author: FREEDMAN, J.

text:
    DYCK O’NEAL, INC. v. MARY BEKE WYNNE
    (AC 18927)
    O’Connell, C. X, and Hennessy and Freedman, Js.
    Argued September 15
    officially released December 21, 1999

      Philip W. Ball, for the appellant (defendant).

      David L. Gussak, for the appellee (substitute plaintiff).
   Opinion

FREEDMAN, J.

The defendant in this foreclosure action appeals from the judgment of the trial court, correcting an error in the name of the substitute plaintiff. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. On April 3, 1995, Manhattan Savings Bank obtained a judgment of strict foreclosure on certain property owned by the defendant, Mary Beke Wynne, in New Haven. Title to the property vested in Manhattan Savings Bank on May 11,1995. Manhattan Savings Bank subsequently filed a motion for deficiency judgment against the defendant. On July 3, 1996, Dyck O’Neal filed a motion to substitute itself as the plaintiff in the action. A hearing was held on April 25, 1997. At that time, the trial court granted the motion to substitute a party plaintiff and entered a deficiency judgment of $52,583.34 against the defendant. On April 9,1998, the substitute plaintiff filed a motion to reopen the judgment for the purpose of correcting the substitute plaintiffs name from Dyck O’Neal to Dyck O’Neal, Inc. The trial court granted the motion and the defendant filed the present appeal.

The defendant argues that the trial court had no jurisdiction to open the deficiency judgment that was entered on April 25, 1997. Specifically, the defendant claims that the motion was filed beyond the four month period allowed by General Statutes § 52-212a. We disagree and conclude that the trial court had the authority to correct the judgment to reflect the proper name of the substitute plaintiff.

“The law governing strict foreclosure lies at the crossroads between the equitable remedies provided by the judiciary and the statutory remedies provided by the legislature. . . . Because ‘foreclosure is peculiarly an equitable action . . . the court may entertain such questions as are necessary to be determined in order that complete justice may be done.’ Hartford Federal Savings & Loan Assn. v. Lenczyk, 153 Conn. 457, 463, 217 A.2d 694 (1966) . . . .” (Citations omitted.) New Milford Savings Bank v. Jajer, 244 Conn. 251, 256, 708 A.2d 1378 (1998).

Although captioned as a “motion to reopen,” it is clear that the motion at issue was actually a motion by the substitute plaintiff to correct its name. “In such situations we look to the substance of the claim rather than the form.” (Internal quotation marks omitted.) In re Brianna F., 50 Conn. App. 805, 812, 719 A.2d 478 (1998). Viewed in this light, we conclude that the trial court had the authority to correct the judgment to reflect the proper name of the substitute plaintiff.

General Statutes § 52-123 provides: “No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court.” This statute is remedial in nature and, therefore, must be “liberally construed in favor of those whom the legislature intended to benefit.” (Internal quotation marks omitted.) Andover Ltd. Partnership I v. Board of Tax Review, 232 Conn. 392, 396, 655 A.2d 759 (1995). The trial court in the present case properly concluded, on the basis of § 52-123, that it was permissible for the substitute plaintiff to correct its name from Dyck O’Neal individually to Dyck O’Neal, Inc.

In World Fire & Marine Ins. Co. v. Alliance Sandblasting Co., 105 Conn. 640, 642, 136 A. 681 (1927), the plaintiff was permitted to amend its complaint to change the name of the defendant from “ ‘The Alliance Sandblasting Company, a corporation of New York having an office and carrying on business in the City of Hartford,’ ” to “Julius Goodman doing business under the trade name of the Alliance Sandblasting Company.” The court in World Fire & Marine Ins. Co. stated that “[t]he identity of the defendant was originally and at all times the same in the mind of the plaintiff and the entity is one and the same whether it be a contractual entity (a partnership), an artificial entity (a corporation), or a personal entity (an individual); its name is the same and its liability is the same and enforceable by the same remedies. The plaintiffs mistake was not as to the entity itself—not as to the party sued, but in describing what kind of an entity the defendant was; it sued the proper party, but in so doing misdescribed that party, not in respect to name, but solely as to status, as being an artificial instead of a personal entity. . . . The change made by the amendment did not affect the identity of the party sought to be described, but merely made correct the description of the real party sued; it did not substitute or bring in a new party.” Id., 643. The court went on to state that “[t]he effect given to such a misdescription usually depends upon the question whether it is interpreted as merely a misnomer or defect in description, or whether it is deemed a substitution or entire change of party; in the former case an amendment will be allowed, in the latter it will not be allowed.” (Internal quotation marks omitted.) Id., 643-44.

Recent case law has further clarified what is meant by “circumstantial errors, mistakes or defects” as used in § 52-123. In Lussier v. Burns, 228 Conn. 343, 348-49, 636 A.2d 808 (1994), the court held that it was improper to dismiss an action in which the summons incorrectly named the defendant as the “State of Connecticut, Department of Transportation” rather than the commissioner of transportation. The court in Lussier stated that “[w]hen the correct party is designated in a way that may be inaccurate but which is still sufficient for identification purposes, the misdesignation is a misnomer. Such a misnomer does not prevent the exercise of subject matter jurisdiction if the defendant was actually served and knew he or she was the intended defendant. This is in contradistinction to the case in which the plaintiff has misconstrued the identity of the defendant and has therefore named and served the wrong party.” Id., 350; see also Andover Ltd. Partnership I v. Board of Tax Review, supra, 232 Conn. 397 (designation of defendant as board of tax review of town of West Hartford rather than town of West Hartford held to be defect falling within purview of § 52-123); Pack v. Burns, 212 Conn. 381, 386, 562 A.2d 24 (1989) (designation of defendant as state of Connecticut transportation commission rather than commissioner of transportation held to be defect falling within parameters of § 52-123); Motiejaitis v. Johnson, 117 Conn. 631, 636, 169 A. 606 (1933).

In the present case, the correction of the name of the substitute plaintiff from Dyck O’Neal to Dyck O’Neal, Inc., falls within the category of circumstantial errors that can be cured pursuant to § 52-123. The change did not affect the identity of the party sought to be described. Rather, it simply corrected the description in the name of the substitute plaintiff. We further note that although the designation of Dyck O’Neal was inaccurate, the defendant suffered no prejudice as a result of the error. The defendant was aware of every step of the proceedings, was represented by counsel and appeared and contested the matter at the deficiency judgment hearing. See Pack v. Burns, supra, 212 Conn. 386. The defendant does not contest the validity of the deficiency judgment; she bases her argument, rather, solely on the fact that there is no Dyck O’Neal to enforce the judgment. The defendant’s argument, however, would provide her with a windfall as a result of a misnomer. Such a result is contrary to the equitable nature of a foreclosure.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-212a provides in relevant part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. . . .”

       We further note that, according to our Supreme Court,, § 52-212a “operates as a constraint, not on the trial court’s jurisdictional authority, but on its substantive authority to adjudicate the merits of the case before it.” Kim v. Magnotta, 249 Conn. 94, 104, 733 A.2d 809 (1999).

       The text of the motion provides, in its entirety, as follows: “The Plaintiff in the above entitled action asks the Court to Reopen Judgment in connection with the above referenced for the sole purpose of correcting the Plaintiffs name. Certain Court documents show that, the Substituting Plaintiff is Dyck O’Neal. The correct company of the Plaintiff is Dyck O’Neal, Inc.”

       In fact, a review of the court file reveals that in addition to the motion to reopen judgment, there is a motion to correct judgment. The text of that motion provides, in its entirety, as follows: “The plaintiff in the above entitled action asks the Court to correct a typographical error in its judgment file. Certain Court documents show that the Substituting Plaintiff is Dyck O’Neal. The correct company of the Plaintiff is Dyck O’Neal, Inc.”
      The memorandum of law filed by the plaintiff was captioned “Plaintiffs Dyck O’Neal, Inc., Memorandum of Law in Support of its Motion to Open Judgment and Motion to Correct Judgment.”

       The trial court further cited General Statutes § 49-15, which permits a trial court to open a judgment of strict foreclosure “notwithstanding the limitation imposed by section 52-212a” as authority to grant the motion. We note, however, that § 49-15 further provides that “no such judgment shall be opened after the title has become absolute in any encumbrancer.” Inasmuch as the present motion was decided subsequent to the deficiency judgment proceedings rather than during the foreclosure proceedings, § 49-15 doesnot apply. See Federal Deposit Ins. Corp. v. Retirement Management Group, Inc., 31 Conn. App. 80, 86, 623 A.2d 517, cert. denied, 226 Conn. 908, 625 A.2d 1378 (1993).

       In so holding, we note the defendant’s argument that in the cases cited the actions of the court were made prior to final judgment, whereas in the present case the correction was made posljudgment. We further note, however, that § 52-123 provides that “[n]o writ, pleading, judgment or any kind of proceeding . . . shall be abated, suspended, set aside or reversed for any kind of circumstantial errors . . . .” (Emphasis added.)


source: Caselaw Access Project

author: VERTEFEUILLE, J.

license: Public Domain

text:
    IN RE SHYLIESH H.

    (AC 19433)
    Foti, Schaller and Vertefeuille, Js.

      Argued September 27
    officially released December 21, 1999

      Raymond J. Rigat, for the appellant (respondent father).

      Jane R. Rosenberg, assistant attorney general, with whom were Benjamin Zivyon, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

      Jed N. Schulman, for the minor child.

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

   Opinion

VERTEFEUILLE, J.

The respondent father appeals from the judgment of the trial court terminating his parental rights with respect to his minor daughter, Shyliesh H. On appeal, the respondent claims that the trial court improperly (1) found that he had failed to achieve sufficient personal rehabilitation within the meaning of General Statutes (Rev. to 1997) § 17a-112 (c) (3) (B), (2) found that termination of his parental lights was in the best interest of Shyliesh, (3) terminated his parental rights because § 17a-112 (c) (3) (B) is unconstitutionally vague on its face and as applied to the specific facts of this case and (4) terminated his parental rights because the termination violated his right to substantive due process under both the federal and state constitutions. We affirm the judgment of the trial court.

In a comprehensive memorandum of decision, dated February 26, 1999, the trial court found the following facts. Shyliesh was bom on July 31, 1996. Her parents, who never married, were not living together at the time of her birth. Shyliesh’s mother suffers from schizophrenia. Less than one week after Shyliesh’s birth, her mother had to be hospitalized at a mental health care facility. The department of children and families (department) invoked a ninety-six hour hold with respect to Shyliesh, then returned Shyliesh to the care of her mother and maternal grandmother approximately two weeks later, after the mother was discharged from the hospital.

When the mother resumed Shyliesh’s care, she did not hold or clothe the baby properly and permitted the baby to cry unattended for hours. The mother also neglected herself, missing outpatient treatment sessions and failing to cooperate with nurses who were to monitor her medications. In November, 1996, Shyliesh’s pediatrician became concerned about her failure to gain weight and notified the department of his concern. On January 2,1997, the department attempted a home visit to determine whether Shyliesh was being fed properly. The mother refused to give access to Shyliesh and acted irrationally. The mother again was admitted to the mental health care facility, and the department obtained an ex parte order for custody of Shyliesh.

The trial court, pursuant to General Statutes (Rev. to 1997) § 46b-129, set forth specific steps for both parents to take to facilitate Shyliesh’s return. On January 17, 1997, both parents and the maternal grandmother entered into a service agreement with the department. Both the agreement and the specific steps required the respondent to cooperate with a psychological evaluation, to maintain reasonable visitation, to avoid further involvement with the criminal justice system and to attend parenting classes. On January 24, 1997, the trial court confirmed the order of temporary custody and transferred custody of Shyliesh to her maternal grandmother subject to the department’s protective supervision. The trial court also confirmed that Shyliesh was to spend alternate weekends with the respondent, who offered himself as a placement resource for Shyliesh. Despite making this offer, the respondent was inconsistent in his visitation. He also failed to attend the parenting classes and a psychological evaluation. The respondent did not acquire a crib for the baby and did not demonstrate any understanding of the mother’s psychiatric condition or needs.

Because of continuing concerns about Shyliesh’s suboptimal weight, she was referred to a pediatric gastroenterologist. The mother and maternal grandmother missed four of the eight scheduled appointments. The respondent did not participate in the appointments. Shyliesh was diagnosed with nonorganic “failure to thrive,” a condition of low body weight due to madequate care and insufficient calorie intake that can have an adverse affect on brain development.

On May 30, 1997, the department invoked its third ninety-six hour hold and Shyliesh was admitted to a hospital for the insertion of a nasogastric tube to facilitate feeding. The department once again obtained an ex parte order for temporary custody of the child. In mid-June, Shyliesh was placed in the home of a foster parent licensed to provide foster care for a medically fragile child. Shyliesh’s condition began to improve; she gained weight at a normal rate and the nasogastric tube was removed. Shyliesh became comfortable in her new home and, by early 1998, she was no longer considered medically fragile.

When Shyliesh entered foster care, the department established weekly visitation for both parents. The respondent frequently missed his scheduled visitation in the latter half of 1997. His visitation increased in 1998, but the department was concerned that Shyliesh did not smile or seem responsive during the visits. Shyliesh also occasionally threw temper tantrums prior to the visits.

In March, 1998, and again in November, 1998, Shyliesh was evaluated by lisa Namerow, a board certified child psychiatrist. Namerow diagnosed Shyliesh as having reactive attachment disorder, a limitation in a child’s ability to attach to and interact with the adults around her. The disorder results from disturbed caretaking. Namerow found that when Shyliesh was in the presence of adults other than her foster mother, she showed a flat affect or “frozen watchfulness,” quietly watching what was transpiring around her without engagement or movement. In November, Namerow observed Shyliesh in the presence of her foster mother and found that Shyliesh’s behavior, language and motor activity were much more expansive when she was in her foster mother’s presence. Shyliesh’s behavior changed dramatically, however, when her foster mother left the room. Namerow concluded that Shyliesh had formed an attachment to her foster mother. Namerow also determined that Shyliesh was genetically at risk for the development of schizophrenia.

After six days of trial, the trial court granted the coterminous petitions for neglect and termination of parental rights filed by the commissioner of children and families (commissioner). This appeal from the termination of the respondent’s parental rights followed. The trial court also denied the paternal grandmother’s request for a transfer of guardianship.

I

The respondent first claims that the trial court’s finding that he failed to achieve the degree of personal rehabilitation required under § 17a-112 (c) (3) (B) was clearly erroneous. We disagree.

“On appeal, we review a trial court’s finding that a parent has failed to rehabilitate herself in accordance with the rules that apply generally to a trier’s finding of fact. We will overturn such a finding of fact only if it is clearly erroneous in light of the evidence in the whole record. . . . [G]reat weight is given to the judgment of the trial court because of [the court’s] opportunity to observe the parties and the evidence. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. . . . [0]n review by this court every reasonable presumption is made in favor of the trial court’s ruling.” (Citations omitted; internal quotation marks omitted.) In re Eden F., 250 Conn. 674, 705-706, 741 A.2d 873 (1999).

“Personal rehabilitation as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as a parent. . . . [Section 17a-112] requires the trial court to analyze the [parent’s] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time. ” (Internal quotation marks omitted.) In re Marvin M., 48 Conn. App. 563, 578, 711 A.2d 756, cert. denied, 245 Conn. 916, 719 A.2d 900 (1998). The statute requires the court to find by clear and convincing evidence that the parent’s level of rehabilitation is less than that which would encourage a belief that he or she can assume a responsible position in the child’s life within a reasonable time. See In re Juvenile Appeal (84-3), 1 Conn. App. 463, 477, 473 A.2d 795, cert. denied, 193 Conn. 802, 474 A.2d 1259 (1984).

In this case, there was ample evidence to support the trial court’s finding that the respondent failed to achieve rehabilitation. There was clear evidence that the respondent failed to comply with his service agreement with the commissioner and with the specific steps entered by the court in January, 1997. He failed to attend psychological evaluations scheduled for him in May and August, 1997. Only in June, 1998, after the commissioner filed the petition for termination, did the respondent undergo the evaluation. Robert Meier, however, the psychologist who performed the evaluation, questioned the respondent’s reliability in responding to test materials. Also, Meier testified at trial that the respondent failed to disclose fully the extent of his criminal record.

The respondent also failed to comply with the requirement that he take parenting classes. He failed to take the classes during 1997 and enrolled in 1998 only after the commissioner filed the petition to terminate his parental rights. Also, the respondent failed to tell his instructor that Shyliesh had special needs and testified that he saw no point to the classes. A social worker from the department testified that the respondent’s parental skills actually deteriorated after he completed the parenting course.

The respondent did not comply with the weekly visitation requirement and visited only seven times between June and December, 1997. Although the respondent increased his visitation in 1998, he actually visited with Shyliesh for only 60 percent of the scheduled visits and many times brought her home one day early because he had no crib for her.

The respondent also failed to avoid further involvement with the criminal justice system as required by the service agreement. He was arrested twice in 1997 after the department took custody of Shyliesh, once for driving under suspension and once for failure to appear in court. The respondent was incarcerated in July and October, causing him to miss visitation with Shyliesh. Furthermore, the respondent admitted at trial that he continued using drugs until the commissioner filed the termination petition.

The respondent’s failure to achieve personal rehabilitation was also illustrated by his lack of understanding of Shyliesh’s medical and psychiatric condition. Although the respondent testified that he loved Shyliesh, the trial court found that he lacked the insight and responsibility to cope with her significant psychiatric disorder. The respondent testified at trial that he was unaware of Shyliesh’s special needs, including her developmental delays. At trial, he could not name any of her pediatricians, past or present. The respondent was unaware of Shyliesh’s high risk of schizophrenia until trial and even then he did not have questions about her prognosis.

The respondent relied on a written report prepared by Meier in June, 1998, as evidence of his rehabilitation. Despite concerns about the respondent’s lack of motivation and unwillingness to assume responsibility, Meier recommended in June, 1998, that the respondent be given a three month trial period during which he could have additional interaction with Shyliesh. At the time of trial, over six months later, however, Meier recommended that no additional time be permitted for the respondent’s rehabilitation. The respondent’s reliance on the superseded June report, therefore, is misplaced.

The respondent also argues that the trial court’s finding that he failed to achieve rehabilitation within the meaning of § 17a-112 (c) (3) (B) was clearly erroneous because his mother could have been a placement resource for Shyliesh and could have supported his efforts to maintain a relationship with her. We do not agree.

The respondent’s mother first saw Shyliesh about one month after her birth and, thereafter, she had contact with Shyliesh on weekends when the respondent had Shyliesh at the home he shared with his mother. After Shyliesh went into foster care, however, the respondent’s mother had very little contact with Shyliesh, seeing her only twice in 1997 and three times in 1998. Moreover, she testified that she was unfamiliar with Shyliesh’s developmental delays and special emotional and psychological needs. By failing to appeal from the court’s denial of her request for guardianship of Shyliesh, the respondent’s mother has relinquished any claim with respect to the child.

The trial court found that there was clear and convincing evidence of the respondent’s failure to achieve t he degree of personal rehabilitation required by § 17a-112 (c) (3) (B). Upon review of the facts, we conclude that the trial court’s finding was not clearly erroneous.

II

The respondent next claims that the trial court’s finding that termination of his parental rights was in the best interest of the child was clearly erroneous. We are not persuaded.

Section 17a-l 12 (c) requires that to terminate parental rights, the trial court must find by clear and convincing evidence that termination is in the best interest of the child. In this case, the trial court found that termination was in Shyliesh’s best interest, in part on the basis of testimony concerning Shyliesh’s special needs.

Namerow testified that Shyliesh is a severely impaired child whose prognosis for overcoming her attachment disorder is guarded. Namerow emphasized the significance of Shyliesh’s attachment to her foster mother and opined that once a child with an attachment disorder forms an attachment, it should not be disturbed. Further, Namerow testified that the fact that a child has formed one attachment does not mean that she will be able to attach to another person. Namerow strongly recommended that Shyliesh remain permanently with her foster mother, who wants to adopt her, because Shyliesh’s attachment to her foster mother is key to her psychological well-being. She farther testified that Shyliesh’s genetic predisposition to schizophrenia might be triggered by a transition of caretakers.

Meier, the court-appointed psychologist, also concurred at trial that Shyliesh’s current home should be made her permanent home. Meier further testified that it would not be in Shyliesh’s best interest to allow any further time to explore placement with the respondent.

Psychological testimony from professionals is appropriately accorded great weight in termination proceedings. In re Kezia M., 33 Conn. App. 12, 22, 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993). Our thorough review of the trial court record indicates that the trial corut correctly concluded that the department had established by clear and convincing evidence that it was in Shyliesh’s best interest that the respondent’s parental rights be terminated.

Ill

The respondent next claims that the trial court improperly terminated his parental rights because the statutory requirement that he achieve rehabilitation pursuant to § 17a-112 (c) (3) (B) is unconstitutionally vague on its face and as applied to the facts of this case. We disagree.

The respondent’s brief gives only cursory attention to the vagueness doctrine as applied to the facts of this case. We therefore deem this claim abandoned. See State v. Dumas, 54 Conn. App. 780, 794, 739 A.2d 1251, cert. denied, 252 Conn. 903, 743 A.2d 616 (1999). Our analysis consequently will be limited to whether the statute is unconstitutionally vague on its face.

The respondent admits that he did not raise the vagueness claim in the trial court, but he seeks review of the issue under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Our Supreme Court held in Golding that a party can prevail on an issue not preserved at trial only if all of the following four conditions are met: (1) the record is adequate to review the claim; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the appellant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. Id. If any one of these conditions is not met, the appellant cannot prevail. Id. “The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review.” (Internal quotation marks omitted.) State v. Manfredi, 17 Conn. App. 602, 621, 555 A.2d 436 (1989), aff'd, 213 Conn. 500, 569 A.2d 506, cert. denied, 498 U.S. 818, 111 S. Ct. 62, 112 L. Ed. 2d 37 (1990). Golding applies to civil as well as criminal cases. See Hurtado v. Hurtado, 14 Conn. App. 296, 300, 541 A.2d 873 (1988).

In this case, the first two prongs of Golding are satisfied. First, the record is adequate to review the respondent’s claim. Second, a claim concerning the termination of a respondent’s parental rights is of constitutional magnitude in that “[t]he right to the integrity of the family is among the most fundamental rights guaranteed by the fourteenth amendment.” State v. Anonymous, 179 Conn. 155, 162, 425 A.2d 939 (1979). The respondent has failed, however, to meet the third requirement of Golding that a constitutional violation clearly exists and clearly deprived him of a fair trial.

Legislative enactments carry with them a strong presumption of constitutionality, and a party challenging the constitutionality of a validly enacted statute bears the weighty burden of proving unconstitutionality beyond a reasonable doubt. State v. Angel C., 245 Conn. 93, 102, 715 A.2d 652 (1998). In analyzing the constitutionality of a statute, the court will “read the statute narrowly in order to save its constitutionality, rather than broadly in order to destroy it.” State v. Indrisano, 228 Conn. 795, 805, 640 A.2d 986 (1994).

“The void for vagueness doctrine is a procedural due process concept that originally was derived from the guarantees of due process contained in the fifth and fourteenth amendments to the United States constitution.” Packer v. Board of Education, 246 Conn. 89, 98, 717 A.2d 117 (1998). The doctrine is based on two legal principles. The first requires “fair warning ... in language that the common world will understand, of what the law intends to do if a certain line is passed.” (Internal quotation marks omitted.) Id., 99. The second principle requires that statutes establish explicit minimum standards to govern their enforcement. Id., 100.

Section 17a-112 (c) (3) (B) provides the trial court with the authority to terminate a parent’s parental rights when the parent “has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .” The respondent’s attack on the statute focuses on the use of the personal rehabilitation standard, claiming that it is susceptible to “multifarious interpretations.” This argument ignores the explicit statutory requirement that a parent be given “specific steps” to accomplish to facilitate the return of the child. General Statutes § 46b-129 (b). General Statutes (Rev. to 1997) § 17a-112 (c) (3) (B) requires that the “child . . . has been found by the Superior Court to have been neglected or uncared for in a prior proceeding . . . .’’In the prior neglect proceeding conducted pursuant to § 46b-129, where the court places the child in the custody of a suitable agency or person, “the court shall provide to the commissioner and the parent of the child . . . specific steps which the parent may take to facilitate the return of the child ... to the custody of such parent. . . .” General Statutes (Rev. to 1997) § 46b-129 (b). Personal rehabilitation, therefore, is to be determined, in part, by compliance with those specific steps, which give the parent fair warning of what is required. Moreover, the necessary degree of personal rehabilitation must be determined with reference to “the age and needs of the child . . . .” General Statutes (Rev. to 1997) § 17a-112 (c) (3) (B). This provision establishes explicit standards for the enforcement of the statute.

In analyzing the constitutionality of a statute, we must also take into account any interpretations of the statute by our Supreme Court and this court. See State v. Indrisano, supra, 228 Conn. 805. In In re Eden F., supra, 250 Conn. 706, our Supreme Court recently inteipreted § 17a-112 (c) (3) (B), explaining that “[p]ersonal rehabilitation as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as a parent. . . . [Section 17a-112] requires the trial court to analyze the [parent’s] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time. . . . Rehabilitate means to restore [a handicapped or delinquent person] to a useful and constructive place in society through social rehabilitation. . . . The statute does not require [a parent] to prove precisely when she will be able to assume a responsible position in her child’s life. Nor does it require her to prove that she will be able to assume full responsibility for her child, unaided by available support systems. It requires the court to find, by clear and convincing evidence, that the level of rehabilitation she has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date she can assume a responsible position in her child’s life.” (Citation omitted; internal quotation marks omitted.) This court recently explained that “in 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.” In re Danuael D., 51 Conn. App. 829, 840, 724 A.2d 546 (1999).

We conclude that § 17a-112 (c) (3) (B) is not void for vagueness. The statute as written and as interpreted by the Supreme Court and this court provides fair warning of the conduct necessary for personal rehabilitation and further provides minimum guidelines for enforcement of the statute. The respondent has failed to meet the third requirement of Golding that a clear constitutional violation exists and his claim must, therefore, fail.

IV

The respondent’s final claim is that the termination of his parental rights violates his right to substantive due process under both the federal and state constitutions because the department failed to demonstrate a compelling state interest in terminating his rights. We decline to address this claim.

The respondent purports to brief these two constitutional claims in two and one-half pages of his brief. “We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) Merchant v. State Ethics Commission, 53 Conn. App. 808, 818, 733 A.2d 287 (1999). Where a claim receives only cursory attention in the brief without substantive discussion, it is deemed to be abandoned. Id. The respondent’s brief with respect to this final claim is inadequate and is deemed abandoned.

The judgment is affirmed.

In this opinion the other judges concurred.

       The respondent mother has not appealed from the trial court’s judgment terminating her parental rights. We refer in this opinion to the respondent father as the respondent.

       General Statutes (Rev. to 1997) § 17a-112 provides in relevant part: “(c) The Superior Court, upon hearing and notice as provided in sections 45a-716 and 45a-717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence ... (3) that . . . (B) the parent of a child who has been found by the Superior Court to have been neglected or uncared for in a prior proceeding has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .”

       General Statutes (Rev. to 1997) § 17a-112 was amended effective July 1, 1998, to include the “specific steps” language in subsection (c) (3) (B) (2). Public Acts 1998, No. 98-241, § 8. General Statutes § 17a-112 (c) (3) (B) (2) now provides that in a proceeding to terminate parental rights on the ground that the parent has failed to achieve sufficient personal rehabilitation, “such parent [must have] been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 . . . .”


author: O’CONNELL, C. J.

text:
    STATE OF CONNECTICUT v. FELIX RIVERA
    (AC 17628)
    O’Connell, C. J., and Schaller and Dupont, Js.
    Argued September 24
    officially released December 21, 1999

      Alice M. Sexton, special public defender, for the appellant (defendant).

      Christopher T. Godialis, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Rachel M. Baird, assistant state’s attorney, for the appellee (state).
   Opinion

O’CONNELL, C. J.

The defendant, Felix Rivera, appeals from the judgment of conviction, rendered after a jury trial, of possession of a narcotic substance in violation of General Statutes § 21a-279 (a), possession of a narcotic substance within 1500 feet of a public school and a public housing project in violation of General Statutes § 2 la-279 (d), possession of a narcotic substance with intent to sell in violation of General Statutes § 21a-277 (a), possession of a narcotic substance with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), and possession of a narcotic substance with intent to sell within 1500 feet of a public school and a public housing project in violation of General Statutes § 21a-278a (b). The defendant claims that the trial court improperly (1) denied his motion to suppress narcotics evidence, (2) ruled on evidentiary matters and (3) sentenced him on the first three counts of the amended information. We affirm the judgment of the trial court in part and reverse it in part.

The following facts and procedural history are necessary to a resolution of this appeal. On February 10,1996, at approximately 10:45 a.m., Officer Mark Castagna of the Hartford police department observed three individuals, including the defendant, in an area known for street level drug activity. He observed a male hand currency to a female, and he then witnessed the defendant hand a small object to the male. Believing that a drug transaction had occurred, Castagna ordered the three individuals to stop and to place their hands on an adjacent vehicle. The defendant fled, and, during the ensuing brief foot chase, another Hartford police officer, Matthew Rooney, observed the defendant drop a black film canister. After the defendant was apprehended, Rooney found the black film canister, which contained eighteen small envelopes with a heroin-cocaine mix, near the defendant. The defendant’s pretrial motion to suppress the narcotics evidence was denied.

I

The defendant claims first that Castagna’s order to the defendant, commanding him to place his hands on an adjacent vehicle, constituted an illegal seizure under the state and federal constitutions, and that the fruits of that seizure, including the narcotics found in the film canister should, therefore, not have been admitted into evidence at trial. The defendant claims further that the trial court improperly considered the flight by the defendant in determining that Castagna’s order was proper. We disagree.

The state does not dispute that Castagna seized the defendant when he ordered him to place his hands on an adjacent vehicle. Accordingly, we will assume, without deciding, that a seizure did occur at that point. We must, therefore, determine whether that seizure was permissible under the fourth amendment to the United States constitution, and article first, § 7, of the constitution of Connecticut.

“Under both the federal and state constitutions, police may detain an individual for investigative purposes if there is a reasonable and articulable suspicion that the individual is engaged in or about to engage in criminal activity.” State v. Groomes, 232 Conn. 455, 467-68, 656 A.2d 646 (1995). A court reviewing the legality of a stop must examine the specific information available to the police officer at the time of the detention and any rational inferences that may be drawn therefrom. State v. Oquendo, 223 Conn. 635, 654, 613 A.2d 1300 (1992). “The determination of whether a reasonable and articulable suspicion exists involves a two-part analysis: (1) whether the underlying factual findings of the trial court are clearly erroneous; and (2) whether the conclusion that those facts gave rise to such a suspicion is legally correct. . . . The trial court’s conclusions must stand unless they are legally and logically inconsistent with the facts.” (Citation omitted; internal quotation marks omitted.) State v. Kyles, 221 Conn. 643, 660, 607 A.2d 355 (1992).

The defendant maintains that the trial court impermissibly considered postseizure facts in reaching its conclusion that the seizure was proper. This is not the case. In deciding whether Castagna had a reasonable and articulable suspicion sufficient to justify ordering the defendant to place his hands on an adjacent vehicle, the trial court relied only on the information available to Castagna before he attempted to stop the defendant. The trial court’s oral ruling denying the defendant’s motion to suppress, and its articulation of that ruling, both clearly indicate that the trial court did not consider the flight of the defendant in determining that Castagna had a reasonable and articulable suspicion that the defendant was engaged in criminal activity when he seized the defendant.

We are further persuaded, after considering all of the information available to Castagna at the time of the seizure, that the trial court’s ruling was proper. We conclude, therefore, that the trial court properly denied the defendant’s motion to suppress.

II

In his second claim, the defendant argues that the trial court improperly ruled on evidentiary matters.

A

The defendant contends that the trial court impermissibly ruled that his objection to the portion of Castagna’s testimony stating his opinion that the narcotics were packaged for sale was untimely.

Castagna testified on the basis of his training and experience that the narcotics were packaged for sale rather than personal use. The record reveals that the defendant interposed a late objection to this answer, that the trial court did not rule on the objection, that the defendant never moved to strike the answer, that he did not request that cautionary instructions be given to the jury, and that he did not move for a mistrial regarding this testimony. This claim is therefore unpreserved.

This unpreserved claim is evidentiary rather than constitutional and, therefore, is not reviewable except for plain error. State v. Walton, 227 Conn. 32, 61, 630 A.2d 990 (1993); see State v. Stephens, 249 Conn. 288, 291, 734 A.2d 533 (1999); see also Practice Book § 60-5. “[RJeview under the plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Stephens, supra, 291. This claim of error does not meet that standard. Accordingly, we affirm the trial court with respect to this issue.

B

The defendant also contends that the trial court violated his right to present a defense and to compulsory process by disallowing as irrelevant the testimony of Stacey Beckstein, an employee of the Hartford Superior Court clerk’s office. We disagree.

The defendant proffered that Beckstein’s testimony about the defendant’s criminal record would reveal that the Hartford police department had tar geted the defendant because a previous drug related charge was nolled the day before the arrest at issue in this case, and that her testimony would establish bias and motive to fabricate evidence. The trial court sustained the state’s objection to this testimony, ruling that it was not relevant as to whether the defendant committed the acts charged.

“The trial court has broad discretion in ruling on the admissibility of evidence. . . . The determination of the relevancy and remoteness of evidence is within the sound discretion of the trial court.” (Citations omitted; internal quotation marks omitted.) State v. Miller, 202 Conn. 463, 482, 522 A.2d 249 (1987). “The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion.” State v. Avis, 209 Conn. 290, 298, 551 A.2d 26 (1988), cert. denied, 489 U.S. 1097, 109 S. Ct. 1570, 103 L. Ed. 2d 937 (1989). The defendant did not present evidence that Beckstein knew Castagna or Rooney, or that she had knowledge that either police officer had an improper motive to arrest the defendant. The trial court, therefore, could reasonably conclude that Beckstein’s testimony about the defendant’s criminal record would not establish bias and a motive to fabricate evidence, and that it was irrelevant because there was no connection between Beckstein and Castagna and Rooney. Accordingly, we are not persuaded that the trial court clearly abused its discretion in ruling as it did.

C

The defendant also contends that the trial court impermissibly allowed certain testimony by Joseph McSweegan, a supervisor in the Hartford police department records center. The defendant asserts that McSweegan’s testimony regarding why narcotics evidence from an unrelated drug case was destroyed was hearsay, irrelevant and speculative. We disagree.

The defendant established on direct examination that narcotics evidence from the defendant’s nolled drug charge was destroyed. The state then sought to elicit, on cross-examination, testimony as to why drug evidence in the nolled case may have been destroyed. The defendant objected, asserting that the state should not be allowed to cross-examine McSweegan, or to present evidence through his testimony, regarding why narcotics evidence was destroyed in the nolled case or in other cases wholly unrelated to either the present case or the nolled case.

The testimony and the materials that the state introduced during McSweegan’s cross-examination, however, were properly admitted because they were responsive to McSweegan’s direct testimony. The defendant introduced the issue of destruction of evidence through his direct examination of McSweegan, and to respond to this testimony the state properly was allowed to clarify his testimony through materials admitted under the business records exception to the hearsay rule. Accordingly, the trial court properly allowed McSweegan’s testimony.

Ill

In his final claim, the defendant contends that the trial court sentenced him on counts one, two and three of the amended information in violation of the defendant’s protection against double jeopardy. The trial court imposed sentences of unconditional discharge on counts one, two and three, and sentenced the defendant to fifteen years, suspended after five years, and five years probation on count four and three years consecutive on count five. The defendant asserts, and the state agrees, that because the defendant’s conviction of possession in count one and possession with intent to sell in count three merge with his conviction of possession with intent to sell by a person who is not drug-dependent in count four, and because his conviction of possession within 1500 feet of a school and housing project in count two merges with his conviction of possession with intent to sell within 1500 feet of a school and housing project in count five, it was improper for the trial court to sentence the defendant on the merged offenses. The defendant and the state both request that the sentences with respect to counts one, two and three be vacated and that the case be remanded for resentencing. Although we agree that the sentences must be vacated, no resentencing is required.

The effect of the trial court’s sentencing the defendant to unconditional discharge on the lesser offenses is that the defendant has five convictions. The effect of combining the convictions of the lesser offenses with those of the greater offenses is that the defendant will have only two convictions. See State v. Chicano, 216 Conn. 699, 722-25, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991). The collateral consequences of multiple convictions is sufficient to warrant combining the defendant’s convictions and vacating the sentences of unconditional discharge on the first three counts.

The judgment is reversed in part and the case is remanded with direction to combine the defendant’s convictions on counts one and three with his conviction on count four and to combine his conviction on count two with his conviction on count five and to vacate the sentences on counts one, two and three. The defendant’s consecutive sentences on counts four and five remain the effective term of imprisonment.

In this opinion the other judges concurred.

       The trial court, in its oral ruling on the motion to suppress, stated in relevant part: “[B]ased upon the articulated testimony of [Castagna] and taking into consideration [his] training, background and e^eiience . . . [and] that this was a known drug dealing area . . . [and Castagna’s] testimony of what he personally observed ... I find that [Castagna] did have reason to suspect that a drug deal had just taken place .... And he had reason to stop and question the parties he suspected of being involved in illegal drug activity. And for those reasons I’m going to deny your motion to suppress.”

       The trial court, in its articulation, stated in relevant part that it “did not take the defendant’s flight into consideration for the purpose of determining whether Officer Castagna had a reasonable and articulable suspicion that the defendant was involved in illegal drug activity, to justify his attempt to make the initial stop to question the defendant.”

       Unpreserved claims of a constitutional nature may also be reviewed under the doctrine enunciated in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), where our Supreme Court held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if . . . the claim is of constitutional magnitude alleging the violation of a fundamental right . . . Id. Because this claim is not constitutional in nature, it may not be reviewed under the Golding doctrine.

       Although we hold that the trial court properly excluded Beckstein’s testimony, we note that the defendant would not have prevailed on this claim even if we ruled that the trial court had improperly excluded her testimony because any impropriety would have been harmless. The exclusion of evidence on a matter that is established otherwise is not ground for reversal. Lupoli v. Lupoli, 38 Conn. App. 639, 642, 662 A.2d 809 (1995). Because the jury heard testimony regarding the defendant’s criminal record and his history of arrests through the defendant’s cross-examination of Castagna, any error would have been harmless.

       General Statutes § 21a-278a (b) provides that the punishment imposed for a violation of this statute “shall be in addition and consecutive to any term of imprisonment imposed for violation of section 21a-277 or 21a-278. . . .”

       General Statutes § 53a-34 (b) provides in relevant part: “A sentence of unconditional discharge is for all purposes a final judgment of conviction.”


author: DALY, J.

text:
    STATE OF CONNECTICUT v. PAUL F. MILLER
    (AC 17160)
    O’Connell, C. J., and Foti and Daly, Js.
    Argued September 20
    officially released December 21, 1999

      William F. Gallagher, with whom, on the brief, were Thomas J. Airone and H. Jeffrey Beck, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Jonathan Benedict, state’s attorney, and Robert M. Brennan, assistant state’s attorney, for the appellee (state).
   Opinion

DALY, J.

This case is back before this court after State v. Miller, 34 Conn. App. 250, 641 A.2d 400, cert. denied, 230 Conn. 902, 644 A.2d 916 (1994), reversed the conviction of the defendant, Paul F. Miller, and was remanded for a new trial. The defendant appeals from the judgment of conviction, rendered after a jury trial, of larceny in the second degree in violation of General Statutes § 53a-123 (a) (2) and engaging in the real estate business without a license in violation of General Statutes (Rev. to 1989) § 20-325. The defendant claims that the trial court improperly (1) admitted prior testimony of three witnesses who were unavailable to testify, (2) denied a posttrial motion to impeach the verdict and to examine the jury for possible misconduct and (3) sentenced the defendant on the basis of a stale and erroneous presentence investigation report. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant represented to potential home buyers that he was a licensed real estate broker and that he owned several properties he could rent or sell to them at low cost. The defendant, however, was not so licensed nor did he own the properties. These misrepresentations resulted in the defendant’s wrongfully receiving money from three potential buyers for rent, mortgage application fees or down payments. The defendant had placed in the Bridgeport Post an advertisement that read, “House for Sale, No Money Down.” Subsequently, he met with the potential buyers and made offers to rent, to rent with an option to buy or to sell them properties in the Bridgeport area. During those meetings, the defendant falsely stated that he was either a real estate broker, real estate agent or mortgage broker. The defendant also did not have any legal interest in the properties and never obtained permission from their owners to negotiate their transfers. Nevertheless, the defendant entered the premises, showed the properties to the potential buyers and, in one case, made renovations to the property. He also negotiated various contracts with the three buyers, including a rental agreement and purchase contracts. These negotiations led to the defendant’s receipt of checks representing rent, mortgage application fees or down payments.

I

The defendant claims first that the trial court improperly admitted the prior testimony of three witnesses, Attorney Richard Holmes, Mark Anthony Potter and Alfred J. Bianco, without an adequate showing that they were unavailable to testify in court. “ ‘[T]he trial court has broad discretion in determining whether the proponent has shown a declarant to be unavailable. A trial court’s determination of the unavailability of a witness will be overturned only if there has been a clear abuse of discretion.’ State v. Lapointe, 237 Conn. 694, 738, 678 A.2d 942, cert. denied, 519 U.S. 994, 117 S. Ct. 484, 136 L. Ed. 2d 378 (1996); accord State v. Rivera, 221 Conn. 58, 62, 602 A.2d 571 (1992).” State v. Schiappa, 248 Conn. 132, 141, 728 A.2d 466, cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999).

“Prior testimony of an unavailable witness is admissible in a subsequent trial as long as it satisfies a two part test. . . . First . . . [t]he prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant. . . . [Second] [e]ven after the declarant is satisfactorily shown to be unavailable, his statement is admissible only if it bears adequate indicia of reliability . . . which serve to afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement.” (Citation omitted; internal quotation marks omitted.) State v. Pugh, 45 Conn. App. 261, 268, 696 A.2d 354, cert. denied, 242 Conn. 910, 697 A.2d 368 (1997).

A

“[T]he question of whether an effort to locate a missing witness has been sufficiently diligent to declare that person unavailable is one that is inherently fact specific and always vulnerable to criticism, due to the fact that one, in hindsight, may always think of other things.” (Internal quotation marks omitted.) Id., 269.

Evidence was presented demonstrating that Michael O’Connor, an investigator for the state’s attorney’s office, had searched for each of the three witnesses. When called to testify as to unavailability, O’Connor testified that he checked Holmes’ address with the department of motor vehicles and, approximately two weeks prior to trial, went to Holmes’ last known address, Lamplighter Lane, Fairfield, with a subpoena. Holmes was not present, but his estranged wife indicated that he had moved to Vermont. O’Connor testified further that Holmes was not listed as an attorney licensed to practice law in Connecticut. As to Potter’s unavailability, O’Connor testified that after determining that Potter had no listing with the department of motor vehicles, he went to Potter’s last known address, South Beach Avenue, Old Greenwich. O’Connor indicated that Potter was not there, but a neighbor across the hall volunteered that Potter had moved to either Washington, D.C., or the state of Washington. O’Connor further testified that the department of motor vehicles records indicated that Bianco’s license had expired. Thereafter, O’Connor went to Bianco’s last listed address, Selensky Drive, Stratford, where the present occupant indicated that the Biancos had divorced and that Bianco had left the state two and one-half years before and might be living in Las Vegas, Nevada.

The established rule is that “[a] proponent’s burden is to demonstrate a diligent and reasonable effort, not to do everything conceivable, to secure the witness’ presence. See United States v. Potamitis, 739 F.2d 784, 789 (2d Cir.), cert. denied, 469 U.S. 918, 105 S. Ct. 297, 83 L. Ed. 2d 232 (1984).” State v. Lopez, 239 Conn. 56, 77-78, 681 A.2d 950 (1996). On the basis of the foregoing, we conclude that the unavailability of the witnesses was satisfactorily proved. We next consider whether the witnesses’ statements bear an adequate indicia of reliability so as to allow their admission.

B

“[Our Supreme Court] and the United States Supreme Court have declared that prior testimony of an unavailable witness is admissible in a subsequent trial as an exception to the hearsay rule. ... As long as the trial court finds the requisite ‘indicia of reliability’ in the former testimony, such as the opportunity to cross-examine the declarant fully, the testimony is admissible.” (Citations omitted.) State v. Torres, 210 Conn. 631, 645-46, 556 A.2d 1013 (1989); see State v. Lapointe, supra, 237 Conn. 737-38 (statement of unavailable declarant that bears adequate indicia of reliability serves to afford trier of fact satisfactory basis for evaluating truth of prior statement).

Here, the state called Andrea Mazur, a court reporter, to testify that the transcripts being offered were in fact the recorded transcripts of the prior proceeding. After hearing Mazur’s testimony as well as defense counsel’s objection regarding the reliability of the proffered testimony and that the transcripts were not original transcripts, the following colloquy ensued:

“The Court: All right. Well, can we agree that these are transcripts from a prior trial in this matter?
“[Defense Counsel]: I don’t think—yeah, I don’t think there’s any doubt of that.
“The Court: All right. And can we agree that the witnesses were administered oaths? . . .
“[Defense Counsel]: If—if that’s the document [then it] speaks for itself. I’m not going to question that.
“The Court: All right. Can we agree that each witness was subject to cross-examination, if not actually cross-examined?
“[Defense Counsel]: Yes.
“[Assistant State’s Attorney]: Yes.
“The Court: All right. And can we believe that these are accurate reproductions of the words spoken?
“[Assistant State’s Attorney]: The state believes so.
“[Defense Counsel]: Based on the court reporter’s testimony, I don’t have any reason to doubt it.
Hi Hí ❖
“The Court: I’m going to make a finding that these transcripts are, in fact, reliable. I’m also going to overrule the defendant’s objection that because these are not original transcripts that they’re not admissible for the reason that the original transcripts, as the witness has testified, would have been sent to the ordering party. It’s a different office. And the witness did review the transcripts, and they appeared to be the [witness’] complete copy of the originals, so I don’t think there’s any question that these are, in fact, reliable.”

It is clear from the foregoing that the trial court found the requisite indicia of reliability necessary to admit the prior testimony of the unavailable witnesses. Moreover, on the basis of our review of the record, we conclude that even if the trial court improperly admitted these documents, their admission was harmless, as the testimony of Holmes and Potter was merely cumulative, while Bianco’s testimony was favorable to the defendant.

II

The defendant claims next that the trial court improperly denied his motion to impeach the verdict because of juror misconduct in that the jurors deliberated when they were not supposed to do so in contravention of the court’s instructions. We disagree.

The following facts will be helpful to our disposition of this issue. On December 14, 1995, the trial court charged the jury, and, at approximately 11:30 a.m., the jury began deliberating. During the trial, the court, on numerous occasions, gave the jurors, inter alia, a standard admonition not to discuss the case with anyone until allowed to do so by the court. At about 12:10 p.m., the jury sent anote that asked: “We are questioning hens on [Augustine Ofili’s] property. Are they still standing?” Due to a playback problem with the courtroom tape recording device, the court told the jury that it would have a readback of testimony at 2 p.m., asked the jurors not to discuss the case among themselves until instructed to do so and excused them for lunch at 1 p.m. The playback problem persisted from 2 p.m. to 3 p.m., when the jury was called out, informed of the situation and given the option of waiting for five to ten minutes or returning the following day to resume deliberations.* * The jurors returned to the jury room to discuss this matter, and a few minutes later at 3:04 p.m. sent out a note stating, “We’ve asked to withdraw our question,” and that they would prefer to conclude that day. At 3:19 p.m., the jury sent out a third note indicating that it had reached a verdict. The jury returned, rendered its verdict and was discharged. The defendant made no objections at this point, and the court adjourned. On January 19, 1996, more than five weeks after the verdict was rendered, the defendant filed a motion to impeach the verdict and requested an examination of the jurors. The defendant requested in the motion that a hearing be held possibly to impeach the verdict if evidence of juror misconduct was disclosed.

“[AJppellate review of atrial court’s decision granting or denying a motion [to impeach the verdict] must take into account the trial judge’s superior opportunity to assess the proceedings over which he or she has personally presided. . . . [W]e have . . . accordingly confined our role to a determination of whether there has been an abuse of discretion. . . . Claims of juror misconduct fall within this rule of limited review.” (Internal quotation marks omitted.) State v. Rhodes, 248 Conn. 39, 48, 726 A.2d 513 (1999).

During oral ar gument, this court ordered the parties to file supplemental briefs on the effect of State v. Brown, 235 Conn. 502, 525-26, 668 A.2d 1288 (1995), in which our Supreme Court established the rule that on an allegation of juror misconduct, the trial court must, pursuant to its supervisory authority, sua sponte, order an investigatory hearing to determine whether possible misconduct had occurred. Brown involved an external factor, an anonymous letter, brought to the trial court’s attention after the verdict but prior to sentencing, while the jury was still empaneled. In the present case, there was no such obvious factor that would require the court to conduct, sua sponte, an investigatory hearing. Indeed, defense counsel did not bring any allegation of possible juror misconduct to the court’s attention until the defendant filed his motion to set aside the verdict more than five weeks after the verdict had been rendered, which was long after the juiy had been discharged.

The essence of the defendant’s claim is that the jury deliberated in contravention of the trial court’s admonitions not to do so. The defendant’s contention is based on the following facts. The jury was called back at approximately 3 p.m., sent to the jury room to decide whether it wanted to continue deliberations that day, sent out a note at 3:04 p.m. indicating that it was withdrawing its question and, finally, sent out another note fifteen minutes later indicating that it had reached its verdict. While not explicitly stating so, the defendant’s contention that the jury deliberated in contravention of the court’s orders, coupled with these facts, implies that the jury could not have reached a verdict in the time that it did had it not been deliberating when it was specifically instructed not to do so. The defendant chooses, however, to downplay the fact that the jury had already deliberated for approximately three quarters of one hour prior to sending out the question that it later withdrew. Moreover, we cannot infer misconduct from the duration of the jury’s deliberation. “ ‘The length of time that a jury deliberates has no bearing on nor does it directly correlate to the strength or correctness of its conclusions or the validity of its verdict. In fact, the length of time of the jury’s deliberations is a double-edged sword. A short deliberation, rather than being indicative of a lack of diligence, may in fact attest to the strength of the [prevailing party’s] case.’ State v. Hernandez, 28 Conn. App. 126, 136, 612 A.2d 88, cert. denied, 223 Conn. 920, 614 A.2d 828 (1992).” Baldwin v. Jablecki, 52 Conn. App. 379, 384, 726 A.2d 1164 (1999).

Furthermore, our Supreme Court stated in State v. Castonguay, 194 Conn. 416, 436, 481 A.2d 56 (1984), that while the trial court in that case had improperly instructed the jury that it could discuss the case prior to entering formal deliberations, “we certainly will not accept the defendant’s speculation that the jurors did in fact discuss the evidence and evaluate it.” Id. We likewise will not indulge in such speculation and conclude, therefore, that the court did not improperly deny the defendant’s motion to impeach the verdict.

III

The defendant claims finally that the trial court improperly sentenced him on the basis of a stale and erroneous presentence investigation report (PSI). The defendant claims that the preparer relied primarily on information contained in a report prepared more than four years before the date of sentencing and that the current PSI included inaccurate, inflammatory and untrue information. We disagree.

“The ‘sole purpose [of a PSI] is to enable the court, within limits fixed by statute, to impose an appropriate penalty, fitting the offender as well as the crime.’ . . . The primary value of a PSI stems from the information contained therein, not from the report itself. Most of this information can be brought to the trial court’s attention by either party by means other than a PSI. ” (Citation omitted.) State v. Patterson, 236 Conn. 561, 574-75, 674 A.2d 416 (1996).

The defendant represented to the sentencing court that the PSI preparer had used a PSI previously written for the defendant’s first trial, and that the preparer did not promptly inquire into the circumstances of the offense as required by General Statutes § 54-91a (c),' but instead merely attempted to contact the defendant only ten days prior to sentencing by going to his home unannounced.

In response to defense counsel’s concern, the trial court stated: “[W]hat we have is a prior PSI prepared several years ago. I would agree with you that if that was all that was tendered to the court, nothing more, that I wouldn’t allow any sentencing proceeding to go on today. The fact of the matter is, though, that I think probation can justifiably rely on the factual recitation in that [PSI], even though [it was] made several years ago, to be an accurate statement of events up to that time. So, what probation is now doing is updating any information they have from the time of the prior PSI to the present. As far as the visit to the home goes, I have—haven’t been given anything that the unannounced visit to the home and a request to see [the defendant] . . . was any breach of protocol by the probation department and it certainly doesn’t offend the court, either the timing of it or the fact of it itself. When he was told that the defendant wasn’t home and the wife refused to permit entry to speak to him further, he left. It indicates that the probation officer did make an appointment to see [defense counsel] and [the defendant], and it’s your right, of course, to be here under the Practice Book. Did make an appointment. I assume so the probation officer could update the information, but that the appointment was canceled by you and [the defendant] . . . .You and your client would—felt that information was pertinent that could have been included in this probation report, could have made a tender to probation in many different ways other than an interview, and to come to the sentencing today and to complain about the circumstances of the PSI and its update, I think really misses the mark. I don’t think that this [PSI], both the old one and the current one, are anything less than rehable based on the information that was available to probation to give to the court, and I don’t believe that probation acted in any way other than diligently to prepare this report and to prepare this update and furnish it to the court for sentencing.”

The sentencing court went on to state further: “All right. I want to assure you and put on the record that any sentence to be imposed is going to be based upon the evidence in this case, the record in this case, as well as the information contained in the [PSI].”

It is clear that the defendant was accorded the opportunity at the time of sentencing to bring any other relevant information to the court’s attention, but failed to do so. It is also clear that the sentencing court considered the admittedly old PSI as only one factor in the sentencing equation and not the sole determinant. The defendant’s claim, therefore, is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-123 (a) provides in relevant part: “A person is guilty of larceny in the second degree when he commits larceny as defined in section 53a-119 and ... (2) the value of the property or service exceeds five thousand dollars . . . .”
      General Statutes § 53a-119 provides in relevant part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .”

       General Statutes (Rev. to 1989) § 20-325 (a) provides: “Any person who engages in the business of real estate broker, real estate salesman, real estate appraiser or residential appraiser without obtaining a license as herein provided, shall be fined not more than one thousand dollars or imprisoned not more than six months or both, and shall be ineligible to obtain a license for one year from the date of conviction of such offense, except that the commission, in its discretion, may grant a license to such person within such one-year period upon application and after a hearing thereon.”

       It is noteworthy to mention that the defendant had listed Bianco as his witness at the same address.

       Holmes’ testimony indicated that he had ordered a title search for 464 light Street, Stratford, which disclosed that Bankmart was the owner of the property, not the defendant. Potter’s prior testimony revealed that he had been head of Bankmart’s real estate management department and that the premises at 464 Light Street, Stratford, had been obtained by Bankmart via foreclosure, and that the defendant never had permission to rent, buy or renovate the premises. Finally, the testimony of Bianco, a witness for the defense in the prior proceeding, was beneficial to the defendant in that Bianco confirmed that the defendant had a contract to buy a certain parcel of property, conforming to his defense that he was merely attempting to arrange “flip” transactions that never materialized. A “flip” transaction is one in which an individual enters into an agreement to purchase a piece of property, and then rehabilitates it or immediately sells it to a prospective buyer for a profit upon the acquisition of the requisite legal rights.

       The court clerk’s office closed that day at 3 p.m. due to inclement weather.

       General Statutes § 54-91a (c) provides in relevant part: “Whenever an investigation is required, the probation officer shall promptly inquire into 1he circumstances of the offense, the attitude of the complainant or victim, or of the immediate family where possible in cases of homicide, and the criminal record, social history and present condition of the defendant. . . .”


author: LAVERY, J.

text:
    IN RE ALISSA N.

    (AC 18596)
    Lavery, Spear and Daly, Js.
    Argued September 21
    officially released December 28, 1999

      William A. Snider, for the appellant (petitioner).

      Sam Christodlous, for the appellee (respondent).

       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

LAVERY, J.

The petitioner grandmother appeals from the judgment of the trial court denying her petition to terminate the respondent mother’s parental rights. The petitioner claims on appeal that the trial court improperly (1) denied her petition to terminate the respondent’s parental rights and (2) relied on the opinion of counsel serving as guardian of the child’s estate in determining the child’s best interest pursuant to General Statutes § 45a-717 (g). We affirm the judgment of the trial court.

On April 8,1996, the petitioner brought an application for termination of the parental rights of the mother and the father of Alissa N. in the Newington Probate Court. On that same day, the petitioner also moved for immediate temporary custody and guardianship pending a hearing on the merits, which was granted by the Probate Court. The respondent mother did not contest the temporary orders, but did seek visitation. After a hearing, the Probate Court on February 24,1997, terminated the father’s parental rights and on June 10,1997, terminated the mother’s parental rights. The respondent mother appealed from that decision to the Superior Court. After a trial de novo, the court granted the petitioner guardianship, denied the petition to terminate the mother’s parental rights and granted limited visitation rights to the mother. The petitioner appealed to this court.

The trial court found the following facts relevant to this appeal. Alissa was born on June 10, 1985, the product of a brief and abusive relationship between the respondent and Alissa’s father. Alissa is a Down’s syndrome child who also suffers from Eisenmenger syndrome, a condition that significantly reduces her life expectancy. Alissa. was bom with a heart defect—in layman’s terms a hole in her heart—which causes pulmonary hypertension and a complex of symptoms such as iron deficiency, risk of stroke, bone pain, pain in the arms and debilitating headaches. Alissa’s disabilities require constant care and supervision.

When Alissa was born, the respondent was eighteen years old. Although the respondent was the primary caretaker for the first six months of Alissa’s life, she was so overwhelmed by her situation and that of Alissa that she had difficulty maintaining the high level of care necessary to meet her daughter’s needs. The respondent was also interested in dating and continuing her life as an adolescent. As a result, over the first year of Alissa’s life, her grandmother, the petitioner, assumed the day-to-day care and responsibility for Alissa’s medical needs.

For approximately ten years, that arrangement continued. The petitioner had to make day care arrangements during Alissa’s infancy because the respondent could not be trusted to care for her. The petitioner also devoted her life to Alissa’s educational and medical care needs. The petitioner, not the respondent, provided for Alissa financially.

During most of that period, the three lived in the same apartment. The respondent participated in Alissa’s care only tangentially, more as an older sister might, rather than a mother. She would watch Alissa from time to time, but did not contribute to daily care.

In 1995, family circumstances changed. The respondent filed a medical malpractice lawsuit on Alissa’s behalf regarding Alissa’s condition, which promised a substantial monetary settlement. The relationship between the petitioner and the respondent deteriorated. In April, 1995, the respondent moved out of the shared apartment, and Alissa remained in the petitioner’s care. The respondent did not visit or otherwise significantly participate in Alissa’s life.

The relationship deteriorated further when the petitioner filed an application for temporary guardianship and termination of parental rights. The respondent did not contest the guardianship order in favor of the petitioner, apparently hoping that this disagreement, like others previously, would pass and she would be able to see Alissa. Their relationship did not improve and the respondent has not seen Alissa since November, 1995, when the petitioner stopped working at the bus company where the respondent continues to be employed.

Karen Brinkman, a department of children and families social worker, prepared the mandated study for the court and testified. She stated that no ongoing parent-child relationship exists between the respondent and her daughter. She found that the respondent was not, in December, 1996, in a position to make a home for her child. She recommended termination of the respondent’s parental rights and adoption of Alissa by the petitioner.

I

“The standard for review on appeal [in a termination of parental rights case] is whether the challenged findings are clearly erroneous. ... On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. . . . Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling.” (Citations omitted; internal quotation marks omitted.) In re Roshawn R., 51 Conn. App. 44, 51, 720 A.2d 1112 (1998).

A

The petitioner’s first claim is that the trial court improperly denied the petition to terminate the respondent’s parental rights when it concluded that it was not in Alissa’s best interest to do so. The petitioner contends that the court’s conclusions are not factually supported and are an improper application of the law. We disagree.

Nonconsensual termination proceedings involve a two step process: an adjudicatory phase and a dispositional phase. General Statutes § 45a-717 (g). “In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights exists by clear and convincing evidence.” In re Tabitha P., 39 Conn. App. 353, 360, 664 A.2d 1168 (1995). Examples of such statutory grounds are abandonment of the child by the parent, denial of care, guidance and control necessary for the child’s well-being or no ongoing parent-child relationship. In re Bruce R., 234 Conn. 194, 204, 662 A.2d 107 (1995). “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 the termination of parental rights is in the best interests of the child. In re Maximina V., 44 Conn. App. 80, 82-83, 686 A.2d 1005 (1997). In re Drew R., 47 Conn. App. 124, 127, 702 A.2d 647 (1997).” (Internal quotation marks omitted.) In re Lauren R., 49 Conn. App. 763, 768, 715 A.2d 822 (1998). The dispositional phase, like its adjudicatory cousin, also must be supported on the basis of clear and convincing evidence. In re Bruce R., supra, 204.

The petitioner focuses her challenge on the dispositional phase, which she invites us to interpret as permitting the denial of termination only when a “compelling reason [exists] to keep the parent in the child’s life.” The petitioner also posits that the court may deny termination of parental rights at the dispositional phase only if it is done with the purpose of encouraging no less than a full parental relationship.

Neither contention finds support in the law. “The trial court is vested with broad discretion in determining what is in the child’s best interests. Presutti v. Presutti, 181 Conn. 622, 627, 436 A.2d 299 (1980); Ridgeway v. Ridgeway, 180 Conn. 533, 541, 429 A.2d 801 (1980).” Schult v. Schult, 241 Conn. 767, 777-78, 699 A.2d 134 (1997). Conducting a best interest analysis is not a narrow concept restricted to a compelling reason or to fully reuniting the parent with the child. Rather, it is “purposefully broad to enable the trial court to exercise its discretion based upon a host of considerations.” In re Bruce R., supra, 234 Conn. 206. Indeed, “General Statutes § 45a-706 expressly provides that § 45a-717 shall be liberally construed in the best interests of any child for whom a petition has been filed .... See Guille v. Guille, 196 Conn. 260, 266, 492 A.2d 175 (1985) . . . .” (Citation omitted; internal quotation marks omitted.) In re Brace R., supra, 206.

Not only is the dispositional phase free from the constraints the petitioner asks us to place upon it, but explicit guidelines already exist for a trial court to follow. General Statutes § 45a-717 (h). “In the dispositional phase of a nonconsensual case, when the focus is on the best interest of the child, General Statutes § 45a-717 (h) requires the trial court to consider and make written findings on certain specified criteria. Among these criteria, the trial court must consider whether the economic circumstances of the parent have prevented [that parent] from maintaining a meaningful relationship with the child. ” (Internal quotation marks omitted.) In re Bruce R., supra, 234 Conn. 204-205. These factors, combined with the broad concept of the best interest of the child, establish the proper factors to be considered in the dispositional phase of a nonconsensual parental termination proceeding. Accordingly, we reject the petitioner’s restrictive view of the dispositional phase and affirm the trial court on that issue.

B

The petitioner also questions the factual grounds on which the trial court reached its conclusions. The petitioner challenges the court’s conclusions that (1) the child’s need for permanency does not require termination of parental rights, (2) it is appropriate for the respondent to remain in Alissa’s life, (3) it is not in the best interest of the child to terminate the respondent’s parental rights and (4) Alissa will benefit from the respondent as a visiting resource. We conclude that the court adduced sufficient evidence to sustain its factual findings.

We note that the trial court has an ability superior to our own to evaluate the evidence because of its firsthand opportunity to observe the parties and to hear their testimony. Sorrentino v. All Seasons Services, Inc., 245 Conn. 756, 772, 717 A.2d 150 (1998).

Although the petitioner states four claims of factual insufficiency, they ultimately arise out of the core issue of whether the court articulated sufficient factual findings to conclude that denying termination of the respondent’s parental rights was appropriate.

The trial court’s denial of the termination of the respondent’s parental rights is supported by the evidence. Alissa has continued to five with the petitioner since infancy. Everyone who testified, even the respondent herself, acknowledged the bond between Alissa and the petitioner. The respondent’s presence does not challenge the relationship between Alissa and the petitioner nor does it threaten Alissa’s currently stable environment. Further reasoning is best stated directly from the thoughtful opinion of the trial court: “There are circumstances where parents, through various acts, have lost their connection to their children and new connections are in the process of being established by their children with others. For these children, permanency is necessary and a continued, even limited connection to their biological parents can and does disrupt such permanency. Permanency is also desirable for Alissa, but she has had such permanency with the continued and assured care from [the petitioner] since infancy. There is no parental connection which previously existed and has now been disrupted. Seeing [the respondent] will not prevent or inhibit the primary attachment Alissa has to [the petitioner]. For a child whose future is uncertain and whose care requirements are extraordinary, the more people who know about her and are concerned about her, the better. . . .

“There has been no evidence that [the respondent’s] limited contact with her daughter was unpleasant or harmful to the child. What is abundantly obvious is that such contact was unwanted by [the petitioner]. There is also no question that [the respondent] did not exhibit the concern which would ordinarily be exhibited by a parent, but she did exhibit some concern. As the court has noted, her involvement is more akin to an acquaintance or an older sibling. Alissa does not benefit from being totally isolated from all those family members previously connected to her.”

The trial court’s thorough memorandum of decision reflects a careful and extensive review of the evidence on which it relied in the adjudicatory and dispositional phases of the termination proceedings. The court’s findings and analysis, based on the best interest of the child, constitute more than sufficient evidence to conclude that the respondent should not lose her parental rights and should be allowed at least a minimal amount of contact with Alissa over time. The court’s analysis stands solidly within the broad discretion given within the clearly erroneous standard and we will not disturb it. Thus, we conclude that the court’s factual findings contested by the petitioner were not clearly erroneous.

II

The petitioner next contends that the trial court improperly relied on the opinion of Stephen Ayres in determining the child’s best interest. Ayres, an attorney, has served as the guardian of Alissa’s estate since October 15, 1992, and has managed the child’s primary asset—the expectancy from a pending malpractice action related to the child’s health problems. Ayres was called as a witness by the respondent’s counsel. Ayres also submitted a letter regarding his recommendations for the respondent to maintain parental rights.

Ayres testified that he replaced the petitioner as the guardian of the estate because she did not cooperate in the prosecution of the medical malpractice action. Ayres was also asked to comment on the interaction he observed between the respondent and Alissa. In its memorandum of decision, the trial court stated: “Attorney Ayres described a meeting in 1994 in Probate Court while waiting to be heard by the court. [The petitioner] had left and he, Alissa and [the respondent] were waiting. [The respondent’s] behavior with Alissa was appropriate, he stated. [The respondent] gave Alissa some paper and she drew a picture for him. He did not see anything out of the ordinary, and he thought that they interacted as mother and daughter. He also wrote a letter ... on his involvement in [this] matter, his knowledge of the history of the family, and his observations as a human being and father himself. He did not claim any expert status. ... He did not see the need to eliminate [the respondent] from Alissa’s life.”

In its discussion of whether termination of parental rights was in the best interest of the child, the court cited Ayres’ testimony as supporting the conclusion that while the respondent does not provide the minimum level of parental care, neither is her care nonexistent. This ultimately helped the court conclude that the respondent’s parental rights should not be terminated and that a minimal level of visitation should be permitted.

The petitioner claims that Ayres’ testimony was improper because he was not qualified to testify as to Alissa’s best interest, and that this court should reverse the trial court’s decision and remand the case for a new trial. The petitioner primarily relies on Ireland v. Ireland, 246 Conn. 413, 717 A.2d 676 (1998), for support. We conclude that Ireland is distinguishable from this case and affirm the judgment of the trial court.

In Ireland, the attorney for the minor child submitted an unsolicited report to the trial court recommending that the child’s best interest would be served by preserving the status quo in the case. Id., 435. The Ireland court concluded that an attorney for the child should “be heard in a similar manner as most other attorneys are heard, that is, through such methods as written briefs, questioning of witnesses, oral arguments, and other proceedings that take place during the course of a trial.” Id., 439.

Relying on the testimony of Ayres is different from the improper intermeddling found in Ireland. Ayres was not the attorney for the child in this matter. Rather, he is the guardian of the estate. See General Statutes § 45a-629. His primary task has been to manage Alissa’s primary asset, an expectancy from an as yet unresolved medical malpractice lawsuit related to her condition.

Although Ayres primarily manages Alissa’s property interests, he is also a fiduciary for Alissa. See Connecticut Probate Practice Book (4th Ed. 1996) rule 5.4, part II, p. 36. The status of fiduciary “means not only to be able to handle money and property competently, but also to understand that a fiduciary must act prudently and exclusively in the best interest of the [ward] and avoid conflicts of interest.” Id., rule 3.6 commentary, part II, pp. 26-27. Unlike an attorney for the child, Ayres is not limited to submitting argument through briefs and questioning of witnesses. Cf. Ireland v. Ireland, supra, 246 Conn. 438-39. Rather, his concern lies with promoting Alissa’s best interests. See Schult v. Schult, supra, 241 Conn. 779.

This fiduciary nature of the role of guardian of the estate, combined with a dose of common sense, points to the conclusion that the court, in its sound discretion; Zering v. Zering, 5 Conn. App. 249, 251, 497 A.2d 1023 (1985); properly allowed Ayres’ testimony. Ayres merely testified as to his personal observations of the interactions between Alissa and the respondent. See State v. Watson, 50 Conn. App. 591, 600, 718 A.2d 497, cert. denied, 247 Conn. 939, 723 A.2d 319 (1998), cert. denied, 526 U.S. 1058, 119 S. Ct. 1373, 143 L. Ed. 2d 532 (1999) (lay witnesses may provide testimony regarding observed facts). As the court explicitly stated, he did not claim any expert status, but merely testified on the basis of his personal experience. These observations are certainly valid and relevant to determining whether the respondent may provide some positive influence in Alissa’s life as a “visiting resource.” Accordingly, we will not disturb the trial court’s sound discretion to admit such testimony.

The judgment is affirmed.

In this opinion the other judges concurred.

       Tlie father did not appeal from the Probate Court decision.

       In 1989, the petitioner sought guardianship of Alissa and the respondent voluntarily signed the application. The application filed in the Probate Court was on an incorrect form and no order entered. Neither the petitioner nor the respondent took any action until seven years later to clarify Alissa’s legal status, thereby permitting the status quo to continue, with the petitioner in the parental and controlling role.

       For example, the petitioner made all arrangements for Alissa’s special education services. The petitioner secured a one-on-one aide to assist Alissa in the classroom. The respondent did not participate in the special education agreements and admitted she was not familiar with Alissa’s teachers or her progress in school.

       Although the petitioner urges us to construe strictly all statutory provisions regarding the termination of parental rights; see In re Jessica M., 217 Conn. 459, 466, 586 A.2d 597 (1991); such strictness in nonconsensual proceedings functions as a shield against improper interference with a parent's constitutionally protected interest in maintaining a relationship with her child, not as a sword to cleave away parental rights from a biological parent. See In re Bruce R., supra, 234 Conn. 206-207.

       We also note that “[r]ecent studies of children in long-term foster care have provided evidence that suggests that ‘continued contact with the natural parent generally promotes the child’s sense of well-being and emotional security’ even for ‘children who were separated from their parents at a very early age and whose subsequent contacts with their parents are sporadic.’ M. Garrison, ‘Why Terminate Parental Rights?’ 35 Stan. L. Rev. 423, 461 (1983).” In re Jessica M., 217 Conn. 459, 466 n.5, 586 A.2d 597 (1991).

       Insofar as Ayres’ lay testimony commented on the ultimate issues of fact in the case, it is still permissible where, as here, “the trier, in order to make intelligent findings, needs [such] assistance on the precise question on which it must pass.” (Internal quotation marks omitted.) State v. Spigarolo, 210 Conn. 359, 374, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989); see also C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988 & Sup. 1998) § 7.17.3, p. 186.