author: LAVINE, J.

text:
    IN RE ANTHONY H. ET AL.

    (AC 28275)
    DiPentima, Lavine and Dupont, Js.

      Argued September 21
    officially released December 11, 2007

      Roseann C. Canny, for the appellant (respondent mother).

      Jessica C. Torres, assistant attorney general, with whom were Michael J. Besso, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

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

   Opinion

LAVINE, J.

The respondent mother appeals from the judgments of the trial court terminating her parental rights with respect to her minor children, Anthony and Ariana. On appeal, the respondent claims that the court improperly concluded that (1) the petitioner, the commissioner of children and families, proved by clear and convincing evidence that she had failed to achieve such degree of rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the children, she could assume a responsible position in their lives and (2) it was in the best interests of the children to terminate her parental rights. We affirm the judgments of the trial court.

Our decision is informed by the following facts found by the court, C. Taylor, J. The respondent was first involved with the department of children and families (department) in 1985 when she herself was about six years old. The respondent’s father was unavailable to her due to his job as an over-the-road truck driver, and her mother was abusing marijuana when the respondent was six years old. The respondent was one of five children removed from the family home and placed with their paternal grandmother. The respondent’s mother moved to Florida, where the respondent spent time with her. The man with whom the respondent’s mother was living was abusive toward the respondent’s mother, the respondent and animals.

The respondent met R when he was living platonically with the respondent’s sister. One month after the respondent started a relationship with R, he was arrested for possession of marijuana. The respondent claimed that her mother made her end her relationship with R. She also claimed that she was institutionalized for suicidal ideation, but she denies any past or present self-destructive thoughts. When the respondent was released from the institution, she returned to Connecticut and R. R impregnated the respondent when she was sixteen. She dropped out of high school. Although their relationship had at first been satisfactory, the respondent discovered that R was using cocaine, and she left him when she was three months pregnant. She returned, however, when she was six months pregnant and remained with R until Anthony was eighteen months old. The respondent left R due to his infidelity, their arguments and problematic behavior.

After the respondent was separated from R, she met J, with whom she began a five month relationship. While the respondent was with J, R took Anthony and refused to return him. The respondent regained custody of Anthony by means of a court order. The respondent nonetheless returned to R on Christmas Eve, 2000, when she was five months pregnant with Ariana. The respondent informed the department that R threatened to evict her unless she gave Ariana his last name, although he was not the child’s biological father. The respondent continued to see J surreptitiously after Ariana’s birth so that J could see his daughter. The respondent’s relationship with J ended when he was incarcerated, at which time Ariana was two and one-half years old.

On June 18, 2002, the department anonymously received information about Anthony and Ariana, indicating that the respondent and the children were homeless, transient and in the company of R. R was using illegal substances, abusing the respondent and taking her money to support his substance abuse. The department investigated and opened an active file. On September 15, 2002, the department received another anonymous referral concerning the children, alleging that they were physically neglected. The department determined that the respondent was in communication with R, despite a protective order of no contact against him. Although R was abusing crack cocaine, the respondent permitted him to care for the children. The respondent had asked certain individuals not to tell the department that she had been in R’s company. At that time, the petitioner executed a ninety-six hour hold on the children. See General Statutes § 17a-101g.

On September 16, 2002, the petitioner filed a neglect petition on behalf of the children because they were living in conditions injurious to them, and the court, Mack, J., granted an order of temporary custody and issued specific steps for the respondent to follow. Judge Mack also found that the department had made reasonable efforts to prevent or eliminate the need to remove the children from the respondent’s home. The order of temporary custody was withdrawn by the petitioner on September 23, 2002, because the respondent and the children entered a domestic violence shelter. The respondent entered a plea of nolo contendere to the allegation of neglect. Judge Mack accepted the respondent’s plea and ordered that the children be placed under protective supervision for six months. Judge Mack twice extended the protective supervision.

On August 8, 2003, the petitioner again executed a ninety-six hour hold on the children. The department had received another anonymous tip about the respondent and the children. The department investigated and learned that the respondent and the children were living with a convicted sex offender because they were homeless. Although the respondent initially concealed the children’s whereabouts from the department, the petitioner eventually took them into her care. Judge Mack opened the judgment of temporary custody and committed the children to the custody of the petitioner until further order.

In the fall of 2004, Judge Mack issued specific steps for the respondent to follow, found that the department had made reasonable steps to prevent or eliminate the need to remove the children from the respondent’s home and approved a permanency plan that called for the termination of the respondent’s parental rights and adoption of the children. The petitioner filed petitions for the termination of the respondent’s parental rights on December 29, 2004, on the basis of the respondent’s failure to achieve rehabilitation. In August, 2005, the court, Bear, J., granted the petitioner’s motion to maintain commitment and the permanency plan.

Trial on the petitions to terminate the respondent’s parental rights began on May 2, 2006, before Judge Taylor, and continued on May 4, and June 13, 2006. On September 28, 2006, the court found by clear and convincing evidence that the respondent had failed to achieve such degree of personal rehabilitation as would encourage the belief that, within a reasonable time, considering the age and needs of the children, she could assume a responsible position in the lives of her children. See General Statutes § 17a-112 (j) (3) (B) (ii).

The court found by clear and convincing evidence that the respondent had been referred to a parent aid program but that she was uncooperative and failed to complete a parenting class at United Services. The respondent has a history of unstable housing. Although she entered a shelter as a result of the order of temporary custody in 2002, she was dismissed from the shelter in October, 2002, because she failed to supervise Ariana properly and compromised the shelter’s safety by having continued contact with R. She also had lived with her father and her sister in a one bedroom apartment, among other arrangements. The department of social services helped the respondent obtain a voucher from the United States Department of Housing and Urban Development, but the voucher expired due to the respondent’s poor credit rating and her inability to provide a security deposit. Although the respondent was referred to the Thames River Family Program (Thames River) in September, 2003, she did not enter the program until February 8, 2006, due to her failure to keep a job or to perfect the application. At the time of trial, the respondent was living at Thames River with a third child, bom subsequent to the filing of the petitions for the termination of her parental rights as to Anthony and Ariana. The father of the respondent’s third child is D, who is not a father figure to the child.

The court found by clear and convincing evidence that the department made reasonable efforts to locate the respondent and to maintain contact with her as required by § 17a-112 (j) (1). The court also found by clear and convincing evidence that the department provided services to the respondent but that she failed to comply with most of the services to which she was referred or failed to complete the services in a timely manner. In addition, the court found by clear and convincing evidence that the department made reasonable efforts to reunite the respondent with her children. The respondent was aware of her problems and deficits and received specific steps she needed to take to address those issues. Despite notification, the respondent remained unable to benefit from reasonable reunification services. The court found that further efforts at reunification were not appropriate for the respondent and the children.

The court ultimately found that the petitioner had proven by clear and convincing evidence that the respondent had failed to achieve rehabilitation sufficient to render her able to care for the children. General Statutes § 17a-112 (j) (3) (B). The clear and convincing evidence demonstrated that the respondent’s problems are those of criminal recidivism, mental health, substance abuse, domestic violence, parenting deficits, transience, residential instability and failure to complete and benefit from counseling. The court concluded that the respondent had not corrected the factors that led to the children’s initial commitment. The respondent completed virtually none of the various referrals and counseling in a timely manner, and she failed, until the time of trial, to show any consistent benefit from the programs to which she was referred.

As to Anthony, the court made the following findings of fact. He was bom in 1999, the sole issue of the respondent and R. He was removed from the respondent’s custody pursuant to a ninety-six hour hold on September 15, 2002, and again on August 8, 2003. He was removed from the respondent’s custody for the last time and committed to the custody of the petitioner on September 10, 2004. Anthony has been diagnosed with attention deficient hyperactivity disorder and adjustment disorder. He sees a psychiatrist who manages his medication, and he had been in individual therapy for more than one year at the time of trial. At a time proximate to trial, Anthony was diagnosed with special movements (tics).

Ruth Pearlman, who holds a master of social work degree, had been Anthony’s individual therapist until shortly before trial. On the basis of Pearlman’s testimony at trial, the court found that in therapy, Anthony would make progress and then regress. He requires a substantial amount of structure, which his prior therapeutic foster homes were able to provide. Anthony is obsessive about certain things, aggressive and socially delayed. His behavior is due to his frustration. He is not verbal and has difficulty expressing his feelings. At the time of trial, Anthony’s perseverant behavior was more pronounced. Pearlman’s therapy goals for Anthony were to decrease his tantrums and his oppositional behavior and to interrupt his intrusive thoughts.

According to Pearlman, Anthony needs to be in a home where the expectations are clear and known to him. He has subtle symptoms of sexual abuse and needs to be in the care of a treatment parent. During his time in a prior therapeutic foster home, Anthony campaigned to undermine the placement. Anthony wants a placement without rules and perceives the respondent as a parent with few rules. In Pearlman’s opinion, Anthony will continue to undermine future placements because he believes that, if he does, he will be returned to the respondent’s care. The court concluded that there was clear and convincing evidence that Anthony has substantial behavioral issues.

Chris Lacey, assistant program director at the Waterford Country School Safe House (safe house), testified at trial. When Anthony was twice placed in the safe house in 2003, he manifested substantial behavioral issues. He behaved as a two year old rather than a four year old. He had tantrums if he did not get his way and engaged in theft. The safe house personnel were unable to effect change in Anthony’s behaviors and recommended that he be placed in a therapeutic foster home. In October, 2003, the department placed him in a therapeutic foster home through the Institute of Professional Practice (institute). The institute employed a therapist and a behaviorist to work with Anthony and his foster family.

Anthony’s unacceptable behavior, however, increased in 2006. He became upset when he learned that Ariana had been placed in a preadoptive home. Anthony told the respondent that his foster parents were abusing him physically. The department and the institute investigated Anthony’s allegations of abuse and found them to be baseless. The court found by clear and convincing evidence that Anthony believes that if he undermines his foster placement, he will be returned to the respondent. In February, 2006, the foster parents requested that Anthony be removed from their home due to his allegations. The clear and convincing evidence indicated that Anthony’s behavior deteriorated when he learned that he would be leaving the foster home.

Anthony is considered to be extremely bright. He attended Head Start and completed the first grade. His reading level is above average. Although Anthony displays social and emotional delays and has difficulty making transitions at school and throws tantrums, he does not qualify for or require special education services. He utilizes the services of the school psychiatrist. His foster parents enrolled him in a youth soccer program but had to withdraw him because he failed to follow the coach’s directions.

The court found by clear and convincing evidence that Anthony is bonded to the respondent and Ariana. He also has a connection to the respondent’s third child.

Ariana was bom to the respondent in 2001. She, too, was removed from the respondent’s custody pursuant to a ninety-six hour hold on September 15, 2002, and again on August 8,2003. She was finally removed pursuant to an order of temporary custody on August 12, 2003, and committed to the custody of the petitioner on September 10, 2004. Her father is J.

The court found that at the time of trial, Ariana was in a preadoptive foster home and that she had been in her previous foster home for about two years. While she was in the first foster home, Ariana attended a play group. She receives speech therapy through the local school system. Ariana was to begin kindergarten in the fall following trial. In the past, Ariana has mimicked Anthony’s aggressive behavior. Her current foster mother reported to the department that Ariana is a happy child most of the time. Sometimes she is, however, independent and challenging to the expectations of the home. Ariana gets along with her peers in day care and engages in positive relationships. She participates in dance class and the church choir. The court found by clear and convincing evidence that Ariana is bonded to the respondent and Anthony and has a connection with the respondent’s third child.

After the court found by clear and convincing evidence that a statutory ground to terminate the respondent’s parental rights with respect to the children existed, it determined that termination was in the best interests of Anthony and Ariana. The court made the seven factual findings required by § 17a-112 (k). See part II. The court’s ultimate findings, in summary, were that the respondent’s numerous issues remain antithetical to safe, responsible and nurturing parenting and that she is antagonistic to the best interests of her children. Given their needs, the children cannot wait any longer for the respondent to achieve rehabilitation. The court, therefore, ordered the parental rights of the respondent with respect to Anthony and Ariana terminated. The respondent timely filed an appeal from the judgments.

“Our standard of review on appeal from a termination of parental rights is whether the challenged findings are clearly erroneous. . . . The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous. . . . On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. . . . Rather, on review by this court eveiy reasonable presumption is made in favor of the trial court’s ruling.” (Internal quotation marks omitted.) In re Brittany J., 100 Conn. App. 329, 334, 917 A.2d 1024 (2007).

“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. Our authority, when reviewing the findings of a judge, is circumscribed by the deference we must give to decisions of the trier of fact, who is usually in a superior position to appraise and weigh the evidence. . . . 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 Ebony H., 68 Conn. App. 342, 348-49 n.4, 789 A.2d 1158 (2002).

“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.” (Citation omitted; internal quotation marks omitted.) In re Sheena I., 63 Conn. App. 713, 720-21, 778 A.2d 997 (2001).

I

The respondent’s first claim is that the court improperly found that the petitioner had proved by clear and convincing evidence that she had failed to achieve the degree of rehabilitation required to avoid a termination of parental rights. We disagree.

“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.” (Internal quotation marks omitted.) Id., 719. “Clear and convincing proof is a demanding standard denoting] a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution. . . . [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.” (Internal quotation marks omitted.) Chernick v. Johnston, 100 Conn. App. 276, 280, 917 A.2d 1042, cert. denied, 282 Conn. 919, 925 A.2d 1101 (2007).

General Statutes § 17a-112 (j) provides in relevant part that “the Superior Court . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that . . . (B) the child . . . has been found by the Superior Court ... to have been neglected or uncared for in a prior proceeding . . . and [the parent] has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .”

“Personal rehabilitation . . . refers to the restoration of a parent to his or her former constructive and useful role as a parent [and] requires the trial court to analyze the [parent’s] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time. . . . The statute does not require [a parent] to prove precisely when she will be able to assume a responsible position in her child’s life. Nor does it require her to prove that she will be able to assume full responsibility for her child, unaided by available support systems. It requires the court to find, by clear and convincing evidence, that the level of rehabilitation she has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date she can assume a responsible position in her child’s life.” (Citations omitted; internal quotation marks omitted.) In re Eden F., 250 Conn. 674, 706, 741 A.2d 873, reargument denied, 251 Conn. 924, 742 A.2d 364 (1999).

“In the adjudicatory phase, the judicial authority is limited to evidence of events preceding the filing of the petition or the latest amendment, except where the judicial authority must consider subsequent events as part of its determination as to the existence of a ground for termination of parental rights.” Practice Book § 35a-7 (a). “In the adjudicatory phase, the court may rely on events occurring after the date of the filing of the petition to terminate parental rights when considering the issue of whether the degree of rehabilitation is sufficient to foresee that the parent may resume a useful role in the child’s life within a reasonable time.” (Emphasis in original; internal quotation marks omitted.) In re Jennifer W., 75 Conn. App. 485, 495, 816 A.2d 697, cert. denied, 263 Conn. 917, 821 A.2d 770 (2003).

The court found by clear and convincing evidence that the respondent is unable or unwilling to make realistic and sustained efforts to conform her individual conduct to acceptable parental standards. The department made numerous referrals for the respondent during the pendency of this case. The respondent failed to take advantage of the referrals in a timely manner, and it was not until the filing of the termination petitions that she demonstrated any willingness to address her problems. The respondent has not made the changes necessary in her lifestyle in a timely manner that would indicate that she would be a safe, responsible and nurturing parent for the children.

The respondent’s principal argument in support of her appellate claim is that she was in a much better position to care for the children at the time of trial than she was when they were removed from her care in August, 2003. That is not the standard, however, by which the court was to make its determination as to whether the respondent had achieved rehabilitation. The standard is whether the respondent had achieved such degree of personal rehabilitation as would encourage the belief that within a reasonable time she would be able to assume a responsible position in her children’s lives. See In re Eden F., supra, 250 Conn. 706. In support of her argument, the respondent refers to her success with her third child at Thames River, where she had resided since February, 2006.

In that regard, the court found that the respondent has ahistoiy of unstable housing. She had been referred to a domestic violence shelter as a result of the order of temporary custody in 2002. The respondent was dismissed from the shelter in late October, 2002, because she failed to supervise Ariana properly and compromised the shelter’s safety by having continued contact with R. The department and the department of social services helped the respondent obtain a housing voucher from the Department of Housing and Urban Development, but the respondent failed to obtain housing before the voucher expired. The respondent was referred to Thames River in September, 2003, but her application was placed on inactive status when she became unemployed. The respondent’s application was reactivated in February, 2004, but the respondent failed to perfect the application, and she again was placed on the inactive list in April, 2004. She was referred once more to Thames River, at her request, in January, 2005, but only entered the program in February, 2006.

Although the court noted that the respondent has improved her child rearing abilities and that the department is not concerned about her ability to care for her third child while she is a resident of Thames River, the Thames River program is of limited duration. Eventually, the respondent must return to the community and demonstrate that she can be a safe, responsible and nurturing parent while living on her own. On the basis of her history of living in the community, the court considered it “foolhardy” to place the children who are the subject of the petitions for termination of parental rights with the respondent without appraising her ability to rear the children in the community. The court found by clear and convincing evidence that the respondent had failed to address her housing situation in a permanent, long-term manner. Furthermore, the court found by clear and convincing evidence that the respondent had failed to complete a parenting class by the start of trial.

“[ E]ven if a parent has made successful strides in her ability to manage her life and may have achieved a level of stability within her limitations, such improvements, although commendable, are not dispositive on the issue of whether, within a reasonable period of time, she could assume a responsible position in the life of her children.” In re Alejandro L., 91 Conn. App. 248, 260, 881 A.2d 450 (2005). The issue is not whether the parent has improved her ability to manage her life but whether she has gained an ability to care for the specific needs of her children at issue. See In re Mariah S., 61 Conn. App. 248, 261, 763 A.2d 71 (2000), cert. denied, 255 Conn. 934, 767 A.2d 104 (2001). The court found that the needs of Anthony and Ariana are not the same as the needs of the respondent’s third child, whom she cares for at Thames River.

The respondent also argues that the court’s finding that she had failed to achieve rehabilitation was clearly erroneous because David M. Mantell, a psychologist who evaluated the respondent and the children, recommended that she be provided an additional six months to achieve rehabilitation. She also argues that Mantell never recommended terminating her parental rights or not reunifying the children with her. Neither argument is persuasive.

On May 11, 2005, Mantell undertook a relational assessment of the children, the respondent, R’s mother and the children’s foster parents. Mantell authored a psychological report of the assessment that is dated June 10, 2005. In that report, Mantell stated: “In a telephone report to [court service officer Linda] Sabatelli on June 7, 2005,1 recommended that the [respondent] be given an additional six months to achieve rehabilitation and that the court require of her as preconditions for considering a return of the children that she show stable housing, stable employment, compliance with individual therapy, no legal or boyfriend problems, and I would certainly recommend that [she] be required during this period to show complete compliance with all court expectations including those that I may not have just enumerated. I also indicated that I thought the [respondent’s] prognosis was poor because of the length, severity and breadth other difficulties.” Mantell made his recommendation almost one year before trial. The court found by clear and convincing evidence that the respondent failed to comply with all court-ordered expectations. Mantell recommended compliance as a precondition of reuniting the children with the respondent. At trial, Mantell testified, pursuant to a hypothetical question propounded on the facts that existed in December, 2005, that the respondent “had not fulfilled her expectations, and she is actually not significantly more advanced toward fulfilling them than she was when I saw her and she’s not prepared to provide a home for her children.”

As to the respondent’s argument that Mantell never recommended terminating the respondent’s parental rights and did not recommend against reunifying the children with her, the respondent has failed to demonstrate to us that Mantell was asked to render an opinion as to those questions. We note that the court found by clear and convincing evidence that further reunification efforts were not appropriate.

The respondent also argues that the court’s finding that she had failed to achieve rehabilitation is clearly erroneous because she has a strong loving bond with her children. The respondent relies on dicta in In re Jessica M., 49 Conn. App. 229, 714 A.2d 64 (1998), appeal dismissed, 250 Conn. 747, 738 A.2d 1087 (1999), to support her position. “[T]o the extent the parents can demonstrate to [the child] that they care about her and love her, they have a responsible position in her life. ” Id., 240. The respondent claims that she has a responsible position in the lives of the children by virtue of her strong loving bond with them. The respondent’s argument founders because she has multiple issues that prevent her from being a responsible parent to the children, such as failing to provide appropriate and reliable housing, failing to maintain employment and failing to keep them safe from R, who is abusive and has substance abuse problems, among other concerns.

For the foregoing reasons, we conclude that the court’s finding that the respondent had failed to achieve such degree of personal rehabilitation as would encourage the belief, that, within a reasonable time, considering the age and needs of the children, she could assume a responsible position in their lives was not clearly erroneous.

II

The respondent’s second claim is that the court’s finding that it was in the best interests of both Anthony and Ariana to terminate her parental rights is clearly erroneous because she has a strong, loving bond with them and she is the only psychological parent they have. We do not agree.

If 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.” (Internal quotation marks omitted.) In re Sheena I., 63 Conn. App. 721; see In re Valerie D., 223 Conn. 492, 511 & n.15, 613 A.2d 748 (1992). “The best interests of the child include the child’s interests in sustained growth, development, well-being, and continuity and stability of its environment. ... In the dis-positional phase of a termination of parental rights hearing, the trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent’s parental rights is not in the best interest of the child. In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in [§ 17a-112 (k)].” (Citation omitted; internal quotation marks omitted.) In re Ryan R., 102 Conn. App. 608, 625-26, 926 A.2d 690, cert. denied, 284 Conn. 923, 924, 933 A.2d 724 (2007).

Pursuant to § 17a-112 (k) the court found by clear and convincing evidence that the department provided services to the respondent in a timely, appropriate and comprehensive manner to facilitate reunification and made reasonable efforts to reunite her with her children. The respondent, however, failed to utilize the services provided in a timely manner and failed to gain appropriate benefit from the services in a timely manner. Her serious problems made her unable or unwilling to benefit from reasonable reunification efforts in a timely manner. The respondent had been informed of her deficits, and Judge Mack ordered that she needed to take specific steps to address her deficits. The respondent has failed to comply with most of the ordered steps. The respondent is not presently able or willing to benefit from reunification services as contemplated by the federal Adoption Assistance and Child Welfare Act of 1980, as amended. She also is unable or unwilling to make realistic and sustained efforts to conform her individual conduct to acceptable parental standards. Furthermore, the court found by clear and convincing evidence that no unreasonable conduct by the department, the foster parents, the office of adult probation or third parties prevented the respondent from maintaining a relationship with the children. Her economic circumstances also did not prevent her from maintaining relationships with them. The court acknowledged that the limitations and restrictions inherent in the foster care system were in effect.

The respondent argues that her parental rights should not be terminated because her children are bonded to her. The court found that there was a bond between the respondent and the children, who are ages seven years and three months, and five years and two months, and that the children enjoy visiting with her. The court also found that there was a bond between the children and their foster parents. “[Ojur courts consistently have held that even when there is a finding of a bond between parent and a child, it still may be in the child’s best interest to terminate parental rights.” (Internal quotation marks omitted.) In re Ryan R., supra, 102 Conn. App. 627.

The respondent also argues that Anthony has had a number of different foster parents in the two and one-half years he has been in the petitioner’s custody, which demonstrates that there is no permanent place for him at this time and that her parental rights as to him should not be terminated. The court found that Anthony subverted his last therapeutic foster care placement because he accused the foster parents of abusing him. The expert testimony established that Anthony will continue to sabotage his foster care placements as long as he believes that he can return to the respondent. Foreclosing the prospect of his return to the respondent, therefore, will be a step to giving him the permanency he needs, rather than permitting him to languish in temporary foster care for years while the respondent attempts to achieve rehabilitation.

Importantly, the court found by clear and convincing evidence that the children cannot afford to wait any longer for the respondent to rehabilitate herself. The respondent has been given more than an ample amount of time to achieve rehabilitation. Although she has made some progress in understanding the children’s special needs, it is not enough. The children cannot spare the respondent additional time to achieve rehabilitation. Before reunification could be contemplated, the respondent would have to complete the Thames River program, establish herself in the community and demonstrate that she can live there independently. According to the respondent, she expects to stay at Thames River until February, 2008, before she even attempts to establish herself in the community. She then must be given time to prove that she can function independently. The court found that Anthony and Ariana cannot wait that long for permanence.

Pursuant to the respondent’s testimony, the court found that the respondent only has a minimal understanding of Anthony’s behaviors and special needs. In the past, the respondent has shown an inability or an unwillingness to address or control Anthony’s behavior and only recently has shown any improvement in this regard. The respondent does not believe that Anthony suffers from attention deficit hyperactivity disorder, and she completed a questionnaire for Mantell describing Anthony as normal, although moody and demanding. The court found by clear and convincing evidence that the respondent’s parenting skills need to improve much more before it would be viable for her to be reunited with the children. By this time in the children’s lives, a safe, nurturing and responsible parent should have a much better grasp of her children’s needs and special needs.

The court also found that the respondent failed to address her housing situation appropriately. The only stable housing the respondent had during the pendency of the termination of parental rights proceeding was Thames River, which is not permanent. She has engaged in criminal conduct during the pendency of the case despite having been ordered to refrain from such conduct. She continues to have inappropriate contact with R, and the clear and convincing evidence is that she failed to take the necessary steps to assure her safety. Her judgment is also questionable with respect to relationships. She has given birth to a third child, whose father chooses not to have a relationship with the child.

Our appellate courts have recognized that “long-term stability is critical to a child’s future health and development . . . .” (Citation omitted.) In re Eden F., supra, 250 Conn. 709. “Because of the psychological effects of prolonged termination proceedings on young children, time is of the essence in custody cases.” In re Alexander V., 25 Conn. App. 741, 748, 596 A.2d 934 (1991), aff'd, 223 Conn. 557, 613 A.2d 780 (1992). The court concluded, on the basis of the clear and convincing evidence, that Anthony and Anana are entitled, without further delay, to an end to the uncertainty of whether they will be reunited wtith the respondent.

On the basis of our review of the record and the court’s thorough and thoughtful memorandum of decision, we agree that, although the respondent loves her children and is bonded to them, the court properly found that she has failed to undertake the rehabilitative steps outlined for her or to take advantage of the services provided to her in a timely manner so that she could be reunified with the children. The best interests of the children call for permanency. Termination of the respondent’s parental rights is, therefore, in the best interests of the children.

The judgments are affirmed.

In this opinion the other judges concurred.

       The children’s fathers consented to the termination of their parental rights. In this opinion, we refer to the children’s mother as the respondent.
      Counsel for the children filed a statement adopting the brief of the petitioner, the commissioner of children and families.

       The respondent was offered the following services by a number of private and public agencies: probation supervision, parenting education, case management services, housing assistance, supervised visitation, transportation assistance, paternity testing, referral to domestic violence shelters, financial assistance, subsidized housing, family and individual therapy, psychological and interactional evaluations, substance abuse evaluation, domestic violence group therapy and educational placement and visitation resources for the children.

      Sue-Ellen Daniel of Counseling Connections then became Anthony’s therapist.

       In this section of her brief, the respondent also presents numerous arguments concerning the children’s behavioral and psychological issues and how they are bonded to her. Those issues are not relevant considerations during the adjudication phase of a termination of parental rights proceeding, except as to whether the respondent sufficiently rehabilitated to address the needs of a child. See General Statutes § 17a-112 (j) (3) (B) (ii).

       Following her referral, the respondent was placed on a waiting list for admission. The court found that the respondent was responsible for the time she spent on the waiting list.

       The respondent has a constellation of issues regarding her psychological, social and parenting limitations. In order to rehabilitate, the respondent must address all of the areas of concern, which the court found she has not done.

       Mantell testified at trial and submitted a report, after having examined the respondent in May, 2005. Mantell wrote that the respondent “is a significantly clinically involved person with a strongly debilitating family of origin experience and persistent relational and life dysfunctions throughout her adolescent and early adult years. She has had multiple dysfunctional relationships with men who fail to support her. Her behavior is self-defeating. She has not taken advantage of offered opportunities for rehabilitation. Her personality structure shows strong elements of dependency and self-defeating behaviors. She has only of late begun to attend to the basic requirements for reconciliation with her children though there has been abundant time for her to do this. . . .
      “The [respondent] has a combination of clinical, relational, personality, financial, housing and, intermittently, also of legal problems that seem to effectively prevent her from minimally acceptable parenting. She remains immature, underdeveloped in her self-understanding, and still damaged by the poor care she experienced as a child that seems to interfere with her ability to recognize and fulfill parenting responsibilities.”

       The respondent failed to direct us to the place in the record, either an exhibit or transcript of testimony, where we can review Mantell’s alleged assertions. See Practice Book § 67-4. Our review of the record was guided by the petitioner’s brief in response to the respondent’s contentions.

       Furthermore, Judge Mack approved the permanency plan for the children that called for adoption, and the respondent never filed an appeal from that judgment. See In re Kachainy C., 67 Conn. App. 401, 412, 787 A.2d 592 (2001) (final judgment).

       The court found that the children had a bond with the respondent, their foster parents and one another.

        In re Jessica M., supra, 49 Conn. App. 229, is distinguishable on its facts. There the trial court found that the parents had intellectual and psychological limitations and had benefited from services provided by the department in the past. See id., 240; see also In re Migdalia M., 6 Conn. App. 194, 202-203, 504 A.2d 533 (rehabilitation with regard to parents of limited intellectual ability and medically frail child), cert. denied, 199 Conn. 809, 508 A.2d 770 (1986).

        The respondent also relies on language from In re Vincent B., 73 Conn. App. 637, 645, 809 A.2d 1119 (2002), cert. denied, 262 Conn. 934, 815 A.2d 136 (2003). The facts of that case also are distinguishable because the respondent father there voluntarily turned himself into a long-term, inpatient substance abuse treatment program for alcohol addiction, which he successfully completed along with counseling for anger management and depression. The respondent father remained sober at the time of trial on the petition to terminate his parental rights. Id., 642-44. Also, the respondent father had admitted himself to the substance abuse program prior to the commissioner’s filing the petition for termination of his parental rights. Id., 642—43.

       General Statutes § 17a-112 (k) provides in relevant part: “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered ... (2) whether the Department of Children and Families 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.”
      The respondent does not challenge any of Judge Taylor’s findings as to the factors enumerated in § 17a-112 (k).


source: Caselaw Access Project

author: FLYNN, C. J.

license: Public Domain

text:
    ROBERT MADAGOSKI v. COMMISSIONER OF CORRECTION
    (AC 27142)
    Flynn, C. J., and Gruendel and Foti, Js.

      Argued September 20
    officially released December 11, 2007

      PaulR. Kraus, special public defender, for the appellant (petitioner).

      Frederick W. Fawcett, supervisory assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Gerard P. Eisenman, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

FLYNN, C. J.

The petitioner, Robert Madagoski, appeals following the denial of his petition for certification to appeal from the judgment denying his second amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court abused its discretion in denying certification to appeal and that it improperly concluded that his trial counsel had provided effective assistance. The petitioner also claims that he was deprived of his due process rights at the habeas proceedings and that the court improperly failed to apply the proper legal standard regarding the preservation of evidence. We dismiss the petitioner’s appeal.

The relevant facts are set forth in State v. Madagoski, 59 Conn. App. 394, 757 A.2d 47 (2000), cert. denied, 255 Conn. 924, 767 A.2d 100 (2001). “On February 11, 1997, Sergeant Thomas W. Guyette, a twenty-two year veteran of the state police who was assigned to the Connecticut auto theft task force (task force), was in Bridgeport to attend a meeting with chiefs of police. Prior to the meeting, Guyette dispatched the members of his task force group to patrol the streets of Bridgeport in search of motor vehicles that had been reported stolen within the last twenty-four hours. At approximately 11 a.m., while he was in the meeting, Guyette was contacted by John Pribesh, a Bridgeport police department detective, who reported that three stolen vehicles had been located in the vicinity of Anson and North Main Streets.

“Guyette, who was dressed in a business suit, met with members of the task force at the intersection of Anson and Salem Streets, and dispatched the officers in teams of two throughout the area. At about 4:30 p.m., Pribesh informed Guyette that he was following a stolen van on Salem Street and that he thought that the driver knew he was a police officer. Guyette ordered Leonard Schroeder, a Fairfield police department detective, to help him and Pribesh box in the van at the intersection of Salem and Main Streets. Guyette and Schroeder blocked the intersection.

“Before he got out of his vehicle, Guyette placed his police badge on the breast pocket of his coat and called the Bridgeport police department for help. When he got out of his vehicle, Guyette ran toward the van shouting, ‘Police, stop!’ The [petitioner], the van’s sole occupant, moved the van toward Guyette and struck him on the left side. Guyette jumped over the hood of the van and landed between Schroeder’s vehicle and the van. The van struck Schroeder’s vehicle, and Guyette grabbed the door handle of the van with his left hand and grabbed his weapon with his right hand. Guyette pointed his weapon at the driver and yelled, ‘Police, give it up!’ He had no intention of shooting the driver; his intent was to stop the vehicle. The van suddenly moved forward, twisting Guyette’s leg. Guyette’s weapon discharged, shattering the window on the driver’s side. As the vehicle accelerated, Guyette was dragged by it and, had he not let go, he would have struck a parked car.

“The [petitioner] drove away and was not apprehended until March 7, 1997. At that time, his jacket, which had a bullet hole under the left sleeve and to the rear, was seized. A spent bullet seized from the [petitioner’s] trouser pocket was determined to be the bullet that was fired from Guyette’s weapon.” Id., 396-98.

After a jury trial, the petitioner was convicted of attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-59 (a) (1), assault in the second degree in violation of General Statutes § 53a-60 (a) (2), assault of a peace officer in violation of General Statutes § 53a-167c (a) (1), larceny in the second degree in violation of General Statutes § 53a-123 (a) (1) and being a persistent felony offender in violation of General Statutes § 53a-40 (b) (3). The petitioner received a total effective sentence of forty-five years incarceration.

Following his unsuccessful appeal, the petitioner filed a second amended petition for a writ of habeas corpus. In his petition, the petitioner claimed that his trial counsel, Catherine Teitell, had rendered ineffective assistance for failing, inter alia, to interview a witness and to call that witness at trial. A habeas trial was held on November 16 and December 17, 2004, and on May 27, 2005. In a memorandum of decision filed October 7, 2005, the court denied the petition, concluding that Teitell had provided effective assistance. After the denial of his petition for a writ of habeas corpus, the petitioner filed a petition for certification to appeal, which was denied. This appeal followed. Additional facts will be set forth as necessary.

As a preliminary matter, we set forth the standard of review and legal principles that guide our resolution of the petitioner’s appeal. “Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on the merits. . . .

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Falcon v. Commissioner of Correction, 98 Conn. App. 356, 359, 908 A.2d 1130, cert. denied, 280 Conn. 948, 912 A.2d 480 (2006).

I

The petitioner first claims that the court abused its discretion with respect to his claim that he received ineffective assistance of counsel as a result of counsel’s failure to interview Daniel Gonzalez, a man who lived in a building facing Salem and Main Streets, and to call him as a witness during the criminal trial. We are not persuaded.

“Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Grant v. Commissioner of Correction, 86 Conn. App. 392, 397, 861 A.2d 1191 (2004), cert. denied, 273 Conn. 903, 868 A.2d 744 (2005).

“In Strickland v. Washington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel’s assistance was so defective as to require reversal of [the] conviction .... That requires the petitioner to show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. . . . Because both prongs . . . must be established for a habeas petitioner to prevail, a court may dismiss a petitioner’s claim if he fails to meet either prong. . . . Accordingly, a court need not determine the deficiency of counsel’s performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim. . . .

“With respect to the prejudice component of the Strickland test, the petitioner must demonstrate that counsel’s errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable. ... It is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings. . . . Rather, [t]he [petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. . . . WTien a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” (Citations omitted; internal quotation marks omitted.) Griffin v. Commissioner of Correction, 98 Conn. App. 361, 365-66, 909 A.2d 60 (2006).

The following additional facts are necessary for our resolution of the petitioner’s appeal. At the habeas hearing, the petitioner called Gonzalez as a witness. Gonzalez testified that, after the incident, he was interviewed by the police and gave a written statement to the police. Gonzalez could not recall specifically the events of February 11, 1997, and, therefore, his statement to the police was admitted as a full exhibit at the habeas trial.

In his written statement, Gonzalez indicated that on February 11, 1997, he heard a gunshot, and, through his apartment window, he observed a van traveling on Salem Street. Gonzalez also stated that he witnessed the van hit two other vehicles and that he “saw [Guyette] standing alongside the driver side of the van holding onto the door handle after the accident.” The statement further indicated that Gonzalez obseived the van strike Guyette, causing him to fall to the ground, and, while Guyette was on the ground, the van ran over his leg. At the habeas trial, Teitell testified, in part, that she had received Gonzalez’ statement prior to the petitioner’s criminal trial but that she was unable to locate him. After hearing Teitell’s testimony, the court concluded that Teitell had not rendered ineffective assistance.

Even if we were to assume, arguendo, that Teitell’s failure to interview Gonzalez and to call him as a witness constituted deficient performance, no prejudice resulted from that deficiency. The petitioner contends that because Gonzalez’ statement indicates a different sequence of events than does the testimony of Guyette, a jury “might well have doubted . . . Guyette’s version, and it may have reduced his credibility more generally, including as to his claims that the [petitioner] had tried earlier to run him over.”

On the basis of our review of the record, we conclude that the petitioner has failed to demonstrate that there is a reasonable probability that if Teitell had interviewed Gonzalez and had called him as a witness, the fact finder would have had a reasonable doubt respecting the guilt of the petitioner. If Gonzalez had testified at trial, his testimony, at most, would have been cumulative of other evidence. See Nieves v. Commissioner of Correction, 51 Conn. App. 615, 623, 724 A.2d 508, cert. denied, 248 Conn. 905, 731 A.2d 309 (1999). Indeed, the petitioner acknowledges in his brief that Gonzalez’ statement is consistent with the trial testimony of Pribesh.

Specifically, Pribesh testified that, after he saw Guyette fire a gunshot, he observed the van cross the intersection while Guyette was hanging from the door of the van. Pribesh also indicated that he witnessed the van strike the two vehicles and that he saw Guyette on the ground. Pribesh’s testimony concerning the sequence of the events following the gunshot is consistent with Gonzalez’ statement, and, therefore, we fail to see why Gonzalez’ testimony was necessary to “discredit” Guyette’s claims that the petitioner “had tried earlier to run him over.” The petitioner has not demonstrated how he was prejudiced by Teitell’s failure to call Gonzalez to testify.

Moreover, the value of having Gonzalez testify at trial “must be considered in light of all the evidence that was before the jury. This is so because the strength of the state’s case is a significant factor in determining whether the alleged error caused prejudice to the petitioner. The stronger the case, the less probable it is that a particular error caused actual prejudice.” Griffin v. Commissioner of Correction, supra, 98 Conn. App. 367. In the present case, the petitioner does not dispute that, with or without Gonzalez’ trial testimony, the state had a strong case against him. On the basis of our review of the evidentiary record, we conclude that the petitioner has not demonstrated that Teitell’s alleged deficiency produced an unreliable result. See Strickland v. Washington, supra, 466 U.S. 687.

II

The petitioner next claims that the court abused its discretion in denying his petition for certification to appeal with respect to his claim that the state deprived him of his due process rights. In his appellate brief, the petitioner claims that the state violated his due process rights at the habeas proceedings because it failed to preserve the stolen van indefinitely after the conclusion of his criminal trial. After reviewing the record, we conclude that the petitioner failed to raise this claim in his habeas petition and also that the claim does not merit serious review.

In count two of his habeas petition, the petitioner had claimed that “his conviction” was illegal because it was obtained in violation of his due process rights at the criminal trial. Specifically, the petitioner had alleged that ‘the State’s failure to preserve the minivan driven by the [petitioner during the incident, as material, potentially exculpatory, untested evidence, after being requested to do so by defense counsel and ordered to do so by the trial court, [deprived him of due process of law].” (Emphasis added.) The petitioner also had alleged that “[i]t is reasonably probable that if the exculpatory material had been tested, the results of the testing would have provided evidence favorable to the [petitioner, and that the result of the trial court proceedings would have been different.” (Emphasis added.)

In contrast, during the habeas trial, in his posttrial brief to the habeas court and in his main appellate brief, the petitioner claimed that the state’s failure to preserve the stolen van after the conclusion of the criminal trial deprived him of his due process rights at the habeas trial. The petitioner contends in his reply brief on appeal that his claim concerns the deprivation of his due process rights at the habeas proceedings as a result of the state’s failure to preserve the stolen van pending the resolution of his habeas petition. Additionally, in the analysis portion of the reply brief, the petitioner attempts to alter his due process claim by referring to Teitell’s ineffectiveness for failing to present forensic analysis. At oral argument before this court, the petitioner asserted, for the first time, that his claim on appeal actually concerned Teitell’s failure to ensure, at the conclusion of the criminal trial, that the stolen van would be preserved for future habeas proceedings.

In light of the petitioner’s myriad of expressions of his claim, it is difficult to ascertain his actual claim; however, none of these claims raised on appeal was raised distinctly before the habeas court. See Copeland v. Warden, 26 Conn. App. 10, 13-14, 596 A.2d 477 (1991), aff'd, 225 Conn. 46, 621 A.2d 1311 (1993); see also Oliphant v. Commissioner of Correction, 80 Conn. App. 613, 618, 836 A.2d 471 (2003), cert. denied, 268 Conn. 907, 845 A.2d 412 (2004). “Furthermore, we fail to see how a court could abuse its discretion in failing to grant a petitioner certification to appeal to challenge an issue that was not first presented to the court and then ruled on by it.” Mitchell v. Commissioner of Correction, 68 Conn. App. 1, 7, 790 A.2d 463, cert. denied, 260 Conn. 903, 793 A.2d 1089 (2002).

Moreover, even if the petitioner had raised these claims distinctly in his habeas petition, we nevertheless would conclude that, under the circumstances of this case, it is impractical to require that the state preserve a stolen van indefinitely beyond the conclusion of the criminal proceedings. In addition to being burdensome on the owner from whom the van was stolen, it also is a burden on the state to preserve such a vehicle, absent a granted motion requiring it do so, for its possible use in a future habeas trial.

Accordingly, we conclude that the court did not abuse its discretion because the petitioner has not shown that the issues raised with regard to the court’s denial of his petition for a writ of habeas corpus are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions raised deserve encouragement to proceed further. See Simms v. Warden, supra, 230 Conn. 616.

The appeal is dismissed.

In this opinion the other judges concurred.

       The petitioner’s ineffective assistance claim was alleged in the first count of his petition. In counts two through four, the petitioner alleged, respectively, that the state violated his due process rights because it failed to preserve the van, that the court’s instructions to the jury deprived him of his right to a fair trial and that some of the trial court’s evidentiary rulings violated his right to confront witnesses.
      The court did not address specifically the issues raised in counts two through four in its memorandum of decision. Nevertheless, the court, in denying the petition, found in favor of the respondent commissioner of correction. The judgment file states that “[t]he court, having heard the parties, finds the issues for the respondent,” and “it is adjudged that the writ of habeas corpus is denied.” We conclude that the court denied the entire petition, and, therefore, there is a final judgment.

       The petitioner raised several other allegations in connection with his ineffective assistance claim in his second amended petition. Specifically, the petitioner claimed that his trial counsel was ineffective for failing to investigate, failing to have a forensic expert inspect the van, failing to cross-examine the state’s witnesses, failing to impeach effectively the state’s witnesses, failing to contest the market value of the van, failing to retain several experts, failing to develop a relevant defense theory and failing to request certain jury instructions. The petitioner, however, has not raised or briefed these issues on appeal, and, we therefore deem those aspects of the habeas petition abandoned. See Annunziata v. Commissioner of Correction, 74 Conn. App. 9, 13, 810 A.2d 287 (2002).

       Because we conclude that the petitioner has failed to satisfy the prejudice component of Strickland, we do not determine whether Teitell’s failure to interview Gonzalez and to call him as a witness constituted deficient performance. See Pierce v. Commissioner of Correction, 100 Conn. App. 1, 12 n.5, 916 A.2d 864, cert. denied, 282 Conn. 908, 920 A.2d 1017 (2007).

       In connection with his due process claim regarding the preservation of the van, the petitioner also argues on appeal that the habeas court improperly failed to apply the balancing test enunciated in State v. Asherman, 193 Conn. 695, 724, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985), which is the test used in evaluating a claim concerning the deprivation of due process rights as a result of missing evidence. Under Asherman, the trial court balances the following factors: “the materiality of the missing evidence, the likelihood of mistaken interpretation of it by witnesses or the jury, the reason for its nonavailability to the defense and the prejudice to the defendant caused by the unavailability of the evidence.” (Internal quotation marks omitted.) State v. Morales, 232 Conn. 707, 727, 657 A.2d 585 (1995). The petitioner urges this court to adopt a new rule in which the Asherman balancing test is applied to postconviction proceedings. However, because the petitioner failed to raise this issue in his habeas petition, we need not decide whether Asherman extends to habeas proceedings.

       During the habeas trial, the petitioner apparently abandoned the claim regarding the violation of his due process rights at his criminal trial because he acknowledged that the state relinquished possession of the van after the criminal trial. Instead, the petitioner argued that the Asherman test also applied to due process violations occurring during postconviction proceedings.


author: DiPENTIMA, J.

text:
    STATE OF CONNECTICUT v. RUBEN T.

    (AC 28187)
    DiPentima, Gruendel and Borden, Js.

      Argued September 18
    officially released December 11, 2007

      Alice Osedach, assistant public defender, for the appellant (defendant).

      Sarah Hanna, special deputy assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Sandra L. Tullius, senior assistant state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of the victims of the crime of risk of injury to a child, we decline to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

   Opinion

DiPENTIMA, J.

The defendant, Ruben T., appeals from the judgment of conviction, rendered after a trial before a three judge panel, of murder in violation of General Statutes § 53a-54a (a) and risk of injury to a child in violation of General Statutes § 53-21 (a) (l). On appeal, the defendant claims that the panel improperly (1) concluded that he had failed to prove the defense of extreme emotional disturbance by a fair preponderance of the evidence and (2) admitted testimony under the state of mind exception to the hearsay rule. We affirm the judgment of the panel.

The panel reasonably could have found the following facts. The defendant met the victim in late 1998. After a brief relationship, the victim became pregnant with the defendant’s child. Before the child was bom in December, 1999, the relationship between the defendant and the victim had fallen into discord, and after the child was bom, the couple often fought over issues such as child support, visitation and parenting. The defendant often was fmstrated and angered by the victim’s efforts to collect child support payments and to minimize her contact with him.

On March 28, 2003, the victim planned to drop off the child for his scheduled visitation with the defendant. Over the course of that day, the defendant exchanged numerous telephone calls with the victim, arguing over the drop-off time. Ultimately, the victim arrived at the defendant’s house at about 7:30 p.m.

Upon the victim’s arrival at his home in Windsor, the defendant met the victim at her car and informed her that he would not take the child unless she agreed to discuss their visitation and support arrangements. When the victim refused to have any discussion with him, the defendant began walking back toward the house. The victim responded by shouting an expletive and striking the defendant from behind with an unknown object before turning her attention back toward the child.

Without further provocation, the defendant pulled from his pocket a three inch folding knife and attacked the victim with it, stabbing her twelve times in the head, neck, face, back, chest and buttocks. The defendant then picked up his child, who had just witnessed his father brutally assault his mother, and fled the scene in the victim’s car. As the defendant drove off, two neighbors who had heard the struggle came to the victim’s aid and summoned police and paramedics. The victim was pronounced dead upon her arrival at Hartford Hospital a short time later.

Meanwhile, the defendant drove the victim’s car from Windsor to the Hartford police station. There he passed his child, whose clothing was stained with blood, to one of the officers on duty and informed the officer that he wanted to turn himself in on a “domestic dispute.” Subsequently, the defendant was transferred to the custody of the Windsor police, to whom he confessed to the murder.

The state charged the defendant with murder and risk of injury to a child. The defendant elected a trial before a three judge panel, Mullarkey and Keller, Js., and Hon. John F. Mulcahy, Jr., judge trial referee. At trial, the defendant asserted the affirmative defense of extreme emotional disturbance. After several days of trial, the panel rendered judgment convicting the defendant of both charges. The court sentenced the defendant to forty-eight years incarceration for the murder conviction, twenty-five years mandatory, and to ten years incarceration for the risk of injury conviction, to be served concurrently with the murder sentence. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the panel improperly found that he had failed to prove his affirmative defense of extreme emotional disturbance by a preponderance of the evidence. Specifically, the defendant argues that the panel could not have reasonably concluded that he had not proved his defense because the panel improperly considered only whether a provoking or triggering event occurred, either on the day of the murder or during the days immediately prior, that exposed him to an extremely unusual or overwhelming state. Further, the defendant argues that the court improperly discredited the testimony of his expert witness. We reject both arguments.

General Statutes § 53a-54a (a) provides in relevant part: “[I]n any prosecution [for murder], it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be ... .”

Our Supreme Court has set forth the standard of review that guides our analysis. “[0]ur review of the conclusions of the trier of fact, whether it be a judge, a panel of judges or a jury, is limited. . . . This court will construe the evidence in the light most favorable to sustaining the trial court’s [judgment] and will affirm the conclusion of the trier of fact if it is reasonably supported by the evidence and the logical inferences drawn therefrom. . . . The probative force of direct and circumstantial evidence is the same.” (Citation omitted; internal quotation marks omitted.) State v. Crespo, 246 Conn. 665, 676, 718 A.2d 925 (1998), cert. denied, 525 U.S. 1125, 119 S. Ct. 911, 142 L. Ed. 2d 909 (1999). “Ultimately, the question is whether upon the facts established and the inferences drawn therefrom the fact-finder could have reasonably concluded that the cumulative effect of the evidence failed to establish that the defendant acted under the influence of an extreme emotional disturbance for which there was a reasonable explanation or excuse. In sum, except where an abuse of discretion is clearly shown, the conclusion of a trial court should be affirmed so long as it is a reasonable one on the basis of the evidence adduced and the inferences drawn therefrom. ... In the final analysis . . . the ultimate determination of the presence or absence of extreme emotional disturbance [is] one of fact for the trier, aided by the expert testimony of both sides, but left to its own factual determinations. ” (Citation omitted; internal quotation marks omitted.) Id., 677-78.

Our Supreme Court has held that “[e]xtreme emotional disturbance is a mitigating circumstance which will reduce the crime of murder to manslaughter. . . . Pursuant to General Statutes § 53a-12 (b), [w]hen a defense declared to be an affirmative defense is raised at a trial, the defendant shall have the burden of establishing such defense by a preponderance of the evidence.” (Citations omitted; internal quotation marks omitted.) State v. Crespo, supra, 246 Conn. 675-76.

“A homicide influenced by an extreme emotional disturbance ... is not one which is necessarily committed in the ‘hot blood’ stage, but rather one that was brought about by a significant mental trauma that caused the defendant to brood for a long period of time and then react violently, seemingly without provocation.” State v. Elliott, 177 Conn. 1, 7-8, 411 A.2d 3 (1979). “For the defendant to have prevailed on this defense, he would have had to establish, by a preponderance of the evidence, that he had caused the death of the victim under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse measured from the viewpoint of a reasonable person in the defendant’s situation under the circumstances as the defendant believed them to be. . . . To sustain his burden of establishing extreme emotional disturbance by a preponderance of the evidence, the defendant must persuade the trier of fact that: (1) the emotional disturbance is not a mental disease or defect that rises to the level of insanity as defined by the penal code; (2) the defendant was exposed to an extremely unusual and overwhelming state, that is, not mere annoyance or unhappiness; and (3) the defendant had an extreme emotional reaction to it, as a result of which there was a loss of self-control, and reason was overborne by extreme intense feeling, such as passion, anger, distress, grief, excessive agitation or other similar emotions.” (Citations omitted; internal quotation marks omitted.) State v. Crespo, supra, 246 Conn. 676-77. “Consideration is given to whether the intensity of these feelings was such that his usual intellectual controls failed and the normal rational thinking for that individual no longer prevailed at the time of the act. . . . [T]he term ‘extreme’ refers to the greatest degree of intensity away from the norm for that individual.” State v. Elliott, supra, 10.

In its memorandum of decision, the panel made specific findings with respect to each of the factual bases that would support a finding of extreme emotional disturbance. First, the panel found that “the defendant did not suffer from any emotional disturbance that consisted of a mental disease or defect that rose to the level of insanity as defined by the penal code.” Further, the panel found that the defendant had indeed lost his self-control on the night he killed the victim. Most importantly, however, the panel unanimously found that the defendant’s loss of self-control was not caused by “an extremely unusual and overwhelming state that was not mere annoyance or unhappiness.” In support of its finding, the panel stated: “The evidence disclosed a contentious relationship between the defendant and the victim, with ongoing animosity over issues of child support and visitation for a period of four years prior to the date of the incident. For most of this time period, the defendant and the victim were able to maintain contact and a shared parenting arrangement, despite constant arguments and consequent resentment and hurt feelings. We heard no evidence that made March 28, 2003, or the period immediately preceding that date, extremely different in intensity from any other period during the defendant’s and [the victim’s] relationship. Not only was there no one event or series of events that occurred out of the norm on or immediately before March 28 that reasonably provoked an extreme emotional disturbance, there also was never any single event or series of events during the course of the relationship that were so extreme they might reasonably have caused the defendant to lose control after brooding for a longer period of time.”

The record in this case clearly supports the finding that when he attacked the victim, the defendant was overcome by something that caused him to lose his self-control. The panel, however, found “no reasonable explanation or excuse, measured from ‘the viewpoint of a reasonable person in the defendant’s situation under the circumstances as the defendant believed them to be,’ to justify his loss of self-control . . . .’’In reaching its conclusion, the panel noted that “[disputes over money, visitation, parenting and perceived infidelity were a regular occurrence between the victim and the defendant,” and that the “circumstances on March 28, 2003, were not significantly different from those surrounding any of the couple’s prior interactions.” (Emphasis added.) Although this language does highlight the absence of a provoking or triggering event that might have led to the attack, the memorandum as a whole also makes clear that the panel examined the defendant’s entire four year relationship with the victim for signs that the defendant was exposed to an extremely unusual and overwhelming state that was not mere annoyance or unhappiness, but found none. The panel reasonably could have reached this conclusion on the basis of the evidence before it. Accordingly, we reject the defendant’s first argument.

We also find no merit in the defendant’s argument that the panel improperly discredited testimony by his expert witness. Although the defendant introduced expert testimony in support of his affirmative defense and the state offered no rebuttal, the court was not obligated to adopt the expert’s conclusions as its own. The trier of fact can disbelieve any or all of the evidence proffered concerning the defense of extreme emotional disturbance, including expert testimony, and can construe such evidence in a manner different from the defendant’s assertions. See State v. DeJesus, 236 Conn. 189, 201, 672 A.2d 488 (1996). The fact, therefore, that the defendant’s expert witness supported his claim of extreme emotional disturbance, while the state chose to call no expert witness, but instead relied on cross-examination of the defendant’s expert, does not require this court to determine that the panel reasonably could not have concluded that the defendant had failed to prove extreme emotional disturbance by the required standard. See id.

During cross-examination, the state elicited testimony from the defendant’s expert that reasonably could have called the plausibility of his opinion into question. “In a case tried before a court, the [panel] is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. . . . On appeal, we will give the evidence the most favorable reasonable construction in support of the verdict to which it is entitled.” (Internal quotation marks omitted.) State v. Coscuna, 59 Conn. App. 434, 444, 757 A.2d 659 (2000). Thus, the record provides ample support for the panel’s conclusion that the defendant had failed to establish, by a preponderance of the evidence, that he was exposed to an extremely unusual and overwhelming state that was not mere annoyance or unhappiness at the time he stabbed the victim.

II

The defendant next claims that the court improperly admitted testimony under the state of mind exception to the hearsay rule. Specifically, the defendant claims that the panel improperly allowed the victim’s mother and brother to testify that prior to the victim’s death, the victim had told them of her fear of the defendant. The defendant argues that the victim’s statements were hearsay and inadmissible under the state of mind exception to the hearsay rule. Further, the defendant argues that even if the victim’s statements were admissible as an exception to the hearsay rule, they were not relevant to any issue before the panel. We disagree.

During the state’s direct examination of the victim’s brother, the witness stated that at one point, the victim had expressed to him her fear of the defendant. The state then asked the witness: “[W]hat did she say?” The witness responded: “She said that one of these days, he’s going to hurt me. I think one of these days, he’s going to hurt me.” During the state’s direct examination of the victim’s mother, the state elicited similar responses to essentially the same questions. The defendant objected to the testimony on the grounds that the responses were both inadmissible hearsay and irrelevant.

“To the extent a trial court’s admission of evidence is based on an interpretation of the Code of Evidence, our standard of review is plenary. For example, whether a challenged statement properly may be classified as hearsay and whether a hearsay exception properly is identified are legal questions demanding plenary review. They require determinations about which reasonable minds may not differ; there is no judgment call by the trial court, and the trial court has no discretion to admit hearsay in the absence of a provision providing for its admissibility. . . .

“We review the trial court’s decision to admit evidence, if premised on a correct view of the law, however, for an abuse of discretion. ... In other words, only after a trial court has made the legal determination that a particular statement is or is not hearsay, or is subject to a hearsay exception, is it vested with the discretion to admit or to bar the evidence based upon relevancy, prejudice, or other legally appropriate grounds related to the rule of evidence under which admission is being sought.” (Citations omitted; internal quotation marks omitted.) State v. Saucier, 283 Conn. 207, 218-19, 926 A.2d 633 (2007).

“[ A]n out-of-court statement that is offered to establish the truth of the matter asserted is inadmissible hearsay unless the statement falls within a recognized exception to the hearsay rule.” (Internal quotation marks omitted.) State v. Dehaney, 261 Conn. 336, 355, 803 A.2d 267 (2002), cert. denied, 537 U.S. 1217, 123 S. Ct. 1318, 154 L. Ed. 2d 1070 (2003). “An out-of-court statement is not hearsay, however, if it is offered to illustrate circumstantially the declarant’s then present state of mind, rather than to prove the truth of the matter asserted.” State v. Blades, 225 Conn. 609, 632, 626 A.2d 273 (1993).

In this case, the testimony of both witnesses, the victim’s brother and the victim’s mother, was not hearsay. Although the victim’s out-of-court statements to the witnesses foreshadowed her death at the hands of the defendant, the state offered the victim’s out-of-court statements not to prove that he did, in fact, harm her, but to prove circumstantially the victim’s state of mind, that she was afraid of the defendant. We find no distinction between these statements and the statements challenged by the defendant in Blades. Accordingly, we conclude that the court properly overruled the defendant’s hearsay objections to the witnesses’ testimony.

As to the defendant’s second argument, relevancy, “[e]vidence is relevant if it has any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be wdthout the evidence. Conn. Code Evid. § 4-1. There is no exact or universal test of relevancy. Rather, each such determination must be guided by sound legal reasoning and judicial experience. ... A fact is relevant to another if in the normal course of events its existence, alone or in conjunction with other facts, makes the existence of the other fact more likely or more certain. . . . The probative value of evidence is merely its tendency to persuade the trier of fact on a given issue.” (Internal quotation marks omitted.) State v. Glenn, 97 Conn. App. 719, 726-27, 906 A.2d 705 (2006), cert. denied, 281 Conn. 913, 916 A.2d 55 (2007).

Our Supreme Court has held that “evidence of a victim’s mental state may be relevant to establish the defendant’s motive to kill the victim.” (Internal quotation marks omitted.) State v. Dehaney, supra, 261 Conn. 356. Further, “[a] defendant’s articulated or implied theory of defense may make the victim’s state of mind material to the determination of the defendant’s guilt or innocence.” (Internal quotation marks omitted.) Id., 357. For example, a defendant’s assertion of an extreme emotional disturbance defense may put the victim’s state of mind into issue. Id.; State v. Blades, supra, 225 Conn. 635.

In this case, the defendant asserted the affirmative defense of extreme emotional disturbance. In support of this defense, the defendant elicited testimony from several witnesses that the victim was the antagonist who caused the breakdown in their relationship and that his violence toward her was completely at odds with the way in which he normally handled their conflicts. Evidence that the victim harbored fear of the defendant, therefore, would be relevant to rebut his claims. Accordingly, the panel did not abuse its discretion by admitting the testimony for purposes of rebutting the defendant’s affirmative defense of extreme emotional disturbance.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .”

       General Statutes § 53-21 (a) provides in relevant part: “Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be iryured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child . . . shall be guilty of a class C felony . . . .”

       For example, the defendant’s expert testified that in conducting his evaluation of the defendant, he failed to explore several available sources of relevant information, including the victim’s family and friends.

       The defendant also argues that the court improperly admitted the victim’s statements in violation of the rule for admissibility of nontestimonial hearsay as set forth in Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), overruled in part by Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Because we hold that the statements were not hearsay, we do not reach the merits of this argument.

       The following colloquy occurred during direct examination of the victim’s mother:
      “[The Prosecutor]: Did [the victim] ever express any fear of this defendant—

        “[The Witness]: Yes.
      “[The Prosecutor]:—to you?
      “[Defense Counsel]: Objection. Relevance. I know the court has ruled on some documents. But the same objection, whether it’s relevant in her state of mind.
      “The Court: Well, do we have a time period here?
      “[The Prosecutor]: I was just going to ask that—
      “The Court: All right.
      “[The Prosecutor]:—as the next question. . . . When did [the victim] express fear of this defendant?
      “[The Witness]: In 2002.
      “[The Prosecutor]: All right.
      “[The Witness]: I want to say it was probably late summer, early fall.
      “[The Prosecutor]: How many times did she express that to you?
      “[The Witness]: Several.
      “[The Prosecutor]: And when she expressed fear of him, what would she say?
      “[Defense Counsel]: Objection.
      “The Court: Overruled.
      “[The Prosecutor]: What would she say?
      “[The Witness]: She told me, he’s going to kill me someday.”

       Despite the state’s contentions to the contrary, the defendant properly articulated to the court the basis for his objections to the challenged testimony so as to alert the court and the state to potential error. Accordingly, we review the merits of the defendant’s claims. Cf. State v. Cabral, 275 Conn. 514, 530-31, 881 A.2d 247, cert. denied, 546 U.S. 1048, 126 S. Ct. 773, 163 L. Ed. 2d 600 (2005).

       In Blades, our Supreme Court held that the following testimony regarding out-of-court statements by the victim to the witnesses, offered to prove the victim’s fear of the defendant, was not hearsay. First, the victim’s mother testified: “[M]y daughter, [the victim], had told me if anything happened to her to call the police department and tell them to look for [the defendant].” (Internal quotation marks omitted.) State v. Blades, supra, 225 Conn. 630. Later, the victim’s coworker testified that the victim stated: “[I]f anything ever happened to [me], find the body, and let them know it was [the defendant].” (Internal quotation marks omitted.) Id., 631.

       The defendant also claims that the court improperly allowed the victim’s mother to testify regarding the victim’s recollection of specific acts of the defendant that led to the victim’s fear of him. The defendant did not object to this additional testimony at trial, and, accordingly, we do not review the claim. See State v. Cabral, supra, 275 Conn. 530-31.