text:
    IN RE KRISTY A. ET AL.

    (AC 24000)
    Dranginis, DiPentima and Stoughton, Js.
    Argued February 26
    officially released June 8, 2004

      Paul Chill, with whom were Alain Lapter and Brynn Rail, certified legal interns, and, on the brief, Kelly Flahive, Monique Rubb, Jennifer Milici, Mark Whit-ford and Kate Cochrane, certified legal interns, for the appellant (respondent mother).

      Stephen G. Vitelli, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

      David T. Stone, for the minor children.

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

   Opinion

DRANGINIS, J.

The respondent mother appeals from the judgments of the trial court terminating her parental rights in two of her children. On appeal, she claims that it was improper for the court to conclude (1) that she had failed to achieve personal rehabilitation and (2) that she had no ongoing parent-child relationship with the children. See General Statutes § 17a-112 (j) (3) (B) and (D). We affirm the judgments of the trial court.

On November 16 and 26, 2001, the petitioner, the commissioner of of children and families, filed petitions to terminate the respondent’s parental rights in her daughter, who was bom in April, 1996, and in her son, who was bom in April, 1999. At trial, the respondent and the children were represented by counsel. The court wrote a lengthy, comprehensive and detailed memorandum of decision, finding the following facts that are relevant to our review of the respondent’s claims.

In August, 1998, when she was thirty-seven years old, the respondent was arrested following an episode of domestic violence involving the children’s father. Pursuant to her arrest, the respondent was ordered to undergo an evaluation at an addictive services facility. The evaluation revealed that the respondent had been abusing alcohol since she was seventeen years old and that she had participated in a number of programs for alcohol abuse. She also had abused marijuana and cocaine. According to the respondent, she had been arrested on charges of operating a motor vehicle while under the influence of liquor on four occasions. She claimed, however, that she had been sober from May, 1992, until January, 1998. The evaluator recommended that the respondent participate in a twelve week program to address her substance abuse. The programmer determined, however, that the respondent lacked the motivation necessary to put sobriety first in her life. The respondent also was advised to seek individual counseling to address issues related to domestic violence and relationship dependency. The court found no evidence that the respondent had participated in counseling for any period of time.

In November, 1998, the respondent, a Massachusetts native, was sentenced to two years incarceration by a Massachusetts court for what was her tenth conviction in the commonwealth for operating a motor vehicle while under the influence of liquor. Since August 25, 1981, the respondent had been arrested thirteen times for that offense in Massachusetts and confined on six separate occasions. In April, 1999, while the respondent was serving her November, 1998 sentence, she gave birth to her son. The respondent was given the opportunity to live with the infant at the correctional facility as long as she attended a substance abuse program. She failed the program soon after she entered it and, as a consequence, her son was placed in foster care when he was a few days old.

While the respondent was serving her sentence, the respondent’s husband cared for their daughter. The department of children and families (department) obtained an order of temporary custody for the daughter in April, 1999, because the father was selling illegal substances in the child’s presence, failing to place her in a child safety seat when operating his motor vehicle and leaving the child in the care of an alleged cocaine abuser. The daughter, who was almost three years old, was placed in S’s foster home, where her brother had been since he was five days old.

In January, 2000, the children were returned to the respondent in Massachusetts where she was living under the terms of her probation. Four days after the children were returned, the respondent was overwhelmed by the responsibility of caring for them and asked S, the foster mother, to take them for a few days. Because she was concerned for the children’s safety, S drove from Connecticut to Massachusetts to get the children. Between February and July, 2000, the children spent two to three days a week with S, usually during the weekends. The children lived with S for twenty-three days during the month of August, 2000, and had little or no contact with the respondent. While the children were living in the foster home, S’s daughter, M, visited them everyday and developed a close relationship with them. The respondent later admitted that in August, 2000, she had been using crack cocaine while the children were with S. During this period of time, the respondent was receiving public assistance from the commonwealth of Massachusetts.

On September 3, 2000, the respondent agreed with her husband to commit a robbery. She entered a variety store in Connecticut with a knife and cut and robbed the seventy year old proprietor. She later admitted to having been high on cocaine at the time. She was arrested on a charge of robbery in the first degree and confined under a high bail. As a result, she again asked S to care for the children. The children remained with S until May, 2001, when, pursuant to court order and their parents’ consent, they moved to Virginia to live with relatives. The placement in the relatives’ home failed after three weeks through no fault of the children. The children returned to Connecticut and have resided with M since that time.

In February, 2001, the respondent was released from pretrial confinement on the robbery charge so that she could participate in an intensive, alternate incarceration center program. She was under the supervision of the office of adult probation and was required to report to the program five days a week, submit to urine testing for drug use, participate in counseling at New Perceptions, an outpatient substance abuse counseling program, and to pursue employment. She also had to wear an electronic monitor. According to the managers of each of the programs, the respondent complied with all of the programs’ requirements, and her urine samples tested negative. They noted, however, that the respondent’s motivation to do well was the court’s mandate. In fact, she minimized her history of drug and alcohol addiction.

According to the director of New Perceptions, the respondent’s primary desire was to regain her former lifestyle and to recover the material things that she had lost, such as her home and horses. The respondent intended to seek custody of the children only after she had regained her former lifestyle. The respondent also participated in a women’s support group, but her attendance became sporadic as the time for sentencing neared. According to the adult probation officer who monitored her pretrial release, the respondent’s program was one of the most structured programs the officer had ever encountered.

With respect to the charge of robbery in the first degree, the respondent negotiated a plea agreement and was sentenced on October 12, 2001, to five years incarceration, suspended after three years, and five years of probation. The respondent was incarcerated at the time of the trial on the termination petitions.

The court found that the children had been adjudicated neglected, had been committed to the custody of the petitioner on April 4, 2001, and that in March, 2002, the commitment had been continued until further order of the court. The petitioner filed petitions to terminate the respondent’s parental rights in the children in November, 2001. The trial was held on several days in September and October, 2002. Until the end of the presentation of evidence, the children were in the petitioner’s custody, but had visited with the respondent at a correctional facility. After closing arguments at trial, the court ordered that the respondent’s monthly visits with the children cease, but that the department facilitate telephone communication between the respondent and the children twice a month.

The court also found by clear and convincing evidence that since the children had been adjudicated neglected, the respondent had failed to achieve such degree of personal rehabilitation as would encourage a belief that within a reasonable time, given the ages and needs for stability and permanency of both children, she could assume a responsible position in their lives. The court also found that the petitioner had proven by clear and convincing evidence that no ongoing parent-child relationship within the meaning of § 17a-112 (j) (3) (D) existed between the two children and the respondent. Further, the court concluded that to allow additional time for the establishment or reestablishment of a positive parent-child relationship would not be in the best interest of either child.

During the dispositional phase of the procedure, the court considered the statutory factors provided in § 17a-112 (k) and concluded that it was in the best interests of the children to terminate the respondent’s parental rights. Additional facts will be included where we address the respondent’s claims on appeal.

“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.” (Internal quotation marks omitted.) In re Alexander C., 67 Conn. App. 417, 420, 787 A.2d 608 (2001), aff'd, 262 Conn. 308, 813 A.2d 87 (2003).

“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 § 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 [interest] of the child.” (Internal quotation marks omitted.) In re Brea B., 75 Conn. App. 466, 469-70, 816 A.2d 707 (2003). Here, the respondent’s appellate claims concern only the adjudicatory phase of the termination proceedings.

I

The respondent claims that it was improper for the court to conclude that the petitioner had proven by clear and convincing evidence that she failed to achieve sufficient rehabilitation pursuant to § 17a-112 (j) (3) (B) because (1) the court found that she had complied with the court-ordered steps, (2) the court violated the due process clauses of the state and federal constitutions by finding that she had complied with the court-ordered steps but had failed to achieve sufficient rehabilitation, i.e., the statute, § 17a-112 (j) (3) (B), is void for vagueness as applied to her, and (3) the court based its decision on her status as a person with a disability in violation of the equal protection clause of the constitution of Connecticut. We are not persuaded.

A

We first address the petitioner’s argument that the respondent’s due process claim was not preserved at trial and that although she requests review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), her request has not been briefed adequately. We need not determine whether the respondent’s due process claim was preserved at trial because we agree that she has not given her claim the type of rigorous analysis necessary to succeed on a constitutional challenge. The respondent has cited vagueness challenges to the termination statutes of other states and several Connecticut cases from which she has taken a rather cut-and-paste approach to the facts, language and holdings of those cases. In neither her main nor reply briefs did she apply the facts of this case to the elements of the statute, which requires the court to make four specific findings. In particular, the respondent has failed to address that portion of the statute that requires that she achieve that degree of personal rehabilitation as would encourage a belief that she could assume a responsible position in the lives of the children, considering their ages and needs. The respondent did not explain why she believes, or what facts support her belief, that she has achieved such rehabilitation to the extent that she can assume a responsible position in the lives of her children. Her arguments do not reflect an understanding of the children’s needs and how her addictive behavior has affected them adversely.

Where a respondent’s brief “gives only cursory attention to the vagueness doctrine as applied to the facts of this case”; In re Shyliesh H., 56 Conn. App. 167, 177, 743 A.2d 165 (1999); the court considers the claim abandoned. Id. We are limited, therefore, to deciding “whether the statute is unconstitutionally vague on its face.” Id. That constitutional question, however, was previously considered by the Appellate Court. See id., 177-81 (concluding that § 17a-112 [c] [3] [B] not void for vagueness).

B

We will address the respondent’s fact based claim that it was improper for the court to find that she had failed to achieve sufficient rehabilitation because the court also found that she had complied with the court-ordered specific steps. The petitioner has argued that the respondent’s claim is premised on her assertion that the court found that she substantially had complied with all court-ordered specific steps, but that the court made no such finding. We agree with the petitioner.

The following facts, as set forth in the court’s memorandum of decision, are relevant to the respondent’s claim. During two prior neglect proceedings involving the children, on three separate occasions, the court, Mack, J., ordered specific steps for the respondent to take in order to facilitate the return of her children, as required by General Statutes § 46b-129 (j). The first series of steps was ordered on April 7, 1999. At the time, the respondent was incarcerated in Massachusetts. She was ordered to gain insight into and understanding of the negative effect her substance abuse had had on her daughter. She was to refrain from substance abuse of any kind, as well as from further involvement with the criminal justice system.

Both of her children were returned to her in January, 2000. Instead of appropriately caring for them in a safe, nurturing environment, the respondent continued to abuse drugs and took advantage of S by depending on her to provide appropriate care for the children. The respondent was overwhelmed and failed to gain insight into the negative effect her substance abuse had had on her children. The respondent also became further involved with the criminal justice system when she was arrested on assault and robbery charges in September, 2000.

A second set of steps was ordered on September 12, 2000, when a temporary order of custody was issued for the children. Those steps were made permanent when the children were submitted to the commissioner’s custody a second time on April 4, 2001. The respondent had access to services during her presentence release and postsentence confinement to deal with her abuse of various substances. She took a parenting class. The court found no evidence, however, that the respondent had dealt in any way with her mental health issues. Kathleen J. Muiphy, the court-appointed psychologist, noted the respondent’s need for long-term mental health therapy. The court concluded that the respondent’s lack of compliance with both sets of steps underscored the concern raised by several witnesses as to whether she would be able to refrain from substance abuse and would continue substance therapy and mental health services when she was not under the supervision of correction and probation authorities.

Section 17a-112 (j) requires in relevant part that the parent of a child for whom a termination of rights petition has been filed be “provided specific steps to take to facilitate the return of the child . . . .” The petitioner has argued that the court found that the respondent failed to comply with the court’s specific steps. The respondent contends that the state was precluded from taking such a position because of the testimony given by Lorin Brennan, a department social worker assigned to the respondent’s case in January, 2000. The respondent has argued that because Brennan was a party to the case, her testimony is a binding judicial admission.

Our review of the transcript discloses that on direct examination in response to the petitioner’s questions about the services the department offered the respondent, Brennan testified that it offered services in substance abuse treatment, parenting classes, individual counseling and random urine tests. She also testified that the respondent engaged in all of those services, except for the parenting classes. On cross-examination, in response to a question from the respondent’s counsel, Brennan testified that the respondent had complied with the specific steps.

The respondent’s contention that Brennan’s testimony on cross-examination is binding on the respondent and the court is misplaced for a number of reasons. “Judicial admissions are voluntary and knowing concession of fact by a party or a party’s attorney occurring during judicial proceedings.” Jones v. Forst, 41 Conn. App. 341, 346, 675 A.2d 922 (1996). Whether a party’s statement is a judicial admission or an evidentiary admission is a factual determination to be made by the trial court. See Sweet v. Sweet, 190 Conn. 657, 662, 462 A.2d 1031 (1983). “The distinction between judicial admissions and mere evidentiary admissions is a significant one that should not be blurred by imprecise usage. . . . While both types are admissible, their legal effect is markedly different; judicial admissions are conclusive on the trier of fact, whereas evidentiary admissions are only evidence to be accepted or rejected by the trier.” (Internal quotation marks omitted.) Tianti v. William Raveis Real Estate, Inc., 231 Conn. 690, 695 n.6, 651 A.2d 1286 (1995).

Also, it is not clear from the record, and the respondent failed to seek an articulation to support her position, that Brennan was a party to the termination proceedings. Cf. In re Christopher A., 22 Conn. App. 656, 657, 578 A.2d 1092 (1990). The court made no finding that Brennan was the petitioner’s designated representative. See General Statutes § 17a-92.

Furthermore, as we stated in the standard of review, we will not overturn a trial court’s determination that the evidence is clear and convincing unless the finding is not supported by the evidence and is clearly erroneous in light of the evidence in the whole record. In re Alexander C., supra, 67 Conn. App. 420. In a termination of parental rights case, the court is the trier of fact. “We defer to the trier of fact’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. The trier is the judge of the credibility of all the witnesses and the weight to be given their testimony, and may accept part, all or none of the testimony. . . . Where, as here, the record reveals that the trial court’s ultimate conclusions are supported by clear and convincing evidence, we will not reach an opposite conclusion on the basis of any one segment of the many factors considered in a termination proceeding.” (Internal quotation marks omitted.) In re Victoria B., 79 Conn. App. 245, 262-63, 829 A.2d 855 (2003). Here, the evidence in the whole record supports the court’s conclusion that the respondent did not deal with her mental health issues as ordered in the court’s specific steps.

C

We now turn to the respondent’s claim that it was improper for the court to find that she had failed to achieve the degree of rehabilitation necessary to encourage a belief that within a reasonable time she could assume a responsible position in the lives of her children. We conclude that the court’s finding was not clearly erroneous.

In its memorandum of decision, before coming to its conclusion that the respondent had failed to achieve sufficient rehabilitation, the court set out the respondent’s behaviors, practices and lifestyle from which she was required to rehabilitate herself. In other words, what did the respondent need to do to provide safe and appropriate care for the children? The department became involved with the respondent and the daughter in the fall of 1998 after the respondent was convicted for the tenth time of operating a motor vehicle while intoxicated. She was then incarcerated for the sixth time for that offense. The respondent’s first operating a motor vehicle while intoxicated offense occurred in 1981. Despite her representation that she had been sober from May, 1992, until January, 1998, her criminal record reflects that she was arrested for drunken driving on October 5, 1992. She was also arrested for that offense on May 18 and June 15, 1998.

In addition to her addiction to alcohol, the respondent disclosed to Murphy that she had been addicted to cocaine since she was twenty-three years old. She lost custody of her older daughter due to her substance abuse and antisocial behavior. The respondent’s relationships with the fathers of her children were physically abusive and involved substance abuse. Despite the fact that she had lost custody of her older daughter due to her addictions and behavior, only once did she voluntarily participate in a substance abuse program. She has, however, participated in a number of substance abuse and therapeutic programs, all of which were mandated by the court as a condition of a sentence of imprisonment. The respondent was released early from two of the Massachusetts court-ordered programs before she had completed them, but she never participated in an aftercare program to maintain her sobriety.

In the fall of 2000, the department once again became involved with the respondent and then two of her children when she yet again was incarcerated for very serious offenses. She had been arrested and charged with robbery in the first degree with a deadly weapon, assault in the second degree on an elderly person and larceny in the fifth degree. On the date of her arrest, the respondent faced a potential twenty-five and one-half year sentence of which seven years were mandatory. While the respondent was on pretrial release in February, 2001, she was under the close supervision of the office of adult probation and the alternative incarceration program. She fully cooperated with the services arranged by the court, the petitioner and private agencies. She also obtained full-time employment, and all of her urine tests were negative. Given her positive performance under the court-ordered directives and despite the violent crime she had committed and her long criminal history of drunken driving, the respondent was able to negotiate a plea bargain. The respondent was sentenced to a three year term of incarceration for having committed robbery with a dangerous instrument rather than with a deadly weapon. Given the respondent’s history of performing well under the strictures of the criminal justice system and the prospect of long-term incarceration, the termination court was convinced that she was motivated to do well in pretrial release by the prospect of receiving the shortest possible term of incarceration.

As a result, the court concluded that unless she was threatened with incarceration or was incarcerated, the respondent did nothing to address her substance abuse and behavioral problems. Although three of her children had been removed from her care, she never engaged in a therapy program to avoid relapsing into substance abuse or to improve her ability to be a parent. The court, therefore, found that any goal the respondent had of becoming an appropriate parent for the children at issue in these termination proceedings was a low priority.

In reaching this conclusion, the court was aware of the controlling legal authority. “[I]t is the right and the duty of the [trier of fact] to draw reasonable and logical inferences from the evidence. ... In considering the evidence introduced in a case, [triers of fact] are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Internal quotation marks omitted.) In re Carissa K., 55 Conn. App. 768, 783, 740 A.2d 896 (1999).

“Our Supreme Court has held that § [17a-112 (j) (3) (B)] requires the trial court to analyze the respondent’s rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time. ... A determination by the trial court under § [17a-112 (j) (3) (B)] that the evidence is clear and convincing that the parent has not rehabilitated [himself] will be disturbed only if that 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., 779. “[0]n review by this court every reasonable presumption is made in favor of the trial court’s ruling.” (Internal quotation marks omitted.) In re Eden F., 250 Conn. 674, 705-706, 741 A.2d 873 (1999).

“Personal rehabilitation refers to the reasonable foreseeability of the restoration of a parent to his or her former constructive and useful role as a parent, not merely the ability to manage his or her own life.” (Internal quotation marks omitted.) In re Stanley D.,61 Conn. App. 224, 230, 763 A.2d 83 (2000). “In determining whether a parent has achieved sufficient personal rehabilitation, a court may consider whether the parent has corrected the factors that led to the initial commitment, regardless of whether those factors were included in specific expectations ordered by the court or imposed by the department. . . . Accordingly, successful completion of expressly articulated expectations is not sufficient to defeat [the petitioner’s] claim that the parent has not achieved sufficient rehabilitation.” (Citation omitted.) In re Vincent D., 65 Conn. App. 658, 670, 783 A.2d 534 (2001).

Here, as in In re Vincent D., it was the respondent’s substance abuse, primarily, and its adverse consequences that led to the children’s commitment to the department. As the court found, the respondent was able to comply with the pretrial release program because it was highly structured, and she was motivated to resume her former lifestyle and to negotiate a favorable plea agreement. Laudable as the respondent’s behavior may have been during her pretrial release, it was not relevant to the issue before the court, that is whether the respondent would be able to assume a responsible position in the lives of her children, given their ages and needs. The respondent’s history of addiction demonstrates that many years prior to the birth of these children, she had participated in programs designed to help her confront her addictions and to remain sober. She was unable to do so even when faced with the loss of her older daughter. It appears that she can remain sober only while she is in a structured environment in order to achieve short-term goals. It is not her goal to place her children’s needs above her desires.

“[I]n assessing rehabilitation, the critical issue is not whether the parent has improved [her] ability to manage [her] own life, but rather whether [she] has gained the ability to care for the particular needs of the child at issue. . . . Thus, even 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 child.” (Citations omitted; internal quotation marks omitted.) In re Victoria B., supra, 79 Conn. App. 255.

Furthermore, despite her claim, the respondent has failed to provide any analysis of the language of the statute that would lead us to conclude that a termination petition must be denied when a respondent has complied with the court-ordered steps. But see part I B. The words of the statute are clear. The steps are “to facilitate the return of the child ... to the . . . parent. . . .” (Emphasis added.) General Statutes § 46b-112 (j). The word facilitate means “to make easier or less difficult . . . .” Webster’s Third New International Dictionary. In other words, the services provided to a respondent parent are intended to help that parent change behaviors that are not appropriate or to teach skills the parent needs to assume a responsible position in the child’s life given the child’s needs and age. If a parent is unwilling or unable to adopt the necessary behaviors, no matter how many classes the parent attends, the parent has not achieved sufficient rehabilitation. As the court noted in its memorandum of decision, although the respondent attended various therapy sessions and substance abuse programs, she did little more than that. She failed to understand her role in the process and the reason why the services were being provided to her. She failed to internalize the new behaviors that were needed to facilitate the return of the children to her care.

For all these reasons, we conclude that the court’s finding that the respondent had failed to achieve sufficient rehabilitation was not clearly erroneous.

II

The respondent’s second claim is that it was improper for the court to find that she had no ongoing parent-child relationship with her children. “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 rights. If [any] of the grounds on which the trial court relied are upheld on appeal, the termination of parental rights must stand.” (Internal quotation marks omitted.) In re Alexander C., supra, 67 Conn. App. 427. Because we have concluded that the court properly determined that the respondent’s parental rights in the children should be terminated on the ground that she failed to achieve sufficient rehabilitation; General Statutes § 17a-112 (j) (3) (B); we need not reach her second claim. See In re Victoria B., supra, 79 Conn. App. 256 n.11.

The judgments are affirmed.

In this opinion the other judges concurred.

       The petitioner, the commissioner of children and families, also sought to terminate the parental rights of the children’s father. He consented to the termination of his parental rights and is not a party to this appeal. We therefore refer in this opinion to the respondent mother as the respondent.

       The petitioner alleged that the respondent’s parental rights should be terminated because (1) the children were neglected or uncared for and had been in the custody of the petitioner for at least fifteen months, that the respondent had been provided specific steps to take to facilitate the return of the children to her and 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 and (2) there was no ongoing parent-child relationship with respect to the respondent that ordinarily develops as a result of aparent having met on a continuing day-to-day basis the physical, emotional, moral or educational needs of the children and that to allow further time for the establishment or reestablishment of the parent-child relationship would be detrimental to the best interests of the children. See General Statutes § 17a-112 (j) (3) (B) and (D).

       At the time the court rendered its judgments in January, 2003, the children were six years old and three years old, respectively. Counsel for the children filed a brief in this appeal, arguing that the judgments of the trial court should be affirmed.

       The petitioner called seven witnesses to testify, including a court-appointed psychologist, two therapists who had treated the daughter, the children’s original foster mother, their current foster mother, a department of children and families (department) case aide and the current department caseworker. The respondent testified on her behalf as did one of her friends, her probation officer, a substance abuse counselor, the program director of New Perceptions, an outpatient substance abuse counseling program, an alternative incarceration program case manager and two correction officers.

       The respondent had another daughter from a prior relationship, who was bom in July, 1984. As a result of the respondent’s alcohol addiction and drunken driving convictions, she was forced to relinquish custody of the child. In 1988 and 1989, the respondent was ordered to participate in a sixty day inpatient program at an alcohol center operated by the Massachusetts department of correction. In November, 1989, the respondent wrote to a Massachusetts probate judge, stating that her goal was to learn from her mistakes and to work toward sobriety so that she could be in a position to provide appropriate custodial care for her daughter, who required special care, as she was bom blind. The respondent has had only minimum contact with her older daughter.

       The children have thrived and bonded with M and her husband, whom they refer to as mom and dad. They refer to S as granny. M and her husband want to adopt the children.

       The court informed the respondent that it was leaning in favor of granting the petitioner’s request to terminate her parental rights, but that the petitioner had a heavy burden and that the court needed time to review the evidence in detail. The court articulated its reasons for ending the respondent’s visits with the children at that time: The daughter’s therapist testified that she was conflicted when she talked about the respondent and had difficulty seeing her in prison and talking with her on the telephone. Another of the daughter’s therapists testified that the daughter, who had conflicted feelings about the respondent, had stabilized in M’s home and had made tremendous progress. The daughter had put the past in its proper place and no longer was exhibiting concerning behaviors. The bond between the daughter and the respondent was minimal, and the prison setting was stressful on the girl. A department aide who supervised the respondent’s visits with her children noted that there was no spontaneous affection on the part of the children toward the respondent. Although the daughter had ten minutes to speak with the respondent on the telephone, she kept the conversations short. The son merely did whatever his sister did.

       General Statutes § 17a-112 (j) provides in relevant part: “The Superior Court . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence (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 ... (2) that termination is in the best interest of the child, and (3) that . . . (B) the child . . . (ii) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child (Emphasis added.)

       The respondent withdrew her equal protection claim at oral argument in this court.

       General Statutes (Rev. to 1997) § 17a-112 (c) (3) (B), the statutory provision at issue in In re Shyliesh H., has been recodified as § 17a-112 (j) (3) (B).

       General Statutes § 46b-129 (j) provides in relevant part: “The court shall order specific steps which the parent must take to facilitate the return of the child or youth to the custody of such parent. . . .”

       The court, Mack, J., ordered the following specific steps for the respondent on April 7, 1999:
      1. Keep all appointments set by or with the department. Cooperate with department home visits, announced or unannounced, and visits by the child’s court-appointed attorney or guardian ad litem.
      2. Keep the children’s whereabouts and her whereabouts known to the department, her attorney and the attorney for the children.
      3. Participate in counseling and make progress toward the identified treatment goals: Parenting, individual. Treatment goals should include, but are not limited to, the following: Respondent will learn how to implement appropriate methods for providing her daughter . . . with a safe and nurturing home environment. Respondent will gain insight and understanding regarding the negative effect of her substance-alcohol problem has on her daughter.
      4. Accept and cooperate with in-home services referred by the department and make progress toward the identified goals.
      5. Submit to substance abuse assessment and follow recommendations regarding treatment.
      6. Successfully complete substance abuse treatment, including inpatient treatment if necessary, and follow recommendations regarding aftercare treatment, including relapse prevention.
      7. Submit to random drug testing; time and method of testing shall be at the discretion of the department.
      8. Follow recommendations of service providers.
      9. Recommended providers: Service provided at her place of incarceration.
      10. Obtain or cooperate with a restraining-protective order or other appropriate safety plan as approved by the department to avoid further domestic violence incidents.
      11. Sign releases authorizing the department to communicate with service providers to monitor attendance, cooperation and progress toward identified goals, and for use in future proceedings before the court,.
      12. Secure or maintain adequate housing and legal income.
      13. No substance abuse.
      14. No involvement or further involvement with the criminal justice system.

        15. Other: Respondent will visit with the children as often as the department permits and engage in appropriate parent-child interaction.

       The court, Mack, J., again ordered steps for the respondent on September 12, 2000, as follows:
      1. Keep all appointments set by or with the department. Cooperate with the department home visits, announced or unannounced, and visits by the child’s court-appointed attorney or guardian ad litem.
      2. Keep the children’s whereabouts and her whereabouts known to the department, her attorney and the attorney for the children.
      3. Participate in counseling and make progress toward the identified treatment goals: Parenting, individual.
      4. Accept and cooperate with in-home support services referred by the department.
      5. Submit to substance abuse assessment and follow recommendations regarding treatment, including inpatient treatment if necessary, aftercare and relapse prevention.
      6. Submit to random drug testing; time and method of the testing shall be at the discretion of the department.
      7. Cooperate with court-ordered evaluations or testing.
      8. Sign releases authorizing the department to communicate with service providers to monitor attendance, cooperation and progress toward identified goals, and for use in future proceedings before this court.
      9. Secure or maintain adequate housing and legal income.
      10. No substance abuse.
      11. No involvement or further involvement with the criminal justice system. Cooperate with the office of adult probation or parole officer and comply with conditions of probation or parole.
      12. Consistently and timely meet and address the children’s physical, educational, medical or emotional needs, including, but not limited to, keeping the children’s appointments with their medical, psychological, psychiatric or educational providers.

        13. Make all necessary child care arrangements, ensuring that the children are adequately supervised and cared for by appropriate caretakers.
      14. Immediately advise the department of any changes in the composition of the household to ensure that the change does not compromise the health and safety of the children.
      15. Maintain the children within the state of Connecticut during the duration of this case except for temporary travel out of state with the authorization of the department or the court in advance.
      16. Cooperate with the children’s therapy.
      17. Visit the children as often as the department permits.
      18. Other: Respondent will engage in services while incarcerated while addressing substance abuse issues and participating in counseling.

       It does not appear that Brennan signed the petitions for the termination of the respondent’s par ental rights.

       Courts in both the commonwealth of Massachusetts and the state of Connecticut have issued such orders.


source: Caselaw Access Project

author: STOUGHTON, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. KEITH JOHNSON
    (AC 23479)
    Dranginis, West and Stoughton, Js.

      Argued April 2
    officially released June 8, 2004

      Glenn W. Falk, special public defender, for the appellant (defendant).

      Denise B. Smoker, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and John F. Fahey, senior assistant state’s attorney, for the appellee (state).
   Opinion

STOUGHTON, J.

After a conviction by the jury on all seven counts of an information and sentencing, the defendant, Keith Johnson, filed the present appeal. The defendant’s sole claim is that the court abused its discretion by restricting his cross-examination of one of the state’s witnesses. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Both the defendant and Christopher Booth had once been employed at the Chuck E. Cheese restaurant (restaurant) in Manchester. They discussed a plan to steal money from the restaurant after it had closed for the day, but decided against that plan because the defendant said there was only a fifty-fifty chance that there would be money in the cash registers. Instead, they planned to enter the restaurant at a time when only the manager and one other employee were present, and they chose Sunday, August 27, 2000, as the date. The defendant cut the sleeves from a sweatshirt to fashion masks, and he carried a pellet gun, having been persuaded by Booth not to carry what Booth called a “real firearm.” Booth drove the two of them to a parking lot near the restaurant where they waited until only the manager and one other employee were left inside. Wearing their masks, they went to the back door, but before they could try to enter, Oscar LeBron, an employee, came out carrying a bag of garbage. LeBron saw the two and tried to get back inside, but the door had closed and locked. The defendant pointed the pellet gun at LeBron and ordered him to get on the ground. LeBron, who spoke Spanish, did not seem to understand and struggled for the gun. The gun fell and Booth handed it back to the defendant, who struck LeBron on the head with it, causing contusions and lacerations about the face and head, for which LeBron later received medical treatment at Hartford Hospital. LeBron managed to escape, and Booth and the defendant fled from the scene in Booth’s car. The defendant subsequently confessed to his girlfriend, Cassandra Cyr, that he and Booth had gone to the restaurant that night planning to commit the robbery and described in detail what had occurred. Cyr' told the police what the defendant had told her, and the defendant was arrested.

Prior to the start of the trial, the court granted the state’s motion in limine to prohibit the defendant from introducing, offering, referring to or mentioning evidence that the crimes charged were committed by anyone other than the defendant until the court had been able to rule on the admissibility of any such evidence. During the trial, the state called Booth as a witness. Booth, who had been named in the information as a coconspirator with the defendant, described the crimes. Booth testified that after planning the robbery, he and the defendant had left the place where they were then residing to go to the restaurant. The following examination then occurred:

“Q. Where were you living at the time?
“A. I was living in Storrs.
“Q. Was anyone with you and [the defendant]?
“A. When we left, no. At my apartment, I believe one of my roommates was there and a friend of his.
“Q. When you left for the [restaurant], who went?
“A. Me and John — I mean me and Keith Johnson.”

Thereafter, during cross-examination of Booth, the following colloquy occurred:

“Q. But when [the prosecutor] asked you who you went to do the robbery with when you were driving there on the night of August 27, you said me and John?”
“A. Johnson.
“Q. Ja, Ja, then you said, me and Keith Johnson, right?”

The prosecutor interposed an objection, claiming that the question was argumentative, and that it mischaracterized the testimony and violated the motion in limine that had been granted. The corut excused the jury and proceeded to hear extensive argument during which the prosecutor advanced the position that the defendant was attempting to implicate a third party in the commission of the crime through a misstatement by Booth. In response to an inquiry from the court as to why the question did not implicate the third party culpability issues, the defendant responded that Booth had testified that he and John had gone to commit the robbery and that he was entitled, pursuant to the sixth amendment and corresponding provisions of the Connecticut constitution, to confront and cross-examine Booth about his testimony. Ultimately, the court ruled that either directly or indirectly, the defendant had attempted to bring in third party culpability of someone named John without any direct connection between a third party and the crime, and sustained the state’s objection.

After the jury returned, the court made the following ruling: “But in any event, when you were last in the court, [defense counsel] had asked a question. There was an objection. I sustained the objection, and any answer that was given is now ordered stricken and should be disregarded.” Precisely what the jury was instructed to disregard is not entirely clear, as Booth never responded to the last statement made by defense counsel prior to the state’s objection.

Subsequently, the court, during a charging conference, explained that although defense counsel would not be able to argue third party culpability, he would be able to make whatever argument he wanted to make with respect to Booth’s hesitant response during direct examination by the state. Defense counsel in fact reminded the jury during his closing argument that Booth had said, when asked with whom he went on the night of the robbery: “John, ah, ah, John, ah, ah, Johnson. Not Keith.”

On appeal, the defendant claims that the court abused its discretion and violated his right of confrontation as guaranteed by the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution by curtailing his cross-examination of Booth. The state responds by arguing that evidence of third party culpability was irrelevant because any connection between a third party and the crimes charged was lacking. We need not decide whether the court abused its discretion in limiting the cross-examination by its ruling on the state’s third party culpability objection because even if we assume that this ruling was improper, it was harmless.

Because the alleged trial court impropriety is not constitutional in nature, on appeal, the defendant has the burden to establish harm flowing from that error to obtain a reversal of the judgment. “Under the current and long-standing state of the law in Connecticut, the burden to prove the harmfulness of an improper evidentiary ruling is borne by the defendant. The defendant must show that it is more probable than not that the erroneous action of the court affected the result. . . . Furthermore, [t]he ruling of the trial court in order to constitute reversible error must have been both incorrect and harmful. . . . The question is whether the trial court’s error was so prejudicial as to deprive the defendant of a fair trial, or, stated another way, was the court’s ruling, though erroneous, likely to affect the result?” (Citation omitted; internal quotation marks omitted.) State v. Lewis, 67 Conn. App. 643, 653-54, 789 A.2d 519, cert. denied, 261 Conn. 938, 808 A.2d 1133 (2002).

First, Cyr, the defendant’s girlfriend, testified that the defendant told her that he and Booth had planned and attempted to rob the restaurant, but were unsuccessful. She also stated that the defendant had informed her that both he and Booth had assaulted LeBron. Second, Booth, when asked who went with him, said, “Me and John,” then immediately corrected his answer to identify the defendant by stating, “Keith Johnson.” It seems clear from the entire context that he meant to say “Johnson,” but then changed in the middle of the word to say “Keith Johnson.” Third, Booth consistently testified that his sole partner in the criminal endeavor, from the planning through the unsuccessful commission of the crime, was the defendant. Finally, the court permitted counsel for the defendant to argue Booth’s misstatement to the jury. In short, even if we assume that the court’s ruling was improper, in light of those other facts and circumstances, it is clear that any such error was harmless. The defendant has failed to establish that the court’s ruling affected the result of the trial or undermined confidence in the fairness of the verdict. See State v. Gombert, 80 Conn. App. 477, 489-90, 836 A.2d 437 (2003), cert. denied, 267 Conn. 915, 841 A.2d 220 (2004). Accordingly, his claim must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       LeBron was unable to identify either Booth or the defendant.

       During argument outside the presence of the jury, the court listened to the tape of the relevant portion of Booth’s testimony.

       “The right of an accused to effectively cross-examine an adverse witness is embodied in the confrontation clause of the sixth amendment. . . . The general rule is that restrictions on the scope of cross-examination are within the sound discretion of the trial judge . . . but this discretion comes into play only after the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment. . . . The constitutional standard is met when defense counsel is permitted to expose to the jury the facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. . . . Indeed, if testimony of a witness is to remain in the case as a basis for conviction, the defendant must be afforded a reasonable opportunity to reveal any infirmities that cast doubt on the reliability of that testimony. . . . The defendant’s right to cross-examine a witness, however, is not absolute. State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985) ([e]very evidentiary ruling which denies a defendant a line of inquiry to which he thinks he is entitled is not constitutional error). Therefore, a claim that the trial court unduly restricted cross-examination generally involves a two-pronged analysis: whether the aforementioned constitutional standard has been met, and, if so, whether the court nonetheless abused its discretion ... in which case, in order to prevail on appeal, the defendant must show that the restrictions imposed upon the cross-examination were clearly prejudicial.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Clark, 260 Conn. 813, 826-27, 801 A.2d 718 (2002).
      In the present case, the defendant has not claimed that his sixth amendment right to cross-examination has been denied. Instead, he argues that the court abused its discretion by improperly curtailing his cross-examination and, thus, he raises an evidentiary rather than a constitutional challenge.
      In his brief to this court, the defendant mentioned his federal and state constitutional rights to cross-examine the witnesses against him. He then focused his argument, however, solely as an evidentiary rather than a constitutional issue. He indicated that the applicable standard of review is the abuse of discretion standard and claimed that the court abused its discretion by improperly applying “the evidentiary rule limiting the introduction of third party culpability evidence by a defendant.” (Emphasis added.)

       During direct examination of Cyr, the following colloquy occurred:
      “Q. Did you have a conversation with [the defendant] at that time related to the incident which had occurred in late August or early September at [the restaurant]?
      “A. Yes.
      “Q. And could you tell me what [the defendant] told you?
      “A. [The defendant] told me that they had planned on robbing the [restaurant]. They didn’t intend on hurting anybody.
      “Q. When you say ‘they,’ who do you mean?
      “A. Him and [Booth].”

       During closing argument, defense counsel stated: “Want to talk about reliability and credibility. [The prosecutor] asked Mr. Booth: Who were you with the night of August 27? Christopher Booth said me, Keith and a couple of other guys at the house. Just like he said Keith or Keith Johnson during his entire testimony. [The prosecutor] then said: Who did you go with on the night of August 27 to do the robbery? And you all heard what he said: John, ah, ah, John, ah, ah, Johnson. Not Keith. It’s not what he said. You heard what he said.” (Emphasis added.)


author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. WILLIAM FARNUM
    (AC 24025)
    Lavery, C. J., and Sehaller and Peters, Js.

      Argued March 30
    officially released June 8, 2004

      Joaquina Borges King, special public defender, for the appellant (defendant).

      Margaret Gaffney Radionovas, senior assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Brian W. Preleski, assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, William Famum, appeals from the judgments of conviction, rendered after a trial to the court, of two counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), one count of larceny in the sixth degree in violation of General Statutes § 53a-125b (a) and one count of larceny in the third degree in violation of General Statutes § 53a-124 (a) (2). On appeal, the defendant claims that the trial, court improperly denied (1) his motion to suppress identification evidence obtained as a result of a photographic array because the array was unnecessarily suggestive and (2) his motion for judgments of acquittal because the evidence was not sufficient to establish that he was the perpetrator of the robberies. We conclude that the photographic array was not overly suggestive, but that there was not sufficient evidence to convict the defendant of one of the two bank robberies that he allegedly had committed. Accordingly, we affirm in part and reverse in part the judgments of the trial court.

On January 24, 2002, the Farmington Avenue branch of the American Savings Bank in New Britain was robbed. Agnes Ksiazak, a teller at the bank, was assisting a customer when she noticed that a man cut in line and pushed an older female customer. The man handed Ksiazak a note. The note said to give him all her “fifties, hundreds, twenties, I have a gun.” After Ksiazak gave the robber more than $2000, he left the bank.

Ksiazak could not positively identify the robber. She described him “as not black, but having dark skin and big eyes.” She worked with the police to create a composite drawing of the robber’s face. The female customer also could not identify the robber except that he was “about five feet, five inches, five feet, six inches and wearing a hood.” A second bank teller who had observed the robbeiy also could not positively identify the robber. The second teller described the robber as a five feet, six inch, five feet, seven inch black male with a medium build. The bank surveillance videotape and a black and white photograph depicted the robber wearing a hat with a brim that covered his eyes. The robber’s facial features could not be ascertained from the videotape or photograph.

On February 2, 2002, the defendant and an acquaintance, Antonio Smith, were arrested on unrelated narcotics charges. Smith testified that while in the lockup, the defendant told him that he had committed a robbeiy in order to pay a debt owed to a man. Smith testified that the defendant told him that he walked in with a note, did not use a gun and obtained approximately $2000. Smith’s testimony was given in the hope that it would be taken into consideration in regard to the narcotics charges he was facing.

On January 31, 2002, the Hartford Road branch of the American Savings Bank in New Britain was robbed. Mila Gitelman, an employee of the bank, obseived the robber throughout the robbery. Gitelman had received training in detecting potential robbers. She “noticed that [the robber] didn’t give [the teller] any cash to get any change in return, so I knew then she was being robbed.” Gitelman then activated two silent alarms.

Gitelman described the robber as a black male in his late teens with “a very defined chin and very round.” She testified that the robber was wearing a “green camouflage fishing type hat.” She also briefly saw the robber’s face and eyes. Gitelman immediately identified the defendant as the robber when shown a photographic array by the police. She expressed no doubt about her identification. She also made an in-court identification of the defendant as the robber. No other bank employee or customer was able to make a positive identification of the robber.

On February 8, 2002, pursuant to a search warrant, the police seized a green camouflage hat with an elastic chin strap from the truck of Smith’s girlfriend. Smith and his girlfriend occasionally had given the defendant rides in the truck. Smith identified the hat as belonging to the defendant. The hat’s camouflage pattern, style and chin strap matched the hat depicted in a black and white photograph made from the bank’s surveillance videotape at the time of the robbery.

I

The defendant first claims that the court improperly denied his motion to suppress the identification of him that was made from the photographic array because the array was unnecessarily suggestive. Specifically, the defendant argues that his photograph stood out because it was darker than the other photographs, some of the individuals depicted had facial hair and the background of his photograph differed from that of all the other photographs in the array.

“On appeal, we apply a familiar standard of review to atrial court’s findings and conclusions in connection with a motion to suppress. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... The conclusions drawn by the trial court will be upheld unless they are legally and logically inconsistent with the evidence. . . . [W]e engage in a careful examination of the record to ensure that the court’s decision was supported by substantial evidence. . . . We give great deference to the findings of the trial court because it weighs the evidence before it and assesses the credibility of witnesses.” (Internal quotation marks omitted.) State v. Gaston, 82 Conn. App. 161, 164-65, 842 A.2d 1171 (2004).

“[I]n determining whether identification procedures violate a defendant’s due process rights, the required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive, and second, if it is found to be so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances. ... A defendant who moves to suppress identification evidence bears the initial burden of proving that the identification resulted from an unconstitutional procedure. To prevail in his claim the defendant must demonstrate that the trial court erred in both of its determinations regarding suggestiveness and reliability of identifications in the totality of the circumstances.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Fields, 31 Conn. App. 312, 320, 624 A.2d 1165, cert. denied, 226 Conn. 916, 628 A.2d 989 (1993).

In this case, the court found that “[t]he defendant is correct that the background of his photograph is darker and, in fact, the entire photograph appears darker than the other seven photographs. The court does not find, however, that the defendant’s skin tone appears orange. Other photographs in the array have different colored backgrounds. . . . That the photograph of the defendant is darker does not render the entire array unnecessarily suggestive so as to lead to the misidentification of the defendant.

“The physical char acteristics of the eight individuals depicted in the photographs are similar so that the defendant’s photograph does not jump out at you. The court credits the testimony of Detective Adam Rembisz [of the New Britain police department] that he did not change the color of the defendant’s skin color or the color of the background of the defendant’s photograph or otherwise alter any of the photographs.

“Accordingly, the court finds that the photographic array, when viewed in its entirety, is not impermissibly suggestive so as to result in irreparable misidentification of the defendant as the perpetrator of the bank robberies at issue in these consolidated cases.”

After a visual review of the photographic array, we agree with the conclusion reached by the court that the array was not impermissibly suggestive. The only noticeable difference among the photographs is the darker color composition of the defendant’s photograph. Our Supreme Court has held that a difference in color composition, alone, does not render a photographic array unnecessarily suggestive. State v. Boscarino, 204 Conn. 714, 727, 529 A.2d 1260 (1987).

Accordingly, we conclude that the court properly denied the defendant’s motion to suppress the identification of him that was made from the photographic array.

II

The defendant next claims that the court improperly denied his motion for judgments of acquittal because the evidence was not sufficient to establish that he was the perpetrator of the robberies. We agree that there was not sufficient evidence as to the January 24, 2002 robbery, but disagree that there was not sufficient evidence to prove that he was the perpetrator of the January 31, 2002 robbery.

“The standard of review we apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“While the [finder of fact] must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the [finder of fact] to conclude that a basic fact or an inferred fact is true, the [finder of fact] is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.” (Citation omitted; internal quotation marks omitted.) State v. Gombert, 80 Conn. App. 477, 494-95, 836 A.2d 437, cert. denied, 267 Conn. 915, 841 A.2d 220 (2004).

A

The defendant claims that the evidence was insufficient to establish that he was the person who committed the January 24, 2002 robbery. We agree.

The state argues that the court reasonably could have found the defendant guilty of that robbery on the basis of eyewitness descriptions, the bank surveillance videotape and photograph, Smith’s testimony that the defendant admitted committing a robbery and evidence concerning the January 31 robbery establishing the defendant’s identity. We are not persuaded.

Our review of the evidence before the court indicates that no witness was able to offer a positive identification of the defendant as the person who committed the January 24 robbery. The bank surveillance videotape and photograph were inconclusive. Although the state argues that the witnesses’ descriptions of the robber were “consistent with the defendant’s physical appearance,” we note that, in fact, the witnesses’ descriptions were not consistent in identifying the robber’s skin color and, in other respects, were little more than general descriptions of dark skinned males of medium height. Even if the court credited the testimony of Smith, who testified in the expectation of leniency as to the narcotics charges that he faced, the statements that he attributed to the defendant referred to “a bank robbery in which he took about $2000” without identifying a specific date or location with any degree of particularity. Although the amount obtained in the January 24 robbery was $2310, it was not clear to which robbery he was referring, given the generality of his remarks.

Finally, even if the court considered evidence of similarities in the January 31 robbery as uncharged misconduct evidence that was admissible to show identity, that alone would not be sufficient to prove the identity of the defendant as the person who committed the January 24 robbery. The common factors concerning the identity of the robber merely were the bank that was robbed and some similarities with respect to the physical appearance of the robbers, as depicted on the bank surveillance videotape and photograph and on a composite drawing.

In sum, apart from the general, vague and conflicting eyewitness testimony, the only evidence presented at trial to prove that the defendant committed the January 24 robbery was the uncharged misconduct evidence and the purported admission to Smith. Neither of those evidentiary offerings was sufficient to establish the defendant’s identity beyond a reasonable doubt.

B

The defendant next claims that the evidence was not sufficient to establish that he was the perpetrator of the January 31, 2002 robbery. We disagree.

The state produced sufficient evidence to establish that the defendant was the perpetrator of the January 31, 2002 robbery. The one sole contested fact at trial concerning that robbery was the identification of the robber. Gitelman positively identified the defendant as the robber. Gitelman’s photographic and in-court identification alone are sufficient to sustain the defendant’s conviction. See State v. Smith, 57 Conn. App. 290, 297-99, 748 A.2d 883, cert. denied, 253 Conn. 916, 754 A.2d 164 (2000). Further, Gitelman identified the person that was the robber in the bank surveillance videotape and photograph. The robber’s physical appearance in the videotape and photograph was consistent with the defendant’s physical characteristics. Finally, the camouflaged hat found in the truck of Smith’s girlfriend, which Smith identified as belonging to the defendant, matched the description of the hat worn by the robber. The court reasonably could have concluded that this was the same hat depicted in the bank surveillance film and that Gitelman saw the robber wearing, and, therefore, that the defendant was the robber. Although Gitelman’s positive identification alone was sufficient to sustain the conviction, all of the evidence presented at trial was consistent with the defendant’s guilt. Accordingly, the court had sufficient evidence to convict the defendant of the January 31, 2002 robbery.

The judgment in the first case (CR02-0200468) is affirmed. The judgment in the second case (CR020200469) is reversed and that case is remanded with direction to render judgment of not guilty.

In this opinion the other judges concurred.

       We address the suppression claim first because the defendant’s sufficiency of the evidence claim is dependent to a large extent on our determination of the suppression claim.

       Although the state did not offer evidence of the January 31 robbery as uncharged misconduct evidence to show identity, “we are mindful of our authority to affirm a judgment of a trial court on a dispositive alternate ground for which there is support in the trial court record.” (Internal quotation marks omitted.) State v. Vines, 71 Conn. App. 359, 366-67, 801 A.2d 918, cert. denied, 261 Conn. 939, 808 A.2d 1134 (2002). The state argues that for the purpose of showing identity with respect to the January 24 robbery, the court could have relied reasonably on the fact that the defendant committed the January 31 robbery. See Conn. Code Evid. § 4-5 (b); State v. Reddick, 33 Conn. App. 311, 327-29, 635 A.2d 848 (1993), cert. denied, 228 Conn. 924, 638 A.2d 38 (1994).
      In a consolidated case, there is a danger that the finder of fact may use evidence of a crime in one case to find guilt of a crime in the other case. That evidence is admissible, however, in a consolidated case if “the evidence admissible in the trial of the charges arising from one incident would likely be admissible in a separate trial of the charges arising from the other incident because [ejvidence tending to prove prior criminal conduct which is relevant and material to an element of the crime, identity, malice, motive, or which shows a pattern of criminal activity is admissible if the trial court determines, in the exercise of its sound discretion, that its probative value outweighs its prejudicial impact.” (Internal quotation marks omitted.) State v. Walsh, 52 Conn. App. 708, 713, 728 A.2d 15, cert. denied, 249 Conn. 911, 733 A.2d 233 (1999). Here, even if evidence of the January 31 robbery was admissible as to the January 24 robbery, we have concluded that the common factors concerning the two robberies were not so striking or distinctive that the court would have given great weight, if any, to the tentative connection between the two robberies.


author: HENNESSY, J.

text:
    ROBERT F. CARROLL v. MICHAEL PERUGINI
    (AC 23752)
    Bishop, McLachlan and Hennessy, Js.

      Argued December 10, 2003
    officially released June 8, 2004

      Constantine G. Antipas, for the appellant (plaintiff).

      Sebastian S. Ciarcia, for the appellee (defendant).
   Opinion

HENNESSY, J.

The plaintiff, Robert F. Carroll, appeals from the judgment of the trial court rendered in favor of the defendant, Michael Perugini, in this breach of contract action. On appeal, the plaintiff claims that the court improperly concluded that he (1) was in breach of the contract and (2) failed to show by a preponderance of the evidence that the defendant’s construction work breached the implied warranty that the work would be completed in a good and workmanlike manner or that it was negligently performed. We disagree and, accordingly, affirm the judgment of the trial court.

In its memorandum of decision, the court found the following facts. The parties entered into a written contract on November 14, 1988, modified by a written change order on the same date, for the construction of a home in Branford. The plaintiff planned to demolish his existing beach cottage and replace it with a home that could be lived in year round. The contract provided for a start date of November 23,1998, and a completion date of April 15, 1999. The parties’ written contract called for work consisting of the demolition of the existing private residence on the property and the construction of a private home thereon in accordance with plans and specifications prepared by John Cruet, Jr., an architect licensed in Connecticut. The subject property on which the construction was to take place was located in a beach association area in which major construction was prohibited between July 1 and Labor Day. The addendum to the contract provided that the defendant would pay the plaintiff $10,000 if the work was not fully completed by June 1, 1999. The contract provided that “[the defendant would] not [be] responsible for any delay beyond [his] control.” It was agreed further by the parties that the plaintiff would pay for the materials for the construction of the house and would receive a credit against the contract price of $134,000 for such material purchases. The plaintiff agreed to and paid a total of $12,041.14 for change orders.

The court heard testimony from Benedetto Lorenzo, a licensed master plumber hired by the defendant. He testified that the architect had designated the placement of the hot water heater and heating, ventilating and air conditioning (HVAC) units below the flood plain line and that he had installed them in accordance with the plans. He further testified that the project was ready for inspection for a certificate of occupancy in late June or early July, 1999, but that the certificate was denied because the placement of the hot water heater and HVAC units was unacceptable to the building inspector. As a result, major revisions were necessary before the certificate of occupancy could be issued. The court found that although at the time of the inspection the units were operational in accordance with the architectural drawings and in substantial compliance with the contract, the project could not be deemed completed because corrective work was required as a result of the placement of the units.

The court found that the plaintiff refused to pay the defendant for corrective work caused by the architect’s errors. The court further found that the defendant did not breach the contract, but rather was delayed in his completion of the project because of the architect’s designation of the units below the flood plain. In addition, the court found that the plaintiff breached the contract by failing and refusing to pay the defendant for work necessary to revise and complete the project as a result of the architect’s errors.

On appeal, our review of the plaintiffs claims is limited to a determination of whether the court’s conclusions are clearly erroneous in light of the evidence and pleadings contained in the record. See Wilson v. Kapetan, Inc., 25 Conn. App. 529, 532, 595 A.2d 369 (1991). “The resolution of conflicting factual claims falls within the province of the trial court. . . . The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witness.” (Internal quotation marks omitted.) Id., 533. “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Lipshie v. George M. Taylor & Son, Inc., 265 Conn. 173, 182, 828 A.2d 110 (2003).

I

The plaintiff first claims that the court improperly concluded that he was in breach of the construction contract because he refused to pay for or to allow the defendant to complete corrective work caused by the architect’s errors. The plaintiff argues that the evidence produced at trial showed that (1) he promptly responded each time the defendant made a demand for payment, and, thus, the defendant was paid in full for all services he actually performed; (2) despite many attempts to procure his presence to complete his unfinished work and to perform corrective work, the defendant failed to return to the job site after August 26,1999; (3) the plaintiffs only recourse was to hire substitute workers to complete the work left undone by the defendant; and (4) therefore, it was the defendant who was in breach of the contract because he left the job site without completing the work required by the contract. Thus, the plaintiff further contends that the court’s findings to the contrary were clearly erroneous. We disagree.

The following additional facts are necessary for our resolution of the plaintiff’s claim. The plaintiff testified that his wife, Marie Carroll, handled all of the financial transactions involved in the renovation of the cottage. Marie Carroll testified that each and every time the defendant made a demand for payment, she complied. In support of that testimony, she provided extensive documentation regarding the purchase of materials and payments for services, including receipts, credit card statements and canceled checks totaling $86,000. She further testified that the defendant and his family were guests at their home on July 3, 1999, yet they did not see him again until August 26, 1999. Both Marie Carroll and the plaintiff testified that on August 26, 1999, the defendant approached the Carrolls with change orders dated August 25, 1999, did not request any form of payment and never returned to the site after that date.

Lorenzo testified that the certificate of occupancy was denied by the Branford building inspector sometime prior to July 3, 1999. He further testified that a meeting was held by the building inspector a few weeks after July 3, 1999, to discuss the reasons for the denial of the certificate of occupancy. The building inspector, Lorenzo, the defendant, the architect and the plaintiff were present at the meeting. Lorenzo indicated that at some point during the meeting, “it basically stemmed down to that there [were] extras involved for [the defendant], [himself because] plumbing and heating . . . needed to be corrected, and in order to correct it, it was going to be an additional cost as to where nobody wanted to pick [it] up . . . [mjeaning the Carrolls didn’t want to pick up the additional costs . . . .”

Clearly, the plaintiff and the defendant disagree as to who breached the contract. It is well settled, however, that even a mere statement indicating unwillingness to perform a contractual duty owed to another may constitute a total breach of contract. See Martin v. Kavenewsky, 157 Conn. 514, 518-19, 255 A.2d 619 (1969). On the basis of our review of the record, we conclude that there was evidence presented to support the court’s conclusion that the plaintiff was in breach due to his refusal to pay the defendant to complete the job and to perform corrective work. As such, the court’s finding that the plaintiff was in breach of the contract was not clearly erroneous.

II

The plaintiffs second claim is that the court improperly concluded that he failed to establish, by a preponderance of the evidence, the second count of his complaint, namely, that the defendant’s construction work breached the implied warranty that the work would be completed in a good and workmanlike manner or that the work was performed negligently. The plaintiff argues that the court failed to weigh competing testimony and adopted a Active chronology of events that resulted in an erroneous finding of fact. We disagree.

Our review of the record reveals that there was insufficient evidence to support a finding that the defendant breached the implied warranty that the work would be completed in a good and workmanlike manner or that the work was performed negligently. From the evidence presented in the record, it was unclear whether the plaintiffs dissatisfaction with the workmanship was the result of the defendant’s alleged negligence or the plaintiffs own breach of the contract. “There is no question but that a plaintiff must remove the issues of negligence and proximate cause from the field of conjecture and speculation.” (Internal quotation marks omitted.) Williams v. Campanaro Construction Co., 20 Conn. App. 709, 713, 570 A.2d 228 (1990). The court heard conflicting testimony and, on the basis of that testimony, found that the plaintiff did not meet his burden of proof. We conclude that this factual determination was not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       In his motion for articulation, the plaintiff directed the court’s attention to its use of incorrect dates in the original decision. The court incorrectly referenced the year 1998 instead of 1999 three times in the decision. In its order granting the motion, the court, however, stated that “the June or July dates referenced in the decision and paragraph one of the motion are corrected from 1998 to 1999. Also, the pipes froze during the winter after the work was performed in 1999.” From that statement, we cannot conclude that the court adopted an incorrect chronology of events.


author: DRANGINIS, J.

text:
    COMMISSIONER OF TRANSPORTATION v. BAKERY PLACE LIMITED PARTNERSHIP ET AL.
    (AC 23981)
    Schaller, Dranginis and McLachlan, Js.
    Argued February 20
    officially released June 15, 2004

      Robert Deichert, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Jane R. Rosenberg and Lawrence G. Widem, assistant attorneys general, for the appellant (plaintiff).

      Michael P. Barry, for the appellee (named defendant).
   Opinion

DRANGINIS, J.

In this condemnation action, the plaintiff, the commissioner of transportation (commissioner), appeals from the judgment of the trial court rendered in favor of the defendant Bakery Place Limited Partnership (defendant). On appeal, the commissioner claims that the court improperly (1) took judicial notice of the fact that asbestos in the property acquired by eminent domain could have been encapsulated at a lower cost than demolishing the building and (2) determined the fair market value of the condemned property on the basis of a five year old municipal property tax assessment. We reverse the judgment of the trial court.

Vincenzo Miceli and Valerie Miceli operated a bakery at 648 Main Street in New Britain from 1974 until they sold the business in 1989, retaining ownership of the property. In 1985, the Micelis formed a partnership known as Bakery Place Limited Partnership and purchased property adjacent to the bakery located at 634-640 Main Street, New Britain, which is the subject of this appeal. The defendant’s newly acquired property consisted of a 6394 square foot parcel of land with a vacant three story building that was constructed in 1886. The defendant purchased the property to expand its bakery business. Shortly after preparing the building for renovation, Vincenzo Miceli became ill and construction was halted. On June 7,2000, the commissioner paid the defendant $1 to acquire the property on 634-640 Main Street by eminent domain in order to make highway safety improvements. The defendant appealed to the Superior Court.

The dispute before the court involved the cost of demolishing the building at the time of the taking. Prior to the condemnation of the property, the defendant’s appraiser, Matthew Welinsky, appraised the property and found that the highest and best use of the property, after the demolition of the building, was to keep it as vacant land. Using the comparable sales method, he concluded that the fair market value of the vacant land was $13,000. Welinsky, referring to the Marshal Valuation Service on demolition and removal of hazardous material, calculated the cost of demolition to be $8000. He determined that the fair market value of the land was $5000.

Likewise, the commissioner’s appraiser, John Nitz, concluded that the highest and best use of the property was vacant land. He also valued the property at $13,000. On the basis of his assumption that asbestos was present in the building, Nitz calculated that the cost of asbestos removal and demolition of the building would total $17,096, which would leave the market value of the property at a $4000 loss. In addition to Nitz’ testimony as to the value of the property before condemnation, the commissioner offered the expert testimony of Eric Plimpton, a licensed professional engineer. Plimpton, who reviewed the invoices from the demolition of the building on the property, testified that the actual cost to demolish the building was $35,208 and $22,334 to remove the asbestos for a total cost of $57,542.

In its memorandum of decision, the court relied on the following facts to determine the fair market value of the property. In October, 1995, the New Britain assessor revalued the property and determined that its fair market value was $37,840. The defendant paid the real estate taxes based on the fair market value of the property for the next five years. The assessor’s street card listed the property’s income as $80,300. Using the cost approach, the city determined that the value of the land as vacant was $27,550 and the building was $10,290 for a total value of $37,840. The city used the cost approach of $37,840, not the income approach at $80,300, to determine the fair market value of the subject property. The assessor’s street card showed that the building in 1988 was uninhabitable and therefore incapable of producing income. That assessment remained unchanged until the date of the taking. The court concluded that the city’s revaluation in 1995 of the building at $10,290 took into account the existing condition of the property.

The court further concluded that “[n] either Welinsky, Nitz nor Plimpton made any credible contribution regarding the existence of asbestos or the extent of asbestos in the building. From the presentation of evidence, we can assume the presence of asbestos in the building, but cannot determine the extent of the asbestos in the building. Our general experience is that asbestos insulation used to insulate heating ducts in older buildings may be encapsulated to prevent harm from asbestos as an alternative to removal.” The court rejected the appraisers’ opinions that the highest and best use of the property was as vacant land and instead concluded that the value of the property would be maximized by encapsulating the asbestos rather than demolishing the premises at a substantial loss. The court also noted that the cost of encapsulation is minimal compared to the cost of asbestos removal.

The court rendered judgment in favor of the defendant “in the amount of $37,840, less the sum of $1 paid by the [commissioner] plus statutory interest at the rate of 10 percent as provided in General Statutes § 37-3a, from the date of taking.” The court subsequently denied the commissioner’s motion for reconsideration. This appeal followed.

I

The commissioner first claims that the court improperly took judicial notice of the fact that asbestos in the property acquired by eminent domain feasibly could be encapsulated at a lower cost than demolishing the building. Specifically, the commissioner argues that the court’s conclusion in its memorandum of decision, without evidence, that “[o]ur general experience is that asbestos insulation used to insulate heating ducts in older buildings may be encapsulated to prevent harm from asbestos as an alternative to removal” was improper. The commissioner contends that whether asbestos in the building could be safely and economically contained was not a proper subject for judicial notice. We agree.

“Courts may take judicial notice of matters which come to the knowledge of men generally in the course of the ordinary experience of life, and are therefore in the mind of the trier, or they may be matters which are generally accepted by mankind as true and are capable of ready and unquestionable demonstration. . . . Facts which are of common knowledge, that is, facts so well known that evidence to prove them is unnecessary are proper subjects of judicial notice.” (Citations omitted; internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Napert-Boyer Partnership, 40 Conn. App. 434, 442, 671 A.2d 1303 (1996).

“The doctrine of judicial notice is not a hard and fast one. It is modified by judicial discretion. . . . Courts are not bound to take judicial notice of matters of fact. . . . Thus, a trial court’s determination [to take or] not to take judicial notice is essentially an evidentiary ruling. . . . Our role in reviewing evidentiary rulings of the trial court is settled. The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done.” (Citations omitted; internal quotation marks omitted.) State v. Martin, 77 Conn. App. 818, 826, 827 A.2d 1 (2003).

The defendant claims that the court did not take judicial notice of the cost of encapsulation over the cost of demolition, but was simply explaining its reasons for rejecting the appraisers’ testimony regarding the cost of removing the asbestos. The defendant argues that “[t]he court was stating that the cost of encapsulation may have made demolishing the building not its highest and best use because such high remediation and demolition costs would be unnecessary by rehabilitating the premises.” We are not persuaded.

In reviewing the transcript, we did not find any testimonial evidence concerning the cost of encapsulation to support the defendant’s claim. In fact, the court did not allow the defendant to elicit testimony from Nitz regarding the effect that the cost of encapsulation would have on the value of the building. Without giving notice to the parties, the court, in its memorandum of decision, took judicial notice of the cost effectiveness of encapsulating asbestos as opposed to removing it. We have repeatedly stated that a “trial court must give the parties an opportunity to be heard prior to taking such notice.” Federal Deposit Ins. Corp. v. NapertBoyer Partnership, supra, 40 Conn. App. 442. Under these circumstances, “[l]ack of notice prevents a party from disputing the judicially noticed fact.” Id.

The cost of asbestos removal or encapsulation is not a subject that one encounters in the ordinary course of life. Whether it was more cost effective to encapsulate the asbestos than to remove it is not a proper subject matter of judicial notice. See id. (“whether a substituted interest rate is reasonable is not the proper subject matter of judicial notice”). Accordingly, we conclude that the court abused its discretion by taking judicial notice of the cost effectiveness of encapsulating asbestos as opposed to removing it without giving the parties notice of its intention to do so.

II

The commissioner next claims that the court improperly determined the fair market value of the condemned property on the basis of a five year old municipal property tax assessment. We agree.

The commissioner’s claim involves the issue of valuation. “Valuation is a matter of fact to be determined by the trier’s independent judgment. . . . Because this is a challenge to the court’s finding of facts, we apply the clearly erroneous standard of review. A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citation omitted; internal quotation marks omitted.) New London v. Picinich, 76 Conn. App. 678, 685, 821 A.2d 782, cert. denied, 266 Conn. 901, 832 A.2d 64 (2003).

In determining the value of a condemned property, “[t]he general rule ... is that the proper measure of damages is . . . the market value of the property as improved, in view of all the uses to which it is adaptable and available.” (Internal quotation marks omitted.) Connecticut Printers, Inc. v. Redevelopment Agency, 159 Conn. 407, 414, 270 A.2d 549 (1970). Essentially, we apply the highest and best use approach in valuing the property. “A property’s highest and best use is commonly accepted by real estate appraisers as the starting point for the analysis of its true and actual value. . . . [U]nderthe general rule of property valuation, fair [market] value, of necessity, regardless of the method of valuation, takes into account the highest and best value of the land. ... A property’s highest and best use is commonly defined as the use that will most likely produce the highest market value, greatest financial return, or the most profit from the use of a particular piece of real estate.” (Citations omitted; emphasis in original; internal quotation marks omitted.) United Technologies Corp. v. East Windsor, 262 Conn. 11, 25, 807 A.2d 955 (2002).

The defendant argues that the court reasonably relied on the evidence of the assessed value of the assessor’s calculations in determining the fair market value of the property. That argument is misplaced. We recognize that “[i]n determining fair market value, the trial court is free to select the method of valuation most appropriate to the case before it.” D’Addario v. Commissioner of Transportation, 180 Conn. 355, 365, 429 A.2d 890 (1980). That discretion, however, is not absolute.

Here, the court did not use the highest and best use approach, or any alternative valuation method to calculate the fair market value of the property. Instead, it relied on the assessed value set forth on the assessor’s field card that was attached to one of the appraisal reports to award the sum of $37,840. “It is almost everywhere the law that the value placed upon a parcel of land for the purposes of taxation by the assessors of the town in which it is situated is no evidence of its value for other than tax purposes.” 5 P. Nichols, Eminent Domain (3d Ed. Rev. 2003, J. Sackman ed.) § 22.1, p. 22-1; see Connecticut Printers, Inc. v. Redevelopment Agency of Hartford, supra, 159 Conn. 407. Moreover, “[i]t has been held . . . that the amount of taxes, as a derivative of the assessed value, is . . . inadmissible as evidence of value in eminent domain.” 5 P. Nichols, supra, pp. 22-18 through 22-19. Under the facts of this case, the court improperly used the assessed value to calculate the fair market value of the defendant’s property.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       The other defendants in this action are the city of New Britain and Michael A. Zizka. Those defendants are not involved in this appeal, and we refer in this opinion to Bakery Place Limited Partnership as the defendant.

       The building was completely gutted. The contractor removed the walls, staircases and ceilings, plumbing, heater and water meter, and excavated the basement floor. The building subsequently was boarded up. Those facts are relevant to the court’s finding regarding the existence and remediation of asbestos because there was no indication that the contractor dealt with 1he issue of asbestos as part of the interior demolition.

       The defendant’s appeal to the Superior Court concerned the properties located at 648 Main Street and 634-640 Main Street. The court consolidated the two actions. This appeal addresses only the property located at 634-640 Main Street.

       “Asbestos includes any of several fibrous minerals that commonly were used as insulation until it was discovered that the inhalation of asbestos fibers may cause a variety of lung diseases, including cancer.” Petco Insulation Co. v. Crystal, 231 Conn. 315, 317, 649 A.2d 790 (1994). It is commonly found in older buildings.

       The asbestos was removed between February and March, 2001. The building subsequently was demolished between May and June, 2001.

       There is no evidence in the record to support the court’s underlying inference that there was asbestos in the building. Apparently, all plumbing and heating improvements had been removed. See footnote 2.

       The following colloquy occurred at trial:
      “[Defendant’s Counsel]: The building was not going to be knocked down, and you were going to encapsulate it for a dollar per square foot, as opposed to abating it for $14 per square foot. Would that have any effect on your opinion as to the value of the building?
      “[Plaintiffs Counsel]: Objection. Lack of foundation. Both appraisers have testified the highest and best use is to demolish the building. The owner’s testified that his intent was to demolish the building.
      “The Court: . . . [A]ren’t you speculating at this point in time? There’s no evidence that anybody was going to wrap this building up in some kind of a form and not use it. There was only testimony of demolition or leave it alone. But I’ll sustain the objection.”

       The court rejected the evidence offered by both experts as to asbestos removal and remediation insofar as it did not reflect cost at the time of the taking. See Public Acts 2001, No. 01-75; Northeast Ct. Economic Alliance, Inc. v. ATC Partnership, 256 Conn. 813, 776 A.2d 1068 (2001).