejecting the plaintiffs subdivision application is “ ‘reasonably supported by the record’ ” and “ ‘supports the decision reached.’ ” Property Group, Inc. v. Planning & Zoning Commission, supra, 226 Conn. 697.

The majority also supports its position by describing the role of the zoning board in reviewing a subdivision application as “purely ministerial.” This characterization misapprehends the role of the board in the application process and elevates the applicant’s expectation of approval to a virtual entitlement. As our Supreme Court has stated, in the context of reviewing such a claim of entitlement, a “subdivision application [is] subject to the [board’s] discretion and . . . [town] land use regulations . . . [may] not clearly entitle [one] to approval.” Kelley Property Development, Inc. v. Lebanon, 226 Conn. 314, 323, 627 A.2d 909 (1993). It is true that “[t]he planning [board], acting in its administrative capacity herein, has no discretion or choice but to approve a subdivision if it conforms to the regulations adopted for its guidance. ... If it does not conform as required, the plan may be disapproved.” (Citation omitted.) Forest Construction Co. v. Planning & Zon ing Commission, 155 Conn. 669, 675, 236 A.2d 917 (1967). That merely states the truism that “[i]n passing upon subdivision plans, the [board] is to be controlled by the regulations which it has adopted.” South East Property Owners & Residents Assn. v. City Plan Commission, 156 Conn. 587, 591, 244 A.2d 394 (1968). If the regulations permit consideration of such factors, however, “[t]he members of the [board are] entitled to consider any facts, concerning the area, traffic, intersection and surrounding circumstances, which they had learned by personal observation, and their conclusions as to the effect of the use of the network of roads in the subdivision as shown on the proposed plan on traffic safety and hazard to the public are ones which they could reach without the aid of experts.” Forest Construction Co. v. Planning & Zoning Commission, supra, 675. As with applications for special permits, if the criteria set forth in the regulations are met, the board has no discretion to deny the application. See Irwin v. Planning & Zoning Commission, 244 Conn. 619, 628, 628, 711 A.2d 675 (1998). That does not foreclose, however, the board’s discretion in determining whether the proposed application meets the standards set forth in the regulations. See id. Furthermore, characterizing the board’s role as ministerial renders superfluous the substantial hearing process that may accompany the decisions of many boards, as in the present case.

As to the remaining issues the plaintiff raised on appeal, I agree with the trial court’s dispositions. The board’s denial of the application was expressly provided for in § 3.6.3 of the subdivision regulations. The plaintiff, moreover, may not in the same proceeding contest the denial of her application and the constitutional validity of the same zoning regulations. See Bierman v. Westport Planning & Zoning Commission, 185 Conn. 135, 139, 440 A.2d 882 (1981).

Accordingly, I would affirm the judgment of the trial court.

       The plaintiffs complaint also named as individual defendants the town clerk and the chairman of the planning board, pursuant to General Statutes § 8-8. We will use “defendant” to refer only to the planning board.

       General Statutes § 8-12 provides in relevant part: “If any building or structure ... or land has been used, in violation of any provision ... of any bylaw, ordinance, rule or regulation made under authority conferred [by this chapter], any official having jurisdiction, in addition to other remedies, may institute an action or proceeding ... to restrain, correct or abate such violation or to prevent the occupancy of such building, structure or land or to prevent any illegal act, conduct, business or use in or about such premises. Such regulations shall be enforced by the officer . . . designated therein, who shall be authorized to cause any building, structure, place or premises to be inspected and examined and to order in writing the remedying of any condition found to exist therein or thereon in violation of any provision of the regulations made under authority of the provisions of this chapter or ... to issue, in writing, a cease and desist order to be effective immediately. The owner or agent of any building or premises where a violation of any provision of such regulations has been committed or exists, or the lessee or tenant of an entire building or entire premises where such violation has been committed or exists . . . shall be fined not less than ten nor more than one hundred dollars for each day that such violation continues .... Any person who, having been served with an order to discontinue any such violation, fails to comply with such order within ten days after such service ... or continues to violate any provision of the regulations . . . shall be subject to a civil penalty not to exceed two thousand five hundred dollars, payable to the treasurer of the municipality. . . .”


text:
    EUGENE A. COLEMAN v. COMMISSIONER OF CORRECTION
    (AC 20302)
    Schaller, Spear and Mihalakos, Js.
    Submitted on briefs June 13
    officially released October 16, 2001

      Patrice A. Cohan, special public defender, for the appellant (petitioner).

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David M. Kutzner, assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Eugene A. Coleman, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly (1) denied certification to appeal from the denial of his petition for a writ of habeas corpus and (2) abused its discretion in denying the petition.

After a thorough review of the record and briefs, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right and, further, has failed to sustain his burden of persuasion that the denial of certification to appeal from the denial of his habeas corpus petition was a clear abuse of discretion or that an injuspetition was a clear abuse of discretion or that an injustice has been done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Pollitt v. Commissioner of Correction, 60 Conn. App. 743, 746, 760 A.2d 1278 (2000), cert. denied, 255 Conn. 930, 767 A.2d 101 (2001); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

The appeal is dismissed