author: BISHOP, J.

text:
    STATE OF CONNECTICUT v. OSIBISA HALL
    (AC 30816)
    Bishop, DiPentima and Schaller, Js.

    Argued January 6
    officially released April 20, 2010

      Erin M. Field, for the appellant (defendant).

      Laurie N. Feldman, special deputy assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Anthony J. Spinella, assistant state’s attorney, for the appellee (state).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

BISHOP, J.

The defendant, OsibisaHall, appeals from the trial court’s judgments of conviction, which were rendered following the denial of his motion to withdraw his guilty pleas to one count of possession of marijuana with intent to sell in violation of General Statutes § 21a-277 (b) and two counts of violation of a protective order in violation of General Statutes § 53a-223. On appeal, the defendant claims that the court abused its discretion in denying his motion because it failed to address him personally and determine that he fully understood the potential immigration consequences of his pleas pursuant to General Statutes § 54-1j (a). We agree and, accordingly, reverse the judgments of the trial court.

The following factual and procedural history is relevant to our disposition of the defendant’s appeal. On May 22, 2007, the defendant pleaded guilty, pursuant to the Alford doctrine, to one count of possession of marijuana with intent to sell and two counts of violation of a protective order. During the plea hearing, the court questioned the defendant as to his understanding of the rights he was waiving, the meaning of his Alford plea and the agreed upon sentence. The court then addressed defense counsel and the following colloquy ensued:

“The Court: Any immigration issues here, [defense counsel]?
“[Defense Counsel]: Yes, there are, Your Honor.
“The Court: Have you talked to [the defendant]?
“[Defense Counsel]: Yes, I have.
“The Court: All right. And he understands the possible consequences of his pleas?
“[Defense Counsel]: Yes.”

The court then accepted the defendant’s pleas and found that they were made voluntarily. The court also made a finding that the defendant “has been advised by his counsel of the immigration consequences of his acts.” The discussion then turned to the start date of the defendant’s sentence, and the court asked again about immigration, as follows:

“The Court: Is there an immigration sticker on him?
“[Defense Counsel]: There is no immigration sticker as I know of. But I know that—
“[The Prosecutor]: He’s going to be deported. I looked into it when we did the . . . [and] we talked and then when we did the [violation of probation] hearing that’s what they told us.
“The Court: All right.”

After further discussion, the court sentenced the defendant to forty months incarceration.

On January 13, 2009, the defendant filed a motion to withdraw his guilty pleas and vacate the judgments of conviction, claiming that the court did not fulfill its obligation pursuant to § 54-lj (a) to address him personally and determine that he understood the immigration consequences of his pleas. On January 27, 2009, the court denied the defendant’s motion, stating, “In reading the transcript of the sentence, the issue of immigration was directly addressed to counsel for the defendant in which he indicates he discussed the immigration issues with his client and that the client understood the immigration consequence of his plea. Along in the canvass . . . the state brought up the fact that the defendant is going to be deported.” (Internal quotation marks omitted.) This appeal followed.

The defendant claims that the court did not comply with § 54-1j (a) before accepting his pleas. Specifically, the defendant contends that the court failed to address him personally or to determine that he understood that his immigration status might be adversely affected by his guilty pleas. The state contends that the court substantially complied with the mandates of § 54-1j (a) and that the defendant knew that his guilty pleas might subject him to deportation. We agree with the defendant.

“The burden is always on the defendant to show a plausible reason for the withdrawal of a plea of guilty. ... To warrant consideration, the defendant must allege and provide facts which justify permitting him to withdraw his plea .... Whether such proof is made is a question for the court in its sound discretion, and a denial of permission to withdraw is reversible only if that discretion has been abused.” (Citation omitted; internal quotation marks omitted.) State v. Carmelo T., 110 Conn. App. 543, 549, 955 A.2d 687, cert. denied, 289 Conn. 950, 960 A.2d 1037 (2008).

Generally, a guilty plea may not be withdrawn after the conclusion of the proceeding at which the sentence was imposed. See Practice Book § 39-26. An exception to that rule, however, is if the legislature grants the defendant the right to withdraw his plea after the time of sentencing. Section 54-lj (c) specifically requires the court to permit a defendant to withdraw a guilty plea within three years after the acceptance of the plea “[i]f the court fails to address the defendant personally and determine that the defendant fully understands the possible consequences of the defendant’s plea, as required in subsection (a) of this section . . . .”

Section 54-lj (a) requires the court to address the defendant personally and to instruct a defendant on possible immigration and naturalization consequences that may result from a guilty plea and to ensure that the defendant fully understands those potential consequences. Our Supreme Court has previously stated that the legislative intent behind § 54-lj, “rather than demanding that trial courts instruct defendants on the intricacies of immigration law, seeks only to put defendants on notice that their resident status could be implicated by the plea.” State v. Malcolm, 257 Conn. 653, 663-64, 778 A.2d 134 (2001). The statute’s purpose is simply to recognize that “this collateral consequence is of such importance that the defendant should be informed of its possibility.” (Internal quotation marks omitted.) Id., 663 n.12. The court held that, in canvassing the defendant, it is not necessary for the trial court to read the statute verbatim. Rather, “only substantial compliance with the statute is required to validate a defendant’s guilty plea.” Id., 662.

Here, the court did not substantially comply with the mandates of § 54-lj (a). At no time during the plea hearing did the court personally address the defendant regarding the potential immigration consequences of his pleas. Nor did the court recite those consequences as part of its canvass. The court’s inquiry of defense counsel as to whether there were “[a]ny immigration issues here” and whether counsel “talked to” the defendant cannot be construed as compliance with the requirement that the court personally address the defendant or the statutory advisement that the defendant’s conviction “may have the consequences of deportation or removal from the United States, exclusion from readmission to the United Sates or denial of naturalization . . . .” General Statutes § 54-lj (a).

The state argues that the court’s lack of literal compliance with the mandates of § 54-lj (a) is irrelevant because the defendant knew that his pleas might result in deportation. Acceptance of this argument would render the requirements of § 54-lj (a) meaningless as applied to the facts of this case. Even if substantial compliance can be shown by the defendant’s actual knowledge of the immigration consequences of his pleas, the record does not reflect that the defendant had such knowledge at the time of his pleas. The state’s contention that the defendant was aware of the immigration consequences of his pleas is based on his testimony at a violation of probation hearing held several months earlier, on October 30, 2006, during which the defendant testified that he is not an American citizen and that he is “deportable.” The defendant’s testimony in October that he is deportable does not demonstrate that he was aware that his convictions could result in deportation, removal, denial of readmission or denial of naturalization. In fact, the defendant’s testimony indicates merely that the defendant was aware of his legal status as deportable apart from the potential consequences of a criminal conviction.

The state also argues that the defendant knew of the immigration consequences of his pleas on the basis of the prosecutor’s comment after the court accepted his pleas that the defendant was going to be deported. Because this comment was made after the court’s acceptance of the defendant’s guilty pleas, it cannot be construed as part of the plea canvass.

On the basis of the foregoing, we conclude that the court did not substantially comply with the requirements of § 54-lj. Accordingly, the court abused its discretion in denying the defendant’s motion to withdraw his guilty pleas.

The judgments are reversed and the case is remanded with direction to grant the defendant’s motion to withdraw his guilty pleas and for further proceedings according to law.

In this opinion the other judges concurred.

       See North Carolina v. Alford, 400 U.S. 25, 35, 91 S. Ct 160, 27 L. Ed. 2d 162 (1970).

       General Statutes § 54- lj provides: “(a) The court shall not accept a plea of guilty or nolo contendere from any defendant in any criminal proceeding unless the court first addresses the defendant personally and determines that the defendant fully understands that if the defendant is not a citizen of the United States, conviction of the offense for which the defendant has been charged may have the consequences of deportation or removal from the United States, exclusion from readmission to the United States or denial of naturalization, pursuant to the laws of the United States. If the defendant has not discussed these possible consequences with the defendant’s attorney, the court shall permit the defendant to do so prior to accepting the defendant’s plea.
      “(b) The defendant shall not be required at the time of the plea to disclose the defendant’s legal status in the United States to the court.
      “(c) If the court fails to address the defendant personally and determine that the defendant fully understands the possible consequences of the defendant’s plea, as required in subsection (a) of this section, and the defendant not later than three years after the acceptance of the plea shows that the defendant’s plea and conviction may have one of the enumerated consequences, the court, on the defendant’s motion, shall vacate the judgment, and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty.”

       Similarly, our courts repeatedly have held that “only substantial compliance is required when warning the defendant of the direct consequences of a . . . plea pursuant to Practice Book § 39-19 in order to ensure that the plea is voluntary pursuant to Practice Book § 39-20.” State v. Malcolm, supra, 257 Conn. 662. “[A]s determined in a case-by-case evaluation, only substantial compliance with those rules of practice is necessary to arrive at the conclusion that the defendant’s pleas were made knowingly and voluntarily . . . .” State v. Irala, 68 Conn. App. 499, 510-11, 792 A.2d 109, cert. denied, 260 Conn. 923, 797 A.2d 519, cert. denied, 537 U.S. 887, 123 S. Ct. 132, 154 L. Ed. 2d 148 (2002).

       By contrast, we note that in State v. Malcolm, supra, 257 Conn. 653, the defendant claimed that the trial court did not comply with § 54-lj because it advised him only of the possibility of deportation and denial of readmission, but not of denial of naturalization. Our Supreme Court held that “[b]y instructing the defendant that he could be deported or excluded from readmission to the United States, the trial court. . . substantially complied with § 54-lj” because the defendant “was warned adequately that his immigration status could be implicated by his guilty plea.” Id., 664.
      In State v. Irala, 68 Conn. App. 499, 792 A2d 109, cert. denied, 260 Conn. 923, 797 A.2d 519, cert. denied, 537 U.S. 887, 123 S. Ct. 132, 154 L. Ed. 2d 148 (2002), this court held that the trial court substantially complied with § 54-lj and adequately warned the defendant of the immigration consequences of her pleas in instructing the defendant that “her pleas could result in deportation if she was not a citizen of the United States.” Id., 519.

        In State v. Webb, 62 Conn. App. 805, 772 A.2d 690 (2001), this court found that the trial court substantially complied with § 54-1j when it advised the defendant, “[i]f you’re not a citizen of the United States, you are advised that a conviction of the offense for which you axe charged may have consequences of deportation, denial of naturalization or exclusion from the United States.” (Thtemal quotation marks omitted.) Id., 808.
      Section 54-lj (a) was amended in 2003 to increase the court’s obligation at the time of the plea canvass. The amendment replaced the requirement that the court “advise” the defendant with the greater requirement that the court not accept a plea until it “addresses the defendant personally and determines that the defendant fully understands” that the plea might have immigration consequences. See Public Acts 2003, No. 03-81, § 1. The amendment does not alter the applicability of the aforementioned cases to the case at hand where the court did not, in any meaningful way, comply with the mandates of § 54-lj (a).

       In making this argument, the state relies on the tests regarding substantial compliance with Practice Book §§ 39-19 and 39-20. In State v. James, 197 Conn. 358, 497 A.2d 402 (1985), our Supreme Court concluded that when determining whether there has been substantial compliance with Practice Book § 39-19 (4), formerly Practice Book § 711 (4), we must conduct a two part inquiry. Id., 361-66. Our first inquiry is to determine whether the court accepted the defendant’s pleas without first determining whether he was aware of and understood the maximum possible sentence to which he was exposed. Id., 364. Next, if we conclude that the court failed to determine whether the defendant was aware of and understood the maximum possible sentence, we examine the record to determine whether, despite the court’s failure, he nevertheless had actual knowledge of the maximum possible consequences of his pleas. See id.; see also State v. Bowden, 53 Conn. App. 243, 247-52, 729 A.2d 795 (1999). If either prong is satisfied, the pleas were accepted with substantial compliance with Practice Book § 39-19 (4).
      The test for substantial compliance with Practice Book § 39-20 “is whether, in light of all of the circumstances, the trial court’s literal compliance with [Practice Book] § 39-20 would have made any difference in the trial court’s determination that the plea was voluntary.” (Internal quotation marks omitted.) State v. Carmelo T., supra, 110 Conn. App. 556.
      In the case at hand, there was neither literal nor substantial compliance.

       The defendant’s attorney attempted to follow up on the defendant’s answer by asking, “So, does that mean—what does that mean, as far as you understand that?” The state objected to that question, and the court sustained the objection.


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. TERRELL STATON
    (AC 29607)
    DiPentima, Alvord and Hennessy, Js.

      Argued February 4
    officially released April 20, 2010

      Glenn W. Falk, special public defender, with whom was Jennifer Rae Taylor, law student intern, for the appellant (defendant).

      Michele C. Lukban, senior assistant state’s attorney, with whom, on the brief, was Stephen J. Sedensky III, state’s attorney, for the appellee (state).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

HENNESSY, J.

The defendant, Terrell Staton, appeals from the judgment of conviction, rendered after a jury trial, of sale of narcotics by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), sale of narcotics in violation of General Statutes § 21a-277 (a), sale of narcotics within 1500 feet of a school in violation of General Statutes § 21a-278a (b), possession of narcotics in violation of General Statutes § 21a-279 (a) and possession of narcotics within 1500 feet of a school in violation of General Statutes § 2 la-279 (d). On appeal, the defendant claims that the trial court improperly denied his motion to suppress the evidence obtained following his detention because the police lacked a sufficient reasonable suspicion of criminal conduct to stop him. Additionally, the defendant claims that his subsequent detention by the police was unconstitutionally prolonged. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. Lieutenant Shaun McColgan, a Danbury police officer with over twenty three years experience as an officer in New York City and Connecticut, and with over 500 drug arrests, went on patrol in an unmarked police station wagon after 3 a.m. on the morning of November 9, 2006. He was aware that the police had been watching a brown car with Colorado license plates earlier that morning and that he was to be on the lookout for suspicious activity associated with that vehicle. Thus, when he saw a brown Chrysler with Colorado license plates, occupied by a driver and a passenger, turn left down Davis Street, McColgan followed.

The Chrysler proceeded slowly down Davis Street, past the Morris Street School, onto Rogers Avenue and then right onto Westville Avenue. After McColgan turned left onto Westville Avenue to avoid detection, he observed the Chrysler turn around in a driveway and then head back up Rogers Avenue before ultimately stopping in front of the Morris Street School. At this point, given that the Chrysler was a known suspicious vehicle driving slowly in the early morning hours and because he believed the vehicle was “casing” the neighborhood, he turned off his vehicle’s headlights, backtracked up Rogers Avenue and stopped approximately 200 feet behind the Chrysler on Davis Street. He had an unobstructed view of the Chrysler, and no other vehicles were parked on the road at that time.

McColgan initially thought he saw someone exit the Chrysler and that a burglary of the school was going to occur. Within seconds, however, he realized that the defendant, wearing a black hooded sweatshirt, had approached the Chiysler’s front passenger window, leaned into the car and placed his hands on the door. McColgan could not see what was happening inside the vehicle and did not observe the exchange of drugs or money. About ten seconds later, the defendant walked away from the car and into a school parking lot. McCol-gan testified that, in light of his experience, he suspected a hand-to-hand drag transaction had occurred.

Immediately after the defendant walked away from the vehicle, the Chrysler proceeded north on Davis Street. McColgan turned his vehicle’s headlights on and began to follow the Chrysler. As he drove slowly past the defendant, the defendant looked directly at McCol-gan, who had a clear view of the defendant’s face.

McColgan next radioed for assistance, requesting that nearby officers detain the defendant and follow the Chrysler. He gave a very general description of the defendant as a black male and provided his location for the officers. Within one minute, two officers detained the defendant and notified McColgan, who was still following the Chrysler, of the detention. The defendant provided identification to the officers and told them that he was coming from his girlfriend’s house and heading to his mother’s house. The officers did not handcuff him, they did not place him in a police car, and they did not display their weapons. The defendant, however, was not free to leave.

Concurrent with the investigatory stop of the defendant, two additional undercover officers—who had responded to McColgan’s call and closely were following the Chrysler—saw the Chrysler commit a traffic infraction. The officers notified McColgan of the traffic infraction, and he instructed them to make a motor vehicle stop. McColgan then caught up to the Chrysler, which the officers had stopped, received permission from the driver to search the vehicle and found crack cocaine on the passenger side floor. The driver told him that the passenger in the Chrysler had just purchased the drugs from a black male at the Morris Street School.

As a result, McColgan radioed the officers who were detaining the defendant and instructed them to arrest him. McColgan then went to Tomlinson Avenue, where the defendant had been detained, and identified the defendant as the black male he had seen at the Chrysler’s passenger window in front of the Morris Street School. The defendant was brought to the police station and subsequently searched. A cellular telephone, two $50 bills in one pocket and a total of $30 cash in another pocket were found. Approximately twelve to fifteen minutes elapsed from the initial detention of the defendant until he was arrested on Tomlinson Avenue.

On August 10, 2007, the defendant filed a motion to suppress all evidence that the police had obtained as a direct consequence of the investigative stop, including the drugs seized in the Chrysler, the money and the cellular telephone. The court held an evidentiary hearing on the matter on August 14 and 16, 2007. In an oral ruling, the court denied the defendant’s motion to suppress. The court stated that a “police officer may, in appropriate circumstances . . . and in an appropriate manner, detain ... an individual for investigative purposes, even though there is no probable cause to make an arrest. The state has the burden of showing that when the initial seizure of the defendant occurred, the police had sufficient objective indicia of criminal activity [given the totality of the circumstances] to justify an intrusion on the defendant’s freedom of movement.” According to the court, a reasonable and articulable suspicion could not be based on a mere hunch but, rather, had to be based on specific reasonable inferences that the officer could draw from the facts in light of his experience.

Given this legal standard and the facts of the case, the court concluded that the officers had a reasonable and articulable suspicion to detain the defendant. Among the factors the court considered was McCol-gan’s twenty plus years of experience as a police officer. Specifically, the court pointed out that McColgan worked for years in a New York City police department street narcotics unit where he had observed drug transactions involving motor vehicles. Additionally, the court noted the following reasonable inferences: there were no other pedestrians in the area when the defendant was detained, and he was in a residential area at a quiet time of day—approximately 3:30 a.m.

The court then went on to conclude that the approximately twelve to fifteen minute detention of the defendant was not too intrusive or too lengthy to violate his constitutional rights. The court stated that “[t]he purpose of detaining the defendant was to conduct an investigation. [After completing the investigation] the police had probable cause to arrest the defendant for sale of narcotics, when the police obtained the information, which rose to probable cause, the defendant’s detention [then] turned into an arrest when . . . McColgan radioed the officers near [the school] that the defendant should [be placed under arrest].” As a result, the court denied the defendant’s motion to suppress.

Following a jury trial, the defendant was found guilty of all the drug related charges and not guilty of loitering in or about school grounds. He was sentenced to twenty years in prison, execution suspended after twelve years, and five years of probation. This appeal followed.

We first set forth our standard of review. “[0]ur standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [When] the legal conclusions of the court are challenged, [our review is plenary, and] we must determine whether they are legally and logically correct and whether they find support in the facts set out in the court’s [ruling] .... Because a trial court’s determination of the validity of a . . . search [or seizure] implicates a defendant’s constitutional rights . . . we engage in a careful examination of the record to ensure that the court’s decision was supported by substantial evidence. . . . However, [w]e [will] give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Citation omitted; internal quotation marks omitted.) State v. Kimble, 106 Conn. App. 572, 579, 942 A.2d 527, cert. denied, 287 Conn. 912, 950 A.2d 1289 (2008).

I

The defendant claims that the court improperly denied his motion to suppress the evidence obtained following his detention because the police lacked a sufficient reasonable suspicion of a drug transaction to stop him. We disagree.

“The law regarding investigative detentions is well settled in federal and state jurisprudence. Article first, §§ 7 and 9 of our state constitution permit a police officer in appropriate circumstances and in an appropriate manner to detain an individual for investigative purposes even though there is no probable cause to make an arrest. ... In determining whether the detention was justified in a given case, a court must consider if [b]ased upon the whole picture the detaining officers [had] a particularized and objective basis for suspecting the particular person stopped of criminal activity. . . . A court reviewing the legality of a stop must therefore examine the specific information available to the police officer at the time of the initial intrusion and any rational inferences to be derived therefrom. . . . These standards, which mirror those set forth by the United States Supreme Court in Terry v. Ohio, [392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)], with regard to fourth amendment analysis, govern the legality of investigatory detentions under article first, §§ 7 and 9 of our state constitution.” (Internal quotation marks omitted.) State v. Kimble, supra, 106 Conn. App. 596-97.

“[I]n justifying [a] particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. ... In determining whether a detention is justified in a given case, a court must consider if, relying on the whole picture, the detaining officers had a particularized and objective basis for suspecting the particular person stopped of criminal activity. When reviewing the legality of a stop, a court must examine the specific information available to the police officer at the time of the initial intrusion and any rational inferences to be derived therefrom. ... A recognized function of a constitutionally permissible stop is to maintain the status quo for a brief period of time to enable the police to investigate a suspected crime. . . .

“[Effective crime prevention and detection . . . [underlie] the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. . . . Therefore, [a]n investigative stop can be appropriate even where the police have not observed a violation because a reasonable and articulable suspicion can arise from conduct that alone is not criminal. ... In evaluating the validity of such a stop, courts must consider whether, in light of the totality of the circumstances, the police officer had a particularized and objective basis for suspecting the particular person stopped of criminal activity.” (Citations omitted; internal quotation marks omitted.) State v. Lipscomb, 258 Conn. 68, 75-76, 779 A.2d 88 (2001).

Accordingly, “[t]he Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. ... A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.” (Internal quotation marks omitted.) State v. Ward, 83 Conn. App. 377, 388, 849 A.2d 860, cert. denied, 271 Conn. 902, 859 A.2d 566 (2004).

“When considering the validity of [an investigatory] stop, our threshold inquiry is twofold. . . . First, we must determine at what point, if any, did the encounter between [the police officer] and the defendant constitute an investigatory stop or seizure. . . . Next, [i]f we conclude that there was such a seizure, we must then determine whether [the police officer] possessed a reasonable and articulable suspicion at the time the seizure occurred.” (Citations omitted; internal quotation marks omitted.) State v. Santos, 267 Conn. 495, 503, 838 A.2d 981 (2004). Because there is no dispute in this case regarding the court’s determination that the defendant was subject to an investigatory stop or seizure, we move directly to the reasonable and articulable suspicion analysis.

On appeal, the defendant does not challenge the court’s findings of fact. The defendant claims that his rights under the fourth amendment to the United States constitution, and under article first, §§ 7 and 9, of the Connecticut constitution, were violated because there was no objective, particularized suspicion that he was involved in criminal activity at the time the police stopped him. According to the defendant, he could have been giving directions to the out-of-state car on the morning in question, and, additionally, it was significant that the police did not observe an exchange of money or drugs. The defendant argues that the police had, at most, an unparticularized suspicion or hunch that he was engaged in criminal activity, and, therefore, all the evidence that the police obtained as a direct consequence of the investigative stop should be suppressed. We are not persuaded.

Our review of the record indicates that the court, consistent with the reasonable suspicion standard established by our jurisprudence, properly concluded that the officers had a reasonable basis for their investigative stop. This conclusion is supported by the testimony presented at the suppression hearing and the court’s findings. The police were on the lookout for suspicious activity associated with a brown car with Colorado license plates. When McColgan saw a brown Chrysler with Colorado license plates after 3 a.m., he began to follow the vehicle. The Chrysler was proceeding slowly, then turned around in a driveway, immediately retraced its route and stopped at a school it had just passed, as if it were “casing” the neighborhood. At this time, McColgan already was suspicious of potential illegal activity. After the Chrysler stopped in front of the school, the defendant suddenly appeared, leaned into the vehicle and ten seconds later walked away. The court pointed out that there were no other pedestrians in the area, it was a residential neighborhood, and it was a quiet time of day.

The court specifically cited to McColgan’s twenty plus years of police experience, both in New York City, where he worked on a street narcotics unit observing drug sale transactions involving motor vehicles, and in Danbury, as a relevant factor in determining whether he possessed a reasonable and articulable suspicion to detain the defendant. Our Supreme Court has stated that part of the totality of circumstances that a court considers “are those inferences and deductions made by officers under the particular circumstances, since law enforcement officials are trained to cull significance from behavior that would appear innocent to the untrained observer.” (Internal quotation marks omitted.) State v. Nash, 278 Conn. 620, 635, 899 A.2d 1 (2006); see State v. Tuck, 90 Conn. App. 872, 879 n.1, 879 A.2d 553 (2005).

Furthermore, in determining whether police have reasonable suspicion to stop a vehicle, the United States Supreme Court has stated that reviewing courts “must look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing. . . . This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.” (Citation omitted; internal quotation marks omitted.) United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002). This is precisely what McColgan did in this case. He testified that, in light of his experience, he suspected a hand-to-hand drug transaction had occurred.

Finally, to the extent that the defendant deems it significant that the police did not see the actual exchange of money and drugs and that there were plausible noncriminal justifications for the conduct that the police did observe, such arguments are not persuasive. “The fact that an innocuous explanation for the conduct observed may have existed is of no consequence to our analysis when . . . there was a reasonable basis for the police to suspect criminal activity. Suspicious activity, by its very nature, is equivocal and ambiguous. . . . The possibility of an innocent explanation does not deprive the officers of the capacity to entertain a reasonable suspicion of criminal conduct.” (Citation omitted; internal quotation marks omitted.) State v. Days, 89 Conn. App. 789, 802, 875 A.2d 59, cert. denied, 275 Conn. 909, 882 A.2d 677 (2005).

The foregoing circumstances yielded sufficient specific and articulable facts to render the investigatory stop of the defendant constitutionally reasonable. On the basis of the totality of the circumstances, which includes McColgan’s vast police experience and the rational inferences he derived from the information available to him, it is clear that he had a particularized and objective basis for suspecting that the defendant was involved in criminal activity. We conclude that the court properly found that the facts justified the initial stop of the defendant.

n

Having determined that the investigative stop was “justified at its inception”; Terry v. Ohio, supra, 392 U.S. 20; we next must consider “whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Id. The defendant claims that the officers’ minimal level of suspicion, even if it was enough for an investigative stop pursuant to Terry, did not justify the prolonged detention of him after he provided identification and answered questions regarding where he was coming from and where he was going. He argues that McColgan’s direction to the officers to detain him indefinitely, while McColgan pursued the Chrysler, violated both his federal and state constitutional rights. Because his behavior did not confirm or arouse the existing level of suspicion, the defendant argues, the officers should have released him immediately. We disagree.

The limit of an investigative stop is grounded in the standard of reasonableness embodied in the fourth amendment. The test “balances the nature and quality of the intrusion on personal security against the importance of the governmental interests alleged to justify the intrusion. . . . Determination of the means and duration that are reasonably necessary for an investigative stop depends on a fact-bound examination of the particular circumstances.” (Citations omitted; internal quotation marks omitted.) State v. Foster, 13 Conn. App. 214, 218, 535 A.2d 393 (1988). “In assessing whether a detention is too long in duration to be justified as investigative, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was only to confirm or dispel their suspicion quickly, during which time it was necessary to detain the defendant.” (Internal quotation marks omitted.) State v. Ward, supra, 83 Conn. App. 389.

We find nothing in this record to persuade us that the approximately twelve to fifteen minute investigatory stop of the defendant was illegal. Within one minute after the defendant left the Chrysler, he was detained by officers on Tomlinson Avenue. While the officers detained the defendant, McColgan was following the Chrysler. After additional officers stopped the Chrysler for a traffic infraction, the driver gave McColgan permission to search the car. Immediately after crack cocaine was found in the car, McColgan radioed the officers who were detaining the defendant and instructed them to arrest him. McColgan then went to Tomlinson Avenue and identified the defendant as the black male he had seen at the Chrysler’s passenger window in front of the Morris Street School.

McColgan’s diligent conduct strictly was tied to, and justified by, the circumstances that gave rise to his reasonable and articulable suspicion that the defendant was involved in a drug transaction. Thus, the detention of the defendant for approximately twelve to fifteen minutes reasonably was calculated to maintain the status quo for a brief period of time to enable the police to investigate a suspected crime. See id., 388.

Because the investigatory detention was supported by a reasonable and articulable suspicion of criminal conduct and the duration of the stop was appropriate under the circumstances, we conclude that the defendant’s constitutional rights were not violated. Accordingly, the court properly denied the defendant’s motion to suppress.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court subsequently signed a transcript of its ruling, thereby bringing its decision into compliance with Practice Book § 64-1.

       The defendant entered guilty pleas to the state’s part B information, in which the state alleged that he previously had been twice convicted of the offense of possession of narcotics.

       In his brief, the defendant correctly states that article first, §§ 7 and 9, of the constitution of Connecticut afford greater protection to the citizens of this state than the federal constitution in determining what constitutes a seizure. See State v. Oquendo, 223 Conn. 635, 649-50, 613 A.2d 1300 (1992). The defendant also acknowledges in his brief, however, that there is no dispute in this case that he was subject to a seizure. Consequently, because the constitutional principles that govern what constitutes reasonable and articulable suspicion are the same under both the state and federal constitutions, we need not separately analyze this claim under each constitution. See State v. Richards, 113 Conn. App. 823, 832 n.6, 968 A.2d 920, cert. granted on other grounds, 292 Conn. 905, 973 A.2d 107 (2009).

       Although the defendant contests whether he was detained in a high crime area, the court did not make a finding on this issue. Because we conclude that the uncontested facts sufficiently support the court’s denial of the defendant’s motion to suppress, we need not address this unresolved factor on appeal.

       The fourth amendment to the United States constitution provides in relevant part: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .”

       Article first, § 7, of the constitution of Connecticut provides in relevant part: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures . . . .”

       Article first, § 9, of the constitution of Connecticut provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”

       Although the defendant relies on State v. Donahue, 251 Conn. 636, 742 A.2d 775 (1999), cert. denied, 531 U.S. 924, 121 S. Ct. 299, 148 L. Ed. 2d 240 (2000), and State v. Oquendo, 223 Conn. 635, 613 A.2d 1300 (1992), the circumstances justifying the investigative stop in this case exceed those circumstances that our Supreme Court rejected in Donahue and Oquendo. See State v. Lipscomb, supra, 258 Conn. 77-78, for a relevant discussion of the minimal circumstances present in those two cases.


author: STOUGHTON, J.

text:
    STATE OF CONNECTICUT v. JEROME F. MOORE
    (AC 30315)
    DiPentima, Beach and Stoughton, Js.

      Argued January 20
    officially released April 20, 2010

      Mary Anne Royle, special public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Jason Germain, assistant state’s attorney, for the appellee (state).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

STOUGHTON, J.

The defendant, Jerome F. Moore, appeals from the judgment of conviction, rendered after a jury trial, of one count of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b) and one count of possession of narcotics with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b). On appeal, the defendant claims (1) that the trial court improperly denied his motion to suppress evidence seized as the result of a warrantless entry of his apartment and (2) that the warrantless entry by the police violated his rights under article first, § 7, of the Connecticut constitution. We affirm the judgment of the trial court.

The defendant moved pursuant to both the federal and state constitutions to suppress evidence obtained by the police after they had arrested him and entered his apartment. On November 29, 2007, the court conducted an evidentiary hearing on the defendant’s motion to suppress. At the conclusion of the hearing, the court denied the defendant’s motion; thereafter, the matter was tried to the jury, and the defendant was convicted as charged on both counts, from which he appealed to this court. The defendant claims that his rights under the fourth amendment to the federal constitution were violated when the police entered his apartment without a warrant and that the court improperly determined that both he and his wife had consented to entry by the police. He claims further that even though the court determined that their consent had been implied, article first, § 7, of the state constitution requires express consent.

The court, in its oral ruling on the defendant’s motion to suppress, found the following facts. At approximately 7:45 a.m. on September 29, 2006, three officers from the Waterbury police department entered the common hallway of an apartment building located at 417 East Main Street in that city with valid warrants for the arrest of the defendant. The officers saw the defendant standing in the common hallway outside of the door to a common bathroom, dressed only in a T-shirt and boxer shorts. The officers indicated to the defendant that they had warrants for his arrest and placed him under arrest. After being placed in handcuffs, the defendant indicated to the officers that he wanted additional clothing before going to the police station. The officers acceded to his request and asked the defendant where his clothing was located. The defendant nodded toward his apartment, the door to which was ajar. One of the officers then knocked on the partially open door, which swung open as a consequence. The defendant’s one room apartment contained a bed in which the officer saw the defendant’s wife, Ebony Moore. Ebony Moore did not indicate to the officers in any way that they could not enter. Furthermore, upon entering, the officers did not intend to search the apartment; instead their sole intent was to retrieve the defendant’s clothes. This intent was expressed to Ebony Moore when the officers indicated to her that they were entering to get clothing for the defendant; neither threats nor use of force were issued to gain entry. After entering the apartment for that purpose, one of the officers noticed crack cocaine on top of a dresser and seized it. The defendant subsequently moved to suppress the seizure of those narcotics.

The court found, on basis of the totality of the circumstances, that the defendant voluntarily consented to entry by the officers and that he had the authority to grant such consent. It also found that Ebony Moore, by way of her conduct, impliedly consented to the officers’ entry. Accordingly, the court denied the defendant’s motion to suppress the seized evidence. This appeal followed.

I

Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. “A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out [by the trial court].” (Internal quotation marks omitted.) State v. Burroughs, 288 Conn. 836, 843, 955 A.2d 43 (2008).

On appeal, the defendant claims that his conduct and the circumstances surrounding his arrest were too ambiguous for the police reasonably to assume that he consented to their entry. We find nothing ambiguous either in his conduct or in the circumstances, which were as follows. The police arrived at the defendant’s last known address with outstanding warrants to arrest him for selling narcotics. They entered the apartment building and observed the defendant outside a common bathroom wearing only boxer underpants and a sleeveless undershirt. When they arrested him, the defendant inquired of the officers “if he could get some clothes on” so that he did not have “to go downtown” in his underwear.

It is true that, as appellate counsel suggested to us at oral argument, the police could have taken the defendant to the police station as he was dressed. It is perfectly understandable, however, that the defendant did not want to be taken to the station in his underwear and that, therefore, the police agreed to let him get dressed. In response to the defendant’s request for clothing, the officers naturally inquired of the defendant where his apartment was. The defendant then led the officers to his apartment and nodded toward the partially open door when the police asked where his clothing was. There was testimony that the defendant told the police, when they asked him whether anyone was inside, that his wife was in the apartment. When one of the officers knocked, the partially open door swung further open, and the officer could see Ebony Moore lying in bed. The officer then identified himself as a Waterbury police officer and indicated to Ebony Moore that her husband was being placed under arrest. When asked, she said that she was dressed. The officer again explained that the defendant had been arrested and that he wanted to get dressed. Ebony Moore was then asked to leave the room, and she agreed and went out into the hallway. Two of the officers then entered the apartment with the defendant and had him identify the clothing he wanted. The defendant indicated that his pants were in the comer of the room, and as one of the officers proceeded to retrieve the pants he saw the bags of crack cocaine on top of a dresser.

Until the defendant asked to get dressed, the officers neither had any intent nor any reason to enter the apartment. Once he asked for his clothing, it is hardly necessary to point out that the police would not allow a suspected drag dealer to enter his apartment alone, where he might have weapons and would want to have his companion under some control. The police entered not to search the apartment but only to assist the defendant in the retrieval of his clothing because they could not allow him to enter the apartment alone.

We agree with the court that the defendant voluntarily consented by his conduct to the police entry into his apartment. Nothing in the record suggests that he acquiesced to a direction by the police; quite to the contrary, the police acquiesced to his request for clothing. A warrantless search, or entry in this case, is not unreasonable if a person with authority to do so has freely consented to the entry. State v. Jones, 193 Conn. 70, 78-79, 475 A.2d 1087 (1984). Whether consent has been freely and voluntarily given is a question of fact to be determined by the trial court on the basis of the totality of the circumstances. Id., 79. This court may reverse the trial court’s factual findings on appeal only if they are clearly erroneous. Id., 79-80. We conclude that there was ample evidence in the record to support the court’s finding of consent on the part of the defendant.

We also see nothing about the presence of Ebony Moore that made it unreasonable for the police to infer that they had the defendant’s consent to enter the apartment. The defendant claims that her presence in the room rendered the situation too fraught with ambiguity for the officers reasonably to infer that they had consent to enter. The officers, as set forth previously, did not enter until Ebony Moore had exited into the hallway and only went into the apartment because they reasonably believed that the defendant consented to their entry.

The defendant also has attacked the court’s finding that Ebony Moore consented to the police entry. We find it unnecessary to consider this claim. Fourth amendment rights are personal and may not be asserted vicariously. State v. Morrill, 197 Conn. 507, 540, 498 A.2d 76 (1985). Ebony Moore was not arrested or charged with any crime, and the police, having obtained consent from the defendant, were not required under the circumstances to inquire of Ebony Moore if she, too, consented. See Georgia v. Randolph, 547 U.S. 103, 122, 126 S. Ct. 1515, 164 L. Ed. 2d 208 (2006); United States v. Lopez, 547 F.3d 397, 400 (2d Cir. 2008), cert. denied, 556 U.S. 1138, 129 S. Ct. 1636, 173 L. Ed. 2d 1014 (2009).

II

The defendant claims that under article first, § 7, of the Connecticut constitution, consent to enter or to search one’s premises must be express. He does not direct our attention to any of our case law to support this position.

Our Supreme Court repeatedly has observed that the language of article first, § 7, closely resembles that of the fourth amendment. State v. Davis, 283 Conn. 280, 306, 929 A.2d 278 (2007). “The similarity denotes a common source and, thus, [supports] a common interpretation of the provisions.” (Internal quotation marks omitted.) Id., 306-307. Our courts have frequently upheld entries and searches where consent was implied by words or conduct. See, e.g., State v. Smith, 105 Conn. App. 278, 293-94, 937 A.2d 1194, cert. denied, 286 Conn. 909, 944 A.2d 980 (2008); State v. McColl, 74 Conn. App. 545, 559-60, 813 A.2d 107, cert. denied, 262 Conn. 953, 818 A.2d 782 (2003). Most important, we note that although article first, § 7, was cited in the defendant’s motion to suppress, this appears to be a form motion, and the claim that article first, § 7, demands express consent to enter was never litigated in the trial court. Consequently, the defendant has requested review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

A defendant can prevail on an unpreserved constitutional claim only if the four conditions set out in Golding are satisfied. Under the circumstances of this case, although it seems clear that express consent was not sought by the police, it is also clear that the officers entered the apartment along with the defendant only so that he could get his clothing. At the conclusion of the suppression hearing, the prosecutor argued that the police did not have to ask for permission to accompany the defendant into his apartment. When the court queried whether the police would still need consent to enter, the prosecutor answered in the affirmative. The defendant, in response, focused his attack on the credibility of the officers. In fact, the defendant conceded that if the court credited the testimony of the police officers, rather than that of Ebony Moore, consent would be sufficient “[a]s a matter of law . ...” If the defendant had argued at the evidentiary hearing that implied consent was inadequate, the prosecutor likely would have developed further his claim that under the circumstances no express permission to enter was required and that the officers’ accompaniment of the defendant while he retrieved his clothing was reasonable.

The United States Supreme Court has held that it is not unreasonable under the fourth amendment for a police officer, as a matter of routine and as his or her judgment dictates, to monitor the movements of an arrested person following such arrest. Washington v. Chrisman, 455 U.S. 1, 7, 102 S. Ct. 812, 70 L. Ed. 2d 778 (1982). The officer’s need to ensure his or her own safety as well as the integrity of the arrest is compelling. Id. Article first, § 7, of our state constitution, like the fourth amendment to the federal constitution, protects only against unreasonable searches and seizures. It is therefore not clear on the state of the record that the alleged constitutional violation clearly exists. Accordingly, we conclude that the defendant has not satisfied the third condition enunciated in Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

       The substance seized, which was packaged in eighty bags, later was identified as 13.2 grains of cocaine. Additionally, after the defendant identified the pants he wanted, one of the officers searched the pockets before giving the pants to him and discovered $632, which also was seized. The defendant was then transported to the police department, where he was advised of Ms Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The defendant signed a waiver of rights form, then provided a written and sworn statement in which he stated that the crack cocaine was his and that he sells it.

       The four conditions of Golding are: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” State v. Golding, supra, 213 Conn. 239-40.


author: PER CURIAM.

text:
    MICHAEL A. SANDERS v. JOSE C. DIAS ET AL.
    (AC 30722)
    DiPentima, Robinson and Alvord, Js.

    Argued January 21
    officially released April 20, 2010

      Joshua A. Winnick, for the appellants (defendants).

      William, C. Bieluch, Jr., for the appellee (plaintiff).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

PER CURIAM.

On May 3, 2005, the plaintiff, Michael A. Sanders, filed an action for trespass, seeking to enjoin the defendants, Jose C. Dias and Lisa M. Murray, from using a portion of his driveway. The court, McWeeny, J., found an easement in favor of the defendants over a portion of the plaintiffs driveway measuring approximately ten feet wide by twenty feet long. See Sanders v. Dias, Superior Court, judicial district of Middlesex, Docket No. CV-05-4002743-S (December 28,2006), affd, 108 Conn. App. 283, 947 A.2d 1026 (2008). This court affirmed the judgment but remanded the case “for the [trial] court to determine the precise scope and the exact location of the defendants’ easement by implication over a portion of the plaintiffs driveway.” Sanders v. Dias, 108 Conn. App. 283, 296, 947 A.2d 1026 (2008).

In its supplemental judgment, the court stated that the scope of the easement is “for vehicles or pedestrian access from Quarry Hill Road over the plaintiffs driveway to the defendant’s driveway; where it intersects plaintiffs driveway,” and defined the location of the easement as follows: “The easement begins at the iron peg on the Northeast point where the plaintiffs driveway intersects with Quarry Hill Road. It extends westerly 10 feet; then southerly 20 feet along the property line dividing plaintiff and defendant’s property. The properties are identified as 11 and 12 on Map 530, entitled Final Plan of Old Mill Hill Subdivision dated 1/ 12/1972, Recorded 4/4/1973, in the Killingworth Land Records.” The defendants filed this appeal, claiming that the supplemental judgment does not comply with this court’s remand order. We agree.

We have carefully reviewed map 530 and the other maps submitted by the parties as evidence and determined that the court’s supplemental judgment does not provide an adequate description of the easement’s location. We, therefore, vacate the court’s supplemental judgment as to the location of the easement and remand the matter for a full evidentiary hearing to determine the exact location of the easement pursuant to Sanders v. Dias, supra, 108 Conn. App. 283. See Lega Siciliana Social Club, Inc. v. St. Germaine, 91 Conn. App. 328, 332, 880 A.2d 195, cert. denied, 276 Conn. 913, 886 A.2d 425 (2005). The trial court may find it necessary to order the parties to submit surveys or any other materials to properly and specifically define the easement’s location.

The supplemental judgment as to the location of the easement is vacated and the case is remanded for further proceedings consistent with this opinion. The supplemental judgment is affirmed in all other respects.


author: MIHALAKOS, J.

text:
    IN RE ELLIS V. ET AL.

    (AC 29992)
    Robinson, Alvord and Mihalakos, Js.

      Argued November 12, 2009
    officially released April 20, 2010

      John J. McGrath, Jr., for the appellants (respondent mother and respondent father Darin O.).

      Kirsten S. P. Rigney, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan Quinn Cobb, assistant attorney general, for the appellee (petitioner).

      Karen Oliver Damboise, for the minor child Ellis V.

      Raymond F. Parlato, filed a brief for the minor child Zandelee V. et ai.

       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

MIHALAKOS, J.

The respondent mother of four minor children and the respondent father of one of those children appeal from the judgments of the trial court terminating their parental rights with respect to the children for failure to achieve a sufficient degree of personal rehabilitation pursuant to General Statutes § 17a-112 (j) (3) (B). We affirm the judgments of the trial court.

The following facts and procedural history are relevant to our review of the respondents’ claims. The respondent mother is the biological mother of the four children involved in this appeal: Ellis, Zandelee, Julian and Abigail. The respondent father is the father of only Abigail. The other three children have three different fathers, who each reside in South Africa and have failed to participate in any of these proceedings. The four children were bom in South Africa and now reside in Connecticut. The respondent mother met the respondent father in 1999, and they were married in October, 2000. In 2000, the respondent mother gave birth to Abigail, and the respondents moved to Connecticut with all four children in 2001.

The respondent mother was bom in South Africa in 1974, is seriously underweight, appearing to weigh no more than seventy pounds, and admits to regular use of crack cocaine. She remained in orphanages throughout her youth, has eight years of education, and her only known employment was providing day care and working as a waitress in South Africa.

The respondent father was bom in 1969 and has a bachelor of science degree in marine engineering. He has been steadily employed for his entire adult life, and his current job as a chief engineer requires that he travel out of the country for at least three months at a time. While his job pays him over $100,000 per year, he is away at sea for at least one half of every year. He has been doing this work for more than fifteen years and, at the time of trial, needed approximately four more years of actual sea duty to qualify for a union pension.

In 2005, the department of children and families (department) received five referrals regarding domestic violence between the respondents, which led the department to refer the family for domestic violence counseling. In March, 2006, school authorities expressed concern that Abigail, a child with profound medical and special education needs, had missed fifty-one days of school and consistently showed up at school with head lice. Abigail has significant medical problems that require constant attention. She suffers from Brown’s syndrome, which causes her to see double and lose her balance in an effort to see. She also suffers from microcephaly, a condition manifested by smaller than usual head size and an abnormally small brain. She was delayed in her speech development, fine motor skills and toilet training. The department determined that Abigail was physically, medically and educationally neglected by the respondent mother.

At the time of the 2006 investigation by the department, the respondent father was at sea. The department entered into a service agreement with the respondent mother, requiring that she submit to a mental health evaluation, cooperate with a parent aide provided by the department and ensure adult supervision of the children twenty-four hours a day. Subsequent investigations confirmed that the respondent mother failed to comply; the house was in a “horrible” state of disorder and uncleanliness. The department also confirmed that the mother was abusing drugs, and missed three scheduled mental health evaluations and two appointments for substance abuse evaluation, which included hair and urine screening.

On May 22, 2006, the petitioner, the commissioner of children and families, sought and obtained an order of temporary custody of the children. They were removed from the home and have not been returned. On June 21, 2006, the respondents contested the initial order of temporary custody. The court, Foley, J., found that the children were in immediate danger and that the respondent father’s denial of his wife’s substance abuse issues was a serious problem. The court advised the respondent mother that she needed treatment, and advised the respondent father that his return to sea would leave his daughter at risk in the respondent mother’s care and jeopardize reunification with his daughter.

In September, 2007, the petitioner filed petitions for termination of parental rights as to both respondents. The court heard seventeen witnesses and admitted twenty-six exhibits during a three day trial that concluded on May 8, 2008. On May 20, 2008, the court granted the petitions and terminated the parental rights of both respondents. This appeal followed. Additional facts will be set forth as necessary.

We must first set forth the applicable 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 § 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 Zion R., 116 Conn. App. 723, 732-33, 977 A.2d 247 (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 CheilaR., 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., 290 Conn. 131, 148, 962 A.2d 81 (2009).

“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). We now turn to the respondents’ claims.

I

The respondents claim that the court improperly concluded that they failed to achieve a sufficient degree of personal rehabilitation. The respondents argue that they were not given enough time to sufficiently rehabilitate and that the court disregarded evidence of the respondent father’s positive effect on the family. Because the record supports the court’s finding, there is no error.

Section 17a-112 (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 (“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 outlined the specific steps required for the respondents to regain custody of their children. The steps included the customary requirements that the respondents cooperate with the department, visit as often as permitted, attend counseling, avoid criminal activity and avoid further substance abuse. The department offered various services, including individual counseling to address parenting skills, mental health and substance abuse. The department offered services through New Perceptions for outpatient substance abuse, Saint Francis Hospital and Medical Center in Hartford for inpatient treatment, Rushford Hospital for inpatient treatment, Blue Hills treatment center for inpatient substance abuse, AdCare Hospital in Worcester, Massachusetts for inpatient substance abuse and Sachem House for follow-up outpatient substance abuse. The department also offered home health aides, but their services were refused by the respondent mother. Finally, the respondents were offered marital counseling at New Perceptions.

Although the respondent mother was warned that she needed to address her substance abuse problem, she has consistently tested positive for cocaine use throughout the past two years. According to the respondent mother, she “ ‘would he, steal, hide something, [and she] would close the door of [her] bedroom and use drugs.’ ” Although she says that her goal is to get better and she believes that she has made significant progress, she continues to abuse drugs and has admitted that she has a “ ‘long way to go.’ ”

In the first few months after the removal of her children in the summer of 2006, the respondent mother was offered treatment at an adult outpatient treatment facility. She only attended the fifth group session, arriving twenty minutes late and abruptly leaving before the required drug screen. She also avoided an inpatient treatment program at Connecticut Valley Hospital in Middletown, a facility for persons diagnosed with both mental health and substance abuse problems. It was not until April, 2007, that she entered an inpatient treatment program called Gosnold on Cape Cod in Falmouth, Massachusetts. Her primary diagnosis was cocaine addiction. The Gosnold program, and the department, recommended follow-up outpatient support and therapy at Sachem House, a division of Natchaug Hospital in Mansfield Center. She entered that program on June 29, 2007, and was discharged on July 19, 2007. She attended only four days of treatment and made no progress toward her treatment goals. Her discharge report stated that her prognosis was poor.

Drug tests have confirmed that the respondent mother continues to use cocaine, and she admits that she did not complete that program because “[her] body was still craving drugs.” The petitioner’s expert witness, a psychologist who conducted a court-ordered evaluation of the respondent mother, represented to the court that it was “unlikely that reunification and rehabilitation would be possible.” In a psychological assessment report prepared by the psychologist and introduced as an exhibit at the trial, she stated that, given the length of time since the children had been removed, it was “highly doubtful” that rehabilitation of the respondent mother’s “significant emotional issues” would occur within a reasonable time. Although the respondent mother seems to be using drugs less frequently, she is still regularly abusing drugs and is inconsistent in her treatment. Moreover, at trial, the testimony was unanimous that the children have various emotional and physical problems, need stability and should not be returned to the respondent mother. Accordingly, the court correctly found that, given the needs of the children, the respondent mother could not achieve a sufficient degree of rehabilitation within a reasonable time.

The record also supports the court’s finding that the respondent father has failed to achieve a sufficient degree of rehabilitation. He remains loyal to the respondent mother, and nothing changed in the two years following the children’s removal from the home. The respondent father’s job required that he be away at sea at least six months each year. Irrespective of Abigail’s considerable medical problems, the respondent father entrusted her care to the respondent mother with the knowledge that the respondent mother has significant psychological and substance abuse problems and could not care for Abigail properly. While he was gone at sea, he took no action to protect Abigail from this precarious state of affairs.

After the children were taken into custody by the petitioner, the respondent father was informed by the court and the department that he would lose his parental rights with respect to Abigail if he continued to deny his wife’s problems. He was informed that in order to be reunited with Abigail, he would need either to leave his wife or to change his job so that he could remain stateside. In fact, the respondent father had an opportunity to take a job stateside and address these family issues, but he chose not to do so because of its potential financial impact. While we recognize that taking a job stateside would have financial implications for the respondent father, his decision-making behavior is not that of a father prioritizing reunification with his daughter. He stated at trial that securing a stateside job was “[j]ust a matter of a phone call to [his] employer [to] say [he] will take the job,” yet, given the status quo of the two years since the children were removed from the home and the financial implications of such a move, it is not unreasonable to conclude that such a telephone call was unlikely to occur.

As the court stated, “[i]t is difficult to understand [the respondent father’s] loyalty to [his wife]. It is her second marriage. She has four children by four men; if she is to be believed, none of her children are [the respondent father’s]. In 2005, [the department’s] first involvement with this family involved a domestic violence dispute in which [the respondent father] accused his wife of infidelity while he was at sea. A subsequent altercation led to his arrest on domestic violence charges. She had a pregnancy that same year, which she refuses to discuss, which, at least temporally, may be related to the domestic violence dispute. She becomes hopelessly addicted to cocaine. Her house becomes filthy, unkept, completely uninviting. . . . Her weight plummets to a near starvation appearance. She lies to him, squanders his earnings on drugs, has male overnight guests in the home during his absence and has [him] arrested on a claim of sexual assault. He also knows that if he separated from [his wife] and her drugs, he would likely regain custody of at least Abigail, and conceivably all of the children. They all view him with trust and affection. It is, therefore, difficult to explain what appears to be a completely unearned loyalty to this woman, or, as the psychologist tentatively suggested, an unhealthy co-dependence.”

Between 2006 and 2008, the respondent father took four rotations at sea, clearly demonstrating his choice to prioritize his job over a desire for reunification with Abigail. Accordingly, the court correctly found that he failed to achieve a sufficient degree of rehabilitation within a reasonable time.

II

The respondents also claim that during the disposi-tional phase of the trial, the court improperly found that the termination of their parental rights was in the best interests of the children. 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 G., 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.” General Statutes § 17a-112 (k).

We conclude that the court, in granting the petitions to terminate the respondents’ parental rights, properly made its findings in consideration of the factors delineated in § 17a-112 (k). The court carefully considered each factor and found that terminating parental rights was in the children’s best interests. The testimony of the evaluating psychologist, children’s therapists and various social workers confirmed that the children’s needs will not be met if the respondent mother resumes caring for them. The court found that the respondents have failed to comply with the specific steps provided by the court for reunification. The respondent mother continues to use illegal substances, and she is unable to provide the children with a stable and safe environment. “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 H., 104 Conn. App. 744, 767, 936 A.2d 638 (2007), cert. denied, 285 Conn. 920, 943 A.2d 1100 (2008).

The children all have significant problems that must be addressed. As the psychologist who evaluated Ellis stated, “[i]t is critical to [the children’s] overall psychological [and] emotional development that they have stability, predictability and permanency in their lives to move forward. [The respondent mother] is unable to provide this stability, predictability and permanency.” Although the respondent father is capable of caring for Abigail, his loyalty to his wife and his sea duty schedule has prevented him from providing Abigail with a stable environment and the intensive attention and care that she requires. Accordingly, 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

The respondents’ next claim that the court improperly admitted into evidence social studies prepared by the department pursuant to the business record exception to the rule against hearsay. We disagree.

The standard of review applicable to evidentiary challenges is well established and highly deferential. “Unless an evidentiary ruling involves a clear misconception of the law, the [t]rial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling . . . .” (Internal quotation marks omitted.) State v. Grant, 286 Conn. 499, 532, 944 A.2d 947, cert. denied, 555 U.S. 916, 129 S. Ct. 271, 172 L. Ed. 2d 200 (2008).

The business record exception “is derived from the recognition that the trustworthiness of such documents comes from their being used for business purposes and not for litigation.” Federal Deposit Ins. Corp. v. Carabetta, 55 Conn. App. 369, 375, 739 A.2d 301, cert. denied, 251 Conn. 927, 742 A.2d 362 (1999). Business records are excepted from the hearsay rule when three conditions are met: (1) the records are made in the regular course of business, (2) it is the regular course of the business to make such records and (3) the records were made at the time of the incident described in the record or shortly thereafter. State v. George J., 280 Conn. 551, 593, 910 A.2d 931 (2006), cert. denied, 549 U.S. 1326, 127 S. Ct. 1919, 167 L. Ed. 2d 573 (2007).

Counsel for the petitioner satisfied the requirements for the court to admit the social studies as exhibits under the business record exception. The court is given broad discretion in ruling on the admissibility of evidence. See State v. Grant, supra, 286 Conn. 532. In addition, the respondents have failed to allege that the admission of this evidence was harmful and likely affected the trial result. We therefore conclude that the respondents’ arguments must fail.

The judgments are affirmed.

In this opinion the other judges concurred.

       The court also terminated the parental rights of the biological fathers of Ellis, Zandelee and Julian, three of the four minor children involved in this appeal. Those three fathers have not been involved with any of the trial proceedings and have not appealed from the judgments terminating their parental rights. The respondent father of the fourth child, Abigail, has been adjudicated to be the father of that child. We therefore refer only to the mother of the four children and the father of Abigail as the respondents.

       The respondent mother has told the department that the respondent father is not the biological father of Abigail.

       Provided he remains on sea duty, the respondent father would be able to draw on his pension in approximately two years. If he were to take a job without a sea duty component, he would not be able to draw on his pension until the age of sixty-five or until he completed the requisite sea duty requirements for early retirement.

       The respondent father also claims that the court should have, sua sponte, transferred the children to his care. He never sought this relief from the court, nor does he provide legal analysis in his brief to support his claim. He has failed to request review of this claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or under the plain error doctrine. See Practice Book § 60-5. Therefore, we decline to review this claim.
      The respondent father also claims that the court’s approval of the department’s permanency plans, calling for termination of parental rights, was erroneous because the court should have structured a solution that would have permitted him to care for the children. For the reasons addressed in this part of our opinion and in part I of this opinion, the respondent father’s claim must fail.

       The respondents also claim that the court improperly admitted hair toxicology results into evidence to substantiate the petitioner’s claim of drug use by the respondents without a foundation in expert testimony. The hair toxicology results were admitted without objection, and the respondents never requested a hearing pursuant to State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) (en banc), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998). Because the respondents’ claim was not preserved at trial, we therefore decline to afford it review.


author: PELLEGRINO, J.

text:
    IN RE KELSEY M. ET AL.

    (AC 30853)
    Haiper, Robinson and Pellegrino, Js.

      Argued January 7
    officially released April 20, 2010

      Kathryn Steadman, for the appellant (respondent mother).

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

      Michael Fryar, 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

PELLEGRINO, J.

The respondent mother appeals from the trial court’s orders of temporary custody regarding her minor children, Kelsey and Cailey. On appeal, the respondent claims that the court improperly granted orders of temporary custody on the basis of a determination that the children were at imminent risk of physical harm. We disagree and, accordingly, affirm the judgments of the trial court.

The record reveals the following facts and procedural history. On February 2,2009, during the evening, a crisis hotline received a call from a woman later determined to be the respondent. During the call, the respondent stated that she wanted to kill herself and others and asked the call specialist how she could kill herself. She reported having previously attempted suicide by starving herself, cutting herself and running her car into a truck. She also stated that she had a gun. Police confirmed that the children’s father, the respondent’s husband, had thirty-five guns registered to his name.

After the caller refused to give out any identifying information, the call specialist ran a trace on the telephone call and contacted the Manchester police, who dispatched officers to the home. Shortly thereafter, two officers arrived at the home and knocked on the front door. The police report stated that the call specialist, while still on the telephone with the respondent, heard the police knocking on the door through the open telephone line. The respondent did not answer the door. The call specialist also heard the respondent tell the children to hide when the police arrived and not to give her name to the police if they came in. After the police determined that they needed to enter the home, the local fire department was contacted and gained entry through a front window. Upon entering the home, police officers found the respondent alone with the children, who were upset and crying in a bathtub.

The respondent refused to answer any questions and denied that she was having suicidal thoughts, although she stated to officers that her brother, sister and father all had committed suicide. Thereafter she was transported by Manchester police to Manchester Memorial Hospital for an emergency examination. The children’s father was called, and he came to the home. He stated to police that he had only two guns at that time and that both were kept in a safe. There was no evidence presented as to whether the respondent had access to the guns.

At the hospital, the respondent was examined by Drew Kronk, a licensed clinical social worker. The respondent refused to admit that anything was wrong and only eventually stated that she had had three beers and that she may have said something when she was upset. She also denied calling the crisis hotline or speaking to the counselor on the telephone. Later, she claimed that the police may have entered the house by mistake and reported that, in the past, bounty hunters had mistakenly come to her home looking for people. According to hospital records, a drug and alcohol screen was taken because the respondent “appeared to be intoxicated and was remarkably uncooperative. . . . She was agitated and not verbally directable . . . .” Because of the respondent’s resistance to testing, her blood was drawn approximately six hours after she had arrived at the hospital. At that time, she still had a blood alcohol level of 0.068. A physical examination also revealed healing parallel abrasions on her forearm that appeared to be the result of self-inflicted cuts. According to Kronk, the respondent looked to her husband for direction in answering questions and did not appear forthright in her responses.

While the respondent was hospitalized, the father insisted that the respondent’s confinement was improper and threatened that he would file a complaint against the hospital. The father stated that the respondent was “ ‘being discriminated against,’ ” denied having any guns and was adamant that the entire situation was “a big mistake.” At the February 25, 2009 show cause hearing on the motions for orders of temporary custody, Susan Parke, the psychiatrist who reviewed the case, testified in response to a hypothetical question by counsel for the petitioner that she would be concerned that the father, by denying the incident, refused to acknowledge the danger the respondent posed to herself and their children.

From the examination of the respondent, Kronk determined that she posed a risk to herself and others, and the respondent was admitted under a physician’s emergency certificate as an involuntary patient. Kronk also contacted the department of children and families (department). On February 3, 2009, William Olsen, a department social work investigator, attempted to speak to the respondent and the father to conduct an assessment of the family. Both parents refused to talk to Olsen, and the father insisted that he had an attorney. Olsen was also denied the chance to assess the children because the parents refused to make them available for interviewing. Both children are on the autism spectrum and have special needs.

Olsen also learned that the department knew of the family due to the respondent’s mental health issues, history of domestic violence and the father’s controlling nature. The respondent was also well known to hospital personnel for previous threats of suicide, domestic abuse and drug overdoses. In the past, she has been diagnosed with mood disorder, post-traumatic stress disorder and personality disorder. According to Parke, the respondent’s personality disorder may cause her to be unduly impulsive, have abandonment issues, have difficulty regulating emotions and relating to her children and may pose a risk of self-harm. During previous hospitalizations, the respondent also reported physical abuse that often occurred in front of the children and that she was fearful of retribution from her husband if she revealed the abuse during therapy. The respondent has been hospitalized for severe depression and sleeping pill overdose but has consistently refused all attempts by the department to provide services.

On February 6, 2009, the petitioner filed neglect petitions and sought orders of temporary custody. On February 25, 2009, the court, Olear, J., held a show cause hearing on the motions for orders of temporary custody. On March 3, 2009, the court issued a memorandum of decision granting the petitioner’s motions for orders of temporary custody as to Kelsey and Cailey. The respondent appeals from that ruling.

We initially set forth the applicable law and our standard of review. Pursuant to General Statutes § 46b-129 (b), the court may issue “an order ex parte vesting in some suitable agency or person the child’s or youth’s temporary care and custody” if it appears, on the basis of the petition and supporting affidavits, that there is reasonable cause to believe that “(1) the child or youth is suffering from serious physical illness or serious physical injury or is in immediate physical danger from the child’s or youth’s surroundings, and (2) that as a result of said conditions, the child’s or youth’s safety is endangered and immediate removal from such surroundings is necessary to ensure the child’s or youth’s safety . . . .” “At a subsequent heating on an order of temporary custody, the proper standard of proof ... is the normal civil standard of a fair preponderance of the evidence.” (Internal quotation marks omitted.) In re Kaurice B., 83 Conn. App. 519, 522, 850 A.2d 223 (2004). “We note that [a]ppellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Id., 523. With those principles in mind, we will review the evidence presented at the hearing on the motions for orders of temporary custody to determine whether the court’s determination is supported by the evidence in the record.

The respondent contends that the court had no basis in the evidence to find that the children were in imminent danger and that the court improperly applied the theory of predictive neglect. We disagree. Substantial evidence was presented regarding the circumstances in the respondent’s home on February 2, 2009. The respondent was suicidal, made threats of hurting herself and others, and maintained that she was in possession of a gun. Most troubling, she was under the influence of alcohol and left alone to care for two children with special needs who, during this crisis, were put in a bathtub where they were found alone, yelling and crying. Further, the respondent had told the children to lie about her identity and, when help arrived, refused to answer the door, forcing fire department personnel to enter through a window. The details of this incident, combined with the respondent’s long history of mental health issues and suicidal tendencies, and the father’s denial of the respondent’s problems, were heard by the court at the hearing on February 25, 2009.

The respondent also contends that the court erred by relying on cases concerning the theory of predictive neglect. This claim is without merit. The court was not faced with the question of predictive neglect but, rather, whether the children faced imminent harm from their physical surroundings. The court based its decision on the record of the respondent’s mental health problems, the events of February 2, 2009, and the father’s denial of the gravity of the respondent’s mental health issues. Accordingly, the court properly granted the orders of temporary custody.

On the basis of our independent review of the evidence presented at the hearing, we conclude that the court’s decision to grant orders of temporary custody was amply supported by the record and, therefore, is not clearly erroneous.

The judgments are affirmed.

In this opinion the other judges concurred.

       The respondent father of the two minor children at issue in this appeal also was named in the neglect petitions that commenced this case. Because he has not appealed, we refer in this opinion to the respondent mother as the respondent.