text:
    STATE OF CONNECTICUT v. CHANNY NEE KHUTH
    (AC 28271)
    Flynn, C. X, and Harper and Robinson, Js.

      Argued September 24
    officially released November 11, 2008

      Jodi Zils Gagne, special public defender, for the appellant (defendant).

      James A. Kitten, senior assistant state’s attorney, with whom, on the brief, were Stephen J. Sedensky III, state’s attorney, and David R. Shannon, assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, C. J.

The defendant, Channy Nee Khuth, appeals from the judgment of conviction of assault in the first degree in violation of General Statutes § 53a-59 (a) (4), conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 and 53a-59 (a) (4) and two counts of assault in the first degree as an accessory in violation of General Statutes §§ 53a-8 and 53a-59 (a) (4). The defendant was sentenced to a total effective term of forty years imprisonment, execution suspended after thirty years, with five years of probation. On appeal, the defendant claims that the trial court improperly (1) denied his motion to suppress his statement, (2) failed to alleviate the jury’s apparent confusion over the meaning of the word “aided” as used in § 53a-59 and (3) denied his motion for a judgment of acquittal, which he based on his claim that the state failed to prove that he was aided by two or more persons when committing the assault on one of the two victims, Timothy LaPak. We conclude: (1) the court’s denial of the defendant’s motion to suppress was proper, being supported by substantial evidence; (2) the defendant repeatedly told the court that he did not want additional instructions given to the jury, thereby waiving any claim that the instructions were insufficient; nevertheless, we also conclude that the court’s direction to the jury reasonably did clear up any apparent confusion; and (3) there was sufficient evidence for the jury to conclude that the defendant was aided by two or more persons when he committed the assault. Accordingly, we affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, are relevant to our consideration of the issues raised on appeal. On the evening of August 2, 2004, after completing a round of golf and watching a movie, LaPak and the other victim, Kyle Coney, were headed back to their place of employment so that LaPak could pick up his vehicle. The two men were riding in downtown Danbury in Coney’s Jeep, which had the top and sides removed on that summer night. Coney realized that an occupant of a blue sedan had thrown an open beer can into the Jeep, wetting the backseat and wetting the back of Coney’s neck. As the sedan, which was driven by Amy Altberg, again pulled alongside of the Jeep, Coney threw a water bottle at the sedan. The sedan then began to chase the Jeep, which turned onto a narrow road or alleyway that was blocked by two tractor trailer trucks. After Coney stopped the Jeep, Altberg boxed it in with the sedan so that Coney could not back up. Coney immediately told LaPak to dial 911 on a cellular telephone, but before he could dial, the defendant, Waner Nunez, Thomas Strik, and Altberg exited the sedan, and LaPak was pulled from the Jeep. The defendant and Nunez beat LaPak, repeatedly punching him and kicking him in the head. While LaPak was being beaten, Coney remained strapped in the Jeep holding onto the steering wheel as he also was being kicked and punched in the face. Near the end of the beatings, Altberg approached the Jeep, took a hula girl ornament from the dashboard and told Coney that he “wouldn’t be needing it anymore.” She then returned to the sedan. Coney believed that there were three individuals beating LaPak. Coney’s wallet also was stolen during the attack.

When the assailants ended this brutal attack, they left LaPak on the ground, bleeding profusely from his head. They returned to Altberg’s sedan, and she drove away, later purchasing gasoline and cigarettes with a credit card from Coney’s stolen wallet. Meanwhile, Coney, bleeding and holding his mouth, ran to the Holiday Diner on White Street, and the manager of the diner telephoned the police. Once the police arrived on the scene, Officer Vincent Daniello of the Danbury police department approached LaPak, who was lying in a pool of blood, initially thinking LaPak had been shot in the head and was dead. Daniello then heard a slight gurgling sound coming from LaPak.

LaPak and Coney were taken to a hospital. LaPak was unconscious for weeks and had very significant injuries, including traumatic brain injury, with impulse control issues and cognizant deficits, memory loss, massive injuries to his face, blunt trauma, massive swelling, a tooth tom from its socket and other cracked teeth, a displaced fracture of his jaw and fractures of the orbital rim or eye socket, and he had to have a feeding tube inserted into his abdomen, into which liquid food was poured for approximately eight weeks. Because of his injuries, LaPak needed physical therapy, speech therapy and occupational therapy. At the time of trial, LaPak continued to have short term memory loss and advanced arthritis in his jaw. Coney had serious injuries to his mouth, had to have his teeth wired and splinted, his gums sewn and, eventually, lost two of his front teeth. He also had bleeding in his ears and sore ribs. The defendant was arrested, charged and convicted. This appeal followed. Additional facts will be added where necessary.

I

On appeal, the defendant claims that the court improperly denied his motion to suppress the statement he made to police. He argues that the statement was not voluntary because he was under the influence of alcohol at the time police took his statement, having consumed approximately one gallon of Hennessy cognac with Strik shortly before his arrest. The state argues that the evidence sufficiently showed that the defendant was not impaired by alcohol at the time he gave his statement. We agree with the state and conclude that the court did not abuse its discretion in denying the defendant’s motion to suppress his statement.

“As an initial matter, we note that [o]ur standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record. . . . [When] the legal conclusions of the court are challenged, [our review is plenary, and] we must determine whether they are legally and logically correct and whether they find support in the facts set out in the court’s [ruling]. . . .

“Furthermore, [t]o be valid, a waiver must be voluntary, knowing and intelligent. . . . The state has the burden of proving by a preponderance of the evidence that the defendant voluntarily, knowingly and intelligently waived his Miranda rights. ... In considering the validity of a waiver, we look to the totality of the circumstances of the claimed waiver. . . . Although the issue of whether there has been a knowing and voluntary waiver is ultimately factual, the usual deference to fact-finding by the trial court is qualified in this area by the necessity for a scrupulous examination of the record to ascertain whether such a factual finding is supported by substantial evidence.” (Internal quotation marks omitted.) State v. Rice, 105 Conn. App. 103, 113, 936 A.2d 694 (2007), cert. denied, 285 Conn. 921, 943 A.2d 1101 (2008).

The defendant contends that despite the passage of twenty hours since he had ingested alcohol, he still was intoxicated when he gave the police a written statement. He argues that his testimony at the suppression hearing was supported by the statement itself, which was replete with typographical and grammatical errors, evincing that he merely wrote what the police instructed him to write. We do not agree. The court had before it the testimony of Detective James Lalli of the Danbury police department, who stated that the defendant did not appear to be under the influence of alcohol. Lalli had spent quite some time with the defendant after his arrest, bringing him to Connecticut from Rhode Island, where he had been located by federal authorities, stopping at a McDonald’s restaurant to get food for the defendant, giving him Miranda warnings and taking a written statement from him. Additionally, the court had evidence that the defendant had eaten meals and that more than twenty hours had passed from the time that the defendant had last ingested alcohol to the time that he gave his statement to the police.

Specifically, the court found that the defendant had expressed an interest in making a statement, that he had an eleventh grade education, that he was familiar with his rights, that even if he had consumed alcohol more than twenty hours before giving his statement, sufficient time had passed to remedy the effects of the alcohol, that the defendant had eaten two meals while in custody, that Lalli did not believe that the defendant was under the influence of alcohol, that the defendant voluntarily signed a waiver of rights form, that he did not request an attorney, that the statement, although not a “model of English grammar and spelling,” was “clear and not reflective of someone who was under the influence of alcohol” and that the statement was comprehensible. Our own review of the record reveals that these findings are supported by substantial evidence. Accordingly, the court did not abuse its discretion in denying the defendant’s motion to suppress his written statement.

II

The defendant next claims that the court improperly failed to alleviate the jury’s apparent confusion over the meaning of the word “aided” as used in § 53a-59. He argues that the court’s definition of the word “aided” should “have included references to having the intent to commit the crime and the intent to specifically aid the principal in the commission of the crime.” We conclude that the defendant waived any right to challenge this instruction when he specifically told the court that he agreed with the court’s definition and that he did not want further instructions. We also conclude, however, that the court’s direction to the jury reasonably alleviated any confusion that may have been present.

The court instructed the jury that the term “aided,” as used in the charge of assault in the first degree set forth in count one, “means that two or more other persons must have been present and actively assisting or actively helping the defendant in the assault. Mere presence of inactive companions or mere acquiescence or doing of some innocent act that, in fact, aids the perpetrator of the assault does not constitute aid within the meaning of the statute.” The defendant voiced no objection to this charge.

After the court had completed its charge to the jury, it received a note from the jury asking for a definition of the word “aided” as it pertained to the charge of assault in the first degree as an accessory set forth in count four. The court told the jury that the term had the same meaning in count four as it had in count one, the charge of assault in the first degree. Later that day, the jury sent another note to the court asking if it could use the definition contained in count four of the long form information. The note specifically stated: “We have found a difference in the definition on [c]ount [four], between the long form and the charge to the jury; specifically, on the long form more verbs, ‘did solicit or request or command.’ These are absent on the jury charge. Can we use the long form information?” The court did not immediately answer the jury’s question but, rather, excused it for the day. When court resumed the next day, the state filed a motion for reconsideration of its original request to charge.

The defendant opposed the state’s request and specifically argued: “I think aiding means what we—what was defined by the court in the charge, ‘actively assisting and actively supporting.’ And I think that’s the way it should go to the jury, and anything else, I think, would be improper, inappropriate, it would broaden the definition, which, I think, would ... be unconstitutional.” The court agreed that a broadening of the definition at this stage of the proceedings would “pose a risk to the integrity of any verdict that [the jury] rendered.” Accordingly, the court instructed the jury that it could not use the long form information but that it “should go by the charge to the jury rather than the allegations in the long form information.” Later that day, the jury returned its verdict.

Our review of the transcripts clearly reveals that the defendant did not want a further instruction given to the jury. For him to argue on appeal that the court should have insisted, despite his vigorous objection, is somewhat disingenuous. See State v. Diaz, 109 Conn. App. 519, 537, 952 A.2d 124 (it is fundamentally unfair to state and to court for defendant to raise claim on appeal regarding jury instruction on which he was in agreement), cert. denied, 289 Conn. 930, 958 A.2d 161 (2008). A close review of the record leads us to the conclusion that the defendant waived any right to challenge the thoroughness of the court instruction and, in fact, specifically told the court that he agreed with the instruction given. Furthermore, although the defendant waived the right to challenge the adequacy of this instruction, we also conclude that the instruction was correct in law, following, almost verbatim, the instructions set forth in the Connecticut Criminal Jury Instructions for a charge of assault in the first degree with the aid of two or more persons. See Connecticut Criminal Jury Instructions (2008 Ed.) § 6.1-4 available on the Connecticut Judicial Branch website, http://www.jud. ct.gov/ji/criminal/part6/6. l-4.htm (accessed 11/3/08). Additionally, the court’s specific direction to the jury that it could not use the long form information but that it must use the court’s instruction regarding the term “aided” reasonably cleared up any confusion that the jury might have had about the proper construction of this term as it related to this case.

Ill

The defendant also claims that the court improperly denied his motion for a judgment of acquittal, which he based on his claim that the state failed to prove that he was aided by two or more persons when he allegedly committed the assault on LaPak. He argues that the evidence, at most, demonstrated that he was aided by Nunez in assaulting LaPak, while Strik assaulted Coney and Altberg stayed by the Jeep crying. The state argues that Altberg admitted that she had acted as a lookout and that this action aided in the assault. Additionally, the state argues that the jury reasonably could have concluded that Strik’s assault on Coney also aided the defendant. We agree with the state.

“The standard of review we apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . .

“Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. ... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . .

“Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [finder of fact], would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s] verdict of guilty.” (Internal quotation marks omitted.) State v. Davis, 283 Conn. 280, 329-30, 929 A.2d 278 (2007).

Construing the evidence in the light most favorable to sustaining the verdict, the jury reasonably could have found the following relevant facts on the basis of the evidence presented at trial. After Coney threw the water bottle at the sedan, the defendant instructed Altberg to follow the Jeep. When the Jeep turned into the alleyway, Altberg also turned and boxed in the Jeep. Altberg anticipated a fight. The defendant and his friends got out of the sedan, and the defendant, Nunez and Strik approached the Jeep while Altberg acted as a lookout. The defendant and Nunez pulled LaPak from the Jeep and beat him to unconsciouness while Strik kicked and punched Coney, who remained in the Jeep. Near the end of the attack, Altberg reached into the Jeep and took an ornament from the dashboard. She told Coney that he would not need it anymore.

The defendant specifically challenges the evidence as being insufficient to prove the “aided by two or more other persons actually present” element of the crime of assault in the first degree. On the basis of the evidence presented, however, we conclude that it would have been reasonable for the jury to have concluded that Altberg aided in the assault by following the Jeep, by blocking the Jeep from exiting the alleyway and by acting as a lookout. It also would have been reasonable, on the basis of this evidence, for the jury to have concluded that the defendant and his friends decided to attack from both sides of the Jeep so that neither LaPak nor Coney could assist the other or run for help, thereby each aiding the other. See generally State v. Jackson, 75 Conn. App. 578, 586-87, 816 A.2d 742 (2003) (masked man aided defendant in committing aggravated sexual assault in first degree, which requires aid of two or more persons actually present, by holding other victims at bay, preventing them from calling police or interfering with sexual assault); see also State v. Jackson, 194 Conn. 241, 245, 478 A.2d 1018 (1984) (evidence that defendant restrained another, preventing her from calling police, sufficient to establish that defendant aided in attempted robbery).

Although the defendant argues that the evidence demonstrated that Altberg was very upset by these events and did not aid in the commission of the assaults, we question the soundness of the defendant’s argument in light of the fact that Altberg testified that she blocked in the Jeep, anticipated a fight and acted as a lookout. In addition to Altberg’s testimony, the evidence also showed that as the assaults were nearing their end, Altberg reached into the Jeep, took an ornament from the dashboard and addressed an injured and bleeding Coney, telling him he would no longer need the object. Following this brutality, Altberg then used Coney’s credit card to purchase cigarettes and gasoline. On the basis of this ample evidence, we conclude that the court acted properly in denying the defendant’s motion for a judgment of acquittal.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant’s conviction on one count of assault in the first degree as an accessory was merged with his conviction of assault in the first degree.

       Coney testified that he thought two individuals approached the driver’s side of the Jeep, while another three individuals approached the passenger side.

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when ... (4) with intent to cause serious physical ipjury to another person and while aided by two or more other persons actually present, he causes such ipjury to such person or to a third person . . . .”

       We are not faced with a Fletcher type of situation here because rather than ignore the jury’s request for clarification, the court specifically responded and told the jury that it could not use the allegations in the long form information and that it must use the instructions given to it by the court. See State v. Fletcher, 207 Conn. 191, 193, 540 A.2d 370 (1988) (“[c]larification of the instructions when the jury or one of its members manifests confusion about the law is mandatory” [internal quotation marks omitted]); see also Practice Book § 42-27 (“[i]f the jury, after retiring for deliberations, requests] additional instructions, the judicial authority, after providing notice to 1he parties and an opportunity for suggestions by counsel, shall recall the jury to the courtroom and give additional instructions necessary to respond properly to the request or to direct the jury’s attention to a portion of tire original instructions”). The court here firmly and clearly directed the jury to use the proper instructions that it had given, and the jury voiced no further question or concern.


source: Caselaw Access Project

author: McLACHLAN, J.

license: Public Domain

text:
    BRIDGEPORT HARBOUR PLACE I, LLC v. JOSEPH P. GANIM ET AL.
    (AC 28767)
    McLachlan, Robinson and Hennessy, Js.

      Argued September 11
    officially released November 11, 2008

      William F. Gallagher, with whom, on the brief, were Hugh D. Hughes, William J. Sweeney and R. Bartley Halloran, for the appellant (plaintiff).

      Kurt F. Zimmermann, with whom, on the brief, was Leonard K. Atkinson, for the appellee (named defendant).

      Sandra L. Snaden, with whom, 'was Hubert J. Santos, for the appellee (defendant Charles J. Willinger, Jr., et al.).

      Trisha M. Moms, with whom, on the brief, was Ira B. Grudberg, for the appellees (defendant Alfred Lenoci, Sr., et al.).

      C. Christian Young, for the appellee (defendant Alfred Lenoci, Jr., et al.).

      Thomas L. Kanasky, Jr., for the appellee (defendant Joseph T. Kasper, Jr.).

      Jeffrey J. White, with whom, on the brief, were Craig A. Raabe and Edward J. Heath, for the appellee (defendant city of Bridgeport).

      David J. Hatem, pro hac vice, Deborah S. Russo and Patricia B. Gary, pro hac vice, filed a brief for the appellee (defendant HNTB Corporation).
   Opinion

McLACHLAN, J.

The plaintiff, Bridgeport Harbour Place I, LLC, appeals from the judgment of the trial court rendered following the granting of the motions to strike the amended complaint filed by the defendants Joseph P. Ganim; the city of Bridgeport; Alfred Lenoci, Sr.; Alfred Lenoci, Jr.; United Properties, Ltd.; 815 Lafayette Centre, LLC; United Investments, LLC; United Environmental Redevelopment, LLC; Crescent Avenue Development Company, LLC; Charles J. Willinger, Jr.; Willinger, Willinger & Bucci, P.C.; Joseph T. Kasper, Jr.; Kasper Group, Inc.; and Michael Schinella. The plaintiff claims that its antitrust action improperly was stricken because it had alleged a relevant market and sufficient facts to support its claim of anticompetitive or monopolistic behavior in that market. We affirm the judgment of the trial court.

The following procedural history and facts, as alleged in the plaintiffs amended complaint, are relevant to our resolution of the issues on appeal. In May, 1997, the city of Bridgeport requested proposals for the site development of a section of waterfront property known as Steel Point. A development proposal submitted by Bridgeport Renaissance Center, later renamed Harbour Place Limited Partnership and subsequently acquired by the plaintiff, was chosen by the city for the project. On November 18,1998, the city and the plaintiff signed a development agreement. The plaintiff could not fulfill its obligations under the contract, however, due to the successive withdrawals of several financing partners, and the city terminated the contract in March, 2001.

According to the plaintiff, it was prevented from completing the development activities specified in the contract by the unlawful conduct of the defendants. Specifically, the plaintiff alleged that the city’s mayor, Ganim, engaged in a contract steering scheme in which his coconspirators, Leonard Grimaldi and Paul Pinto, demanded bribes and kickbacks from businesses seeking city contracts and then divided the proceeds of those illegal payments with Ganim. After the contract had been awarded to the plaintiff, the plaintiff refused to participate in the scheme. Thereafter, Ganim and the other defendants allegedly conspired to deprive the plaintiff of its development rights, through corrupt and illegal means, for their own benefit. Because of the unreasonable delays, conditions and demands imposed on the plaintiff, its three financial partners withdrew from the project, and the plaintiff was unable to fulfill its contractual obligations. From the date it was chosen until it was discharged in March, 2001, the plaintiff had expended millions of dollars in its attempt to complete the project.

The plaintiff filed a one count complaint on October 19, 2004, claiming that the defendants violated the Connecticut Antitrust Act, General Statutes § 35-24 et seq., by engaging in an illegal conspiracy in restraint of trade. It sought treble damages pursuant to General Statutes § 35-35. Several of the defendants filed motions to strike the complaint on the ground that it failed to state a legally sufficient antitrust claim. The court, Alander, J., granted the motions, concluding that the plaintiffs original complaint failed to allege facts that would establish an actual adverse effect on competition as a whole in the relevant market and failed to allege facts that would constitute price discrimination in violation of General Statutes § 35-45.

The plaintiff timely filed an amended complaint. See Practice Book § 10-44. The amended complaint added one paragraph, alleging, in part, that “[t]he defendants’ conduct had an actual adverse effect on competition as a whole in the relevant market of undertaking and completing commercial development in the City of Bridgeport in a timely, cost efficient manner.” The other allegations in the amended complaint were the same as in the original complaint, and the plaintiff did not amend its allegations with respect to price discrimination.

Six of the defendants filed motions to strike the plaintiffs amended complaint, claiming that the plaintiff failed to allege any additional facts that could constitute a cognizable antitrust claim. The court, Stevens, J., heard argument and issued its decision on March 5, 2007, granting the motions of those defendants. In its decision, the court concluded that the allegations in the added paragraph contained only legal or conclusory claims and did not provide a factual basis for an antitrust violation. Further, the court stated that, even if it is assumed that the relevant market was as alleged in the added paragraph, the plaintiff nevertheless failed to allege any facts of a specific nature that demonstrated that the defendants’ conduct had an adverse effect on competition in that market. The court noted: “When taken as true, the facts set forth in the first amended complaint establish that the plaintiff lost its ability to develop a single property, Steel Point, due to the improper conduct of the various defendants. The plaintiff has not alleged any particular facts, however, that would indicate that this action prevented other competitors from developing Steel Point or other properties in Bridgeport under government contracts with the city of Bridgeport, or otherwise hindered competitors in such pursuits.”

Subsequently, the remainder of the defendants filed motions to strike the amended complaint on identical grounds. The court granted the motions and, over a period of time, rendered judgment in favor of all of the defendants. This appeal followed.

The standard of review in an appeal from the granting of a motion to strike is well established. “Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court’s ruling . . . is plenary. ... It is fundamental that in determining the sufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.” (Citations omitted; internal quotation marks omitted.) Doe v. Yale University, 252 Conn. 641, 667, 748 A.2d 834 (2000). “For the purpose of ruling upon a motion to strike, the facts alleged in a complaint, though not the legal conclusions it may contain, are deemed to be admitted.” (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 476, 823 A.2d 1202 (2003). “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.” (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).

The plaintiffs first claim on appeal is that the amended complaint properly alleged a relevant market. “[Pjroper analysis in an antitrust case first requires determination of the relevant market .... The relevant market for purposes of antitrust litigation is the area of effective competition within which the defendant operates. . . . Market definition generally is a deeply fact-intensive inquiry . . . .” (Citations omitted; internal quotation marks omitted.) Miller’s Pond Co., LLC v. New London, 273 Conn. 786, 814, 873 A.2d 965 (2005). In the present case, the court assumed for purposes of the motions to strike that the relevant market was “commercial development in the city of Bridgeport,” as alleged by the plaintiff. The court did not make any conclusions as to that issue. Because it is such a fact intensive issue, it would be the plaintiffs burden to establish the relevant market at the time of trial instead of at this stage of the proceedings. Because the court did not grant the motions to strike on the ground that the plaintiff failed to allege a relevant market, it is not necessary to address this claim.

The plaintiff next claims that the court should not have granted the motions to strike because it properly alleged anticompetitive or monopolistic behavior in that market. Specifically, the plaintiff argues that its allegation that the defendants’ conspiracy to exclude competitors in the relevant market had an actual adverse effect on competition was sufficient to allege an antitrust injury pursuant to the state’s antitrust act. We disagree.

General Statutes § 35-44b provides that in construing the Connecticut Antitrust Act, “the courts of this state shall be guided by interpretations given by the federal courts to federal antitrust statutes.” “Accordingly, we follow federal precedent when we interpret the [Connecticut Antitrust Act] unless the text of our antitrust statutes, or other pertinent state law, requires us to interpret it differently.” Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 15-16, 664 A.2d 719 (1995).

Although the plaintiff alleged in its amended complaint that the defendants’ conduct violated the state’s antitrust act, the plaintiff does not specify the particular provisions of the act on which it bases its claims. Practice Book § 10-3 (a) provides in relevant part: “When any claim made in a complaint ... is grounded on a statute, the statute shall be specifically identified by its number.” The defendants have not claimed that the plaintiff failed to apprise them sufficiently of the nature of the action, however, so that its noncompliance with Practice Book § 10-3 (a) will not preclude consideration of the plaintiffs claims. See Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008).

At the hearing on the defendants’ motions to strike the original complaint, the plaintiffs counsel indicated that the plaintiff was claiming violations of General Statutes §§ 35-26 and 35-28. Section 35-26 provides: “Every contract, combination, or conspiracy in restraint of any part of trade or commerce is unlawful.” Section 35-28 provides: “Without limiting section 35-26, every contract, combination, or conspiracy is unlawful when the same are for the purpose, or have the effect, of: (a) Fixing, controlling, or maintaining prices, rates, quotations, or fees in any part of trade or commerce; (b) fixing, controlling, maintaining, limiting, or discontinuing the production, manufacture, mining, sale, or supply of any part of trade or commerce; (c) allocating or dividing customers or markets, either functional or geographical, in any part of trade or commerce; or (d) refusing to deal, or coercing, persuading, or inducing third parties to refuse to deal with another person.” Section 35-28 has no specific counterpart in the federal antitrust statutes but is a codification of federal case law concerning “per se” violations of the Sherman Act, 15 U.S.C. § 1 et seq. See Miller’s Pond Co., LLC v. New London, supra, 273 Conn. 796; Shea v. First Federal Savings & Loan Assn. of New Haven, 184 Conn. 285, 306, 439 A.2d 997 (1981). On appeal, the plaintiff has not claimed that the defendants’ conduct amounted to a “per se” violation of the state’s antitrust act. Accordingly, we review the plaintiffs amended complaint to determine whether it has alleged an antitrust claim under § 35-26 only.

Section 35-26 is substantially identical to § 1 of the Sherman Act and applies to contracts, combinations or conspiracies in restraint of trade. Shea v. First Federal Savings & Loan Assn, of New Haven, supra, 184 Conn. 305. Section 1 of the Sherman Act can be violated either by a specific per se violation or by conduct that is in restraint of trade under a rule of reason analysis. See Retail Services Associates v. ConAgra Pet Products Co., 759 F. Sup. 976, 979 (D. Conn. 1991). No per se violation has been alleged; thus, the plaintiff must demonstrate a violation under the rule of reason analysis. “[A] [section 1 claim cannot stand under the rule of reason absent proof of injury to competition in the relevant market. . . . Antitrust injury is a prerequisite to recovery because the antitrust laws were enacted to protect competition, not competitors.” (Citation omitted.) Id., 979-80.

“An antitrust injury is an injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants’ acts unlawful. The injury should reflect the anticompetitive effect either of the violation or of anticompetitive acts made possible by the violation.” (Internal quotation marks omitted.) North American Energy Systems, LLC v. New England Energy Management, Inc., 269 F. Sup. 2d 12, 18 (D. Conn. 2002). “The antitrust injury requirement obligates a plaintiff to demonstrate, as a threshold matter, that the challenged action has had an actual adverse effect on competition as a whole in the relevant market; to prove it has been harmed as an individual competitor will not suffice.” (Internal quotation marks omitted.) George Haug Co. v. Rolls Royce Motor Cars, Inc., 148 F.3d 136, 139 (2d Cir. 1998). “Under the rule of reason analysis, a plaintiff must demonstrate a precise harm which is a restraint on competition . . . .” Tower Air, Inc. v. Federal Express Corp., 956 F. Sup. 270, 285 (E.D.N.Y. 1996).

In the present case, the court concluded that the plaintiff “failed to allege any facts of a specific nature that show that the defendants’ conduct had an adverse effect on competition as a whole” in the relevant market, that “the facts set forth in the first amended complaint establish that the plaintiff lost its ability to develop a single property,” that the plaintiff “has not alleged any particular facts . . . that would indicate that [the defendants’ conduct] prevented other competitors from developing Steel Point or other properties in Bridgeport under government contracts with the city of Bridgeport” and that, accordingly, the plaintiff failed to allege a cognizable antitrust injury. The plaintiff argues that its allegations that the defendants conspired to exclude competition in connection with eight different city projects through commercial bribery and other unlawful acts were sufficient to support the legal conclusion that the defendants engaged in anticompetitive behavior in commercial development in Bridgeport. It also argues that its allegations concerning the defendants’ control of the market through corruption further supports that legal conclusion.

The amended complaint is devoid of factual allegations that would support the legal conclusion that the defendants’ conduct had an adverse effect on competition as a whole in the relevant market. The plaintiff does not allege how the challenged actions decreased competition among developers or how the alleged payback scheme actually affected the marketplace, which allegations are necessary to support a § 35-26 violation under a rule of reason analysis. The plaintiff appears to claim that the very fact that the defendants allegedly required anyone who wanted a city contract in Bridgeport to pay bribes, i.e., they had to “pay to play,” automatically results in an anticompetitive effect on the market. The plaintiff can cite no case law in support of such a position.

Moreover, the case law suggests otherwise. In Federal Paper Board Co. v. Amata, 693 F. Sup. 1376 (D. Conn. 1988), the court concluded that “[t]he payment of bribes by suppliers to a purchasing agent does not by itself establish an anticompetitive effect. . . . [Without allegations of additional facts that demonstrate how those suppliers were precluded from taking competitive actions in order to secure sales with [the purchasing agent], the amended complaint does not sufficiently allege anticompetitive effect.” (Citations omitted.) Id., 1383. Similarly, in Comet Mechanical Contractors, Inc. v. E. A. Cowen Construction, Inc., 609 F.2d 404, 406 (10th Cir. 1980), the court found that the plaintiffs claim that it was prevented from securing a mechanical subcontract because it would not pay a $100,000 bribe to the governor did not constitute anticompetitive activity meriting treble damages under the federal antitrust laws. See also Expert Masonry, Inc. v. Boone County, Kentucky, 440 F.3d 336, 348 (6th Cir. 2006) (“parties may break a host of state or federal laws and regulations in making a side deal or in otherwise circumventing the bidding process in reaching a final arrangement, but they do not breach [s]ection 1 of the Sherman Act where the alleged vertical agreements involve only one buyer and one seller”).

We conclude that the court was correct in its determination that the plaintiffs allegations in its amended complaint were insufficient to establish a cognizable antitrust injury. Although other laws may provide remedies for the plaintiffs claims, the present claims as alleged in the amended complaint cannot be converted into a treble damages claim under the antitrust laws.

The plaintiffs final claim on appeal is that the court’s ruling is contrary to the provisions of Practice Book § 10-2 because it forces the plaintiff to plead evidence to demonstrate the anticompetitive effect of the defendants’ conduct. The plaintiff argues that it has complied with Practice Book § 10-2 by fairly apprising the defendants of the state of facts it intends to prove with respect to anticompetitive and monopolistic behavior and that any greater specificity is unnecessary.

The plaintiffs amended complaint contains only conclusory allegations as to the actual adverse effect of the defendants’ conduct on the relevant market. The plaintiff is obligated to provide grounds for its claim of entitlement to relief, something more than mere conclusions and the formulaic recitation of the elements of an antitrust cause of action. The plaintiff is not required to provide detailed factual allegations, but it does need to plead something more than conclusory allegations that invite speculation as to the actual effects of the challenged conduct on the competition in the relevant market. The defect in the plaintiffs amended complaint is not its failure to plead evidence but, rather, its failure to plead any factual basis that supports the claimed antitrust injury. We conclude, therefore, that the court correctly determined that the plaintiff failed to plead a cognizable antitrust claim and properly struck the amended complaint.

The judgment is affirmed.

In this opinion the other judges concurred.

       Harbor Communications, Inc., and HNTB Corporation also were named as defendants in this action. The plaintiff withdrew the complaint as to Harbor Communications, Inc., prior to the filing of the initial motions to strike the complaint. The appeal was withdrawn as to the defendant HNTB Corporation on the day of oral argument with permission of this panel.

       General Statutes § 35-35 provides: “The state, or any person, including, but not limited to, a consumer, injured in its business or property by any violation of the provisions of this chapter shall recover treble damages, together with a reasonable attorney’s fee and costs.”

       The added paragraph, paragraph sixty-nine, states in its entirety: “The defendants’ conduct had an actual adverse effect on competition as a whole in the relevant market of undertaking and completing commercial development in the City of Bridgeport in a timely, cost efficient manner. The defendants’ conduct as alleged added the extra cost of corrupt paying as demanded. The corruption and payback system of Ganim, Grimaldi and Pinto, which operated with the cooperation of the City of Bridgeport officials under the defendant Ganim, including its corporation counsel, leaders of the City Council, its economic director, finance director, zoning officials, comptroller and others caused the market for the commercial development as a whole to be adversely affected.”

       Because the stricken complaint and the amended complaint are identical except for the addition of paragraph sixty-nine, we first address the issue of whether the plaintiff has waived its right to appeal in light of this court’s decision in Bross v. Hillside Acres, Inc., 92 Conn. App. 773, 887 A.2d 420 (2006). “When a [motion to strike] is sustained and the pleading to which it was directed is amended, that amendment acts to remove the original pleading and the [motion to strike] thereto from the case. The filing of the amended pleading is a withdrawal of the original pleading.” (Internal quotation marks omitted.) Id., 777-78. This court further determined that if an amended complaint merely restates the original cause of action that was stricken, the plaintiff has waived its right to appeal. If the amended complaint is materially different, however, the plaintiff has not waived its right to appeal. Id., 778.
      “[T]he interpretation of pleadings is always a question of law for the court . . . and, thus, our review is plenary.” (Citation omitted; internal quotation marks omitted.) Montanaro v. Gorelick, 73 Conn. App. 319, 323, 807 A.2d 1083 (2002). Unlike the amended complaint, the original complaint in this action did not contain allegations as to a relevant market or the effects on that market. We conclude that the amended complaint is materially different from the original complaint because of those additional allegations. Accordingly, the plaintiff has not waived its right to appeal.

       The plaintiff filed its appeal on April 30, 2007, and amended its appeal as the court subsequently rendered judgment in favor of the other defendants.

       The plaintiffs counsel, at that time, also indicated that the plaintiff was claiming price discrimination in violation of General Statutes § 35-45. The plaintiff did not amend its allegations as to price discrimination in its amended complaint, however, and that statutory provision is not at issue in this appeal. See footnote 4.

       Practice Book § 10-2 provides in relevant part: “Acts and contracts may be stated according to their legal effect, but in so doing the pleading should be such as fairly to apprise the adverse party of the state of facts which it is intended to prove. . . .”


author: FOTI, J.

text:
    IN RE CANDIDS E.

    (AC 29521)
    Gruendel, Robinson and Foti, Js.

      Argued September 10
    officially released November 11, 2008

      Daniel H. Erskine, for the appellant (respondent mother).

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

      Toni Volza Esposito, for the minor child.

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

   Opinion

FOTI, J.

The respondent mother is appealing from the judgment of the trial court terminating her parental rights with respect to her minor child, rendered after a petition was brought by the petitioner, the commissioner of children and families, pursuant to General Statutes § 17a-112. The respondent claims that the court (1) violated her due process rights under the fourteenth amendment to the federal constitution by conducting the termination of parental rights trial in her absence and (2) committed plain error by trying the case in her absence in violation of the rules of practice and the statutory scheme for termination of parental rights. We affirm the judgment of the trial court.

The following facts are not contested and are relevant to the respondent’s appeal. The child was bom in 1998 and was removed from the respondent’s custody at birth by the petitioner, but was later returned to the respondent’s custody. Since that time, the child has had multiple out of home placements as well as periods of “protective supervision” with the respondent. Removal and protective supervision were necessary due to the respondent’s transient lifestyle, financial management problems, mental health and substance abuse issues and her persistent resistance to treatment. Additionally, the respondent was arrested nine times for crimes involving, among other things, threatening, breach of the peace and assault. At the time of the trial, the respondent was serving probation for a conviction of threatening in the second degree. The respondent was diagnosed with borderline personality disorder, post-traumatic stress disorder, cognitive limitations and depression, but was not, at the time of the trial, engaged in any treatment and refused to take any medication that could benefit her. The respondent has been caught in a cycle of extreme domestic violence into which the child consistently was drawn. The child witnessed several incidents of abuse involving the respondent. After the child was placed in the petitioner’s custody in April, 2006, the respondent cancelled scheduled visits she was to have with the child, and one of the reasons given was that she had sustained injuries as a victim of a domestic assault.

The respondent’s behavior and lifestyle choices have had serious consequences for the child. The child frequently experiences episodes of oppositional and regressive behaviors. The child was hospitalized for mental health issues and was diagnosed with post-traumatic stress disorder, oppositional defiance disorder and attention deficit hyperactivity disorder. In 1998 and again in 2003, the child was adjudicated neglected. On September 16,2004, the petitioner filed another petition of alleged neglect. The respondent entered a plea of nolo contendere to the neglect petition on December 22, 2004, and the court ordered protective supervision for the child for six months, allowing her to stay in the respondent’s custody. The court then, on three occasions, extended the order of protective supervision. On April 7, 2006, however, the disposition of protective supervision was reopened and, by agreement, the court committed the child to the custody of the petitioner.

The problematic circumstances of the respondent’s life continued to affect the child. On January 11, 2007, the petitioner sought to cease the respondent’s visitation with the child. The court, in granting the petitioner’s motion, concluded that the child “needs consistency and stability, two things that, given [the respondent’s] diagnoses and prognosis, are not attainable by [the respondent].” In March, 2007, as a result of her behavioral and mental health issues, the child was placed by the department of children and families in a therapeutic group home for children.

The petitioner next, on April 4, 2007, filed a petition to terminate the parental rights of the respondent. The petitioner alleged that the respondent’s parental rights should be terminated for failure to achieve a sufficient degree of personal rehabilitation pursuant to § 17a-112 0) (3) (B). On May 4, 2007, the respondent and her counsel were present at the termination of parental rights plea hearing. The court advised the respondent of the petition, and the respondent entered a pro forma denial. At that hearing, in the presence of the respondent and her counsel, the court set the trial date of September 18 and 19,2007. Trial was held on September 18, 2007, and the court rendered judgment on January 16, 2008, terminating the respondent’s parental rights. This appeal followed. Further facts will be set forth as needed.

I

The respondent first claims that the court violated her rights to due process under the fourteenth amendment to the federal constitution by conducting the termination of parental rights trial in her absence. We disagree.

The following additional facts are necessary for our resolution of the respondent’s claim. The respondent was not present when the trial commenced on the afternoon of September 18, 2007. The respondent’s counsel, Lawrence Dubin, told the court that the respondent had left a voice message at his office, indicating that she was “detained” at 235 Church Street, New Haven.* ****** Jessica Gauvin, assistant attorney general representing the petitioner, told the court that a records check at the criminal court at 235 Church Street showed that the respondent was not in the custody of the department of correction, nor was there any case pending against the respondent on the criminal docket. Dubin did not contest these assertions.

Gauvin then requested that a full evidentiary hearing go forward, in the respondent’s absence, rather than have the court render a judgment of default against her. Dubin first agreed to this course of action, stating, “we’ll just go forward.” The court, in an effort to create a clear record, asked Dubin if he, indeed, had no obj ection to conducting the trial in the respondent’s absence. Dubin objected to proceeding with the trial in the respondent’s absence. The court found that because the respondent had been present and represented at the plea hearing on May 4, 2007, proper notice had been given to the respondent. The court also found that the respondent voluntarily absented herself from the September 18, 2007 proceeding. The court ruled that it would not render a judgment of default against the respondent and that the trial would proceed in her absence. The petitioner presented testimony from six witnesses, each of whom Dubin had the opportunity to cross-examine. Also, the petitioner placed twenty exhibits into evidence without objection. The court, on January 16, 2008, rendered judgment terminating the respondent’s parental rights. The court found, by clear and convincing evidence, that the respondent had not achieved a sufficient degree of personal rehabilitation as required under § 17a-112 (j) (3) (B) and that it was in the child’s best interest to terminate the respondent’s parental rights.

“The United States Supreme Court established a three-pronged balancing test in [Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976)] to determine what safeguards the federal constitution requires to satisfy procedural due process. Courts apply that balancing test when the state seeks to terminate parental rights. . . . The three prongs 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. . . . The bottom-line question is whether the denial rendered the trial fundamentally unfair in view of the Mathews factors.” (Citations omitted; emphasis added.) In re Shaquanna M., 61 Conn. App. 592, 606, 767 A.2d 155 (2001).

The respondent’s interest in retaining her parental rights as to the child is constitutionally protected. In re Juvenile Appeal (Docket No. 10155), 187 Conn. 431, 436, 446 A.2d 808 (1982). A petition to terminate parental rights threatens the respondent’s interest. In re Alexander V., 223 Conn. 557, 561, 613 A.2d 780 (1992). Accordingly, the respondent’s claim meets the first prong of Mathews.

The second prong concerns the risk of error occasioned by the respondent’s absence from the termination trial. We note that the respondent was represented at this trial by counsel. This court has stated that “[i]t is in the interest of justice to ensure that any parent caught in the throes of a termination proceeding be present, or at least represented by counsel, from the beginning of the hearing.” (Emphasis added.) In re Jonathan P., 23 Conn. App. 207, 212, 579 A.2d 587 (1990). There can be, however, circumstances in a termination hearing in which the mere presence, alone, of a respondent’s counsel, is not sufficient for a court to proceed in the respondent’s absence. Id., 212-13. This is no such circumstance.

The respondent argues that by conducting the trial in her absence, the court denied her the procedures intended to protect her interests. Specifically, the respondent contends that the court failed to adhere to the applicable procedural safeguards found in our rules of practice and the statutory scheme for termination of parental rights. We disagree. In proceeding with the trial on the merits, the court required the petitioner to prove by clear and convincing evidence not only the ground for termination, but that it was in the child’s best interest for the respondent’s parental rights to be terminated. After a careful review of the record, we conclude that the court adhered to all applicable procedural safeguards, including those the respondent alleges were violated, and provided the respondent with the due process required.*

The third prong of the Mathews test concerns the government’s interest, including the economic and administrative burdens associated with increased or substitute procedural requirements. The petitioner has an interest in lessening the costs of a termination trial. In re Alexander V., supra, 223 Conn. 565. Delaying this trial, however, in light of the fact that all party representatives were present, as well as six witnesses for the petitioner, and valuable resources had been allocated, would have resulted in the very economic and administrative burdens on resources considered by this prong. Moreover, “as parens patriae, the state is . . . interested in the accurate and speedy resolution of termination litigation in order to promote the welfare of the affected child. ... As [this court has] correctly noted, because of the psychological effects of prolonged termination proceedings on young children, time is of the essence. Any significant delay would undermine the state’s important interest in protecting the welfare of children. This cost, and the state’s interest in avoiding it, would rise as the delay increased. Accordingly, we recognize that the state has a vital interest in expediting the termination proceedings . . . .” (Citation omitted; internal quotation marks omitted.) Id. Here, delaying the matter, under these circumstances, would place an unnecessary burden on the petitioner’s interest in providing permanency to children. Therefore, the third prong of Mathews favors the petitioner.

The respondent has failed to demonstrate that she was denied due process pursuant to the Mathews test.

II

The respondent’s second claim is that the court committed plain error by trying the termination of parental rights petition in her absence in violation of the rules of practice and the statutory scheme for termination of parental rights. We concluded in part I that the court adhered to the rules of practice and the statutory scheme, and, therefore, the respondent’s claim fails on its merits.

The judgment is affirmed.

In this opinion the other judges concurred.

       The father’s parental rights also were terminated. He is not a party to this appeal. We therefore refer in this opinion to the respondent mother as the respondent.

       The respondent also asserts that the court violated her due process rights under article first, § 10, of the constitution of Connecticut. The respondent, however, has provided no independent state constitutional analysis for the claim. In the absence of such analysis, we limit our review to her federal constitutional claim. See State v. Robertson, 254 Conn. 739, 743 n.5, 760 A.2d 82 (2000).

       “ ‘Protective supervision’ means a status created by court order following adjudication of neglect whereby a child’s place of abode is not changed but assistance directed at correcting the neglect is provided at the request of the court through the Department of Children and Families or such other social agency as the court may specify . . . .” General Statutes § 17a-93 (i).

       General Statutes § 17a-112 Q) provides in relevant part: “The Superior Court, upon notice and hearing as provided in sections 45a-716 and 45a-717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that ... (3) ... (B) the child (i) has been found by the Superior Court or the Probate Court to have been neglected or uncared for in a prior proceeding, or (ii) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .”

       The record does not reveal the name of the respondent’s counsel at the plea hearing; however, it is evident that it was not the same counsel who represented the respondent at the September 18, 2007 trial.

       The fourteenth amendment to the federal constitution provides in relevant part that no state shall “deprive any person of life, liberty or property, without due process of law . . . .” U.S. Const., amend. XIV, § 1.

       The petitioner contends that the respondent raises this issue for the first time on appeal. We disagree. The record reveals that the respondent’s counsel at the September 18, 2007 trial specifically objected to proceeding in the respondent’s absence. Although this objection did not expressly state a due process claim, it is evident from the record that it was considered as such by the court. In ruling on the objection, the court found that the respondent had received proper notice in open court and that she was represented by counsel at that time.
      In ruling on the respondent’s motion to stay judgment pending appeal, the court, in large part, formed its decision by addressing the merits of the due process issues raised by the respondent. Therefore, in these circumstances, it is evident that this claim fits within the parameters of this court’s holding that it will hear a claim only if “it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim.” McGuire v. McGuire, 102 Conn. App. 79, 87, 924 A.2d 886 (2007).

       The court subsequently, in its ruling on the respondent’s motion to stay judgment pending appeal, took judicial notice that 235 Church Street, New Haven, is the address of the Superior Court, which hears civil, criminal and family matters for the judicial district of New Haven.

       The respondent contends that the court’s proceeding in her absence was in direct opposition to General Statutes §§ 17a-112 Q), 45a-716 (b) through (d), 45a-717 (a), 46b-135 (Tb), and the rules set out in Practice Book §§ 26-1 (h), 32a-l (b), 32a-2 (b), 33a-2 (b), 35a-l (a), 35a-8 and 35a-18.

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

       The respondent argued that her due process rights would have been protected fully had the court rendered a judgment of default as opposed to proceeding with the trial in her absence. The respondent, however, failed to articulate precisely howfewer procedural safeguards could more effectively protect her constitutional rights than those employed here by the court. Because we conclude that the court provided the respondent with the due process required, we need not address this claim.

       Practice Book § 60-5 provides in relevant part: “The [reviewing] court may in the interests of justice notice plain error not brought to the attention of the trial court. ...”