author: WEST, J.

text:
    IN RE JOSEPH L. ET AL.

    (AC 28159)
    (AC 28160)
    McLachlan, Graendel and West, Js.

      Argued September 25, 2007
    officially released January 29, 2008

      David B. Rozwaski, for the appellant (respondent mother).

      John E. Hudson, for the appellant (respondent father).

      Tammy Nguyen-O’Dowd, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

      Linda K. Herzner, for the minor children.

       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

WEST, J.

The respondent mother and the respondent father each appeal from the judgments of the trial court rendered in favor of the petitioner, the commissioner of children and families, terminating their parental rights with respect to their minor children, J and M. On appeal, both respondents claim that the court improperly (1) found that they had failed to achieve sufficient personal rehabilitation, (2) found that the termination of parental rights was in the best interests of the children and (3) refused to appoint a guardian ad litem for the minor children. The respondent father also claims that (4) the court improperly refused to certify the children’s therapist as an expert. We affirm the judgments of the trial court.

The court found the following facts. The children involved in this proceeding are the respondent mother’s ninth and tenth children and the respondent father’s fourth and fifth children. None of the respondents’ other children have remained in their care. Both respondents have had substantial dealings with the department of children and families (department) prior to this proceeding.

The respondent mother, bom May 26, 1964, was herself committed to the custody of the petitioner in 1977 at the age of thirteen. She has had ten children who were fathered by eight different men. Her parental rights were terminated with respect to three of her children, two of them were given to a woman who offered herself as a placement resource, and three of them axe in the custody of their fathers. The respondent mother lost custody of all of her children due to her issues with substance abuse and depression, her predisposition to involvement in abusive relationships with various men and her neglect and abuse of her children.

On September 17, 1999, the respondent mother gave birth to her ninth child, J. In February, 2000, when J was approximately four months old, both respondents were arrested following a domestic violence incident. Both of them were convicted of disorderly conduct for this incident. On May 11, 2002, the respondent mother had M, her tenth child, with the respondent father. In September, 2003, the department received a referral after the respondent mother was arrested for a motor vehicle violation when she was alleged to have been smoking marijuana while her children were in the car with her. She was convicted of possession of marijuana.

In October, 2003, the respondent mother tested positive for illicit substances. The department offered substance abuse evaluations, parent education classes and in-home services to both respondents. The respondents refused in-home services but did attend the parenting class. The respondent father refused the substance abuse evaluation, but the respondent mother participated in a hair test, which was positive for marijuana. She also participated with the Morris Foundation for substance abuse and the McCall Foundation for counseling.

In April, 2004, J’s day care center called the department to report that J had bruising on his lower back and buttocks and that J had reported that the respondent mother had hit him with a belt. In June, 2004, the respondent father came home one day to find that the respondent mother had left and had taken the children with her to Florida. He went to Florida to retrieve them. Soon thereafter, the respondent mother called the department from Florida and made numerous statements regarding the respondent father’s treatment of her. She stated that she would do anything to stay away from him and to keep the children safe. She also stated that her history with him included substance abuse, verbal abuse, physical abuse, control and stalking. She also reported that he had opened her mail, did not allow her to have many friends visit and did not permit her to go anywhere. Two days later, the department was contacted by the authorities in Florida, who reported that the police had received reports that the respondent father had threatened the respondent mother and the people she had been living with and that he had slashed the car tires of those people.

In July, 2004, the department received a referral from authorities in Florida regarding J and M. The Florida authorities reported that the respondent mother had returned to Connecticut to attend a court hearing and had left the children in Florida. She was arrested at the court hearing and incarcerated.

The respondent father was bom on May 24,1957. He has five children with four different women, and he does not have custody of the first three children. He was involved in several abusive relationships prior to meeting the respondent mother. His abuse of his female partners contributed to his failure to retain custody of his children. In addition, he has a thirty year criminal record, including convictions for possession of marijuana, harassment, violation of protective orders, disorderly conduct and violation of probation.

The respondent father then had J and M with the respondent mother. Approximately two months after the Florida incident, on August 2,2004, orders of temporary custody were issued as to both children by the Superior Court. At this point, the children were in the care of the respondent father. The department, along with the Watertown police, went to his house to execute the orders of temporary custody, but he refused to answer the door. In response, the police entered the home on their own. The department retrieved the two children, and the respondent father was arrested for interference. A social worker testified that J told her in the car on the way to the foster home that his parents beat each other up when they get angry with one another and that he and his brother were hit when they were bad.

The respondents eventually reconciled but not without more drama. In September, 2004, the respondent mother was driving while intoxicated and got into an accident with one of the respondent father’s motor vehicles. On that same evening, she threatened to commit suicide and subsequently was taken to a hospital for psychiatric evaluation. Specific steps for reunification were issued by the court, Brunetti, J., on August 2, 2004, and on September 4,2004, by the court, C. Taylor, J. The specific steps required the respondents to do the following: keep all appointments set by or with the department, keep their whereabouts and their children’s whereabouts known to the department, participate in individual and family counseling, undergo substance abuse assessment, submit to random drug testing, secure and maintain adequate housing and income, refrain from substance abuse, avoid any further involvement with the criminal justice system, consistently and timely meet and address the children’s physical, educational, medical and emotional needs, visit the children as often as permitted and conduct themselves appropriately during visits.

The respondent mother has complied with some of the steps. She has had no more criminal convictions, has maintained housing with the respondent father, has attended an intensive outpatient program that provided parenting classes and urine and hair sample tests for substance abuse and has visited with the children regularly. Nevertheless, she had positive hair tests until November, 2005, refused to participate in a program for domestic violence services because she claimed there was no violence in her relationship with the respondent father, has been unemployed since the issuance of the steps and still depends on the respondent father for financial support.

The respondent father also has complied with some of the steps. He has maintained stable housing, has engaged in parenting classes and substance abuse treatment, has completed a domestic violence program and has engaged in individual and couples counseling. He did not participate in family counseling, however, and has not been employed consistently.

In part, as a result of the respondents’ failure to comply fully with the court-ordered specific steps, the petitioner filed petitions on May 17, 2005, pursuant to General Statutes § 17a-112 et seq. to terminate the respondents’ parental rights with respect to their children, J and M. The petitioner alleged that the respondents were the parents of children younger than age seven who were neglected or uncared for; they failed, or were unable, to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the ages and needs of the children, they could assume a responsible position in the children’s lives; and that their parental rights as to another child previously had been terminated pursuant to a petition brought by the petitioner. A neglect petition also was filed on August 2, 2004. On November 30, 2005, the court, C. Taylor, J., consolidated the neglect and termination of parental rights petitions. Both matters were tried before the court, Jongbloed, J., on March 6 through 10, May 19 and June 2, 2006. Judge Jongbloed found that the children were neglected, that the parents had failed to achieve rehabilitation and could not do so within a reasonable time period, and that termination of parental rights was in the best interests of the children. These appeals followed. Additional facts will be set forth as necessary.

As a preliminary matter, we set forth the legal principles that guide our resolution of the respondents’ claims. “Our standard of review on appeal from a termination of parental rights is whether the challenged findings are clearly erroneous. . . . The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous. ... On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. . . . Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling. ... A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. ... In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights [under § 17a-112 (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 Ryan R., 102 Conn. App. 608, 617-18, 926 A.2d 690, cert. denied, 284 Conn. 923, 924, 933 A.2d 724 (2007).

I

Both respondents argue that the court improperly found that they had failed to achieve sufficient personal rehabilitation pursuant to § 17a-112 (j) (3) (E). We disagree.

The respondent mother argues that there is evidence in the record to indicate that there was reason to believe that she could assume a responsible position in the life of her children within a reasonable time. She argues that she has not used illegal drugs since 2004, has participated in parenting classes and will continue to participate in services offered by the department. Therefore, she argues, the court’s finding that she did not have sufficient stability or sobriety to meet the needs of the children was not supported by the record. We disagree.

The court found by clear and convincing evidence that the respondent mother had not achieved a sufficient degree of rehabilitation as would encourage the belief that within a reasonable time, considering the ages and needs of the children, she could assume a responsible position in the lives of the children. Because the record clearly supported the court’s finding, we conclude that the court’s finding was not clearly erroneous.

“Personal rehabilitation . . . refers to the restoration of a parent to his or her former constructive and useful role as a parent . . . [and] 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 she has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date she can assume a responsible position in her child’s life.” (Internal quotation marks omitted.) In re Samantha C., 268 Conn. 614, 628-29, 847 A.2d 883 (2004). The court found that, as of the adjudication date, the respondent mother continued to have a substantial substance abuse problem and continued to be under the respondent father’s control. The court farther found that she had a long history of abusive, dependent relationships that greatly impaired her parenting ability and that her present abusive, dependent relationship continued the same pattern. Lending itself to this matrix is the fact that she had not obtained any employment and was dependent on the respondent father for all of her economic needs, including, but not limited to, food, shelter and transportation. Moreover, the respondent father had surveillance cameras positioned inside and outside of his house, furthering his complete control over her.

The respondent father argues that the court improperly relied heavily on the opinion of J. Leslie Kurt, a psychiatrist, who testified at trial as an expert in adult and forensic psychiatry. Kurt had stated in a written evaluation that antisocial personality disorder, with which the respondent father had been diagnosed, was generally regarded as an untreatable disorder. The respondent father argued that it was clear error to rely on the opinion of Kurt because she had not met with or evaluated him since 1996. Furthermore, the respondent father claims that the court improperly failed to perceive the different prognosis of Robert Neems, a psychologist, who testified at trial as an expert in clinical and forensic psychology. The respondent father argues that Neems, who had evaluated him in 2005, also had testified that the symptoms of antisocial personality disorder do diminish. Finally, the respondent father argues that he had sought treatment, had gone to parenting classes and had gone to a drug counseling program. Therefore, he asserts, the court’s finding that he had failed to achieve rehabilitation was clearly erroneous. We disagree.

The court found that the respondent father had substance abuse issues after the filing of the petitions for termination of parental rights. In addition, the court found that in the self-assessment, which he completed at the beginning of the domestic violence program in October, 2004, he denied any physical or emotional abuse of a partner in the previous seven years. He also represented that he had not threatened to take the children away, to call the department or to withhold access to the children in that period of time, nor had he damaged any property as a form of intimidation. The court found that he had been completely untruthful. He had threatened to take the children away from the respondent mother, had engaged in acts of violence against her and had damaged property.

Additionally, the court found that the respondent father failed to provide his therapist, Judith Tsukroff, with relevant information, thereby preventing his therapist from understanding the situation in its entirety and from getting an accurate view of his difficulties. Finally, the court noted that Kurt had diagnosed him with antisocial personality disorder and had written that the disorder was generally regarded as an untreatable disorder. Although the respondent father tried to claim that his compliance with the specific steps and decreased level of criminal activity demonstrated his rehabilitation, the court found that Kurt rendered other explanations for his improvements. She testified that often, individuals with antisocial personality disorder do not have criminal records. Furthermore, the recent absence of physical violence was not surprising in light of the intense scrutiny by the court and the department. Finally, the respondent father’s fundamental issue of coercive, controlling and aggressive personality style persists despite any recent lack of physical violence.

The court further found that neither respondent complied fully with all of the requirements set out in the specific steps issued by the court. The respondent mother did not refrain from substance abuse and refused to participate in the domestic violence program. The respondent father did attend required services, but he was not truthful with his providers, thereby diminishing his capacity to benefit from the services. The court also found that the department had been involved with the respondents as early as 2003 and that neither parent had shown any real improvement over that substantial period of time. The court cited the testimony of Neems, who evaluated the respondents between December, 2004, and February, 2005, and who stated that the respondent mother’s history of substance abuse, dependency on poorly chosen partners and irresponsibility regarding her children have had a significant impact on her parenting, and “unless she were to remedy them very dramatically, [these factors] would continue to impact her parenting of children.” We conclude that the record amply supports the court’s finding that as of the adjudicatory date, the “respondents had not brought themselves into a position in which they could provide adequate care for the children.”

The court then considered whether events occurring after the adjudicatory date established “a degree of rehabilitation that is sufficient to foresee that the parents may resume a useful role in the child’s life within a reasonable time.” (Internal quotation marks omitted.) Quoting In re Stanley D., 61 Conn. App. 224, 230, 763 A.2d 83 (2000). The court noted that both respondents had made some improvements since the adjudicatory date. The respondent mother remained substance free after a positive October, 2005 drug test, and the respondent father had not had any recent arrests. The court found, however, that there were several other factors that led to the conclusion that they had not achieved a sufficient degree of rehabilitation and that such rehabilitation was not foreseeable within a reasonable time. Buttressing this conclusion, the court found that in light of the respondent father’s history, his recent behavior, including cutting a neighbor’s telephone wire, slashing tires and involving the children in an “interstate tug-of-war,” demonstrated that he was not in a position to parent his children. Furthermore, the court found that he was not economically stable, as he continued to work only seasonally and filed a petition in bankruptcy in October, 2005. As for the respondent mother, the court found that she continued to be dependent on the respondent father for all her needs, had not gained employment and remained under his coercive control. Therefore, although the respondents had made some improvements, the court found that they had not achieved rehabilitation to the degree that would encourage the belief that they would be in such a position to assume a useful role in their children’s lives within a reasonable time.

We agree with the court. “ [E] ven if a parent has made successful strides in her ability to manage her life and may have achieved a level of stability within her limitations, such improvements, although commendable, are not dispositive on the issue of whether, within a reasonable period of time, she could assume a responsible position in the life of her children.” In re Alejandro L., 91 Conn. App. 248, 260, 881 A.2d 450 (2005). Indeed, as the court pointed out, the issue is not whether the parents have improved their ability to manage their own lives, but whether the parents have gained an ability to care for the specific needs of their children. See In re Mariah S., 61 Conn. App. 248, 261, 763 A.2d 71 (2000) (“[t]he critical issue is whether the parent has gained the ability to care for the particular needs of the child at issue” [internal quotation marks omitted]), cert. denied, 255 Conn. 934, 767 A.2d 104 (2001).

In the present case, each of the children has behavioral issues that require medication and therapy. J was diagnosed with post-traumatic stress disorder traits, physical and emotional abuse and attention deficit hyperactivity disorder. M was diagnosed with adjustment disorder unspecified, attention deficit hyperactivity disorder and post-traumatic stress disorder. He also takes Focalin for his attention deficit hyperactivity disorder. The court found that, despite their efforts, the respondents remain incapable of providing day-to-day care for the children within a reasonable time. Although the respondents have made some improvements in managing their own lives, they have not gained an ability to care for the specific special needs of their children. After reviewing the record, we conclude that the court’s finding that the respondents failed to achieve a sufficient degree of rehabilitation in accordance with § 17a-112 (j) (3) (E) is not clearly erroneous.

II

Both respondents claim that the court improperly found that termination of their parental rights was in the best interests of the children. We disagree.

“The best interests of the child include the child’s interests in sustained growth, development, well-being, and continuity and stability of its environment. ... In the dispositional phase of a termination of parental rights hearing, the trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent’s parental rights is not in the best interest of the child. In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in [§ 17a-112 (k)].” (Citation omitted; internal quotation marks omitted.) In re Ryan R., supra, 102 Conn. App. 625-26.

The court thoroughly considered each of the seven criteria in its memorandum of decision before concluding that termination of parental rights was in the children’s best interests. Both respondents argued that a bond of love existed between them and the children. The respondent mother argued that she had consistent visits with her children and always was caring and nurturing during those visits. The respondent father argued that he had dedicated himself seriously to rehabilitation and that the department never really considered reunification as an option.

The court considered several factors in deciding whether to terminate the parental rights of the respondents, including, among others, the emotional bonds between the children and the respondents, the stability of placement required by the children, the nature of the children’s relationships with their foster parents and with the respondents, and the degree of contact maintained with the respondents. The court found that the department offered many services to the respondents, only some of which they took advantage. The court also found that the respondents complied with some of the specific steps issued by the court but not all of them. Their failure to comply with these court-ordered specific steps was detrimental to the children. For example, the respondent father’s inability to maintain steady employment precluded his supporting his children financially. In addition, the respondent mother’s refusal to participate in a program for domestic violence services put the children at risk for continued living in a coercive, abusive household. Finally, the court found that the respondents had maintained a regular visiting relationship with the children and that, although they had made some progress recently in terms of remaining substance free and living within the law, they continued to be unable to resume a responsible parental role in their children’s lives.

The court focused on the children. The court found that the children needed but lacked permanency, consistency and stability in their lives and noted that their attorney recommended termination of the respondents’ parental rights. The court recognized that although the children did have an attachment to their parents and enjoyed their visits with them, that affection, under the circumstances, would not preclude termination. We agree with the court. Although the children may have had a bond with their parents, “[o]ur courts consistently have held that even when there is a finding of a bond between parent and a child, it still may be in the child’s best interest to terminate parental rights. ” (Internal quotation marks omitted.) Id., 627. The court found that “ [d] espite the existence of a bond with parents, termination can nevertheless be in a child’s best interest.” The court found that although both respondents love their children, they are “unable to assume a responsible parental role for the children.” For instance, the respondent mother has chosen to continue her relationship with a violent, controlling individual on whom she is completely dependent. Additionally, the court found that the children had already endured difficulties in their lives, “including the trauma of witnessing various domestic violence incidents and living in an environment of coercive control by the respondent father.” Finally, the court found that the respondents “remain unable to provide the day-to-day care these children need within a reasonable time.” The record amply supports the court’s finding that termination was in the best interests of the children. Therefore, we conclude that it was not clearly erroneous for the court to have found that it was in the best interests of the children to terminate the parental rights of the respondents.

Ill

Next, the respondents argue that the court improperly refused to appoint a guardian ad litem for the minor children. We disagree.

The following additional facts are relevant to the disposition of the respondents’ claim. On November 30, 2005, prior to trial, the court heard the motions filed by the parties. Counsel for the respondent father made an oral motion, asking the court to appoint a guardian ad litem for the children. The court heard arguments by the parties and denied the request for the appointment of a guardian ad litem. Subsequently, on March 29, 2007, the court articulated on the record the legal reasoning behind its decision. At the motions hearing, the respondent father’s attorney argued for the appointment of a guardian ad litem because J was making statements that he wanted to be with his father and wanted to go home. The court asked the respondent mother’s attorney if she had an opinion on the matter, and she stated that she would join in the motion of the respondent father’s attorney for the reasons he articulated. In response, the attorney representing the petitioner asked the respondent father’s attorney to articulate, given the case law, why a guardian ad litem was necessary. The attorney stated that he believed that the attorney representing the children might not be articulating what the children wanted but, instead, was representing what was in the best interests of the children.

The attorney representing the children then spoke, indicating that there was no conflict between the best interests of the children and what they had articulated because their verbalizations were inconsistent. Furthermore, she stated that both children were at a developmental stage that precluded them from truly understanding the issues and even their desires.

In the articulation of its decision, the court began by citing the relevant statute, General Statutes § 46b-129a (2), which provides in relevant part: “[A] child shall be represented by counsel knowledgeable about representing such children who shall be appointed by the court to represent the child and to act as guardian ad litem for the child. The primary role of any counsel for the child including the counsel who also serves as guardian ad litem, shall be to advocate for the child in accordance with the Rules of Professional Conduct. When a conflict arises between the child’s wishes or position and that which counsel for the child believes is in the best interest of the child, the court shall appoint another person as guardian ad litem for the child. The guardian ad litem shall speak on behalf of the best interest of the child and is not required to be an attorney-at-law but shall be knowledgeable about the needs and protection of children. ...” The court then cited In re Christina M., 280 Conn. 474, 908 A.2d 1073 (2006), for the proposition that “it is necessary to establish a sufficient record for a trial court to inquire as to whether a conflict exists.” The court found that the argument made by the respondent father’s counsel was not persuasive. The court found that the respondent father had failed to show that both children expressed a wish to return to the family home, that the sentiments allegedly expressed by J were knowingly made and that the child was capable of expressing such a sentiment. Furthermore, the court noted, the respondent father’s attorney did not request an evidentiary hearing on the issue. The court also found that the attorney representing the children did not perceive any conflict between her role as an advocate and her role as a guardian ad litem. Finally, the court found that the children’s attorney was “a venerable practitioner in juvenile matters . . . .”

Whether a conflict exists between what is in the child’s best interest and what a child wants is essentially a question of fact for the court. In addition to setting forth sufficient evidence to demonstrate a conflict, the respondents must also demonstrate that the alleged improper failure by the court to appoint a guardian ad litem affected the result of the trial. See In re Brendan C., 89 Conn. App. 511, 521, 874 A.2d 826, cert. denied, 274 Conn. 917, 879 A.2d 893, cert. denied, 275 Conn. 910, 882 A.2d 669 (2005).

We agree that the respondent father did not provide enough information to enable the court to conclude that a conflict existed between what the children wanted and what their attorney believed was in their best interests. The respondent father’s attorney mentioned only vague statements made by J. He did not request an evidentiary hearing on the issue when the children’s attorney opposed the motion for a guardian ad litem. In In re Christina M., the respondents alleged that there was a conflict because one of the minor children had made representations to the court-appointed psychologist that she wanted to go home with her parents and that her parents took care of her and her sisters. In re Christina M., supra, 280 Conn. 493. In contrast, in the present case, the respondent father did not allege that either of his sons had made any representations to a third party of any kind, including a psychologist or some type of evaluator. In the present case, the respondent father argued that J was making statements that he wanted to be with his father and that he wanted to go home. Counsel’s argument did not provide a sufficient basis for the court to find a conflict between what was in the best interests of the children and what they wanted.

Even if the respondent father had made an offer of proof to support the finding of a conflict, he did not demonstrate that the court’s failure to appoint a guardian ad litem affected the result of the trial. Under the statute, the guardian ad litem must speak on behalf of the best interests of the children, and the court found by clear and convincing evidence that termination of parental rights was in the best interests of the children. In In re Brendan C., the court concluded that “[h]ad a guardian ad litem been appointed, the guardian ad litem’s duty would have been to advocate the best interest of the child, which was shown by clear and convincing evidence to be the termination of the respondents’ parental rights. The child’s counsel would have been free to advocate exclusively for the child’s legal interests, which she maintains would be the same position she took during the trial. The respondents fail to explain how the addition of a person advocating for the termination of parental rights would change the result of the trial, which was termination.” In re Brendan C., supra, 89 Conn. App. 521. Because the respondents failed to explain how the court’s failure to appoint a guardian ad litem would have affected the trial, their claim fails.

IV

Last, the respondent father argues that the court improperly refused to acknowledge the children’s therapist as an expert. We disagree.

The following facts are relevant to the disposition of this issue. On March 10, 2006, Samantha Littman, a licensed professional counselor, testified regarding her interactions with the children. Littman was the licensed clinician in the safe home where the children were residing at the time of trial. At the time of trial, she had 3000 hours of supervised experience, including 100 hours of experience under direct supervision. In addition, Littman testified that she obtained her counselor’s license on January 30, 2006, a little less than six weeks prior to her testifying at the trial. The focus of her work was facilitating the children’s getting along with one another and with the other children and staff at the safe house. Finally, Liftman was never present throughout an entire visit that the children had with the respondents. Nevertheless, she was able to testify regarding the existence of a “bond” between the children and the respondents.

“[T]he trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions. . . . The court’s decision is not to be disturbed unless [its] discretion has been abused, or the error is clear and involves a misconception of the law.” (Internal quotation marks omitted.) State v. DiLoreto, 88 Conn. App. 393, 398, 870 A.2d 1095 (2005). In order to qualify Liftman as an expert witness in the area of counseling, the respondent father had to demonstrate “that she had the special skill or knowledge directly applicable to a matter in issue . . . that [her] skill or knowledge is not common to the average person, and [that her] testimony would be helpful to the court or jury in considering the issues.” (Internal quotation marks omitted.) Id.

The court decided not to certify Liftman as an expert in the field of counseling. The court based its decision on the fact that Liftman was “extremely new to the field.” The court held, however, that it could still consider all of her testimony as a witness who had been able to observe the relevant parties in the case. We agree with the court.

In the present case, the witness, Liftman, had been licensed for slightly fewer than six weeks prior to testifying at the trial. Although she had had many hours of supervised experience, she was still very new to the field, and therefore the court was hesitant to qualify her as an expert. The court acted well within its discretion by considering the amount of time she had been certified as a counselor in deciding whether to qualify her as an expert. See Anderson v. Whitten, 100 Conn. App. 730, 737, 918 A.2d 1056 (2007) (court considered fact that witness had thirty years experience in field in deciding to qualify witness as expert).

Even if the court had abused its discretion by refusing to qualify Littman as an expert, the respondent father’s claim would be unsuccessful because he has failed to show the harmfulness of the evidentiary ruling. “Under the current and long-standing state of the law in Connecticut, the burden to prove the harmfulness of an improper evidentiary ruling is borne by the defendant. The defendant must show that it is more probable than not that the erroneous action of the court affected the result.” (Internal quotation marks omitted.) State v. DeJesus, 260 Conn. 466, 485, 797 A.2d 1101 (2002). The respondent father argued that “[g]iven the importance of Liftman’s testimony about the parent-child bond and the children’s verbalizations about the parent-child relationship, the [c]ourt’s refusal to recognize Ms. Littman as an expert went beyond mere harmless error.” The court, however, held that it would consider her testimony as it related to her having observed the children and the respondents, even though she was not qualified as an expert witness. Moreover, the court recognized the existence of a bond between the children and the respondents but still held that termination was in the best interests of the children. Therefore, the respondent father failed to prove the harmfulness of the alleged improper evidentiary ruling.

The judgments are affirmed.

In this opinion the other judges concurred.

       This list is not exhaustive, but it is fairly representative of the steps required by the court. The full list of specific steps is contained in the court’s memorandum of decision.

       The respondents do not appeal from the granting of the neglect petitions.

       General Statutes § 17a-112 (j) provides in relevant part: “The Superior Court . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that (1) the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent in accordance with subsection (a) of section 17a-111b, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts, except that such finding is not required if the court has determined at a hearing pursuant to section 17a-lllb, or determines at trial on the petition, that such efforts are not required, (2) termination is in the best interest of the child and (3) . . . (E) the parent of a child under the age of seven years who is neglected or uncared for, has failed, is unable or is unwilling to achieve such degree of personal rehabilitation as would encourage' the belief that within a reasonable period of time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child and such parent’s parental rights of another child were previously terminated pursuant to a petition filed by the Commissioner of Children and Families . . .

       The court referred to two instances of property damage. The respondent father had slashed the tires of the respondent mother’s friends, whose home the respondent mother had taken her children to in Florida. Second, the respondent father had cut the telephone wires of his neighbors when he learned that they had helped the respondent mother get away from his house.

       General Statutes § 17a-112 (k) provides in relevant part: “[I]n determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended; (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (4) the feelings and emotional ties of the child with respect to the child’s parents, any guardian of such child’s person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (5) 1he age of the child; (6) the efforts the parent has made to adjust such parent’s circumstances, conduct, or conditions to make it in the best interest of the child to return such child home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions, and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    LIANA FIGUEROA v. ALLSTATE INDEMNITY COMPANY
    (AC 27492)
    Flynn, C. J., and Harper and Dupont, Js.
    Argued September 11, 2007
    officially released January 29, 2008

      Steven L. Seligman, for the appellant (plaintiff).

      Linda L. Morkan, with whom, on the brief, were Daniel F. Sullivan and Gerald P. Dwyer, Jr., for the appellee (defendant).
   Opinion

PER CURIAM.

This appeal follows the granting of a motion for summary judgment in favor of the defendant, the Allstate Indemnity Company (Allstate), in an action brought by the plaintiff, Liana Figueroa, as a judgment creditor, against Allstate, as an insurer, pursuant to General Statutes § 38a-321. The primary issue is whether coverage for a six month automobile liability insurance policy issued by Allstate to its insured, Fikret Siljkovic, was in effect on the date the insured’s son, while driving his father’s car, seriously injured the plaintiff.

Allstate’s motion for summary judgment was based on two grounds. The first was that there was no insurance coverage in effect when the plaintiff was injured. The second alternate ground was that Siljkovic had concealed material information, the fact that his son was a driving member of his household with a driver’s license at the time Siljkovic applied for insurance, which fact nullified coverage. The court granted the motion on the first ground and, therefore, did not consider the second alternate ground. We affirm the judgment of the trial court.

Summary judgment is properly rendered when the pleadings, affidavits and any other proof show that there is no genuine issue of any material fact and that the moving party is entitled to judgment as a matter of law. Practice Book § 17-49. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party, with the ultimate test being whether the movant would be entitled to a directed verdict on the same facts. Mazurek v. Great American Ins. Co., 284 Conn. 16, 26-27, 930 A.2d 682 (2007). Our review is plenary, with the question being whether the court’s decision to grant summary judgment is legally and logically correct and is supported by the material facts found as undisputed. Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 752-57, 905 A.2d 623 (2006); Taricani v. Nationwide Mutual Ins. Co., 77 Conn. App. 139, 145, 822 A.2d 341 (2003).

Most of the facts are not in dispute. On September 21, 2001, Siljkovic went to the office of an Allstate insurance agent, Andrea Birmingham, accompanied by his eighteen year old daughter, Nihada Siljkovic, as an inteipreter because he spoke English poorly, to apply for insurance for his two cars. He sought automobile liability coverage for bodily injury ($20,000-$40,000), for property damage ($25,000) and for uninsured-underin-sured motorists coverage ($20,000-$40,000) for each vehicle. He paid an estimated premium of $523.80 per vehicle plus a $30 nonrefimdable policy fee for a total of $1077.60, which he charged to his MasterCard account.

The application he signed stated that there were two members of his household, he and his nondriver spouse, Adila Siljkovic. He did not list either Nihad Siljkovic, his seventeen year old son, or Nihada Siljkovic as occupants of the household or as drivers. The Connecticut driver’s history for Nihad Siljkovic, which accompanied Allstate’s motion for summary judgment, stated that he had obtained a Connecticut driver’s license on July 27, 2000, and that he was seventeen years old as of September 21, 2001.

On September 26, 2001, Allstate mailed a notice of cancellation of the temporary insurance coverage to Fikret Siljkovic, a receipt for the delivery of which he signed on September 29, 2001. The stated reason for the cancellation was that Allstate could not obtain a “loss history record” or a “valid motor vehicle record” for Adila Siljkovic, and “[additionally, [it was] based in part on information contained in a credit report . . . .” The notice stated: “Your coverage will remain in effect until the cancellation date and time shown above. However, in the event that any premiums are not paid when due, we may cancel your coverage prior to that cancellation date and time.” The cancellation date in the notice was November 21, 2001, at 12:01 a.m.

On October 2, 2001, Birmingham sent a letter on Allstate’s letterhead to Fikret Siljkovic, explaining that the policy obtained on September 21, 2001, had to be rewritten because Allstate did not have his wife’s social security number. Birmingham did not state anything in the letter about needing more information about his credit, nor had the application for the coverage sought a social security number for Adila Siljkovic. The letter’s second sentence was as follows: “Please bring in a copy of your wife’s social security card, when you receive your refund check and we will rewrite the policy effective the date the first one cancels.” It is this sentence on which the plaintiff relies on appeal to conclude that Fikret Siljkovic had coverage on November 22, 2001, the date she was injured.

Allstate refunded to Fikret Siljkovic $720.90 of the $1077.60 he had paid on September 21, 2001, by crediting his MasterCard account on September 27,2001, thus charging him $356.70 for coverage from September 21 to November 21, 2001. The record does not indicate the date that Fikret Siljkovic received his MasterCard statement first crediting the refund or if he had received a MasterCard statement between September 27 and December 5 or 6, 2001. Fikret Siljkovic returned to Birmingham’s office on December 6, 2001, with his wife’s social security number and obtained automobile insurance coverage with a different application number, a different premium for the same monetary coverage and a different expiration date. He again charged the premium to his MasterCard.

On November 22, 2001, the plaintiff was struck while walking across a street by a motor vehicle owned by Fikret Siljkovic and driven by Nihad Siljkovic. On January 8, 2002, Allstate notified the plaintiffs lawyer that it would not provide coverage for the plaintiffs injuries because the Siljkovic policy had been terminated on November 21, 2001. Allstate did not defend the action brought by the plaintiff against Fikret Siljkovic. He was defaulted for failure to appear, and, at a subsequent hearing in damages, the plaintiff obtained a judgment of $4,358,269.36 for her economic and noneconomic damages.

The trial court noted certain facts that it deemed relevant in its memorandum of decision. The court reviewed the content of the October 2, 2001 letter and found that Fikret Siljkovic took no action as to it prior to November 21, 2001, at 12:01 a.m. and that, therefore, the policy was no longer in effect on November 22,2001, the date of the accident. The court cited the deposition testimony of Fikret Siljkovic that he did not receive notice of a refund of his premium as provided in the October 2, 2001 letter until December 5 or 6, 2001, at which time he applied “for a second policy . . . .” The court then concluded that there was no evidence to support a “renewal of a second policy prior to the accident.”

On appeal, the plaintiff claims that there is a genuine issue of material fact as to the date Fikret Siljkovic went to Allstate’s agent, Birmingham, to renew or to rewrite his automobile liability insurance policy, which prevents Allstate from obtaining a summary judgment. She also claims that insurance coverage existed at the time of the accident because Allstate had promised in the October 2, 2001 letter that when Fikret Siljkovic received his refund check and brought a copy of his wife’s social security card, Allstate would “rewrite the policy effective the date the first one cancels.”

Before analyzing the rectitude of the court’s rendering of summary judgment by using the often repeated standardized test, as previously outlined, it is important to recognize what this case does not concern. The plaintiff does not attack the validity of the notice of cancellation, effective on November 21, 2001. Thus, the plaintiff does not argue that Allstate’s basis for the cancellation, namely, “information contained in a credit report,” or the necessity of providing a “loss history record” or a “valid motor vehicle record” for Fikret Siljkovic’s nondriving wife, Adila Siljkovic, violated General Statutes §§ 38a-341 or 38a-342 (a) or any regulation of the insurance commissioner adopted pursuant to General Statutes § 38a-334. The plaintiff also does not argue that Fikret Siljkovic did not receive the cancellation notice.

Instead, the plaintiff argues on the basis of his deposition testimony and circumstantial evidence, that there is a material issue of fact in dispute as to when Fikret Siljkovic went to Birmingham’s office to renew or to rewrite his policy. She also argues that the letter of October 2, 2001, was a promise by Allstate to rewrite the policy “retroactively” upon the date of the cancellation of the prior policy, if Fikret Siljkovic brought in a copy of his wife’s social security card when he received his refund check. The plaintiff cannot prevail on either of these claims.

The testimony of Fikret Siljkovic did not establish that he took any action prior to December 6, 2001, to extend his insurance coverage beyond November 21, 2001. All of the evidence indicates that he did not return to Allstate’s office between September 21 and December 6, 2001. The date of his return to the office is not a material fact in dispute. Furthermore, the plaintiffs complaint did not allege that the October 2, 2001 letter was an offer by Allstate to amend, extend or reform the September 21, 2001 policy retroactively beyond November 21,2001, at 12:01 a.m. The plaintiff, therefore, cannot prevail on her claim that the October 2, 2001 letter was a promise by Allstate to rewrite a liability insurance policy effective upon the cancellation of the prior policy if Fikret Siljkovic provided his wife’s social security number. The plaintiffs complaint alleged only that the September 21,2001 policy “was in full force and effect” on November 22, 2001, the date of the accident. Despite this allegation, in her appeal, the plaintiff concedes that the cancellation of the September 21, 2001 policy was effective. She maintains, however, that the new policy was in effect at the time of the accident. These allegations regarding the new policy, however, were not in her complaint, which was based solely on the alleged “full force and effect” of the September 21, 2001 policy.

The plaintiff conceded on appeal that she is not challenging the effectiveness of the November 21, 2001 cancellation by Allstate of the first policy. A second policy was issued effective December 6, 2001, with a different expiration date and a different premium well after the accident for which indemnity was sought, and, as stated, the plaintiff did not plead that rewriting or reformation of the original policy was accomplished by the second policy. Because there were no material facts in issue as to whether any automobile liability insurance coverage existed at the time of the plaintiffs injuries on November 22, 2001, the court properly rendered summary judgment in favor of Allstate.

The judgment is affirmed.

       General Statutes § 38a-321 provides in relevant part: “Upon the recovery of a final judgment against any person, firm or corporation by any person, including administrators or executors, for loss or damage on account of bodily injury or death or damage to property, if the defendant in such action was insured against such loss or damage at the time when the right of action arose and if such judgment is not satisfied within thirty days after the date when it was rendered, such judgment creditor shall be subrogated to all the rights of the defendant and shall have a right of action against the insurer to the same extent that the defendant in such action could have enforced his claim against such insurer had such defendant paid such judgment.”

       In order to prevail in an action brought pursuant to § 38a-321, judgment creditors must prove, as an element of the cause of action, that they were injured by a person who was insured by the defendant insurer at the time of their injuries. DeRubbo v. Aetna Ins. Co., 161 Conn. 388, 390, 288 A.2d 430 (1971).

       Affidavits in this case indicate that the agent entered the oral information given in Fikret Siljkovic’s answers, as interpreted by Nihada Siljkovic, into a computer and that he signed the printed application that resulted.

       There is no explanation in the record of how the refund of $720.90 or the charge of $356.70 was calculated.

       Fikret Siljkovic signed a receipt for the cancellation notice. In any case, General Statutes § 38a-343 (a) does not require the insurer to prove that the insured actually received the notice; it requires only that the notice was sent properly. See generally Echavarria v. National Grange Mutual Ins. Co., 275 Conn. 408, 880 A.2d 882 (2005).

       The plaintiff cites the following deposition testimony of Fikret Siljkovic, which she claims shows that he went back to the “Allstate [office] in Wethersfield and paid” “before the subject accident”:
      “Q. How soon after you found out they were canceling the insurance did you go back to Allstate?
      “[The Defendant’s Counsel]: Objection.
      “[The Witness]: Of course, right away. As soon as I found out. As soon as I found out from the bank statement that the check from the insurance was not paid, right away I went to the insurance.
      “Q. When you say, ‘right away,’ if you can, for me, Mr. Siljkovic, are we talking a matter of minutes? Hours? Days? How long?
      “A. Of course, I went the same day. There’s no reason for me to go into detail everything.
      “Q. The same days as you received the notice?
      “A. Yes.
      “Q. And, again, that was the same day—
      “[The Plaintiffs Counsel]: Tell him this is almost my last question. I’m almost done.
      “[The Witness]: As soon as I received the notice that my insurance was canceled, that’s when I decided to go right away to the insurance.

        “Q. . . . Was that before Nihad’s accident?
      “[The Defendant’s Counsel]: Objection.
      “[The Witness]: Before.”
      Other deposition testimony by Fikret Siljkovic, as noted by Allstate, clarifies his testimony and indicates that he did not return to Allstate’s agent’s office until December 6, 2001:
      “[The Plaintiffs Counsel]: What did you do when you found out that Allstate wanted to cancel your insurance?
      “[The Defendant’s Counsel]: Objection.
      “[The Witness]: I went back to the insurance.
      “[The Plaintiffs Counsel]: And what happened when you went back to the insurance?
      “[The Witness]: I paid again.
      “[The Plaintiffs Counsel]: How did you pay? Cash? Credit card?
      “[The Witness]: One hundred percent, I don’t know exactly. Maybe cash. . . .
      “[The Plaintiffs Counsel]: When you went back and paid for the insurance with cash, was that before or after Nihad was in the accident, the motor vehicle accident?
      “[The Witness]: After.”
      Allstate points out that there were two accidents, one in late December when Nihad Siljkovic was shot and killed and the other on November 22, 2001, when the plaintiff was injured.


author: FLYNN, C. J.

text:
    MAUREEN MURPHY v. LORD THOMPSON MANOR, INC.
    (AC 28106)
    Flynn, C. J., and Lavery and West, Js.
    Argued November 28, 2007
    officially released January 29, 2008

      Julie D. Blake, for the appellant (defendant).

      Lindy R. Urso, with whom, on the brief, was David C. Erdos, for the appellee (plaintiff).
   Opinion

FLYNN, C. J.

We are bom, some marry and we die. In this list of life events, it is only in marriage that we make choices. This appeal arises out of an action by the plaintiff, Maureen Murphy, to recover damages from the defendant, Lord Thompson Manor, Inc. (manor), for its failure to perform a contract for wedding related services and accommodations. Following a trial to the court, the court found the manor liable under theories of breach of contract and negligent infliction of emotional distress and awarded the plaintiff $17,000 in economic and noneconomic damages, plus costs. On appeal, the manor claims (1) that there was insufficient evidence to support the trial court’s finding that (a) its conduct created an unreasonable risk of causing emotional distress to the plaintiff and (b) any distress suffered by the plaintiff was foreseeable in light of an e-mail sent by the manor’s agent, but not received by the plaintiff, and (2) that the noneconomic damages awarded are excessive. We affirm the judgment of the trial court.

The court made the following findings of fact. In early 2003, the plaintiff became engaged to her now husband, Jason Martin. Shortly thereafter, she became aware of the manor though a television program devoted to weddings. The program depicted the manor as a large estate featuring outdoor grounds suitable for holding a wedding ceremony, lodging for guests and a banquet hall with fireplaces. The plaintiff considered the manor her ideal wedding site, as it could accommodate a “weekend celebration” consisting of a Friday night rehearsal dinner, a Saturday evening wedding reception and after party, and a Sunday brunch.

On February 21, 2003, the plaintiff and her mother, Sandra Powers, visited the manor and met with its owner and agent, Andrew Silverston. Silverston gave the plaintiff the manor’s standard letter of agreement, which stated in pertinent part: “The following serves as a letter of agreement between the Murphy/Martin Wedding party and the Lord Thompson Manor in Thompson, Connecticut. All arrangements are being held on a tentative basis and require your signature on the enclosed copy before commitment can be finalized. ... If the Muiphy/Martin Wedding party should cancel, the Lord Thompson Manor will retain the deposit as a cancellation penalty. . . . Upon receipt of the signed copy and deposit, your date will be held on a definitive basis.” As a result of the meeting, the plaintiff signed the letter, and Powers submitted $2000 in deposit money on behalf of the plaintiff, thus fulfilling each condition the letter requested for finality. The letter further identified the date of the wedding as September 10, 2005.

In the two years following the signing of the contract, a Shakespearean drama of confusion and lost opportunities ensued that would result in the manor contracting with another wedding party for the September 10, 2005 date and the plaintiff holding her wedding at another location. This outcome was brought about by a series of miscommunications leading to Silverston’s mistaken belief that the plaintiff was abandoning her wedding plans. To begin, in August, 2003, the plaintiff e-mailed the manor, requesting a copy of the signed agreement because she could not find her copy. There is no evidence of a response from the manor. In January, 2004, the manor sent a letter to the plaintiff requesting a deposit to hold the September 10, 2005 date for the wedding, despite the fact that it had received and deposited the check ten months earlier. There is no evidence of a reply from the plaintiff. At approximately the same time, the plaintiff changed her e-mail address but failed to inform the manor of her updated information. Later, in January, 2005, Silverston’s wife e-mailed the plaintiff to set up a date for a food tasting in order to determine the entree selection at the wedding reception.

Shortly thereafter, in February, 2005, Silverston became uncertain about whether the plaintiffs wedding was going forward. His insecurities were caused by his continued mistaken belief that there was no signed agreement or paid deposit. At the same time, Silverston had an inquiry from another couple who wanted to be married on September 10, 2005. He advised them that he might have a cancellation. On February 8, 2005, Sil-verston sent the plaintiff an express mail letter, asking her to contact him. The letter, however, contained no notice that the manor was uncertain of her wedding plans. It did not mention the alleged lack of a deposit, the misplacement of the signed letter of agreement or the interest of a second wedding party.

Silverston believed that his suspicions that the plaintiffs wedding was cancelled were confirmed by the lack of an immediate response from the plaintiff, as it was his experience that brides were anxious by nature and responded promptly to inquiries from their wedding coordinator. A little more than one week later, on February 17, 2005, Powers called Silverston regarding the letter. Silverston was shocked to receive Powers’ call and testified that he thought he was hearing from a “ghost.” He did not explain the situation to Powers but instead told her that he was busy and would call her back shortly. Silverston’s reluctance to speak with Powers was caused by the fact that the day before she called, he orally had promised the manor to the larger wedding party for the September 10, 2005 date. At that point, Silverston had not signed a contract with that second wedding party. The plaintiff called Silverston on February 22, 2005, but Silverston did not take the call.

During the six days following Powers’ call, Silverston took no action to rectify the situation. Finally, on February 23, 2005, Silverston sent a letter to the plaintiff in which he inaccurately portrayed the February 21, 2003 letter agreement as tentative. Silverston’s depiction of the parties’ agreement as tentative was in direct contradiction of the agreement’s language: “Upon receipt of the signed copy and deposit, your date will be held on a definitive basis,” when the manor was in possession of both the signed agreement and the deposit. He further indicated in the letter that because the plaintiff and Powers had taken slightly more than one week to respond to his February 8, 2005 letter, he assumed that they were no longer interested in reserving the date of September 10, 2005.

The receipt of Silverston’s letter stunned the heretofore unaware plaintiff. On February 24, 2005, she sent the manor an e-mail detailing her communications with the staff at the manor, denied receiving calls from Sil-verston and asked that he call her back immediately. Using the plaintiffs correct e-mail address, on February 25, 2005, Silverston attempted to resolve the problem by offering the plaintiff an alternate date and a decrease in the contract price. On February 26, 2005, the plaintiff responded and rejected the alternate date, adding that “[we] have been planning for two [years it] seems more appropriate to offer this to clients who have only a week’s worth of planning done.” Silverston responded to the plaintiffs e-mail but used her old e-mail address. As a result, the plaintiff did not hear a response from the manor until March 8, 2005. Meanwhile, on March 4, 2005, Silverston e-mailed the second bride and asked her to consider switching the date of her wedding. He offered her financial incentives and described the plaintiff as “hysterical.” The March 8, 2005 e-mail to the plaintiff, however, did not advise her that she could go forward with her wedding plans. It instead indicated that “the issue of the date” was not resolved and asked that the plaintiff call the manor. There were no further significant conversations between the parties.

During this period, the plaintiffs anxiety about her wedding plans increased, and feelings of extreme distrust for the manor developed. Because of her uncertainty that the manor would honor its contractual obligations, the plaintiff feverishly attempted to locate a venue that would accommodate her September 10, 2005 wedding date. After calling numerous sites, the plaintiff was able to find one venue with availability, but she had to hold the wedding in the morning and the reception could last only until 4 o’clock in the afternoon. The wedding that took place on that date was a far cry from the weekend celebration the plaintiff originally had planned. The plaintiff testified that these events were the most stressful in her life. Powers described her daughter as devastated.

On March 21, 2005, the plaintiff filed a seven count complaint alleging breach of contract, Connecticut Unfair Trade Practices Act violations, negligent and intentional infliction of emotional distress, theft, unjust enrichment and fraud. Following a trial to the court, in a memorandum of decision filed September 21, 2006, the court, Cosgrove, J., awarded the plaintiff $2000 in economic damages for breach of contract and $15,000 in compensatory damages for negligent infliction of emotional distress. The court ruled in favor of the defendant on all remaining claims. This appeal followed, in which the manor challenges the judgment only as to the negligent infliction of emotional distress claim and the corresponding damages award.

I

The manor first claims that the evidence was insufficient to support the court’s finding of negligent infliction of emotional distress. We begin by setting forth the standard of review. “[W]here the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. ... In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. . . . On appeal, we will give the evidence the most favorable reasonable construction in support of the verdict to which it is entitled. ... A factual finding may be rejected by this court only if it is clearly erroneous.” (Internal quotation marks omitted.) Barbara Weisman, Trustee v. Kaspar, 233 Conn. 531, 541, 661 A.2d 530 (1995).

To establish a claim of negligent infliction of emotional distress, a plaintiff must prove the following elements: “(1) the defendant’s conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiffs distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant’s conduct was the cause of the plaintiffs distress.” Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003). Our Supreme Court “continually [has] held that in order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm.” (Internal quotation marks omitted.) Id., 446.

Further, it has reasoned that a successful claim of negligent infliction of emotional distress “essentially requires that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants. If such a fear were reasonable in light of the defendants’ conduct, the defendants should have realized that their conduct created an unreasonable risk of causing distress, and they, therefore, properly would be held liable. Conversely, if the fear were unreasonable in light of the defendants’ conduct, the defendants would not have recognized that their conduct could cause this distress and, therefore, they would not be liable.” (Internal quotation marks omitted.) Id., 447; see also Scanlon v. Connecticut Light & Power Co., 258 Conn. 436, 446, 782 A.2d 87 (2001); Barrett v. Danbury Hospital, 232 Conn. 242, 261-62, 654 A.2d 748 (1995).

A

The manor claims that pursuant to Carrol, its actions did not create an unreasonable risk of causing emotional distress to the plaintiff. The essence of the man- or’s argument is that the law requires a finding that its conduct was unreasonable, outrageous or egregious and that the court made no such finding. We disagree with the manor’s recitation of the law.

The manor relies on the following language from Perodeau v. Hartford, 259 Conn. 729, 755, 792 A.2d 752 (2002), in crafting its argument: “Implicit in [the conclusion that a termination of employment may give rise to a claim for negligent infliction of emotional distress if the conduct under review involved an unreasonable risk of emotional distress that might result in illness or bodily harm] is a recognition that emotional distress that might result in illness or bodily harm is a foreseeable consequence of particularly egregious conduct involving a termination [of employment], which would, in turn, give rise to a duty to avoid such conduct.” The manor mistakenly interprets this language as adding a requirement that the conduct in question must be unreasonable, egregious or outrageous in the context of this case. The contractual relationship in this case, however, is distinguishable from the employment relationship discussed in Perodeau. See id., 758-59 (discussing merits of negligent infliction of emotional distress claim arising out of ongoing employment relationship). A contract for wedding services creates a rigorous expectation for contractual performance. An employee at will, on the other hand, has no contract, may be terminated at will and, therefore, operates under the assumption that he or she may be terminated at any time without cause. Thus, only if the manner of termination of an at will employee is unreasonable, outrageous or egregious will the tort of negligent infliction of emotional distress lie in such context. The plaintiffs contract for services was not limited by any similar assumptions. On the contrary, she had every reason to believe that the manor would perform its role according to the binding contract concerning arrangements for this important life event.

Furthermore, the facts of this case are comparable to the more recent Carrol case rather than to Perodeau. In Carrol, the trial court awarded the plaintiff compensatory damages arising out of the defendant’s negligent infliction of emotional distress. Carrol v. Allstate Ins. Co., supra, 262 Conn. 435. On appeal, our Supreme Court affirmed the trial court’s finding that the defendant insurer wrongly had withheld benefits following its erroneous determination that an accidental house fire was caused by the plaintiffs commission of arson. Id., 444-46. In reaching its conclusion, the Supreme Court articulated no further requirement that the conduct in question be unreasonable, egregious or outrageous, but rather analyzed the case pursuant to the four-pronged test already cited. Specifically, after reviewing the evidence, the court concluded that “there was sufficient evidence to support a finding that the defendant’s conduct created an unreasonable risk of causing the plaintiffs emotional distress and that the plaintiffs distress was foreseeable.” Id., 447-48.

Likewise here, we agree with the trial court that the actions of the manor’s agent, Silverston, “created an unreasonable risk of causing [the plaintiff] emotional distress.” The court noted in particular that “the manor gave [the plaintiff] no notice that it had questions about her wedding plans. The first direct notice she received of the manor’s concerns was the manor’s cancellation letter of February 23, 2005. [Although] the Manor’s breach occurred approximately seven months before [the plaintiffs] wedding was to take place, it left her with limited options for alternative venues and the significant task of coordinating the details in light of a different venue and a different wedding day schedule, as well as informing 100 guests of the changes. ... In addition, the Manor informed [the plaintiff] that it had given her date to another couple on February 16, 2005, when in fact it did not have a contract with the second party until March 6,2005.” These findings are supported by a review of the record and testimony of the parties. Because the cumulative effect of the conduct described by the court undoubtedly would risk causing any bride emotional distress, we conclude that the findings of the court were not clearly erroneous.

B

The manor next claims that any distress suffered by the plaintiff was not foreseeable in light of the February 27, 2005 e-mail sent by Silverston but not received by the plaintiff. In that e-mail, Silverston stated that “[we] will get back to you next week on the date after we talk with the other party.” We agree with the plaintiff that by the time this e-mail had been sent, the manor’s conduct already had caused foreseeable distress to the plaintiff.

A wedding generally is considered one of the most important days in one’s life. It also is widely known that such a ceremonious event requires extensive planning and preparation. As the court stated in its memorandum of decision: “The manor is in the business of hosting weddings and receptions. It is in a position to see how clients react to a myriad of wedding related mishaps. . . . The cancelling of an event that [the plaintiff] had been planning for two years would naturally and foreseeably cause her distress, particularly given the difficulty of moving the multiday festivities (Friday night dinner through Sunday brunch) to another venue with only seven months’ notice.” The cancellation to which the court refers is Silverston’s February 23, 2005 letter in which he stated that “[we] found your lack of response to be highly unusual and we gave the [September 10, 2005] date to another wedding party on February 16, 2005.” We agree with the court that the issuance of February 23, 2005 letter foreseeably would cause the plaintiff distress. Accordingly, because the manor already had engaged in such conduct before the composition of the February 27, 2005 e-mail, its argument that it could not have foreseen any distress on the plaintiffs part is without merit. We, therefore, conclude that the finding of the court that the plaintiff s distress was foreseeable was not clearly erroneous.

II

The manor also claims that the award of $15,000 in compensatory damages was excessive in comparison to the $2000 awarded in economic damages. The plaintiff argues in response that the damages awarded were fair and reasonable. We agree with the plaintiff.

We begin by setting forth the appropriate standard of review. “[T]he trial court has broad discretion in determining whether damages are appropriate. ... Its decision will not be disturbed on appeal absent a clear abuse of discretion.” (Internal quotation marks omitted.) Barber v. Mulrooney, 61 Conn. App. 108, 111, 762 A.2d 520 (2000). “The assessment of damages is peculiarly within the province of the trier and the award will be sustained so long as it does not shock the sense of justice. The test is whether the amount of damages awarded falls within the necessarily uncertain limits of fair and just damages. . . . We are aware that we cannot disturb the decision of the trial court unless there are considerations of the most persuasive character.” (Citations omitted; internal quotation marks omitted.) Buckman v. People Express, Inc., 205 Conn. 166, 174-75, 530 A.2d 596 (1987).

With this deferential standard in mind, we cannot conclude that the compensatory damages award was excessive. In reaching an appropriate award, the court carefully “considered the testimony of the plaintiff and her mother as it relates to [the plaintiffs] emotional and physical state [in addition to] the conduct and the explanations offered by the defendant.” Our review of the record leads us to the conclusion that the court’s award neither shocks the senses nor falls outside the uncertain limits of fair and just damages. Accordingly, we conclude that the court did not abuse its discretion in awarding the plaintiff $15,000 in compensatory damages.

The judgment is affirmed.

In this opinion the other judges concurred.

       The record does not reveal which e-mail address Silverston’s wife used to contact the plaintiff.

       The letter stated as follows: “We found your lack of response to be highly unusual and we gave the date to another wedding party on 2/16/05 .... So I am not sure where this leaves us, the date of 9/10/05 is no longer available. If you’re still interested in a date with us we will be happy to do this on another available day.”

       The manor also argues that its claim should be reviewed de novo because the defendant’s negligent conduct does not form the basis for emotional distress liability absent a manifestation of physical injury. Our Supreme Court repeatedly has stated that “there is no logical reason for making a distinction, for purposes of determining liability, between those cases where the emotional distress results in bodily injury and those cases where there is emotional distress only. . . . The only requirement is that the distress might, result in illness or bodily harm.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Carrol v. Allstate Ins. Co., supra, 262 Conn. 448.

         We note that the manor also has claimed that we should review the award de novo in order to determine if the damages are compensatory rather than punitive in nature. Because the manor has failed to cite any relevant case law or other legal authority in support of its position, we decline to review this claim on the ground that it has been briefed inadequately. See Wren v. MacPherson Interiors, Inc., 69 Conn. App. 349, 359, 794 A.2d 1043 (2002).
      We further note that both parties state in their briefs that an award of damages is reviewed under the clearly erroneous standard. Although this standard may be relevant in a review of the calculation of damages in a breach of contract action; see, e.g., Duplissie v. Devino, 96 Conn. App. 673, 699, 902 A.2d 30, cert. denied, 280 Conn. 916, 908 A.2d 536 (2006); it is not the appropriate standard of review for an award of compensatory damages. See, e.g., Smith v. Snyder, 267 Conn. 456, 465-66, 839 A.2d 589 (2004).


author: BORDEN, J.

text:
    BRUCE K. CORMIER v. COMMISSIONER OF MOTOR VEHICLES
    (AC 27962)
    Bishop, Gruendel and Borden, Js.

      Argued November 13, 2007
    officially released January 29, 2008

      David J. Wenc, for the appellant (plaintiff).

      Drew S. Graham, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Nancy E. Arnold, assistant attorney general, for the appellee (defendant).
   Opinion

BORDEN, J.

The plaintiff, Bruce K. Cormier, appeals from the judgment of the trial court dismissing his appeal from the order of the defendant, the commissioner of motor vehicles, disqualifying him for life from holding a commercial driver’s license pursuant to General Statutes § 14-44k (h). The plaintiff claims that the court improperly dismissed his appeal because: (1) the defendant improperly interpreted an amendment to the disqualification provision as applying retroactively; (2) if the amendment does apply retroactively, its application to the plaintiff violates his right to be free from ex post facto punishment; and (3) the statutory scheme governing commercial driver’s licenses violates his equal protection guarantees. We disagree and affirm the judgment of the trial court.

The underlying facts of the plaintiffs appeal are undisputed. The defendant had issued the plaintiff a commercial driver’s license at some point prior to March 9, 1998. On March 9, 1998, the plaintiff was arrested for driving while under the influence of intoxicating liquor. This arrest led to his subsequent conviction, on May 4,1998, of driving while under the influence of intoxicating liquor in violation of General Statutes § 14-227a. The plaintiff was again arrested for driving under the influence of intoxicating liquor on September 7, 2004. This arrest resulted, on February 17, 2005, in the plaintiffs second conviction of violating § 14-227a.

At the times that the plaintiff was arrested, and at the time that he was convicted pursuant to the first arrest, General Statutes (Rev. to 1997) § 14-44k (f), which governed lifetime disqualification from holding commercial driver’s licenses, provided in relevant part: “A person is disqualified for life if convicted of two or more violations of any of the offenses specified in subsection (b) of this section . . . .” (Emphasis added.) Section 14-227a sets forth one of the specified offenses. After the second arrest, but before the plaintiff was convicted a second time, the legislature amended the provision regarding lifetime disqualification. The amended provision, now § 14-44k (h), which became effective on January 1, 2005, provides in relevant part: “A person is disqualified for life if such person commits two or more of the offenses specified in subsection (b) of this section . . . .” (Emphasis added.) Under the amended statute, § 14-227a remains one of the specified offenses.

After receiving notice of the plaintiffs second conviction of violating § 14-227a, the defendant disqualified the plaintiff for life from holding a commercial driver’s license pursuant to § 14-44k (h). The defendant notified the plaintiff of the lifetime disqualification, and the plaintiff thereafter requested an administrative hearing. At the hearing, relying on various differences between the lifetime disqualification provision as it existed before and after the amendment, the plaintiff argued that he had not triggered lifetime disqualification pursuant to the statute as amended. The hearing officer held, among other things, that “[u]nder both § 14-44k (h) and its predecessor, [§] 14-44k (f), the penalty for two or more violations of [§] 14-227a is a lifetime disqualification .... The change in language from [§§] 14-44k (f) to 14-44k (h) does not change the penalty or the substance of the statute as it relates to the [plaintiff].” The hearing officer also rejected the plaintiffs equal protection argument. Following the hearing, the defendant disqualified the plaintiff for life.

The plaintiff appealed from the decision of the hearing officer to the trial court. During the subsequent hearing, both parties acknowledged that the plaintiff would have been disqualified properly after his second conviction had the statute remained unamended. The court concluded that the disqualification provision applied to the plaintiff despite the amendment and dismissed the appeal. This appeal followed.

I

The plaintiff first argues that the defendant improperly interpreted the statute in determining that the plaintiff had triggered the lifetime disqualification provision of § 14-44k (h). Although not a model of clarity, the essence of the plaintiffs argument appears to be as follows: as amended, § 14-44k (h) permits the defendant to consider only the commission, after January 1, 2005, of an act that violates § 14-227a, driving while under the influence of intoxicating liquor or drugs, or other specified offenses, in order to disqualify a person from holding a commercial driver’s license, whereas previously, the provision allowed the defendant to consider only convictions of specific offenses to disqualify a person. The plaintiff asserts that because he has not committed any acts that violate § 14-227a since the effective date of the amendment, and the statute did not previously permit the defendant to base a disqualification on commission alone, the defendant retroactively applied the statute by basing the disqualification on the plaintiffs acts committed prior to January 1, 2005. The plaintiff argues that the statute is prospective only, however, so that the defendant may base a lifetime disqualification only on acts committed after January 1,2005. We do not agree with the plaintiff that there was any retroactive application of the statute in this case.

“Whether a statute applies retroactively raises a question of statutory construction over which our review is plenary.” Walsh v. Jodoin, 283 Conn. 187, 195, 925 A.2d 1086 (2007); see Bengtson v. Commissioner of Motor Vehicles, 86 Conn. App. 51, 56, 859 A.2d 967 (2004), cert. denied, 272 Conn. 922, 867 A.2d 837 (2005).

We begin by noting the purpose of the statutory scheme of which the disqualification provision is a part. See Bengtson v. Commissioner of Motor Vehicles, supra, 86 Conn. App. 56. The statutory scheme is aimed at regulating potentially dangerous drivers in order to increase public safety on the state’s highways. One set of the dangers identified by the scheme, as relevant to the plaintiff, is posed by drivers who drive while under the influence of alcohol. As we stated in Kostrzewski v. Commissioner of Motor Vehicles, 52 Conn. App. 326, 342, 727 A.2d 233, cert. denied, 249 Conn. 910, 733 A.2d 227 (1999), “[t]he state has a legitimate interest in highway safety and a responsibility to protect its citizens from those who would drive on its roads while under the influence of alcohol, thereby placing themselves and others in harm’s way.” Further, in Bengtson, we noted that “Connecticut case law [interpreting Connecticut’s motor vehicle licensing statutes] establishes that our legislature has promulgated an unambiguous policy aimed at ensuring that our highways are safe from the carnage associated with drunken drivers.” (Internal quotation marks omitted.) Bengtson v. Commissioner of Motor Vehicles, supra, 60-61. With regard to drivers of commercial vehicles, the legislature has chosen to further this policy, pursuant to § 14-44k (h), by disqualifying for life individuals who have engaged twice in driving while under the influence of intoxicating liquor or drugs or have committed other specified offenses.

The change in the statutory provision pursuant to the 2005 amendment, as relevant to the plaintiffs claim, is as follows: before the amendment, the statute provided in relevant part that “[a] person is disqualified for life if convicted of two or more violations of any of the offenses specified in subsection (b)”; currently, the statute provides that “[a] person is disqualified for life if such person commits two or more of the offenses specified in subsection (b).” (Emphasis added.) Driving while under the influence of intoxicating liquor or drugs, in violation of § 14-227a, was a specified offense before the amendment, and it remains so after the amendment. The number of instances of engaging in specified offenses before a license holder is subject to a lifetime disqualification also remains the same. Finally, the regulatory solution remains the same, lifetime disqualification from holding a commercial driver’s license.

As the plaintiff acknowledged at oral argument, the amendment changed only the evidence the defendant may rely on to disqualify a person. Prior to the amendment, the defendant could not disqualify a license holder until the license holder had been convicted of

engaging in the underlying specified offenses, here, driving under the influence of intoxicating liquor. The amendment now allows the defendant to consider less robust evidence to conclude that the license holder has, in fact, engaged in the offenses and therefore poses the danger identified by the statute. As the plaintiff also acknowledged, the intent of the legislature in amending the statute was to “widen the net” for those potentially dangerous drivers who are subject to disqualification, and the lesser evidentiary burden was the means it employed to accomplish this. It was not, as the plaintiffs argument implies, the intention of the legislature to replace the prior disqualification scheme with a new one but, rather, to expand the scope of the existing scheme by lowering the evidentiary requirement after January 1, 2005. The plaintiffs interpretation of the provision would serve to frustrate the clear public safety purpose of the statutory scheme, as well as the purpose of the amendment, by allowing a license holder who had been twice convicted of engaging in specified offenses to start with a clean slate. Finally, the parties acknowledged at the hearing, and the plaintiff does not dispute on appeal, that the plaintiff would have been disqualified for life properly had the statute remained unamended; thus, the issue of adequate notice, which generally arises when substantive statutes are retroactively applied; see, e.g., Skakel v. Benedict, 54 Conn. App. 663, 692, 738 A.2d 170 (1999); is not present here.

We agree with the defendant that he did not apply the statute retroactively when he disqualified the plaintiff. Therefore, we need not consider whether such an application would implicate the prohibition against ex post facto punishment.

II

Next, the plaintiff challenges the constitutionality of Connecticut’s commercial driver’s license scheme under the rubric of equal protection of the laws. He argues that by requiring drivers of vehicles that are 26,001 pounds or heavier to have a commercial driver’s license, subject to a lifetime disqualification pursuant to § 14-44k (h), without requiring the same of drivers of lighter vehicles, the statutory scheme irrationally and impermissibly discriminates against drivers of the heavier vehicles in violation of the plaintiffs equal protection rights. This argument is without merit.

When the challenged law “does not touch upon either a fundamental right or a suspect class, its classification need only be rationally related to some legitimate government purpose in order to withstand an equal protection challenge.” (Internal quotation marks omitted.) Barton v. Ducci Electrical Contractors, Inc., 248 Conn. 793, 814, 730 A.2d 1149 (1999). Pursuant to a rational basis review, the equal protection clause “is satisfied so long as there is a plausible policy reason for the classification . . . the legislative facts on which the classification is apparently based rationally may have been considered to be true by the government decisionmaker . . . and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational . . . .” (Citations omitted; internal quotation marks omitted.) Id., 814-15. Further, “[i]t is no requirement of equal protection that all evils of the same genus be eradicated or none at all.” Railway Express Agency, Inc. v. New York, 336 U.S. 106, 110, 69 S. Ct. 463, 93 L. Ed. 533 (1949); see also Benjamin v. Bailey, 234 Conn. 455, 480, 662 A.2d 1226 (1995).

The plaintiff acknowledges that the purpose of the classification is to improve highway safety. The plaintiff asserts, however, that the “proffered justification for the . . . law ... is underinclusive. . . . [D]rivers of trucks that are less than 26,001 pounds are not regulated by [the commercial driver’s license scheme].” The plaintiff also asserts that no legitimate rationale supports the legislature’s determination to require drivers of vehicles weighing 26,001 pounds or more to have a commercial driver’s license while not requiring drivers of vehicles of lesser weight to be subject to the same requirement.

The plaintiffs argument that the statute is impermis-sibly underinclusive is unavailing because the legislature need not attempt to eliminate all danger on highways in order to enact legislation aimed at reducing some of the danger. See Benjamin v. Bailey, supra, 234 Conn. 480.

It is obvious that the legislature could rationally conclude that heavier vehicles present a greater potential risk to motorists than lighter ones and choose 26,001 pounds as the line dividing the two classes. Instead, the plaintiff speculates that the line drawn was based purely on political considerations, that is, the members of the legislature wanted to gain, or maintain, the votes of those who drive vehicles lighter than 26,001 pounds and, thus, did not regulate them as strictly as drivers of vehicles in excess of 26,001 pounds. The plaintiff provides no evidence that this was the case, but even if it were, this would be of no help to the plaintiff. Pursuant to a rationality review, we are limited to considering whether the statutory provision has a rational relation to a valid purpose of the provision. See Federal Communications Commission v. Beach Communications, Inc., 508 U.S. 307, 315, 113 S. Ct. 2096, 124 L. Ed. 2d 211 (1993). Because we are satisfied that the classification is rationally related to highway safety, we reject the plaintiffs equal protection claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-44k (h) provides in relevant part: “A person is disqualified for life [from holding a commercial driver’s license] if such person commits two or more offenses specified in subsection (b) of this section .... Any person disqualified for life, except a person disqualified under subsection (g) of this section, who has both voluntarily enrolled in and successfully completed an appropriate rehabilitation program, as determined by the commissioner, may apply for reinstatement of such person’s commercial driver’s license, provided any such applicant shall not be eligible for reinstatement until such time as such person has served a minimum disqualification period of ten years. If a person whose commercial driver’s license is reinstated is subsequently convicted of another disqualifying offense, such person shall be permanently disqualified for life and shall be ineligible to reapply for a reduction of the lifetime disqualification.” Thus, although the initial disqualification is for life, the person may apply for reinstatement after ten years if he or she successfully completes a rehabilitation program.
      General Statutes § 14-44k (b) lists as among the specified offenses: “operating any motor vehicle while under the influence of intoxicating liquor or drugs or both under section 14-227a . . . .”
      Further, General Statutes § 14-44a (a) provides: “No person may drive a commercial motor vehicle on the highways of this state unless the person holds a commercial driver’s license issued by this state or another state, with applicable endorsements valid for the vehicle he is driving.”
      General Statutes § 14-1 (a) (13) defines a commercial motor vehicle as “a vehicle designed or used to transport passengers or property . . . which (A) has a gross vehicle weight rating of twenty-six thousand and one pounds or more, or gross combination weight rating of twenty-six thousand and one pounds or more . . . .”

       As a subsidiary argument, the plaintiff also asserts that the statute is ambiguous because it could be interpreted to mean either that any two commissions of a specified offense provides a basis for disqualification or, as he states in his appellate brief, “in the alternative, [the lifetime disqualification provision] is applicable to any two convictions of General Statutes § 14-227a before January 1, 2005, and to any two commissions of § 14-227a . . . after January 1,2005.” In substance, this is simply the plaintiffs retroactivity argument restated. Therefore, we do not address this assertion separately.

       The plaintiff asserts that the statute as amended will lead to absurd results because a mere arrest for engaging in the specified offenses could lead to a lifetime disqualification. Because the defendant did not suspend the plaintiffs license until after the plaintiff was convicted twice of violating General Statutes § 14-227a, we need not determine here what level of proof the defendant must have before concluding that a license holder has, in fact, engaged in the predicate offenses.

       See footnote 1.