author: ROBINSON, J. SCHALLER, J.,

text:
    IN RE TREMAINE C.

    (AC 30020)
    Beach, Robinson and SchaUer, Js.

      Argued June 2
    officially released October 13, 2009

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

      Michael J. LaMonica, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman and Renee Bevacqua Bollier, assistant attorneys general, for the appellee (petitioner).

      John Anthony Radziunas, for the minor child.

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

   Opinion

ROBINSON, J.

The respondent mother appeals from the judgment of the trial court rendered in favor of the petitioner, the commissioner of children and families, terminating her parental rights with respect to her minor son, Tremaine. The respondent claims that the court improperly found that (1) she had failed to achieve a sufficient degree of personal rehabilitation and (2) it would be in the best interest of the child to terminate her parental rights. We affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history. Tremaine was bom in June, 2006, and is the seventh of eight children bom to the respondent. He tested positive for cocaine at birth. The court found that at the time of Tremaine’s birth, the respondent had substance abuse issues, unstable housing and inadequate income. Additionally, his father was incarcerated at that time. Tremaine has never been in the care of the respondent, as he was placed in foster care shortly after his birth. The respondent was evicted from her apartment in January, 2007, and was believed to be living with various friends between January and September, 2007.

Prior to Tremaine’s birth, the petitioner offered the respondent a placement in an inpatient substance abuse treatment center to which she could bring her two youngest children and where she could keep Tremaine with her after his birth, but she refused this placement. She was given repeated referrals to a series of inpatient programs between May, 2006, and May, 2007, and in January, 2007, it was determined that she needed “intensive outpatient treatment, but [she] did not follow through with [this] recommendation.” The respondent was given weekly visitations with Tremaine but attended only approximately five scheduled visits from June, 2006, through November, 2006, and, as a result, in April, 2007, her visits were reduced to biweekly.

In September, 2007, when Tremaine was approximately fifteen months old, the respondent entered an inpatient substance abuse treatment center and remained there until she was discharged from the program due to behavioral problems in November, 2007. Soon after, she was hospitalized due to complications with her eighth pregnancy. She was discharged from the hospital after giving birth to the child (newborn) in January, 2008, and she and the newborn entered another inpatient substance abuse center, Amethyst House, from which she was discharged at the end of January, 2008, due to further behavioral problems. She has been residing with a cousin at an undetermined address since that time.

The petition for termination of parental rights (petition) was filed on June 22, 2007. The petitioner alleged, with respect to both parents, that (1) Tremaine had been abandoned, (2) he had been adjudicated neglected in a prior proceeding and both parents had failed to achieve sufficient personal rehabilitation, and (3) both parents had no ongoing parent-child relationship with Tremaine.

The termination of parental rights trial began on November 7,2007, and on May 19,2008, the court issued its memorandum of decision granting the termination as to both parents. The court found that the petitioner had made reasonable efforts (1) to locate both parents and (2) to reunify Tremaine with both parents, and that neither parent was willing or able to benefit from reunification efforts. The court further found that a failure to achieve personal rehabilitation on behalf of both parents had been proven, that per se abandonment had been proven and that it was in Tremaine’s best interest to terminate the parental rights of both parents. This appeal followed.

The respondent claims that the court improperly terminated her parental rights. Specifically, she argues that the court improperly found that (1) she had failed to achieve personal rehabilitation and (2) it would be in the child’s best interest to terminate her parental rights. We address each argument in turn.

We initially set forth the applicable law and our standard of review. “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 General Statutes § 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 Coby C, 107 Conn. App. 395, 401, 945 A.2d 529 (2008). “In order to terminate a parent’s parental rights under § 17a-112, the petitioner is required to prove, by clear and convincing evidence, that: (1) the department [of children and families (department)] has made reasonable efforts to reunify the family; General Statutes § 17a-112 (j) (1); (2) termination is in the best interest of the child; General Statutes § 17a-112 (j) (2); and (3) there exists any one of the seven grounds for termination delineated in § 17a-112 (j) (3).” (Internal quotation marks omitted.) In re Melody L., 290 Conn. 131, 148-49, 962 A.2d 81 (2009).

“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.” (Internal quotation marks omitted.) In re Cheila R., 112 Conn. App. 582, 589, 963 A.2d 1014 (2009). “In doing so, however, [g]reat weight is given to the judgment of the trial court because of [the court’s] opportunity to observe the parties and the evidence. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. . . . [Rather] every reasonable presumption is made in favor of the trial court’s ruling.” (Internal quotation marks omitted.) In re Melody L., supra, 290 Conn. 148.

“A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. In applying the clearly erroneous standard to the findings of a trial court, we keep constantly in mind that our function is not to decide factual issues de novo. . . . The question for this court ... is not whether it would have made the findings the trial court did, but whether in view of the evidence and pleadings in the whole record it is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) In re Janazia S., 112 Conn. App. 69, 81, 961 A.2d 1036 (2009).

I

The respondent’s first claim is that the court improperly found in the adjudicatory phase of the trial that she had failed to achieve personal rehabilitation. She claims that she made clear and ongoing efforts to stabilize and to rehabilitate her life and has indicated a clear desire to continue working toward regaining custody of Tremaine. Because the record clearly supports the court’s finding, there is no error.

“Section 17a-112 (c) (3) (B) [now (j) (3) (B)[ requires the court to determine whether the degree of personal rehabilitation . . . encourage[s] the belief that within a reasonable time . . . such parent could assume a responsible position in the life of the child .... Personal rehabilitation refers to the reasonable foreseeability of the restoration of a parent to his or her former constructive and useful role as a parent, not merely the ability to manage his or her own life.” (Internal quotation marks omitted.) In re Stanley D., 61 Conn. App. 224, 230, 763 A.2d 83 (2000). “In conducting this inquiry, the trial court must analyze the respondent’s rehabilitative status as it relates to the needs of the particular child .... The trial court must also determine whether the prospects for rehabilitation can be realized within a reasonable time given the age and needs of the child.” (Internal quotation marks omitted.) In re Galen F., 54 Conn. App. 590, 594, 737 A.2d 499 (1999); see also In re Melody L., supra, 290 Conn. 148 (“[a] trial court’s finding that a parent has failed to achieve sufficient rehabilitation will not be overturned unless it is clearly erroneous” [internal quotation marks omitted]).

“Rehabilitation does not require the parent to be able to assume full responsibility for a child without the use of available support programs. ... An inquiry regarding personal rehabilitation requires us to obtain a historical perspective of the respondent’s child-caring and parenting abilities.” (Citations omitted; internal quotation marks omitted.) In re Stanley D., supra, 61 Conn. App. 230-31.

In its memorandum of decision, the court stated: “Whether [the respondent] can sustain sobriety while living back in the community and not in a residential setting is still unknown. . . . [The respondent] was within weeks of being deemed successful in [the Amethyst House] inpatient treatment program, [but] [e]ven with the imminency of being able to return to the community, [the respondent] could not conform her behavior to avoid being unfavorabl[y] discharged from Amethyst House. [The respondent] has still not attained stable housing and continues to live transiently. [She] has no gainful employment or sufficient income. Whether [she] can appropriately care for her newborn is yet to be determined. Tremaine has never been in [the respondent’s] care.”

Additionally, although the court noted that the respondent’s discharges from the two inpatient treatment programs were not because of substance abuse and that she had not tested positive for drug use since July, 2007, the court still concluded that “[g]iven [the respondent’s] unstable housing, lack of gainful employment and the fact [that she] is already caring for her eighth child under marginal circumstances, it would not be in Tremaine’s best interest to have him wait any further to see if [the respondent] could assume a responsible position in Tremaine’s life. A failure to rehabilitate has been proven.”

The respondent argues that because her “main issue” of substance abuse was being dealt with successfully and because she had been caring for her newborn child for six months, she clearly demonstrated that she had been making efforts to achieve personal rehabilitation, and the court improperly found that she would not be able to assume responsibility for Tremaine at some point in the future. The court did acknowledge that the respondent had not tested positive for drug use in nearly ten months prior to the issuing of its memorandum of decision; however, the respondent’s substance abuse was but one of a myriad of obstacles that she faced in providing a suitable home for Tremaine.

Lakesha Smith, a social worker employed by the department, testified that at the time the trial began, in November, 2007, the respondent had been residing at the Women’s Retreat, an inpatient substance abuse facility, since September, 2007, and that she was having some difficulty getting along with the staff there, had had “frequent blowups” and was not getting up on time to attend morning meetings there. Lauralee Candelario, a substance abuse counselor at Amethyst House, testified that on the basis of the respondent’s prior verbal and physical altercations with her peers, she was asked to enter into a treatment contract stating that she would not continue to involve herself in further altercations or she would risk being discharged. According to Can-delario, the respondent agreed to the terms of the contract on January 18, 2008, but refused to sign it; she violated its terms only a few days later and was discharged as a result. Smith also testified that the respondent had not been employed since 2001 and that the longest period during which she had remained employed was approximately three months.

The court found that in the two and one-half years since Tremaine’s birth, the respondent had yet to establish a stable residence for herself, nor did she have gainful employment or a sufficient income with which to support Tremaine. She was dismissed repeatedly from treatment programs because of her inability to conform her behavior. In addition, as the respondent was already caring for a newborn, the court expressed concern about whether she could care for both the newborn and Tremaine. Furthermore, as she had only been caring for the newborn for a few short months, this failed to establish the degree of rehabilitation on the respondent’s part necessary to prove that she could provide adequate care for Tremaine. Upon reviewing the decision of the court and the evidence contained in the record, we conclude that the court’s findings are not clearly erroneous and are legally correct.

II

The respondent next claims that during the disposi-tional phase of the trial, the court improperly found that the termination of her parental rights was in the best interest of Tremaine. We disagree.

“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)].” (Internal quotation marks omitted.) In re Joseph L., 105 Conn. App. 515, 529, 939 A.2d 16, cert. denied, 287 Conn. 902, 947 A.2d 341, 342 (2008). “[Once] the court finds that the petitioner has proven by clear and convincing evidence that one of the statutory grounds for termination of parental rights exists, it must then determine whether termination is in the best interests of the child. . . . The best interests of the child include the child’s interests in sustained growth, development, well-being and continuity and stability of its environment.” (Internal quotation marks omitted.) In re Trevon C., 109 Conn. App. 782, 794, 952 A.2d 1280 (2008).

Pursuant to § 17a-112 (k), the statutory factors used to determine whether termination is in the child’s best interest include: “(1) The timeliness, nature and extent of services offered ... (2) whether the [department . . . has made reasonable efforts to reunite the family ... (3) the terms of any applicable court order entered into . . . 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 . . . and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (5) the age of the child; (6) the efforts the parent has made to adjust 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 . . . 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 by the economic circumstances of the parent.”

We conclude that the court, in granting the petition to terminate the respondent’s parental rights, properly made its written findings in consideration of the factors delineated in § 17a-112 (k). The court carefully considered each factor and found, first, that the petitioner had consistently offered the respondent placement in substance abuse treatment programs and that she either (1) declined the offers repeatedly, at one point because she wanted to be home when her older son was released from prison, or (2) was discharged unsuccessfully from the programs she did enter. She also was offered supervised visits, transportation, clothes vouchers and eviction mediation. The court also found that the department had made reasonable efforts to reunify Tremaine with his parents, and that both parents had issues with substance abuse, inadequate housing and insufficient income. The court found that specific steps had been ordered nearly two years earlier but that the respondent failed to comply with any of the steps and still lacked stable housing, gainful employment and a legal source of income.

Additionally, the court noted that the respondent “has only been a visiting resource to Tremaine” and that a plan was in place to transition him from his foster home to the home of a relative who was interested in adopting him. Regarding the age of the child, the court found that Tremaine was twenty-three months old. It found that the respondent’s “newly obtained sobriety is laudable [but whether she] can sustain sobriety in the community is unknown.” Finally, the court found that it was “not aware of any person, parent, agency or economic circumstance that has precluded either parent from maintaining a meaningful relationship with Tremaine.” The court concluded that it was in Tremaine’s best interest to terminate the parental rights of both parents.

The record amply supports the court’s finding that termination was in the best interest of the child. Although the respondent maintains that there has not been a demonstration that allowing her to maintain her parental rights would have a detrimental effect on the best interest of Tremaine, the court found that the respondent was not in a position in which she could provide a sufficiently stable life for Tremaine. “We decide, not whether we would have drawn the same inferences or found the same facts, but whether the trial court could have reasonably done so.” (Internal quotation marks omitted.) In re Halle T., 96 Conn. App. 815, 841, 902 A.2d 670, cert. denied, 280 Conn. 924, 908 A.2d 1087 (2006). The court reasonably could have reached the conclusion that it did.

The respondent asserts that because she has always been “appropriate and loving and engaging with her son,” termination was not in his best interest. Although Smith testified that the respondent was appropriate and affectionate with Tremaine during their visits, we reiterate that her visits were infrequent at best. Smith succinctly summarized the petitioner’s rationale for seeking termination of the respondent’s parental rights, stating: “[The respondent] had not been visiting with Tremaine, from April to May she only had two visits, she was not engaged in substance abuse treatment, she didn’t have housing, she was not employed and did not have any income, so [the petitioner] needed to make a plan for this child’s future.” Regardless of whether the respondent was appropriate and affectionate with Tremaine during their sporadic visits, “[o]ur courts consistently have held that even when there is a finding of a bond between parent and child, it still may be in the child’s best interest to terminate parental rights.” In re Rachel J., 97 Conn. App. 748, 761, 905 A.2d 1271, cert. denied, 280 Conn. 941, 912 A.2d 476 (2006).

Additionally, the respondent places emphasis on the fact that she has been clean and sober and has not failed a drug test since July, 2007. The court commended her for this but expressed concern about her ability to sustain sobriety in the community. When, as here, the record reveals that the court’s ultimate conclusions are supported by clear and convincing evidence, “we will not reach an opposite conclusion on the basis of any one segment of the many factors considered in a termination proceeding . . . .” (Internal quotation marks omitted.) In re Christine F., 6 Conn. App. 360, 370, 505 A.2d 734, cert. denied, 199 Conn. 808, 809, 508 A.2d 769, 770 (1986).

“Because of the psychological effects of prolonged termination proceedings on young children, time is of the essence in custody cases.” (Internal quotation marks omitted.) In re Anthony if., 104 Conn. App. 744, 767, 936 A.2d 638 (2007), cert. denied, 285 Conn. 920, 943 A.2d 1100 (2008). It therefore was not improper for the court to conclude that further protracting these proceedings would not be in Tremaine’s best interest. Tremaine is in the custody of a relative who has expressed interest in adopting him, after having spent the entirety of his young life in the care of a foster family who was unable to adopt him, and the potential for further disruption of his life continues to exist as long as the respondent maintains her parental rights. See In re Davonta V., 285 Conn. 483, 490, 940 A.2d 733 (2008). Accordingly, we conclude that it was not clearly erroneous for the court to have found that it was in the best interest of the child to terminate the parental rights of the respondent.

The judgment is affirmed.

In this opinion BEACH, J., concurred.

SCHALLER, J.,

dissenting. I respectfully disagree that the respondent mother was unable to benefit from reunification efforts and that terminating her parental rights is in the child’s best interest. The trial court’s memorandum of decision with respect to the disposi-tional phase is grounded in the respondent’s past conduct, relating more properly to the rehabilitation phase. The memorandum of decision lacks support for termination, as to either the grounds for termination as specified by General Statutes § 17a-112 (j) or as to the child’s best interest. The respondent’s past conduct is relevant only to define what the respondent was required to do pursuant to the specific steps ordered by the court, Hon. Frederica S. Brenneman, judge trial referee, at the time the child was found to be neglected. Although the respondent initially failed to respond to the services offered by the department of children and families (department) pursuant to those steps, after the petition to terminate her parental rights as to the child was served on her, the respondent recognized the need to fulfill the steps and took positive action, often independent of the department, to overcome her substance abuse. The uncontradicted evidence indicates that since the respondent entered an inpatient treatment facility in September, 2007, she has not abused illegal substances. At the conclusion of the trial, the respondent was living in the community, caring for a newborn child and keeping regular visits with the child who is the subject of the termination petition. The record provides no evidentiary basis for concluding that the respondent was unable to benefit from the services she received and that it is not foreseeable within a reasonable time, given her sobriety, that she can fulfill the remaining steps, stable housing and legal income, and assume a responsible position in the child’s life. See General Statutes § 17a-112. Moreover, there is no nonspecula-tive evidence that demonstrates why it is in the child’s best interest to terminate the respondent’s parental rights now, rather than at some reasonably foreseeable time in the future, if at all.

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 . . . has made reasonable efforts ... to reunify the child with the parent . . . unless . . . the parent is unable or unwilling to benefit from reunification efforts . . . .” (Emphasis added.) “The clear and convincing standard is met by evidence that induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.” (Internal quotation marks omitted.) State v. Davis, 229 Conn. 285, 294 n.9, 641 A.2d 370 (1994). An appellate court’s review of the factual findings of the trial court is limited to determining whether the facts found are clearly erroneous. See Practice Book § 60-5; Vernon v. Goff, 107 Conn. App. 552, 557, 945 A.2d 1017, cert. denied, 289 Conn. 920, 958 A.2d 154 (2008). “A finding is clearly erroneous when either there is no evidence in the record to support it, or the reviewing court is left with the definite and firm conviction that a mistake has been made.” In re Samantha C., 268 Conn. 614, 627, 847 A.2d 883 (2004). On the basis of my review of the court’s memorandum of decision and the evidence presented, I am convinced that the court’s finding that the respondent is unable to benefit from reunification efforts is clearly erroneous.

An examination of the court’s memorandum of decision with respect to disposition reveals inadequate findings in support of termination of the respondent’s parental rights. The court began by reciting briefly the respondent’s history of participation in drug treatment programs and the department’s services. The court then recited inconclusive facts concerning the child’s adoption status and the child’s age, then twenty-three months. Although the court praised the respondent’s “newly obtained sobriety,” it speculated that “[w]hether [the respondent] can sustain sobriety in the community is unknown.” The court next repeated in conclusoiy form her lack of suitable housing, employment and income and her apparently suitable record of maintaining contact with the child.

Without any factual findings to support the conclusion that the respondent was unable to benefit from reunification efforts or whether termination was in the child’s best interest, the court merely asserted its conclusory determination that the child’s best interest would be served by termination. The court indicated that it “must consider the seven factors outlined in § 17a-112 (k)” but failed to explain how it did so. The court also failed to indicate whether any of its findings were made by clear and convincing evidence.

As I have stated elsewhere, “when . . . the factual findings implicate a [respondent’s] constitutional rights and the credibility of witnesses is not the primary issue ... a scrupulous examination of the record [should be undertaken] to ensure that the findings are supported by substantial evidence.” (Internal quotation marks omitted.) In re Melody L., 290 Conn. 131, 176-77, 962 A.2d 81 (2009) (Schaller, J., concurring). In this case, however, even the clearly erroneous standard of review reveals that the petitioner, the commissioner of children and families, failed to prove by clear and convincing evidence that the respondent was unable to benefit from reunification efforts, and the court failed to support its termination decision with any supporting evidence, much less by clear and convincing evidence. To the contrary, the record demonstrates unmistakably that once the respondent put her mind to it, she demonstrated that she could, in fact, benefit from inpatient substance abuse treatment. Admittedly, it took some time for the respondent to come to grips with the consequences of her addiction, but once she did, she pursued a determined course to overcome it, without the benefit of services offered by the department. At the conclusion of evidence concerning the respondent, the record is clear that the respondent had refrained from using illegal drugs for approximately five months, was living with her cousin in the community and caring for her newborn child. There also was evidence that while the respondent was receiving inpatient substance abuse services, she was receiving counseling and attending programs designed to address other steps she needed to take. Compare In re Vincent B., 73 Conn. App. 637, 645, 809 A.2d 1119 (“respondent’s positive step in participating in a treatment program demonstrated a degree of rehabilitation in itself’), cert. denied, 262 Conn. 934, 815 A.2d 136 (2003).

Moreover, I conclude that to find that it is in the best interest of the child to terminate the respondent’s parental rights at this time is based on sheer speculation. At the time of trial, the child had been living with a foster family since his birth. Because the foster family had decided not to adopt him, he was to be transferred to a relative preadoptive family, but the family had not yet met certain licensing requirements. It is mere speculation that the proposed adoptive family will become licensed and eventually adopt the child. The respondent, at the time, was visiting regularly with the child, and, by all accounts, her interaction with him was appropriate. The petitioner presented no specific information about the child, except his date of birth and that he tested positive for cocaine when he was born. The petitioner provided no evidence as to why the respondent could not care for the child at some foreseeable time in the future, other than to speculate that she might not be able to care for two children younger than age two. It is noteworthy that Kelly Rogers, the court-appointed psychologist called by the petitioner, testified that he did not have enough information to advocate for termination.

“Personal rehabilitation as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as a parent. . . . [Section 17a-112] requires the trial court to analyze the [respondent’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.” (Citation omitted; internal quotation marks omitted.) In re Marvin M., 48 Conn. App. 563, 578, 711 A.2d 757, cert. denied, 245 Conn. 916, 719 A.2d 900 (1998). “The statute does not require [a parent] to prove precisely when she will be able to assume a responsible position in her child’s life. Nor does it require her to prove that she will be able to assume full responsibility for her child, unaided by available support systems. It 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 Eden F., 250 Conn. 674, 706, 741 A.2d 873, reargument denied, 251 Conn. 924, 742 A.2d 364 (1999).

In this case, the respondent continues to make progress. She overcame her drug dependence and is taking care of a newborn child. She visits with the child who is the subject of this petition on a regular basis and has appropriate interaction with him. She and the newborn are living with the respondent’s cousin. The respondent transferred the guardianship of her older children to other relatives. One could infer from such evidence that the respondent had a family support network. I conclude, therefore, that the petitioner has failed to prove by clear and convincing evidence that the respondent is unable to benefit from reunification efforts.

In view of my conclusion that the petitioner failed to prove by clear and convincing evidence that the respondent is unable to benefit from reunification efforts, I also must conclude that the department has not made reasonable efforts to reunify the respondent with the child. “The word reasonable is the linchpin on which the department’s efforts in a particular set of circumstances are to be adjudged, using the clear and convincing standard of proof. . . . [Reasonable efforts means doing everything reasonable, not everything possible.” (Internal quotation marks omitted.) In re Tabitha T., 51 Conn. App. 595, 600, 722 A.2d 1232 (1999).

As demonstrated by the testimony of Lakesha Smith, the department social worker assigned to the case, the department was aware of the success the respondent achieved during inpatient treatment for substance abuse. The department also knew that the respondent was taking good care of her newborn child and was interacting with the subject child appropriately. In 2006, when the respondent initially failed to visit the child weekly, the department reduced the amount of time the respondent could visit with the child to every other week. Once the department became aware of the respondent’s success in drug treatment, it failed to make the reasonable reunification effort of increasing the frequency of visits between the respondent and her child. Furthermore, Smith testified that it was not possible to find subsidized housing for the respondent as long as she was drug-dependent. Although the department knew that at the time of trial the respondent was sober, it failed to make further efforts to find subsidized housing for her. Section 17a-112 (j) (1) requires that the department make reasonable efforts to reunify the child with the parent, unless the parent is unable to benefit from reunification. Given the respondent’s progress in overcoming drug addiction and her ability to care for a newborn child and interact appropriately with the subject child, the court’s finding that the department had made reasonable efforts to reunify the child with the parent was clearly erroneous. Without clear and convincing evidence that the department had made reasonable efforts to reunify the child with the respondent, the court was without authority to grant the petition to terminate the respondent’s parental rights. See General Statutes § 17a-112 (j) (1).

For the foregoing reasons, I respectfully dissent.

       Tremaine’s father also was named and served as a respondent when the petitioner instituted termination proceedings, and his parental rights were terminated as part of the same proceeding. This appeal concerns only the respondent mother. The father filed a separate appeal from the termination of his parental rights. See In re Tremaine C., 117 Conn. App. 521, 980 A.2d 317 (2009). We therefore refer in this opinion to the respondent mother as the respondent.

       The court found that the respondent had ingested five bags of crack cocaine the day before giving birth to Tremaine.

       The court found that she refused the placement because her oldest son was about to be released from prison and she wanted to be home when he was released.

       She also was given a referral by the petitioner to an in-home service provider in July, 2006, and was discharged from this program for noncompliance as well.

       The respondent attended approximately ten visits over an eight month period.

       The court noted that the respondent’s “difficulty in residential treatment is an inability to abide by program rules and to live conflict free with others.” Kelly Rogers, who conducted a court-ordered psychological evaluation of the respondent, noted that she “has developed a unique system of perspectives and rules for conduct, and she has little interest in that of others. Social rules, conventions and even laws likely have little meaning for her. . . . This is not an individual with good impulse control. . . . She appears unlikely to benefit from these instances, and will tend to repeat the cycle. Escape from responsibility and other social pressures seems to motivate much of her action, and this likely plays a strong role in her drug use.”

       Tremaine was adjudicated neglected on October 5,2006, and was committed to the care and custody of the petitioner. The respondent was defaulted for nonappearance as to this neglect petition. On May 1, 2007, the Superior Court for juvenile matters approved a permanency plan of termination of parental rights and adoption.

        General Statutes § 17a-112 (j) (3) provides in relevant part: “(A) the child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child; (B) the child (i) has been found by the Superior Court or the Probate Court to have been neglected or uncared for in a prior proceeding, or (ii) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . (D) there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day-to-day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child; (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 . . .

       Candelario additionally testified that the respondent also violated the rules related to smoking.

       The court ordered that the respondent keep all appointments and cooperate with the department, participate in counseling and make progress toward identified treatment goals, accept and cooperate with in-home support services referred to her by the department, submit to random drug testing, secure adequate housing and legal income, immediately advise the department of any changes in the composition of the household to ensure that the change does not compromise the health and safety of the child and to visit the child as often as the department permits. In documentation in support of the petition for termination of parental rights, the petitioner alleged that the respondent had not been in compliance with any of these steps.

       The respondent also suggests as an alternative to termination that instead guardianship of Tremaine could have been transferred to a relative. Again, we must state that it is not our function to retry the case but only to determine whether the court could have reached the conclusions that it did.

       Although the respondent made notable progress toward rehabilitation, she did not accomplish all aspects of the required steps by the time of the trial. Although that phase of the proceeding is not beyond dispute, I choose to dissent with respect to the dispositional phase.

       Although the respondent father’s situation was entirely different from the respondent mother’s, the court dealt with both situations together, alternating facts and conclusions pertaining to both parents in the same section of the memorandum of decision.

       In this matter, the credibility of witnesses is not at issue and neither party challenges the underlying facts found by the court. The issue is whether those underlying facts support a finding that 1he respondent was unable to benefit from the substance abuse services she received.

       The relevant portion of § 17a-112 (j) (1) is written in the alternative, i.e., that the “parent is unable or unwilling . . . .” In its memorandum of decision, the court did not distinguish between unwilling and unable. I concede that the record supports a finding that the respondent was unwilling to work with the department, but that is not the end of the matter. My analysis focuses on the “unable ... to benefit” language of the statute. I also observe that § 17-112 (j) (1) places the onus to provide services on the department; it does not require the respondent parent to accept services from the department exclusively. In this instance, the respondent relied on other agencies to help her obtain the treatment she needed. The petitioner has not taken the position that it was improper for the respondent to obtain services by a means other than those the department provided or facilitated.

       Rogers testiñed in part regarding his opinion as to whether the respondent should be given additional time to reunify with the child: “Though the information that you presented is potentially helpful to me, I don’t feel that I have enough information about [the respondent’s] progress and the program to definitively advocate for termination.”

       The evidence portion of the trial with respect to the respondent concluded on January 29, 2008. For reasons having to do with the respondent father, the court continued to hear evidence well into the spring of 2008. See In re Tremaine C., 117 Conn. App. 521,980 A.2d 317 (2009). Although the court continued to hear evidence on the petition to terminate the respondent father’s parental rights, the petitioner never filed a motion to open the evidence with respect to the respondent mother to demonstrate that she had not maintained her sobriety.


source: Caselaw Access Project

author: LAVINE, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. CONNECTICUT STATE EMPLOYEES ASSOCIATION, SEIU LOCAL 2001
    (AC 29830)
    Bishop, DiPentima and Lavine, Js.
    Argued February 20
    officially released October 20, 2009

      Thadd A. Gnocchi, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and William J. McCullough, Thomas P. Clifford III and Richard T. Sponzo, assistant attorneys general, for the appellant (plaintiff).

      Robert J. Krzys, for the appellee (defendant).
   Opinion

LAVINE, J.

The plaintiff, the state of Connecticut, appeals from the trial court’s judgment denying its application to vacate an arbitration award and granting the motion to confirm the award filed by the defendant, the Connecticut State Employees Association, SEIU Local 2001. On appeal, the plaintiff claims that the court improperly concluded that the arbitrator did not exceed or imperfectly execute his powers pursuant to General Statutes § 52-418 (a) (4). We are unable to evaluate the plaintiffs claim because we conclude that the arbitrator’s award is ambiguous. We accordingly reverse the court’s judgment and remand the case with direction to remand the matter to the arbitrator to answer the first question in the parties’ submission in the affirmative or in the negative.

The following undisputed facts and procedural history are relevant to our determination of the plaintiff’s appeal. The grievant and member of the defendant, Jose Delgado, was dismissed from employment with the department of correction (department). The griev-ant was dismissed after he violated the department’s administrative directive by allowing two inmates to make personal telephone calls from his office and receiving a gift from the family of one of the inmates. Prior to his dismissal, the grievant held the rank of captain. After the filing of the grievance, the parties submitted the controversy to arbitration pursuant to article seventeen of their collective bargaining agreement (agreement). The parties stipulated to the issues and agreed that the following submission should be presented to the arbitrator: “1. Was the dismissal of the grievant, Jose Delgado, for just cause? 2. If not, what shall be the remedy?” The arbitrator issued the award stating: “1. The grievance is denied. 2. [The griev-ant] is culpable of the charges preferred against him. 3. The appropriate penalty is a reduction in rank to [correction] officer. He is to be reinstated within seven working days of the receipt of this award and is to receive no back pay for the period of his suspension.”

On December 20, 2007, the plaintiff filed an application to vacate the arbitration award, which the court denied. On January 22, 2008, the defendant filed a motion to confirm the arbitration award, which the court granted. In its memorandum of decision, the court found that the submission presented to the arbitrator was unrestricted and that the award was consistent with the submission. The court employed the standard of review as set out in Harty v. Cantor Fitzgerald & Co., 275 Conn. 72, 881 A.2d 139 (2005). The court concluded that the arbitrator found that there was just cause for the grievant’s dismissal but that the language of the submission nonetheless allowed the arbitrator to formulate a remedy. The court concluded that the arbitrator did not exceed his powers or so imperfectly execute them such that a mutual, final and definite award upon the subject matter submitted was not made. It also determined that the award was not against public policy.

On April 25,2008, the plaintiff filed the present appeal from the court’s judgment denying the plaintiffs application to vacate and granting the defendant’s motion to confirm the arbitration award. At our request, the parties filed supplemental briefs on July 10, 2009, addressing the issue of whether the arbitrator’s award was ambiguous. Unlike the trial court, we cannot say with certainty that the arbitrator found just cause for the grievant’s dismissal. We therefore conclude that the award is ambiguous. Accordingly, we reverse the court’s judgment and remand the case with direction to remand the matter to the arbitrator for clarification of the award by answering the question as to whether the grievant’s dismissal was for just cause in the affirmative or in the negative.

We initially note that the proper standard of review when evaluating whether the award conforms to the submission is de novo. See Office of Labor Relations v. New England Health Care Employees Union, District 1199, AFL-CIO, 288 Conn. 223, 229-30, 951 A.2d 1249 (2008). Neither party argues that the present submission is restricted, and we conclude as well that it is unrestricted. Both parties have asked us to compare the award to the submission to determine whether, pursuant to § 52-418 (a) (4), the arbitrator exceeded his powers or so imperfectly executed them such that a mutual, final and definite award was not made. Our Supreme Court recently has reiterated: “If a party specifically contends . . . that the arbitrator’s award does not conform to an unrestricted submission in violation of § 52-418 (a) (4), we engage in what we have termed in effect, de novo judicial review. . . . Our review is limited to a comparison of the award to the submission. Our inquiry generally is limited to a determination as to whether the parties have vested the arbitrators with the authority to decide the issue presented or to award the relief conferred. With respect to the latter, we have explained that as long as the arbitrator’s remedies were consistent with the agreement they were within the scope of the submission.” (Citation omitted; internal quotation marks omitted.) Id. Contrary to the standard of review set forth by the trial court, the proper standard to determine whether the parties vested the arbitrator with the authority to decide the issue presented and award the relief conferred is therefore de novo review.

Our determination of whether the arbitrator exceeded or imperfectly executed his powers pursuant to § 52-418 (a) (4) depends on whether the arbitrator answered the first question in the submission in the affirmative or negative. In Hartford v. Local 760, 6 Conn. App. 11, 12, 502 A.2d 429 (1986), the arbitration board was presented with the following submission: “ Was the [g]rievant . . . suspended for just cause under the collective bargaining agreement? If not, what shall the remedy be?’ ” The arbitration board answered the first question raised by the submission in the affirmative, finding that the grievant was suspended for just cause but went on to decide that the period of suspension was inappropriate and reduced it. Id. This court concluded that the award did not conform to the submission because the submission precluded the arbitrators from determining the question of remedy unless they found that the grievant was suspended without just cause. Id., 14; see also State v. Connecticut State Employees Assn., SEIU Local 2001, 117 Conn. App. 54, 978 A.2d 131 (2009). Therefore, if the arbitrator in the present case answered the first question in the affirmative, finding just cause for the grievant’s dismissal, the award would not conform to the submission because the arbitrator would have been precluded from proceeding to the second question regarding the appropriate remedy. If, on the other hand, the arbitrator answered the first question in the negative, we would have to decide whether the remedy fashioned by the arbitrator, namely, his order to reinstate the grievant under the terms set forth in the award, amounted to exceeding or imperfectly executing his powers pursuant to § 52-418 (a) (4).

After reviewing the arbitrator’s award, we conclude that it is unclear whether the arbitrator found or did not find just cause for the grievant’s dismissal. “In examining arbitration awards, courts have noted that an award is ambiguous if it is susceptible to more than one interpretation.” (Internal quotation marks omitted.) All Seasons Services, Inc. v. Guildner, 94 Conn. App. 1, 10, 891 A.2d 97 (2006). The award in the present case sets forth three answers to the two questions posed in the submission, and none of the answers provides a direct response to the first question raised by the submission. Contra, e.g., East Haven v. AFSCME, Council 15, Local 1662, 212 Conn. 368, 370, 561 A.2d 1388 (1989) (arbitration award stated “grievant was not discharged for just cause” [internal quotation marks omitted]); AFSCME, Council 4, Local 1565 v. Dept, of Correction, 107 Conn. App. 321, 324, 945 A.2d 494 (award stated “dismissal . . . was for just cause” [internal quotation marks omitted]), cert. granted on other grounds, 288 Conn. 913, 954 A.2d 183 (2008); State v. Council 4, AFSCME, 27 Conn. App. 635, 638, 608 A.2d 718 (1992) (arbitrator stated in award that “the circumstances of this case did not amount to just cause” for discharge). We decline the plaintiffs invitation to construe the portion of the award stating “grievance is denied” as an implicit finding of just cause because the arbitrator could have denied the grievance for other reasons, such as not according all the relief sought in the grievance. We also are not persuaded that the arbitrator’s finding in the award that the grievant “is culpable of the charges preferred against him” amounts to a finding of just cause. We think that an equally plausible interpretation of that statement, in light of the fact that the arbitrator proceeded to order the reinstatement of the grievant, is that, although the grievant was culpable of the charges that he allowed inmates to use his office telephone and received gifts from an inmate’s family, such conduct did not justify his dismissal. We conclude that the award, because it is susceptible to more than one interpretation, is ambiguous.

Because the ambiguity of the award does not permit us to determine whether the arbitrator exceeded or imperfectly executed his powers under § 52-418, we conclude that the proper remedy is to reverse the court’s judgment and remand the case with direction to remand the matter to the arbitrator for clarification of the award by directly answering the first question in the submission with a “yes” or a “no.” See Hartford Steam Boiler Inspection & Ins. Co. v. Underwriters at Lloyd’s & Cos. Collective, 271 Conn. 474, 486, 857 A.2d 893 (2004) (“[a] remand is proper, both at common law and under the federal law of arbitration contracts, to clarify an ambiguous award or to require the arbitrator to address an issue submitted to him but not resolved by the award” [internal quotation marks omitted]), cert. denied, 544 U.S. 974, 125 S. Ct. 1826, 161 L. Ed. 2d 723 (2005); All Seasons Services, Inc. v. Guildner, supra, 94 Conn. App. 9 n.15 (federal rule of law upholding arbitrator’s authority to clarify ambiguous awards may apply to arbitration awards governed solely by Connecticut law).

The judgment is reversed and the case is remanded with direction to remand the matter to the arbitrator for clarification of the award consistent with the preceding paragraph.

In this opinion the other judges concurred.

       General Statutes § 52-418 (a) provides in relevant part: “Upon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds any of the following defects ... (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       The court relied on the following: “Judicial review of arbitral decisions is narrowly confined. . . . When the parties agree to arbitration and establish the authority of the arbitrator through the terms of their submission, the extent of our judicial review of the award is delineated by the scope of the parties’ agreement. . . . When the scope of the submission is unrestricted, the resulting award is not subject to de novo review even for errors of law so long as the award conforms to the submission. . . . Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution.” (Emphasis added; internal quotation marks omitted.) Harty v. Cantor Fitzgerald & Co., supra, 275 Conn. 80.

         In the order to file supplemental briefs, we asked the parties to answer the following: “1. Is the arbitrator’s award ambiguous? See, e.g., Hartford Steam Boiler Inspection & Ins. Co. v. Underwriters at Lloyd’s & Cos. Collective, 271 Conn. 474, 857 A.2d 893 (2004), cert. denied, 544 U.S. 974, 125 S. Ct. 1826, 161 L. Ed. 2d 723 (2005); All Seasons Services, Inc. v. Guildner, 94 Conn. App. 1, 891 A.2d 97 (2006). 2. lithe award is ambiguous, should the matter be remanded to the trial court with direction to remand it to the arbitrator for clarification of the award by directly answering the first question, ‘Was the dismissal of the grievant, Jose Delgado, for just cause?’ ”

       “A submission is unrestricted when . . . the parties’ arbitration agreement contains no language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review.” (Internal quotation marks omitted.) Bridgeport City Supervisors’ Assn. v. Bridgeport, 109 Conn. App. 717, 724 n.2, 952 A.2d 1248, cert. denied, 289 Conn. 937, 958 A.2d 1244 (2008).

       The grievance is not a part of the record before us.

       We note that the arbitrator’s memorandum accompanying the award also does not provide a clear answer to the first question. “The memorandum of decision may ... be examined to determine if an arbitrator has exceeded his or her authority by making an award beyond the scope of the submission.” (Internal quotation marks omitted.) Harty v. Cantor Fitzgerald & Co., supra, 275 Conn. 85 n.6.


author: BEACH, J.

text:
    OSVALDO DIAZ v. JAIME PINEDA ET AL.
    (AC 30147)
    Lavine, Beach and McDonald, Js.

      Argued March 20
    officially released October 20, 2009

      Kevin M. Blake, with whom, on the brief, was Rebekah L. Sprano, for the appellant (plaintiff).

      Lawrence G. Widem, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Glenn A. Woods, assistant attorney general, for the appellee (defendant second injury fund).
   Opinion

BEACH, J.

The plaintiff, Osvaldo Diaz, appeals from the decision of the workers’ compensation review board (board) affirming the workers’ compensation commissioner’s (commissioner) denial of his claims against the defendant Jaime Pineda for temporary total disability benefits and additional medical treatment. On appeal, the plaintiff claims that the board improperly (1) affirmed the commissioner’s findings that he was not entitled to temporary total disability benefits or additional medical treatment and (2) denied his motion to submit additional evidence. We affirm in part and reverse in part the decision of the board.

The following facts and procedural history are relevant to our resolution of the plaintiffs appeal. The first portion of the bifurcated formal hearing resolved the compensation rate. The commissioner found the following facts in the finding and award. Pineda is the sole owner of J.P. Landscaping Company. On July 11, 2005, the plaintiff fell from a ladder while working at a job site that was under Pineda’s supervision and control. As a result of the fall, the plaintiff suffered injury to his left shoulder, neck, lower back, ribs and left thumb. On the date of the plaintiffs injury, Pineda did not have workers’ compensation insurance coverage. The defendant second injury fund, accordingly, defended the claim. In the finding and award dated October 6, 2006, the commissioner concluded that the plaintiff had a compensation rate of $277.05 per week. Further hearings were scheduled to “address the issues of indemnity benefits, medical treatment, and the payment of medical bills.”

The second part of the bifurcated formal hearing was held on the issues of, inter alia, whether the plaintiff was in need of further medical treatment and whether he was entitled to temporary total disability benefits. The commissioner issued a second finding and award on July 5,2007. The commissioner found that Reuben M. Malkiel, the plaintiffs treating chiropractic physician, provided no medical information concerning the plaintiffs need for further treatment other than a letter dated January 25, 2007. This letter was signed by Malkiel and also by Felix Almentero, a physician who was board certified in physical medicine and rehabilitation. The letter referenced a “suspected” tear in the plaintiffs left shoulder and a “probable” herniated intervertebral disc of the lumbar spine. If these diagnoses were “found to be so,” according to the commissioner’s reading of the letter, then a magnetic resonance imaging (MRI) scan and an orthopedic consult would be appropriate. The commissioner also found that Malkiel never restricted the plaintiffs work or movements and never prescribed a “treatment plan.” The commissioner found that there was no evidence to establish temporary total disability other than the plaintiffs testimony regarding the pain he had experienced. The commissioner concluded in the July 5, 2007 finding and award that the plaintiff did not produce sufficient evidence to support payment for further treatment and that he had not proved that he was entitled to temporary total disability benefits. The commissioner required the fund to pay medical bills already incurred. The plaintiff thereafter appealed to the board.

The board affirmed the commissioner’s conclusions that the plaintiff was not entitled to temporary total disability benefits or further medical treatment and dismissed the appeal. The board at that time also denied the plaintiffs motion to submit additional evidence. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The plaintiff first claims that the board improperly affirmed the commissioner’s findings that he was not entitled to temporary total disability benefits or additional medical treatment.

We apply a well settled standard of review in appeals from the board. “[W]hen a decision of a commissioner is appealed to the review [board], the review [board] is obligated to hear the appeal on the record of the hearing before the commissioner and not to retry the facts. ... It is the power and the duty of the commissioner, as the trier of fact, to determine the facts. . . . [T]he commissioner is the sole arbiter of the weight of the evidence and the credibility of witnesses .... The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . We will not change the finding of the commissioner unless the record discloses that the finding includes facts found without evidence or fails to include material facts which are admitted or undisputed. . . . Similarly, [t]he decision of the [board] must be correct in law, and it must not include facts found without evidence or fail to include material facts which are admitted or undisputed.” (Internal quotation marks omitted.) Samaoya v. Gallagher, 102 Conn. App. 670, 673-74, 926 A.2d 1052 (2007).

A

The plaintiff claims that the board improperly affirmed the commissioner’s decision denying him temporary total disability benefits arising out of the inability to work for any period of time following the accident. We agree.

“[A] plaintiff is entitled to total disability benefits under General Statutes § 31-307 (a) only if he can prove that he has a total incapacity to work. . . . The plaintiff [bears] the burden of proving an incapacity to work .... Our Supreme Court has defined total incapacity to work as the inability of the employee, because of his injuries, to work at his customary calling or at any other occupation which he might reasonably follow.” (Internal quotation marks omitted.) Sellers v. Sellers Garage, Inc., 80 Conn. App. 15, 20, 832 A.2d 679, cert. denied, 267 Conn. 904, 838 A.2d 210 (2003).

The commissioner found that “[notwithstanding [the plaintiffs] statement at trial that he has pain sufficient enough to prevent him from working from the date of his injury on July 11, 2005, to the present time, there is no other or corroborating evidence to establish his temporary total disability as he alleges” and determined that the plaintiff was not entitled to temporary total disability benefits. The commissioner did not state that any corroborating evidence was not credible, nor can we imply such a finding. The commissioner simply expressly stated that there was no other evidence. This finding is not supported by the record. There was evidence in the record that tends to establish a finding of temporary total disability. An emergency department report from Stamford Hospital on the date of injury reveals that the plaintiff suffered a dislocated shoulder, which was reduced. His arm was placed in a sling. An X ray of his left hand showed an open fracture to the proximal phalanx. He was discharged with Keflex and Vicodin for pain control and with instructions to see an orthopedic surgeon the following day to obtain treatment for the open fracture. An X ray report dated July 29, 2005, reveals that the plaintiff sustained multiple rib fractures. A November 18,2005 medical report indicates that the plaintiff was “totally incapacitated” at the time of the report. The commissioner’s determination that there was no other evidence to support a finding of temporary total disability is material to the commissioner’s finding that the plaintiff was not entitled to temporary total disability benefits. See Colliers, Dow & Condon, Inc. v. Schwartz, 88 Conn. App. 445, 446-47 n.2, 871 A.2d 373 (2005) (reversal not warranted if clearly erroneous factual findings not material).

We conclude that the board improperly affirmed the commissioner’s finding that the plaintiff was not entitled to temporary total disability benefits. Because the determination of whether the plaintiff is entitled to temporary total disability benefits for any period of time following the injury involves the weighing of evidence, we cannot make such a determination. See Young v. Young, 112 Conn. App. 120, 128, 961 A.2d 1029 (2009) (appellate court cannot decide matters of credibility). Therefore, on the specific facts of this case, we reverse the decision of the board affirming the commissioner’s finding that the plaintiff is not entitled to temporary total disability benefits for any period of time but make no determination as to whether the plaintiff is so entitled and, if so, for what period of time. That determination will be made by the commissioner on remand.

B

The plaintiff next claims that the board improperly affirmed the commissioner’s conclusion that the evidence presented was not sufficient to support an award of compensation for additional medical treatment. The plaintiff argues that the January 25, 2007 letter demonstrated that a treatment plan had been established for him, which consisted of an MRI scan and an orthopedic consultation if the scan was positive. The plaintiff asserts that the commissioner overlooked this evidence. We disagree.

Our review of the record leads us to conclude that the commissioner’s determination that the plaintiff was not entitled to additional medical treatment was not unreasonable. In the January 25, 2007 letter, Malkiel stated that the plaintiff had a “suspected” tear in his left shoulder and a “probable” herniated intervertebral disc of the lumbar spine. He further stated in the letter that the plaintiff would likely require an orthopedic consultation regarding the need for surgery if the MRI scans were positive. It was permissible for the commissioner to determine that the plaintiff had not proven that he was entitled to additional medical treatment in light of the fact that MaUdel’s letter referred to “suspected” and “probable” injuries; in any event, the commissioner was not required to believe the statements in the letter. The commissioner found that the plaintiff would have the opportunity to present a new claim for payment for further treatment in the future, if the claim was presented with proper and convincing medical evidence. The commissioner was not obligated to credit any evidence. See D’Amico v. Dept. of Correction, 73 Conn. App. 718, 725, 812 A.2d 17 (2002) (“It is the quintessential function of the finder of fact to reject or accept evidence and to believe or disbelieve any expert testimony. . . . The trier may accept or reject, in whole or in part, the testimony of an expert.” [Internal quotation marks omitted.]), cert. denied, 262 Conn. 933, 815 A.2d 132 (2003). The board properly affirmed the commissioner’s conclusion that the evidence presented did not compel authorization to pay for additional medical treatment.

II

The plaintiff next claims that the board improperly denied his motion to submit additional evidence. We disagree.

The following additional facts are necessary to review the plaintiffs claim. On July 5, 2007, the commissioner issued his finding and award. On November 8, 2007, the plaintiff filed a motion to submit additional evidence to the board. The additional evidence consisted of a medical report dated October 29, 2007, from Henry M. Rubinstein, an orthopedic surgeon. In its memorandum of decision, the board denied the plaintiffs motion but suggested that the plaintiff could request that the commissioner approve additional medical treatment on the basis of a change in circumstance and the existence of additional evidence.

We first set forth the applicable standard of review. “The board is statutorily authorized to review additional evidence, not submitted to the commissioner, in limited circumstances. General Statutes § 31-301 (b) provides: ‘The appeal [from the commissioner] shall be heard by the . . . [b]oard as provided in [General Statutes §] 31-280b. The . . . [b]oard shall hear the appeal on the record of the hearing before the commissioner, provided, if it is shown to the satisfaction of the board that additional evidence or testimony is material and that there were good reasons for failure to present it in the proceedings before the commissioner, the . . . [b]oard may hear additional evidence or testimony.’ The procedure that parties must employ in order to request the board to review additional evidence is provided in § SI-SO 1-9 of the Regulations of Connecticut State Agencies, which provides: ‘If any party to an appeal shall allege that additional evidence or testimony is material and that there were good reasons for failure to present it in the proceedings before the commissioner, he shall by written motion request an opportunity to present such evidence or testimony to the compensation review division, indicating in such motion the nature of such evidence or testimony, the basis of the claim of materiality, and the reasons why it was not presented in the proceedings before the commissioner. The compensation review division may act on such motion with or without a hearing, and if justice so requires may order a certified copy of the evidence for the use of the employer, the employee or both, and such certified copy shall be made a part of the record on such appeal.’

“Thus, in order to request the board to review additional evidence, the movant must include in the motion (1) the nature of the evidence, (2) the basis of the claim that the evidence is material and (3) the reason why it was not presented to the commissioner.” Mankus v. Mankus, 107 Conn. App. 585, 595-96, 946 A.2d 259, cert. denied, 288 Conn. 904, 953 A.2d 649 (2008). The question whether additional evidence should be taken calls for an exercise of discretion by the board, which we review under the abuse of discretion standard. See Salmon v. Dept. of Public Health & Addiction Services, 58 Conn. App. 642, 664, 754 A.2d 828 (2000), rev’d on other grounds, 259 Conn. 288, 788 A.2d 1199 (2002).

The plaintiff argued before the board that he had good reason to submit Rubinstein’s medical report after the close of the formal hearing before the commissioner because he could not afford to be examined at the time of the hearing before the commissioner. The board found that the additional evidence presented was material to the case but that the plaintiff had not shown sufficient reasons for not presenting such evidence to the commissioner. The board found that the plaintiff had not established that the evidence could not have been obtained at the time of the original hearing. The board stated: “A party who wishes to submit additional evidence to this board must prove that they had good reasons not to present such evidence at the formal hearing .... The . . . [s]econd [i]njury [f]und . . . points out that in Smith v. UTC/Pratt & Whitney, 3134 CRB 3-95-6 (June 4, 1996), we held the moving party in such a motion must establish [that] the evidence could not have been obtained at the time of the original hearing. The [second injury] [f]und points to the absence of any referral from the treating physician to . . . Rubinstein, and the record does not reflect [that] the [plaintiff] made an effort to obtain this testimony prior to the hearing by utilizing this avenue. The [plaintiff] also did not make any request to the trial commissioner seeking to change the [plaintiffs] treating physician. We believe this would have been a better direction for the [plaintiff] to have pursued.” (Citation omitted.)

The board reasonably could have concluded that the plaintiff had not demonstrated that he had good reasons for not presenting such evidence to the commissioner. In the absence of good reason, the plaintiff is not permitted to submit additional evidence before the board. See General Statutes § 31-301 (b). The board has consistently followed a policy of not encouraging the piecemeal presentation of evidence. See, e.g., Green v. General Motors Corp. New Departure, 5111 CRB-6-06-7 (August 21, 2007); Schreiber v. Town & Country Auto Service, 4239 CRB-3-00-5 (June 15, 2001). The board did not abuse its discretion in denying the plaintiffs motion to submit additional evidence.

The decision of the workers’ compensation review board is reversed only as to the denial of temporary total disability benefits and the case is remanded to the board with direction to remand the case to the commissioner for further proceedings according to law. The decision is affirmed in all other respects.

In this opinion the other judges concurred.

       Pineda did not appear before the commissioner or the board and is not a party to this appeal.

       Much of the commissioner’s finding seems to concern whether the plaintiff was entitled to temporary total disability benefits at the time of the hearing. The evidence to which we refer relates to an earlier period of time and perhaps may be relevant to the time frame shortly after the accident.

       The letter and the commissioner’s summary of the letter in the July 5, 2007 finding and award are not entirely consistent regarding the need for an MRI scan.