author: LANDAU, J.

text:
    IN RE KACHAINY C.

    (AC 21208)
    Landau, Mihalakos and Freedman, Js.
    Argued September 14
    officially released December 25, 2001

      Bradford J. Chaucer, with whom was William R. Kinloch, for the appellant (respondent mother).

      Mary K. Lenehan, assistant attorney general, with whom, on the brief, were 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

LANDAU, J.

The respondent mother appeals from the judgment of the trial court terminating her parental rights with respect to her daughter. On appeal, the respondent claims that the court improperly (1) concluded that when adjudicating a petition for termination of parental rights pursuant to General Statutes (Rev. to 1999) § 17a-112 (c) (1), the court is not required to find by clear and convincing evidence that the department of children and families (department) made reasonable efforts to reunify the child and parent or that the parent is unwilling or unable to benefit from reunification services where the court previously made those findings pursuant to General Statutes § 17a-110 (b), and (2) found that the respondent failed to achieve personal rehabilitation within the meaning of General Statutes (Rev. to 1999) § 17a-112 (c) (3) (B). The respondent also claims that § 17a-110 is unconstitutional in that it permits the court to find a statutory ground for termination by less than clear and convincing evidence. We affirm the judgment of the trial court.

In 1992, the trial court, DeMayo, J., adjudicated the child neglected and committed her to the protective custody of the petitioner, the commissioner of children and families (commissioner), pursuant to General Statutes § 46b-120, because the child was being denied proper care and attention, specifically, because the respondent was unable to provide the care that the medically fragile child required. The commissioner’s temporary custody was extended repeatedly. In August, 1999, the commissioner filed a petition to terminate the parental rights of the respondent with respect to the child on the ground that the respondent had failed to achieve such a degree of personal rehabilitation as to encourage a belief that she would be able to assume a responsible position in the child’s life within a reasonable time. See General Statutes (Rev. to 1999) § 17a-112 (c) (3) (B). The commissioner also alleged that there was no ongoing parent-child relationship that ordinarily develops as a result of a parent having met, on a continuing basis, the physical, emotional, moral or educational needs of the child and that to allow further time for the establishment or reestablishment of such a relationship would be detrimental to the best interest of the child. See General Statutes (Rev. to 1999) § 17a-112 (c) (3) (D). Additional procedural facts will be set forth as necessary.

In adjudicating the termination petition, the court, Rogers, J., found the following facts by clear and convincing evidence. The child was bom in 1990 with a chronic, life threatening illness. As a result of her illness, the child has a significant life threatening lung disease. Over the years, physicians frequently changed the medications used to treat this disease because the child’s immune system would respond to the treatment erratically. To this day, the child’s health remains fragile and must be regulated and monitored closely to prevent its further deterioration. At the time of the termination hearing, the child was taking five medications several times a day. She was also taking three additional medications on an as-needed basis. During the summer, she often suffers respiratory distress and must use a nebulizer, sometimes as often as four times a day.

The respondent began to receive support services administered through the Yale Child Study Center in 1991. The patient care manager who worked with the respondent found that the respondent was unable to recognize the child’s symptoms of illness, to administer medications regularly or to contact the hospital when the child was ill. Consequently, the commissioner filed a neglect petition. The child was eighteen months old in 1992 when she was placed in the commissioner’s protective care. At that time, she had severe developmental delays, was grossly underweight and had been hospitalized on numerous occasions.

Since that time, the child has resided in a foster home, where her foster mother provides her with exceptional care. The foster mother strictly complies with the child’s medical regime, regularly attends the medical clinic and is able to recognize symptoms of illness and to communicate with medical providers. The child considers her foster mother to be her psychological parent. At the time of the termination hearing, the child was happy and had no significant emotional or behavioral problems. She referred to the respondent as her “other mom.”

When the child was in the commissioner’s protective custody, the respondent was aware that she was welcome to participate in the child’s medical treatment at Yale. She, however, missed a majority of the child’s medical appointments between 1992 and 2000. In 1998, she began to receive notice of appointments in Spanish, her native tongue. It was important for the respondent to attend the child’s medical appointments, not only to spend time with the child, but also to learn how to care for her. The child’s nurse practitioner testified unequivocally and credibly that the respondent cannot adequately care for the child.

The child’s medical providers indicated that it was essential for the respondent to visit regularly with the child so that she could utilize her training with respect to the child’s medical needs. The respondent visited the child inconsistently despite the fact that the visits were allowed to take place in the respondent’s home. In May, 1995, the department offered the respondent the opportunity to increase her visits with the child from once to twice a week. Because the respondent failed to attend the additional visits consistently, the department canceled the additional visits in January, 1996. Between June, 1996, and October, 1999, the respondent visited the child only fifty-two out of a possible 110 times. In June, 1998, the respondent was referred to the New Haven Family Alliance for intensive preservation services, but the case was closed one month later when the respondent missed three out of four appointments.

In a memorandum of decision dated July 26, 2000, Judge Rogers granted the petition to terminate the respondent’s parental rights with respect to her child, concluding that she had failed to achieve personal rehabilitation. The respondent appealed.

As we turn to address the respondent’s claims, we are mindful of the gravity of the proceedings in a termination of parental rights case. Our statutes define “the termination of parental rights as the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his or her parent. It is, accordingly, a most serious and sensitive judicial action. Anonymous v. Norton, 168 Conn. 421, 430, 362 A.2d 532, cert. denied, 423 U.S. 935, 96 S. Ct. 294, 46 L. Ed. 2d 268 (1975). Although the severance of the parent-child relationship may be required under some circumstances, the United States Supreme Court has repeatedly held that the interest of parents in their children is a fundamental constitutional right that undeniably warrants deference and, absent a powerful countervailing interest, protection. Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); see also In re Juvenile Appeal (83-CD), 189 Conn. 276, 295, 455 A.2d 1313 (1983) . . . .” (Internal quotation marks omitted.) In re Eden F., 48 Conn. App. 290, 306-307, 710 A.2d 771 (1998), rev’d on other grounds, 250 Conn. 674, 741 A.2d 873 (1999).

I

The respondent’s first claim is that the court improperly concluded that when adjudicating a petition for termination of parental rights, § 17a-112 (c) (1) does not require the court to find by clear and convincing evidence that the department made reasonable efforts to reunify the child and parent or that the parent is unwilling or unable to benefit from reunification services, where the court previously made those findings in a hearing held pursuant to § 17a-110. In response to this claim, the petitioner argues that the issue is moot. Although we conclude that the claim is not moot, the respondent’s claim lacks merit.

A

“Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties. . . . Since mootness implicates subject matter jurisdiction ... it can be raised at any stage of the proceedings. ... A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists. ... An issue is moot when the court can no longer grant any practical relief.” (Citation omitted; internal quotation marks omitted.) Giulietti v. Giulietti, 65 Conn. App. 813, 865, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001). “Whenever a claim of lack of jurisdiction is brought to the court’s attention, it must be resolved before the court can proceed.” (Internal quotation marks omitted.) Doe v. Dept. of Public Health, 52 Conn. App. 513, 517, 727 A.2d 260, cert. denied, 249 Conn. 908, 733 A.2d 225 (1999).

“The test for determining mootness of an appeal is whether there is any practical relief this court can grant the appellant. . . . [I]t is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. ... If no practical relief can be afforded to the parties, the appeal must be dismissed.” (Citation omitted; internal quotation marks omitted.) ALCA Construction Co. v. Waterbury Housing Authority, 49 Conn. App. 78, 81, 713 A.2d 886 (1998). The respondent has appealed from the judgment terminating her parental rights, claiming, in part, that in terminating her rights, the court improperly relied on a finding made by a prior court. If this court were to agree with that claim, we could reverse the judgment terminating the respondent’s parental rights, thus providing relief. The respondent’s claim therefore is not moot.

B

The following procedural history is relevant to the respondent’s claim that the court improperly concluded that it was not required to find by clear and convincing evidence that it was no longer appropriate for the department to make reasonable efforts to reunify the child and the respondent because the finding had been made previously. Subsequent to Judge DeMayo’s committing the child to the temporary custody of the commissioner, several of the trial courts granted, in seriatim, petitions for extension of the child’s commitment. In her July 26, 2000 memorandum of decision, Judge Rogers stated in part: “[T]o terminate parental rights, [the petitioner] must initially show by clear and convincing evidence that [the department] has ‘made reasonable efforts to . . . reunify the child with the parent unless the court finds in the proceeding that the parent is unable or unwilling to benefit from reunification efforts.’ General Statutes [Rev. to 1999] § 17a-112 (c) (1). The court need not make such a finding, however, ‘if a court has determined at a hearing pursuant to subsection (b) of § 17a-110 or § 17a-lllb that such efforts are not appropriate . . . .’ [General Statutes (Rev. to 1999) § 17a-112 (c) (1)]. The court made the requisite finding on July 16, 1998, and August 30, 1999, that reunification efforts were no longer appropriate with regard to the [respondent].”

The findings to which Judge Rogers referred were made in the context of extension of commitment proceedings held before the court, Cohn, J., on July 16, 1998, and before the court, Dewey, J., on August 30, 1999. Facts concerning the August 30, 1999 hearing before Judge Dewey are sufficient to address the respondent’s claim. The following colloquy took place between counsel and Judge Dewey on August 30, 1999:

“The Court: All right, then absent objection, and is there any objection to the motion for extension being granted?
“[Respondent’s Counsel]: No.
“The Court: Then absent objection, the extension is granted until August 15, 2000.
* * %
“The Court: State, is there anything further you need?
“[Assistant Attorney General]: Your Honor, we would ask that . . . further efforts for reunification with the mother and father are no longer necessary.
“The Court: There’s no objection to that, correct?
“[Child’s Counsel]: Not for the child’s attorney, Your Honor.
“[Respondent’s Counsel]: No.
“The Court: Ordered.
“[Respondent’s Counsel]: Thank you.”

On August 30,1999, Judge Dewey extended the child’s commitment and signed an order for review of the permanency plan that stated in relevant part: “Upon review of the petitioner’s motion for review of permanency plan for extension of commitment and the corresponding study attached thereto, upon hearing the parties and the evidence presented, and upon considering the best interest of the above-named [child], including the [child’s] need for permanency, the court hereby makes the following findings by clear and convincing evidence and orders in accordance with [General Statutes] § 46b-129 [k] (1), (2) and (3): It ... is not appropriate to continue to make reasonable efforts to reunify the [child] with the above-named respondent(s). The commissioner of the department of children and families has no duty to make further efforts to reunify the [child] with the respondent(s).” (Emphasis added.)

Thereafter, at the beginning of the hearing on the petition to terminate the respondent’s parental rights, the following colloquy took place between Judge Rogers and counsel for the parties:

“The Court: The court also found that further efforts to reunify were not appropriate on August 30,1999, and apparently [on] July 16, 1998. So that it’s the court’s understanding that that finding need not be made again. Is that the parties’ understanding at this time?
“[Assistant Attorney General]: Yes, it is, Your Honor.
“The Court: Mr. Rosado [respondent’s counsel]?
“[Respondent’s Counsel]: What date did Your Honor state?
“The Court: I got two dates. Judge Dewey made the finding on August 30, 1999, and Judge Cohn made the finding on July 16, 1998, is what the record reflects.
“[Respondent’s Counsel]: I dispute the ’98 finding. As to the ’99 finding; yes, with Judge Dewey.
“The Court: All right, I think I just need one.”

The language of § 17a-112 (c) controls the respondent’s claim. “The purpose of statutory construction is to give effect to the intended purpose of the legislature. ... If the language of a statute is plain and unambiguous, we need look no further than the words actually used because we assume that the language expresses the legislature’s intent.” (Citations omitted; internal quotation marks omitted.) State v. DeFrancesco, 235 Conn. 426, 435, 668 A.2d 348 (1995). “Common sense must be used [when construing statutes] and courts will assume that the legislature intended to accomplish a reasonable and rational result. . . . We must presume that each sentence, clause and phrase in a public act has a purpose and that the legislature did not intend to enact a meaningless law.” (Citation omitted.) Candlewood Landing Condominium Assn., Inc. v. New Milford, 44 Conn. App. 107, 110, 686 A.2d 1007 (1997).

Section 17a-112 (c) provides in relevant part: “The Superior Court . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence (1) that the Department of Children and Families has made reasonable efforts to . . . reunify the child with the parent, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts provided such finding is not required if the court has determined at a hearing pur suant to subsection (b) of section 17a-110 . . . that such efforts are not appropriate . . . .” (Emphasis added.)

Judge Rogers concluded, and the record supports her conclusion, that at the August 30, 1999 extension of commitment hearing, Judge Dewey found by clear and convincing evidence that it was not appropriate for the department to continue to make reasonable efforts to reunify the child and the respondent. The language of § 17a-112 (c) is clear: A finding that it is no longer appropriate for the department to make reasonable efforts to reunite the family must be made only once, either at an extension hearing or at a termination hearing. Common sense also tells us that it would be a waste of judicial resources to require courts to make redundant findings.

C

The respondent also argues that Judge Rogers’ reliance on the previous determinations that reunification efforts were not appropriate was improper because those decisions were not supported by clear and convincing evidence. As the petitioner points out, the respondent failed to appeal from Judge Dewey’s order of August 30, 1999, extending the child’s commitment and finding that reunification efforts were no longer appropriate. An extension of commitment is an immediately appealable final judgment. In re Todd G., 49 Conn. App. 361, 362, 713 A.2d 1286 (1998). The issue may not be raised as a collateral attack on the judgment terminating parental rights. See In re Shamika F., 256 Conn. 383, 405-408, 773 A.2d 347 (2001). We conclude that this part of the respondent’s claim is not reviewable.

The respondent also argues that the termination was improper because Judge Rogers herself did not make a finding by clear and convincing evidence as to reasonable efforts. The statute tells us that Judge Rogers did not have to make the finding herself because Judge Dewey previously did so at the extension of commitment hearing. Any court adjudicating the termination petition was entitled to rely on Judge Dewey’s finding. The respondent’s claim thus is without merit.

II

The respondent’s second claim is that the court improperly concluded that she had failed to achieve personal rehabilitation within the meaning of § 17a-112 (c) (3) (B). We decline to review this claim because it is inadequately briefed. With respect to this issue, the respondent’s brief consists of a one paragraph factual argument based on reasonableness. The respondent failed to cite the applicable standard of review, and the brief contains no legal authority or analysis to support her theory. “We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . We will not review claims absent law and analysis.” (Citation omitted; internal quotation marks omitted.) In re Dorrell R., 64 Conn. App. 455, 469, 780 A.2d 944 (2001).

Ill

The respondent’s last claim is that § 17a-110 is unconstitutional in that it permits the court to find a statutory ground for termination by less than clear and convincing evidence. The respondent cannot prevail on this claim because it was not raised at trial and fails to satisfy all four prongs of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). See In re Alexander V., 25 Conn. App. 741, 743, 596 A.2d 934 (1991), aff'd, 223 Conn. 557, 613 A.2d 780 (1992).

The respondent can prevail on her constitutional claim only if “all of the following conditions are met: (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 [respondent] 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 . . . claim will fail.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

Although the record is adequate for our review, we need not determine whether the respondent’s claim is of constitutional magnitude. Even if it were, the alleged violation did not clearly exist and deprive the respondent of a fair trial. Judge Dewey conducted a hearing and found by clear and convincing evidence that it was no longer appropriate for the department to make reasonable efforts to reunite the family, a finding on which Judge Rogers was entitled to rely. See part I of this opinion.

The judgment is affirmed.

In this opinion the other judges concurred.

       The judgment also terminated the parental rights of the respondent father, who is not a party to this appeal. We refer in this opinion to the respondent mother as the respondent.

       General Statutes (Rev. to 1999) § 17a-112 (c) provides in relevant part: “The Superior Court, upon hearing and notice as provided in sections 45a-716 and 45a-717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence (1) that the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts provided such finding is not required if the court has determined at a hearing pursuant to subsection (b) of section 17a-110 . . . that such efforts are not appropriate . . . and (3) that . . . (B) the parent of a child who (1) has been found by the Superior Court to have been neglected or uncared for in a prior proceeding, or (2) is found to be neglected or uncared for and . . . has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child (Emphasis added.)

       General Statutes § 17a-110 (b) provides in relevant part: “At a hearing held in accordance with subsection (k) of section 46b-129 and section 17a-111b, the court shall determine the appropriateness of continuing efforts to reunify a child with the child’s family. If the court finds that such efforts are not appropriate, the Department of Children and Families shall within sixty days of such finding either (1) file a petition for the termination of parental rights . . . .” (Emphasis added.)

       See footnote 2.

       Because we disagree with the respondent’s first claim, we need not address her claim that the court improperly rendered an articulation of its decision terminating the respondent’s parental rights.

       Judge Rogers concluded that the petitioner had failed to prove by clear and convincing evidence that there was no ongoing parent-child relationship between the respondent and the child.

       For clarity, we restate the respondent’s statement of the issues on appeal in which she claims that the court improperly (1) found pursuant to § 17a-110 that the petitioner had proven that continuing efforts to reunify the child with the respondent were no longer appropriate, (2) failed to conduct an appropriate hearing to determine whether the department should be relieved of the obligation to continue to make reasonable efforts to reunify the family and (3) found that the department had made reasonable efforts to reunify or that it was relieved of that responsibility by clear and convincing evidence.

       Although this portion of the respondent’s claim is not reviewable on the merits, we cannot ignore the record on which this claim is based. At the extension hearing, the respondent’s counsel agreed with Judge Dewey’s finding that the department no longer had to malee reasonable efforts to unite the child and the respondent. Our appellate courts frequently have stated that a party “may not pursue one course of action at trial for tactical reasons and later on appeal argue that the path he rejected should now be open to him.” (Internal quotation marks omitted.) State v. Barber, 64 Conn. App. 659, 670, 781 A.2d 464, cert. denied, 258 Conn. 925, 783 A.2d 1030 (2001).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    BRIAN WITTMAN v. ELLEN KRAFICK
    (AC 21027)
    Lavery, C. J., and Schaller and Daly, Js.
    Submitted on briefs November 1
    officially released December 25, 2001

      Ellen Krafick, pro se, the appellant (defendant), filed a brief.

      Judith Ellenthal filed a brief for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant, Ellen Krafick, appeals from the judgment of the trial court dissolving the parties’ marriage. The defendant claims that the court improperly (1) denied the parties one hour for closing arguments, (2) ordered, without evidence, an inequitable distribution of personal property, (3) found both parties at fault for the breakdown of the marriage and (4) abused its discretion in ordering alimony. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the defendant’s appeal. The parties were married in November, 1987. A child was bom in March, 1997. Thereafter, in November, 1998, the plaintiff, Brian Witt-man, commenced the underlying dissolution action. The plaintiff has a high school education. At the time of trial, the plaintiff was employed as creative director for Priceline.com. The defendant has a master’s degree in education, but remained home after giving birth to the child. The court concluded, on the basis of the actions of both parties, that the marriage had broken down irretrievably. The court divided the property and debts of the parties, and ordered the plaintiff to pay $272 per week in child support and $300 per week in alimony to the defendant for a limited time. The parties stipulated as to the custody of and visitation with the child. The court thereafter rendered judgment dissolving the parties’ marriage. The defendant appealed.

We decline to review the defendant’s claims on appeal. “[F]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed. . . . The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited. . . . [Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court. . . . Where the parties cite no law and provide no analysis of their claims, we do not review such claims.” (Citations omitted; internal quotation marks omitted.) Mullen & Mahon, Inc. v. Mobilmed Support Services, LLC, 62 Conn. App. 1, 10, 773 A.2d 952 (2001); Weinstein v. Weinstein, 18 Conn. App. 622, 627 n.2, 561 A.2d 443 (1989). “Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law.” (Internal quotation marks omitted.) Strobel v. Strobel, 64 Conn. App. 614, 618, 781 A.2d 356, cert. denied, 258 Conn. 937, 786 A.2d 426 (2001). We cannot reach the merits of the defendant’s claims because her brief is devoid of any legal authority or legal analysis and, therefore, we deem her claims abandoned.

The judgment is affirmed.


author: DRANGINIS, J.

text:
    IN RE ALEXANDER C.

    (AC 21673)
    Dranginis, Flynn and Daly, Js.
    Argued October 15
    officially released December 25, 2001

      William R. Kinloch, for the appellant (respondent father).

      Jane R. Rosenberg, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Eliot D. Prescott, assistant attorney general, for the appellee (petitioner).

      Eric J. Palladino, for the minor child.

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

   Opinion

DRANGINIS, J.

The respondent father appeals from the judgment of the trial court terminating his parental rights with respect to his minor child, A, pursuant to General Statutes (Rev. to 1999) § 17a-112 (c) (3) (B), now (j) (3) (B), and (c) (3) (D), now (j) (3) (D). The respondent claims that the court improperly found that (1) no ongoing parent-child relationship existed because the respondent was incarcerated and had been ordered to have no contact with A since before his birth, and (2) the respondent failed to achieve a sufficient degree of personal rehabilitation on the basis of his failure to participate in rehabilitative programs. We affirm the judgment of the trial court.

In its memorandum of decision, the court recited the following facts and procedural history. In February, 1998, the commissioner of children and families (commissioner) was given custody of all five of A’s older siblings following allegations that the respondent sexually and physically had abused A’s half-sister. The respondent was charged with sexual assault and risk of injury to a child in April, 1998, and was released from jail in June of that year on the condition that he have no contact with the victim or the other children. In December, 1998, after entering a plea of nolo contendere, the respondent was sentenced to twelve years imprisonment, execution suspended after forty-two months and two years probation, again with a protective order prohibiting any contact between the respondent and the children.

Meanwhile, A was bom on August 31,1998. The commissioner immediately filed a neglect petition and secured temporary custody of A. Two days after his birth, he was placed in a foster home. He was adjudicated neglected in October, 1998, and on April 6, 2000, the commissioner filed a petition to terminate the parental rights of the respondent and A’s mother. The petition alleged abandonment, failure to achieve a sufficient degree of personal rehabilitation, acts of omission or commission that denied A necessary care, guidance or control and no ongoing parent-child relationship. A remains in foster care with the family that has cared for him since his birth, and the family wants to adopt him.

The respondent has been incarcerated for most of A’s life and has never made any efforts to contact the department of children and families (department) regarding A’s well-being. He never made any effort to participate in counseling or rehabilitative programs. The court, therefore, terminated the respondent’s rights on the grounds of a lack of an ongoing parent-child relationship and failure to achieve a sufficient degree of personal rehabilitation. This appeal followed.

“Our standard of review on appeal from a termination of parental rights is whether the challenged findings are clearly erroneous. . . . The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous. . . .

“On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. . . . Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling. . . .

“A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. ... In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights [under General Statutes (Rev. to 1999) § 17a-112 (c), now (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 Gary B., 66 Conn. App. 286, 289-90, 784 A.2d 412 (2001).

I

The respondent first claims that the court improperly found a lack of an ongoing parent-child relationship because it applied an incorrect legal standard. Specifically, he claims that the court improperly based its decision on In re Jessica M., 217 Conn. 459, 474-75, 586 A.2d 597 (1991), in which the respondent mother’s visitation with the minor child and the child’s memories or feelings for the mother were sufficient to preclude the termination of her parental rights on the alleged ground of lack of an ongoing parent-child relationship. The respondent in this case claims that because A was in the commissioner’s custody essentially since birth, In re Jessica M. is inapplicable. Instead, the respondent claims, this case is controlled by In re Valerie D., 223 Conn. 492, 613 A.2d 748 (1992), in which the commissioner took custody of the child at birth. We disagree.

General Statutes (Rev. to 1999) § 17a-112 (c) (3) (D), now (j) (3) (D), provides that the court may grant a petition to terminate parental rights if it finds by clear and convincing evidence that “there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day to day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child . . . .”

“This part of the statute requires the trial court to undertake a two-pronged analysis. First, there must be a determination that no parent-child relationship exists, and second, the court must look into the future and determine whether it would be detrimental to the child’s best interest to allow time for such a relationship to develop. ... In considering whether an ongoing parent-child relationship exists, the feelings of the child are of paramount importance. . . . The ultimate question is whether the child has no present memories or feelings for the natural parent. . . . Feelings for the natural parent connotes feelings of a positive nature only.” (Citations omitted; internal quotation marks omitted.) In re Jonathon G., 63 Conn. App. 516, 525, 777 A.2d 695 (2001).

In In re Jessica M., supra, 217 Conn. 459, our Supreme Court defined an ongoing parent-child relationship as it applies to noncustodial parents. The court stated that termination of a noncustodial parent’s rights requires a finding that “the child has no present memories or feelings for the natural parent.” (Internal quotation marks omitted.) Id., 468. Where the child does have present memories or feelings, there must be a finding that “no positive emotional aspects of the relationship survive.” Id., 470. The defendant argues that unlike the situation in this case, In re Jessica M. and the cases cited therein involved children of an age such that their present memories and feelings were discernible. He argues that In re Valerie D. should apply because of A’s young age.

In In re Valerie D., supra, 223 Conn. 492, the respondent mother argued that termination of her parental rights in her infant child on the basis of an absence of an ongoing parent-child relationship was improper because the commissioner was responsible for the absence of such a relationship, having had custody of the child virtually since her birth. Our Supreme Court held that under the facts of that case, the commissioner could not terminate the respondent mother’s rights on that basis. The court reasoned that “[a]s the facts of this case demonstrate . . . once the child had been placed in foster care pursuant to the determinations made under [General Statutes] § 46b-129, a finding of a lack of an ongoing parent-child relationship three and one-half months later was inevitable under [the termination statute] because absent extraordinary and heroic efforts by the respondent, the petitioner was destined to have established the absence of such a relationship. Thus, a factual predicate for custody, established by the lesser standard of a preponderance of the evidence, led inexorably, for all practical purposes, to the factual predicate for termination required to be established by the higher standard of clear and convincing evidence.” Id., 533-34.

In In re Valerie D., the adjudication of a lack of an ongoing parent-child relationship was three and one-half months after the infant child had entered foster care. The trial court in that case terminated the mother’s parental rights but, in its memorandum of decision, expressed reservations because the absence of a parent-child relationship was not for lack of effort on the mother’s part. Id. The Supreme Court reversed the judgment of this court, concluding that on the basis of the record, “the lack of an ongoing parent-child relationship between the respondent and the child was the direct result of the fact that the child was in foster care . . . for almost the entire period of time between the birth and the adjudication date.” Id. The Supreme Court further stated that “[w]e agree with the implicit conclusion of the trial court in this case that, in such a case, the inquiry must focus, not on the feelings of the infant, but on the positive feelings of the natural parent.” (Emphasis added.) Id., 532.

Thus, as we now will set forth, the similarity between In re Valerie D. and the present case begins and ends with the child’s being placed in foster care within days of birth. Here, the respondent, rather than the commissioner, created the circumstances that caused and perpetuated the lack of an ongoing relationship between the respondent and A. See In re Lauren R., 49 Conn. App. 763, 775, 715 A.2d 822 (1998) (department did not precipitate lack of ongoing relationship where respondent created condition requiring protective order). It was the respondent’s action, which resulted in his incarceration, that occasioned his separation from the child. The court entered and continued a protective order in light of the allegations of sexual and physical abuse of A’s sibling. It is unclear from the record whether the respondent contested those allegations on the civil side of the court. The determination of no ongoing parent-child relationship in the termination proceedings was not based on the allegations to which the respondent had pleaded nolo contendere. That determination was based on the resultant incarceration and the absence of the respondent from A’s life.

During his incarceration, the respondent made no attempts to develop a relationship with A. We are not persuaded that he could not develop such a relationship simply because the protective order prohibited him from doing so. The record reveals that more than one year had passed from the adjudication of neglect to the termination of the respondent’s parental rights, yet the respondent made no attempt to modify the court’s protective order to one of supervised visitation, an action that occurs with a fair amount of frequency in family cases in which criminal charges are pending. In our view, to expect such an affirmative step on the part of the respondent does not require him to make “extraordinary and heroic efforts.” In re Valerie D., supra, 223 Conn. 533. Certainly, the absence of the respondent from A’s life prevents him from taking even the most minimal steps of parenting. His absence may have prevented him from providing a home and other life necessities, but it did not prevent him from expressing interest in the health, care and well-being of the child during that absence.

We have stated that the feelings of the child are of “ ‘paramount importance’ ” in determining whether an ongoing parent-child relationship exists. In re Amelia W., 62 Conn. App. 500, 506, 772 A.2d 619 (2001). As the Supreme Court expressed in In re Valerie D., however, in cases involving the development of a parent-child relationship in the earliest stages of the child’s life, we also must be mindful of the positive feelings of the parent toward the child. In re Baby Girl B., 224 Conn. 263, 301, 618 A.2d 1 (1992). We further recognize that “the evidence regarding the quality of [a parent’s] relationship with [a] child must be reviewed in the light of the [parent’s] limited access to visitation at the time of the petition.” Id.

In the present case, from the time that the child entered foster care until the time that the petition was filed, the respondent never made any inquiries to the department workers about his child’s health or well-being, despite being given opportunities to do so. He never sought out parenting classes that would promote the development of a relationship, nor did he inquire about the availability of individual counseling or sex offender treatment classes available at his correctional facility. We previously have held that even though “the respondent could not avail himself of the rehabilitative programs available through the department [of children and families] because of his incarceration, it does not excuse his failure to use the resources offered by the department of correction.” In re Hector L., 53 Conn. App. 359, 367-68, 730 A.2d 106 (1999). In the context of termination of parental rights due to abandonment, this court has stated that among the generally understood obligations of parenthood are the expression of love and affection for the child, and the expression of personal concern over the health, education and general well-being of the child. See In re Shane P., 58 Conn. App. 244, 255, 754 A.2d 169 (2000). “A parent’s interest in his child must not merely be sporadic in nature, but must exist on a consistent and continuing basis.” Id., 256. We conclude that the record does not reveal that the respondent had positive feelings toward the child. Rather, it reveals the absence of any desire on the part of the respondent to develop aparent-child relationship.

The respondent’s separation from the child, his failure to seek out supervised visitation and his lack of interest in the child’s life precluded the development of an ongoing parent-child relationship. We conclude, therefore, that the court’s finding of a lack of an ongoing parent-child relationship was legally correct and factually supported.

II

The respondent next claims that the court improperly found that he had failed to achieve a sufficient degree of personal rehabilitation. Specifically, he claims that the evidence does not support a finding of a failure to achieve such rehabilitation and that the court improperly made that finding on the basis of his failure to participate in rehabilitative programs while he was incarcerated, which, in turn, was caused by the department’s failure to offer evidence of the availability of specific programs in which he could have participated. We decline to review that claim.

“We need only uphold one statutory ground found by the court to affirm its decision to terminate parental rights. ... To prevail on [his] claim that the court improperly terminated [his] parental rights, the respondent must successfully challenge all of the bases of the judgment terminating [his] parental lights. If [any] of the grounds on which the trial court relied are upheld on appeal, the termination of parental rights must stand.” (Citation omitted; internal quotation marks omitted.) In re Jonathon G., supra, 63 Conn. App. 526-27. Accordingly, because we concluded in part I that the court properly determined that one statutory ground for termination exists, namely, lack of an ongoing parent-child relationship, we need not reach the respondent’s claim that the court improperly found that he had failed to achieve a sufficient degree of personal rehabilitation.

The judgment is affirmed.

In this opinion the other judges concurred.

       The respondent mother consented to the termination of her parental rights with respect to A on October 4, 2000. Because she is not a party to this appeal, we refer to the respondent father as the respondent.

       General Statutes (Rev. to 1999) § 17a-112 (c) (3) provides in relevant part that a court may grant a petition to terminate parental rights if it finds by clear and convincing evidence that “(B) the parent of a child who (1) has been found by the Superior Court to have been neglected or uncared for in a prior proceeding, or (2) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and such parent has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .”

       General Statutes (Rev. to 1999) § 17a-112 (c) (3) (D), now Q) (3) (D), provides that the court may grant a petition to terminate parental rights if it finds by clear and convincing evidence that “there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day to day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child . . . .”

       The four oldest children are from the respondent mother’s previous marriage. The respondent lived with the mother and her children for several years, and is the father of A and E, who were born in 1995. See footnote 1.

       A’s mother consented to termination of her parental rights in the child on October 4, 2000, and is not a party to this appeal.

       Prior to the court’s granting a petition for the termination of parental rights, General Statutes (Rev. to 1999) § 17a-112 (c) (1), now (j) (1), requires the court to find, by clear and convincing evidence, that the department has made reasonable efforts to locate the parent and to reunify the child with the parent. A court need not make that finding, however, if the evidence establishes 1 hat the parent is unable or unwilling to benefit from reunification efforts or if the court determines at a hearing pursuant to General Statutes § 17a-110 (b) or General Statutes § 17a-lllb that such efforts are inappropriate. General Statutes (Rev. to 1999) § 17a-112 (c) (1), now (j) (1). In this case, in a hearing pursuant to § 17a-110, the court determined that such efforts were inappropriate on the basis of the respondent’s incarceration. The respondent does not challenge that finding on appeal.

       For purposes of clarity, we note that our Supreme Court did not, as the respondent contends, determine that due process prohibits the termination of parental rights where the state has created conditions that establish the grounds for termination. See In re Valerie D., supra, 223 Conn. 499, 532 n.35. Rather, the court held that “under the facts of this case," the department could not terminate the respondent’s parental rights. (Emphasis added.) Id., 499.

       Steve Yachtis and Carla Perrella, the department social workers, testified that they had informed the respondent that they were handling A’s case, and had given him their telephone numbers, treatment plans and expectations, but that the respondent never contacted them regarding A or the proposed treatments.

       Although the record indicates that the availability of such treatment was limited at the respondent’s correctional facility, the record supports the finding that the respondent failed to seek out or to receive treatment and counseling for his problems.


author: LAVERY, C. J.

text:
    BERNARD GIPSON v. COMMISSIONER OF CORRECTION
    (AC 17745)
    Lavery, C. J., and Schaller and Cretella, Js.
    Submitted November 1
    officially released December 25, 2001

      Michael L. Moscowitz, special public defender, for the appellant (petitioner).

      Michele C. Lukban, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Rosita M. Creamer, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

LAVERY, C. J.

This case is before us on remand from our Supreme Court, which determined that an indigent criminal defendant, such as the petitioner, has a statutory right under General Statutes § 51-296 (a) to the assistance of counsel for purposes of filing a petition for certification to the Supreme Court. Gipson v. Commissioner of Correction, 257 Conn. 632, 778 A.2d 121 (2001). After reversing this court’s judgment, our Supreme Court remanded the case for us to determine whether the trial court properly concluded that the petitioner’s right to counsel had not been violated notwithstanding his appellate counsel’s failure to file a petition for certification. Id., 652.

The following facts and procedural history are relevant to a resolution of the petitioner’s appeal. The petitioner was represented by counsel on direct appeal and the subsequent amended petition for habeas corpus that is the subject of this appeal. Gipson v. Commissioner of Correction, 54 Conn. App. 400, 735 A.2d 847 (1999), rev’d, 257 Conn. 632, 778 A.2d 121 (2001). The petitioner claimed that he was deprived of the effective assistance of appellate counsel in pursuing a discretionary direct appeal in violation of the sixth and fourteenth amendments to the federal constitution; id., 403; and § 51-296 (a). Id., 406-407. Specifically, “[t]he petitioner alleged that appellate counsel failed to brief adequately the claims raised on direct appeal and neglected to file a petition for certification with our Supreme Court seeking discretionary review of this court’s decision.” Id., 402. The habeas court denied the petitioner’s amended petition for a writ of habeas corpus and granted the petitioner’s petition for certification to appeal. Id.

In our previous opinion in this case, we stated that “[a]s a threshold matter, we must determine whether the petitioner, as an indigent, was entitled to the assistance of appellate counsel in filing a petition for certification with our Supreme Court, seeking discretionary review of a final judgment [of] this court.” Id., 403. We held that § 51-296 provides no such right. Id., 421. A concurring opinion expressed disagreement with the majority on the issue of whether a statutory right to counsel existed in this instance. Id., 421-34 (Lavery, J., concurring). That opinion also analyzed each of the petitioner’s claims on the merits and reached the conclusion that the trial court properly had determined that the petitioner had failed to satisfy the first prong of the Strickland standard, and, therefore, that the petitioner was not deprived of the effective assistance of appellate counsel. Id., 434-39. We repeat that opinion here for the purpose of making it the majority opinion.

I

The petitioner first claims that he was deprived of the effective assistance of appellate counsel when his attorney failed to file a petition for certification with our Supreme Court. We disagree.

Pursuant to § 51-296, the petitioner has a right to counsel in filing a petition for certification with our Supreme Court, and “[i]t would be absurd to have the right to appointed counsel who is not required to be competent.” Lazada v. Warden, 223 Conn. 834, 838, 613 A.2d 818 (1992). “Indeed, § 51-296 would become an empty shell if it did not embrace the right to have the assistance of a competent attorney.” Id., 839. For the petitioner to prevail on a claim of ineffective assistance of counsel, he has the burden of establishing that his counsel’s performance was deficient, and that as a result of that performance he suffered actual prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); see Hernandez v. State, 127 Idaho 685, 687, 905 P.2d 86 (1995) (applying Strickland standard to petitioner’s claim that counsel’s failure to file petition for discretionary review with state Supreme Court constituted ineffective assistance of appellate counsel).

At a hearing before the habeas court, the petitioner testified that after this court had affirmed his conviction, he telephoned his attorney and asked her to file a petition for certification with our Supreme Court. Appellate counsel did not file the petition. Relying on Sekou v. Warden, 216 Conn. 678, 690, 583 A.2d 1277 (1990), the habeas court determined that an appellate attorney’s failure to seek discretionary review of an unmeritorious claim would not constitute conduct falling below the level of reasonably competent representation. See id. (holding that appellate counsel’s failure to raise unmeritorious claim on direct appeal was not considered conduct failing below level of reasonably competent representation); see also Williams v. Manson, 195 Conn. 561, 564, 489 A.2d 377 (1985). After reviewing the record, the habeas court concluded that there were no issues worthy of certification by our Supreme Court and, therefore, appellate counsel's failure to file a petition for certification did not constitute conduct falling below the level of reasonably competent representation. The habeas court concluded that because the petitioner failed to demonstrate that his attorney’s performance fell below the standard of reasonable competence, he did not satisfy the first prong of the Strickland standard.

On appeal, “[t]he underlying historical facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . . Historical facts constitute a recital of external events and the credibility of their narrators. So-called mixed questions of fact and law, which require the application of a legal standard to the historical-fact determinations, are not facts in this sense. . . . Whether the representation a defendant received . . . was constitutionally inadequate is a mixed question of law and fact. ... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.” (Citations omitted; internal quotation marks omitted.) Copas v. Commissioner of Correction, 234 Conn. 139, 152-53, 662 A.2d 718 (1995).

Because the habeas court properly determined that the petitioner failed to satisfy the first prong of the Strickland standard, it is unnecessary to reach the second prong. Johnson v. Commissioner of Correction, 218 Conn. 403, 428-29, 589 A.2d 1214 (1991) (reviewing court can find against petitioner on either prong of Strickland). The first prong of the Strickland standard requires the petitioner to establish that his attorney’s performance was deficient. Strickland v. Washington, supra, 466 U.S. 687. The proper standard for attorney performance under Strickland is one of “reasonably effective assistance.” Id. The petitioner must demonstrate “that counsel’s representation fell below an objective standard of reasonableness. . . . The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” (Citation omitted; internal quotation marks omitted.) Johnson v. Commissioner of Correction, supra, 425.

After a careful review of the record applying the appropriate standard of review; see Copas v. Commissioner of Correction, supra, 234 Conn. 152-53; we agree with the habeas court that the performance of petitioner’s appellate counsel, in not filing a petition for certification, did not fall below the standard of reasonable competence. Affirmance of the habeas court’s decision is predicated on a careful consideration of the record in light of the factors set forth in Practice Book § 84-2. Section 84-2 provides in relevant part that “[certification by the supreme court on petition by a party . . . will be allowed only where there are special and important reasons therefore . . . .” Section 84-2 lists several factors that, “while neither controlling nor fully measuring the court’s discretion, indicate the character of the reasons which will be considered . . . .”

First, in affirming the judgment of conviction, the panel of three appellate judges did not decide “a question of substance not theretofore determined by the supreme court . . . .” Practice Book § 84-2 (1). In his direct appeal to this court, the petitioner claimed that the trial court had improperly denied his motion to suppress a witness’ pretrial identification. The law conceming pretrial identifications is well established in our state. See, e.g., State v. Wooten, 227 Conn. 677, 685-88, 631 A.2d 271 (1993); State v. Colette, 199 Conn. 308, 310-12, 507 A.2d 99 (1986). Second, there is no inconsistency between the panel’s per curiam decision and other decisions from this court or the decisions of our Supreme Court. See Practice Book § 84-2 (1) and (2). Third, the petitioner does not cite, nor does the record disclose, any evidence that the panel “has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by any other court, as to call for an exercise of the supreme court’s supervision.” Practice Book § 84-2 (3). Fourth, a unanimous panel affirmed the petitioner’s conviction. See Practice Book § 84-2 (5).

Moreover, the petitioner has the burden of establishing that his counsel's performance was deficient. Strickland v. Washington, supra, 466 U.S. 687; Bunkley v. Commissioner of Correction, 222 Conn. 444, 455, 610 A.2d 598 (1992). At the habeas hearing, the petitioner’s appellate counsel did not testify as to why she failed to file a petition for certification. Additionally, the petitioner did not offer any expert testimony that this case presented issues worthy of certification by our Supreme Court.

On the basis of all of the foregoing factors, we conclude that the habeas court properly determined that the petitioner did not satisfy the first prong of the Strickland standard and, therefore, he was not deprived of the effective assistance of appellate counsel.

II

The petitioner next claims that he was denied the effective assistance of appellate counsel when his attorney failed to notify him of the full scope of his right to file a petition for certification. Specifically, the petitioner claims that General Statutes § 51-197Í and Practice Book § 84-1 provide him with a right to file a pro se petition for certification seeking discretionary review of a final judgment from this court, and appellate counsel waived the petitioner’s right, without first obtaining his consent, by failing to inform him that he could file a pro se petition for certification. The petitioner claims that appellate counsel’s duty to notify him of this right flows logically from, inter alia, Practice Book § 43-30 and precedent concerning waiver of the right to appeal. The lack of an adequate record precludes review of this claim.

The habeas court signed the transcript of its oral decision and filed a copy with the clerk of the court. The signed transcript of the habeas court’s oral decision is devoid of any reference to this specific claim. In particular, the signed transcript does not indicate whether the habeas court found that appellate counsel had notified the petitioner of his right to file a pro se petition for certification or whether counsel neglected to provide such notice. Without this predicate factual finding, it is not possible to review this claim. The burden of securing an adequate record for appellate review rests with the petitioner. Evans v. Commissioner of Correction, 37 Conn. App. 672, 689, 657 A.2d 1115, cert. denied, 234 Conn. 912, 660 A.2d 354 (1995). Although the petitioner could have ensured the adequacy of the record by filing a motion for articulation, he failed to seek articulation. The lack of an adequate record therefore precludes review of this claim.

Ill

In his final claim, the petitioner contends that his attorney’s failure to file a petition for certification with our Supreme Court deprived him of his only opportunity to seek review of this court’s affirmance of his conviction, in violation of the reasoning underlying our Supreme Court’s decision in Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994). We do not agree.

Although Simms and the present case address entirely different subject matter, the petitioner’s argument relies on the reasoning underlying the decision in Simms. Simms established that a petitioner could appeal from a habeas court’s denial of his request for certification to appeal the denial of a petition for a writ of habeas corpus. Id., 612. In the present case, the petitioner claims that, unlike the petitioner in Simms, who was afforded an opportunity to appeal the habeas court’s denial of a request for certification to appeal, his attorney’s failure to file a petition for certification with our Supreme Court deprived him of his only opportunity to seek review of this court’s affirmance of his conviction.

The petitioner’s claim fails because he ignores the relief potentially available through filing a petition for a writ of habeas corpus. “[General Statutes] § 52-470 (a) empowers the habeas court to dispose of cases ‘as law and justice require.’ ” James L. v. Commissioner of Correction, 245 Conn. 132, 148, 712 A.2d 947 (1998). Because the petitioner failed, however, to establish that counsel’s failure to file a petition for certification constituted ineffective assistance of counsel, it is unnecessary to determine what type of relief might be available to him in a habeas proceeding.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 51-296 (a) provides in relevant part: “In any criminal action, in any habeas corpus proceeding arising from a criminal matter, in any extradition proceeding, or in any delinquency matter, the court before which the matter is pending shall, if it determines after investigation by the public defender or his office that a defendant is indigent as defined under this chapter, designate a public defender, assistant public defender or deputy assistant public defender to represent such indigent defendant . . . .”

       “The right to counsel is the right to the effective assistance of counsel. Strickland v. Washington, [466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)].” Johnson v. Commissioner of Correction, 36 Conn. App. 695, 700, 652 A.2d 1050, cert. denied, 233 Conn. 912, 659 A.2d 183 (1995).

       “In Strickland . . . 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.” (Citation omitted; internal quotation marks omitted.) Adorno v. Commissioner of Correction, 66 Conn. App. 179, 182, 783 A.2d 1202, cert. denied, 258 Conn. 943, 786 A.2d 428 (2001).


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. JOHN H. ANDERSON
    (AC 20958)
    Foti, Flynn and Peters, Js.

      Argued October 16
    officially released December 25, 2001

      William T. Barrante, with whom, on the brief, was Patsy M. Renzullo, for the appellant (defendant).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Frank S. Maco, state’s attorney, and Dawn Gallo, deputy assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, John H. Anderson, appeals from the judgment of conviction, rendered after a conditional plea of nolo contendere, of criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c. On appeal, the defendant claims that the court improperly denied his motion to suppress evidence. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the issues presented. The defendant resided in a trailer at site number fourteen in the Valley in the Pines Campground in Goshen. On July 1, 1998, Troopers Joseph Martel and Paula Brunetto of the state police entered the campsite where the defendant’s trailer was located. The troopers were responding to a complaint made by the owner of the campground, Raymond Tillman. Tillman alleged that the defendant was violating numerous campground regulations and sought his removal. In an evidentiary hearing on the defendant’s motion to suppress various items seized by the troopers from the'defendant’s residence, Brunetto testified that upon arriving at the campsite, the troopers were cautioned by a number of the defendant’s neighbors to “[b]e careful” because they had seen the defendant “cleaning guns at a table out in front of his camper.” The troopers attempted to locate the defendant, but he was not present.

Tillman also told the troopers that the defendant had been storing, sandblasting, repainting and disassembling farm equipment in the vicinity of his campsite. At that time, the troopers also were investigating a larceny of farm equipment. While observing the area, the troopers noticed farm equipment lying on or in the proximity of the defendant’s campsite. They contacted Stephen Kubish, a local farmer who earlier had reported the theft of farm equipment to the police, and asked him to come to the area to view the equipment. After viewing the equipment, Kubish identified some of it as the stolen property.

On the basis of their observations, Kubish’s identification and the attendant circumstances, the troopers applied for and were granted a search warrant for the defendant’s residence and the surrounding grounds. On July 8,1998, the troopers, with prior knowledge that the defendant was a convicted felon, executed the search warrant and seized various items from his residence. On July 24,1998, the police inventoried the items seized on July 8, 1998, which included, inter alia, a duffel bag filled with ammunition and a receipt for the purchase of a tractor. The receipt listed an M-l rifle as collateral in the transaction. Two names appeared on the receipt, that of the defendant and Roger Kane, the person who had transferred the tractor to the defendant. Brunetto contacted Kane and confirmed the transaction. She also took a voluntary statement from Kane.

On August 5, 1998, Brunetto canvassed area gun shops, including Autumn Gun Works, Inc., which was the gun shop located nearest to the defendant’s residence. Brunetto’s investigation revealed that the owner of the gun shop, Christopher Marino, had purchased firearms from the defendant in the past. Those purchases, which occurred in June, 1996, and August, 1997, included several rifles, two handguns and a shotgun. The gun shop previously had sold one of the firearms, a Walther pistol, to Jeffery Chrisey. On August 20, 1998, Chrisey gave Brunetto a statement and voluntarily turned over to her the Walther pistol that he had purchased from Autumn Gun Works, Inc.

On the basis of the evidence obtained from the gun shop canvass, an arrest warrant was issued, and the defendant was arrested on September 16, 1998, and charged with possession of a pistol or revolver. 5Pursu-ant to Practice Book § 41-12, the defendant timely filed a motion to suppress the firearm he is accused of possessing, along with other evidence obtained during the July 8, 1998 search of his residence, or later obtained, as tainted fruit of an illegal search and seizure. The court denied the motion. The defendant entered a plea of nolo contendere conditioned on the right to take an appeal under Practice Book (2000) § 61-6 (a), now § 61-6 (2) (i). The court accepted the plea and found the defendant guilty. This appeal followed. On appeal, the defendant claims that the court improperly denied his motion to suppress evidence that the police obtained from the July 8,1998 search of his residence, as well as other evidence they obtained from further investigation.

When reviewing a court’s findings and conclusions involving a motion to suppress evidence, we evaluate, in view of the whole record, whether the court’s findings and conclusions were clearly erroneous. State v. Clark, 255 Conn. 268, 279, 764 A.2d 1251 (2001). “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 in the memorandum of decision . . . .” (Internal quotation marks omitted.) Id.; State v. Colvin, 241 Conn. 650, 656, 697 A.2d 1122 (1997).

Specifically, the defendant challenges the court’s denial of his motion on four grounds. He claims that (1) the search warrant application and subsequent warrant were neither presented to, nor issued by, a detached and neutral magistrate, (2) the search warrant did not include sufficiently particular descriptions of items to be seized under article first, § 7, of the constitution of Connecticut, (3) the police search was beyond the scope of the search warrant and (4) the evidence obtained from further police investigation was “fruit of the poisonous tree.”

Were we to assume, without deciding, that the warrant was invalid along with all of the evidence seized therefrom, we would conclude that the evidence obtained from the gun shop canvass is not inadmissible under the fruit of a poisonous tree doctrine because the court properly admitted such evidence under the inevitable discovery doctrine. The evidence obtained from the gun shop canvass is sufficient on its own to support the defendant’s conviction because § 53-217c proscribes a convicted felon from possessing a “pistol or revolver.”

In the seminal case of Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963), the United States Supreme Court set forth the basic rule that we adhere to today. The exclusionary rule requires that evidence obtained from prior illegal police activity must be suppressed if such evidence is found to be the fruit of that prior police illegality. Id. To be admissible, therefore, the challenged evidence must fit into an exception to the exclusionary rule. The inevitable discovery doctrine is such an exception, and we find it to be applicable in the present case. See Murray v. United States, 487 U.S. 533, 539, 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1998); State v. Cobb, 251 Conn. 285, 337, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000).

In Cobb, our Supreme Court explained the inevitable discovery doctrine and its supporting public policy. *****9 “Both the United States Supreme Court and [our Supreme Court] have explained the relationship between the independent source doctrine and the inevitable discovery doctrine. [The] inevitable discovery doctrine . . . assumes the validity of the independent source doctrine as applied to evidence initially acquired unlawfully. . . . The inevitable discovery doctrine, with its distinct requirements, is in reality an extrapolation from the independent source doctrine: Since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered. . . . Both doctrines rest on the same premise: the interest of society in deterring unlawful police conduct and the public interest in having [fact finders] receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred. . . . Thus, if the [state] can prove that the evidence would have been obtained inevitably and, therefore, would have been admitted regardless of any overreaching by the police, there is no rational basis to keep that evidence from the jury in order to ensure the fairness of the trial proceedings.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Cobb, supra, 251 Conn. 337. The state must prove by a “preponderance of the evidence that the evidence would have been ultimately discovered by lawful means.” State v. Badgett, 200 Conn. 412, 433, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986).

In Badgett, the court stated further that for evidence to be admissible, “the state must demonstrate that the lawful means which made discovery inevitable were possessed by the police and were being actively pursued prior to the occurrence of the constitutional violation.” (Emphasis in original.) Id. In Cobb, however, our Supreme Court subsequently stated that such requirements for the application of the inevitable discovery doctrine may not be rigid. State v. Cobb, supra, 251 Conn. 338-39.

On the basis of Badgett and Cobb, this court must make two determinations. First, as a threshold matter, we must determine whether the lawful means that made discovery inevitable were possessed by the police and were being actively pursued prior to the issuance of the warrant. Second, we must determine whether the police would have discovered the challenged evidence had there been no unlawful search of the defendant’s residence. Both of those determinations involve questions of fact. Id., 339.

We conclude that the lawful means, namely, the information given by the neighbors to the police, were possessed by the police and were being actively pursued prior to the issuance of the warrant. Credible evidence adduced at the hearing indicated that the police gained information concerning the defendant’s possession of firearms on July 1, 1998, seven days before the alleged constitutional violation, when the neighbors informed them that the defendant had been “cleaning guns” near his campsite. That began the investigation into the defendant’s possible possession of firearms. That evidence demonstrates that the police possessed, prior to the alleged constitutional violations, the lawful means that made the discovery of future evidence inevitable.

That conclusion is further supported by Brunetto’s testimony. She testified that she would have canvassed local gun shops irrespective of her conversation with Kane, who was identified on the tractor receipt, because there was prior evidence, garnered from the initial visit to the trailer park, that a convicted felon possessed a firearm. Brunetto further testified that the reports that the defendant possibly possessed multiple firearms would have resulted in a canvass of area gun shops because the defendant was known to be a convicted felon.

Because we have concluded that the investigation commenced when the police received the information, the police were actively pursuing the matter when the warrant was issued and, therefore, the state has met the Badgett test as interpreted by Cobb. Moreover, despite the defendant’s argument regarding the one month delay in the investigation between the time that the troopers went to the campground on July 1, 1998, and when they went to the Autumn Gun Works, Inc., shop on August 5,1998, we apply the latitude suggested by Cobb to our determination of whether the police were actively pursuing the information prior to the issuing of the search warrant. The evidence adduced at trial indicated that the troopers continued with their investigation by canvassing local shops on August 5, 1998, roughly one month after they were informed of the defendant’s possession of a firearm.

Because of the close proximity in time between the acquisition of the initial information, which commenced the investigation, and the actual canvassing of local gun shops, we are persuaded that the evidence falls within the Badgett test as interpreted in Cobb. As stated in Cobb, “[circumstances justifying application of the inevitable discovery rule are most likely to be present if these investigative procedures were already in progress prior to the discovery via illegal means ... or where the circumstances are such that, pursuant to some standardized procedures or established routine a certain evidence-revealing event would definitely have occurred later . . . .” (Citation omitted; internal quotation marks omitted.) Id., 339, quoting 5 W. LaFave, Search and Seizure (3d Ed. 1996) § 11.4 (a), pp. 249-50. The lawful means that made discovery inevitable, namely, the information gathered by the troopers on July 1,1998, was possessed by the police, and they were actively pursuing the matter prior to the occurrence of the alleged constitutional violation.

Additionally, we conclude that the police inevitably would have discovered the challenged evidence. Testimony established that the neighbors informed both Brunetto and Martel that the defendant had been seen cleaning weapons outside of his trailer. Hypothetically, if the warrant subsequently were issued legally, the police would have obtained the receipt in the search. Thereafter, they would have questioned Kane and retrieved the M-l rifle. Because we have assumed, however, without deciding, that the warrant in question was issued illegally, we must determine whether the police nevertheless would have obtained sufficient evidence of the defendant’s possession of firearms. We conclude that they would have. The information given to the police by the neighbors would have prompted the police to canvass local gun shops. That canvass would have led police to Autumn Gun Works, Inc., a local gun shop. In the course of that inquiry, the police would have obtained the Walther pistol as well as other documentation detailing the defendant’s involvement in other firearms transactions. Therefore, the police inevitably would have obtained sufficient evidence that a convicted felon was in possession of a firearm irrespective of any police illegality or any evidence obtained therefrom.

The troopers’ testimony demonstrated by a preponderance of the evidence that the challenged evidence ultimately would have been discovered by lawful means, specifically, the troopers’ canvass of the local gun shops. Any evidence obtained as a result of the troopers’ canvass of the local gun shops cannot be characterized as “fruit of the poisonous tree” because further investigation, untainted by any illegality, uncovered such evidence. The factual basis of the court’s findings was not clearly erroneous in light of the whole record, and its legal conclusions find support in the evidence and memorandum of decision, and are legally and logically correct. The court properly held that the evidence obtained from the canvass of gun shops was not subject to suppression under the exclusionary rule and properly denied the defendant’s motion to suppress such evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-217c (a) provides in relevant part: “A person is guilty of criminal possession of a pistol or revolver when such person possesses a pistol or revolver, as defined in section 29-27, and (1) has been convicted of a felony . . . .”

       It is undisputed that the trailer was then the defendant’s residence.

       Marino gave Brunetto documentary proof of those transactions.

         See footnote 1.

       Practice Book § 41-12 provides: “Upon motion, the judicial authority shall suppress potential testimony or other evidence if it finds that suppression is required under the constitution or laws of the United States or the state of Connecticut.”

       Practice Book (2000) § 61-6 (a), now § 61-6 (2) (i), provides in relevant part: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure . . . the defendant after the imposition of sentence may file an appeal within the time prescribed by law. . . .”

       Our Supreme Court has explained that “the fruit of the poisonous tree doctrine . . . requires courts to exclude evidence that is the product or fruit of police conduct in violation of the [defendant’s constitutional rights].” (Internal quotation marks omitted.) State v. Ostroski, 201 Conn. 534, 545, 518 A.2d 915 (1986).

       Because we reach this conclusion, we need not address the issues raised by the defendant regarding the validity of the search warrant. The defendant asserts that the state constitution affords more protection than the federal constitution does regarding search and seizure. Even assuming that to be true, it is clear that Connecticut, courts, along with “the vast majority of all courts, both state and federal,” recognize the inevitable discovery exception to the exclusionary rule as formulated by the United States Supreme Court. (Internal quotation marks omitted.) State v. Badgett, 200 Conn. 412, 433, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986). As such, an increased level of protection that the state constitution might afford, in comparison to the federal constitution, is of no consequence once the challenged evidence satisfies the requirements of an exception to the exclusionary rule, as recognized by our Supreme Court. State v. Cobb, 251 Conn. 285, 338-39, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000); State v. Colvin, supra, 241 Conn. 655-56; State v. Vivo, 241 Conn. 665, 672-73, 697 A.2d 1130 (1997); State v. Graham, 200 Conn. 9, 20, 509 A.2d 493 (1986); see Murray v. United States, 487 U.S. 533, 539, 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1998); Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984).
      Moreover, without assuming the defendant’s state constitutional claim to be correct, we still decline to address it because the claim is inadequately briefed. The defendant’s claim is void of any real analysis and is almost entirely based on conclusory statements. “Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) Giulietti v. Giuliettti, 65 Conn. App. 813, 840, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001). In addition, the defendant has failed to request that this court review his unpreserved state constitutional claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

       The inevitable discovery exception to the exclusionary rule is similar to the independent source exception to that rule, and, therefore, both exceptions are usually explained together. We follow that trend. See Murray v. United States, supra, 487 U.S. 539; State v. Cobb, supra, 251 Conn. 337-39.

       Despite the defendant’s arguments to the contrary, “it is well established that the evaluation of a witness’ testimony and credibility is wholly within the province of the trier of fact.” (Internal quotation marks omitted.) Opotzner v. Bass, 63 Conn. App. 555, 564-65, 777 A.2d 718, cert. denied, 257 Conn. 910, 782 A.2d 134 (2001). Therefore, we do not disturb the court’s factual findings at the suppression hearing regarding the troopers’ testimony.