author: BISHOP, J.

text:
    STATE OF CONNECTICUT v. EARL THOMPSON
    (AC 32040)
    Bishop, Beach and Borden, Js.

      Argued February 14 —
    officially released April 26, 2011

      Gerald M. Beaudoin, with whom, was Francisco A. Cardona, for the appellant (defendant).

      Linda Currie-Zeffiro, assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and David Zagaja, senior assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Earl Thompson, appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (4) and 53a-48, robbeiy in the first degree in violation of § 53a-134 (a) (4) and kidnapping in the first degree as an accessory in violation of General Statutes §§ 53a-92 (a) (2) (B) and 53a-8. On appeal, the defendant claims that the court (1) improperly denied his motion to dismiss and his motion to suppress certain DNA evidence, (2) failed to instruct the jury as to that DNA evidence as he requested and (3) abused its discretion in denying his motion for a new trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 11:30 p.m. on August 10, 2004, Stephan Julian arrived at her home in Bloomfield. At that time, her son, Damien Gardner, resided with her but was not present that night. As Julian entered the house, she was confronted by a man with a gun. A second man, also armed with a gun, quickly emerged. Because the faces of both men were covered, Julian could not recognize them, but she was able to determine that they were both dark skinned with Jamaican accents. The men repeatedly asked Julian where money was located in the house and forced her to he on the floor in a downstairs bathroom while they searched the house. The men periodically checked on Julian, and she could hear them going up and down the stairs of her home. At one point, she heard an upstairs toilet flush. Eventually, when Julian no longer heard the men in her home, she peeked out of the bathroom and saw that it was light outside. She exited the bathroom and called the police.

Detective Eric Kovanda was primarily responsible for processing the crime scene. In addition to other forensic evidence, Kovanda collected two urine samples from the rim of the toilet located in one of the upstairs bathrooms. The DNA profile developed from the urine swabs did not match any in the existing offender databases. In 2006, two jailhouse informants identified the defendant as a suspect, and, consequently, on February 11, 2008, the police collected a DNA sample from the defendant for comparison to the DNA profile developed from the urine samples that had been collected from the crime scene.

On February 28, 2008, Kovanda met with the defendant to discuss the August 11, 2004 incident. The defendant indicated that he knew Julian’s son, Gardner, and that he had been at their house a week or a few days prior to August 11, 2004. The defendant was arrested and charged with conspiracy to commit robbery in the first degree, robbery in the first degree, burglary in the first degree and kidnapping in the first degree as an accessory.

Prior to trial, the defendant filed a motion to dismiss claiming that there was insufficient evidence to prosecute him because the DNA evidence that the state intended to introduce at trial was inadmissible. The defendant also filed a motion to suppress the DNA evidence on the basis that the state had consumed the sample in its DNA testing, thus depriving the defendant of an independent analysis. The court heard argument from both parties on the defendant’s motions. The court denied both motions from the bench.

At the close of evidence, the state conceded that it had not presented sufficient evidence to support the burglary charge, and the court granted the defendant’s motion for a judgment of acquittal as to that charge. The jury found the defendant guilty of the remaining counts. The defendant filed a motion for a new trial, which the court denied. The court sentenced the defendant to a term of twenty years incarceration on each of the robbery counts, to run concurrently, and a term of twenty-five years on the kidnapping count, to run consecutively to the other terms, for a total effective sentence of forty-five years. This appeal followed.

I

The defendant first claims that the court improperly denied his motions to dismiss and to suppress. The defendant argues that the charges against him should have been dismissed. He reasons that the DNA evidence should have been suppressed because the cotton swabs carrying the urine samples that had been obtained at the crime scene were fully consumed during the testing process, effectively precluding him from performing his own test of the samples, and he claims that, without the DNA evidence, the state had an insufficient basis for proceeding against him. As to the destruction of the swabs leaving no material for testing by the defense, the defendant contends that such a deprivation violated his right to due process under article first, § 8, of the Connecticut constitution. We are not persuaded.

The following additional facts are pertinent to this claim. At trial, Nicholas Yang, a supervisor at the state forensic laboratory, testified that he performed a DNA analysis on each of the two urine samples that had been collected at the crime scene on August 11, 2004. Although the samples were submitted for testing shortly after the crime occurred, testing did not begin until February, 2005, and the resulting report was generated in April, 2005. Neither at the time of submission to the laboratory nor at the time of testing did the state have a suspect for the August 11,2004 incident. Yang testified that, typically, when testing a sample for DNA, laboratory personnel take what they need from the swab and save the remainder for further testing or testing by the defense, but, if the sample is not large enough, they might have to test the entire swab, as they did in this case. Here, both samples yielded DNA results, but both were exhausted in the testing process. Although the original swab was no longer available for further testing, Yang testified that some of the genomic DNA sample was available for further testing. In other words, Yang explained, “because we had to use — we used both cotton swabs, they were used for extraction, the cotton swabs cannot be used again to be extracted because you’ve gotten — or removed all the DNA from that swab, therefore that swab is consumed for testing, meaning you cannot — you can no longer get any DNA from that swab. But the extract that we do have, that we extracted from the cotton swab, we still have. So if anyone wanted to do any type of retesting, they could take that genomic portion that we would give you a portion of and do any type of reamplification with their DNA kit and see what results they get.”

As to the defendant’s claim that the state’s failure to preserve the cotton swabs containing the inculpatory DNA evidence violated his due process rights, our Supreme Court has set forth the analytical path for determining whether the failure of the police to preserve evidence constitutes a due process violation under our state constitution. In State v. Morales, 232 Conn. 707, 727, 657 A.2d 585 (1995), the court expressly rejected the federal standard of Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988). The court in Morales held that “the good or bad faith of the police in failing to preserve potentially useful evidence cannot be dispositive of whether a criminal defendant has been deprived of due process of law. . . . Rather, in determining whether a defendant has been afforded due process of law under the state constitution, the trial court must employ the [State v. Asherman, 193 Conn. 695, 724, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985)] balancing test, weighing the reasons for the unavailability of the evidence against the degree of prejudice to the accused. More specifically, the trial court must balance the totality of the circumstances surrounding the missing evidence, including the following factors: the materiality of the missing evidence, the likelihood of mistaken interpretation of it by witnesses or the jury, the reason for its nonavailability to the defense and the prejudice to the defendant caused by the unavailability of the evidence.” (Internal quotation marks omitted.) State v. Morales, supra, 726-27; see also State v. Joyce, 243 Conn. 282, 300-301, 705 A.2d 181 (1997), cert. denied, 523 U.S. 1077, 118 S. Ct. 1523, 140 L. Ed. 2d 674 (1998). “[P]olice [are not required] to preserve every shred of physical evidence, every object . . . [seized] from a crime scene, no matter how remote or tangential to the case the item seems to be. The . . . court should . . . [consider] the reason for the unavailability of an item of evidence, as well as the motivation and good or bad faith of the police in failing to preserve that evidence.” State v. Morales, supra, 723. Applying these factors to the present case, we conclude that the defendant’s due process rights under our state constitution were not violated by the failure to preserve the cotton swabs from which the DNA sample was obtained.

First, we cannot conclude that the cotton swabs were material as that term is employed in this analysis. “The measure of materiality is whether there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” (Internal quotation marks omitted.) State v. Joyce, supra, 243 Conn 301. We conclude that such a reasonable probability does not exist here. Here, although the cotton swabs were consumed, the genetic material obtained from the swabs was available to the defendant for further testing. The record does not indicate, nor does the defendant contend, that he ever sought to test further the genetic samples obtained from the crime scene. Furthermore, the absence of the swabs was not material because the defendant’s theory of defense at trial was not that the results of the testing were wrong or that the testing was not properly performed; rather, he contended that the urine samples, from which the DNA profile was created, were not deposited on the night in question and that they could have been deposited earlier when he was in the house as an invited guest of Gardner. Yang acknowledged that there is no way to determine the time frame for which certain DNA evidence is deposited. This temporal issue, however, does not go to the admissibility of the DNA evidence but, rather, presents a question for the jury as to how much weight to give that evidence, which brings us to the next Asherman factor.

The second Asherman factor requires consideration of the likelihood of mistaken inteipretation of the evidence by witnesses or the jury. The likelihood of such a misinterpretation can be minimized at the trial by permitting testimony on the issue. State v. Jones, 50 Conn. App. 338, 357, 718 A.2d 470 (1998), cert. denied, 248 Conn. 915, 734 A.2d 568 (1999). Here, the jury heard testimony that the defendant was acquainted with Gardner and had, therefore, previously visited Julian’s home. The jury also heard testimony from Yang that it was impossible to determine the point in time that the DNA evidence in this case was deposited. On the basis of the clear evidence that the DNA sample could have been deposited by the defendant on a night other than that on which the crime took place, it is not likely that the jury was misled but, rather, was free to determine how much weight it would give that evidence.

“In weighing the third Asherman factor, the reason for the unavailability of the evidence, our cases have focused on the motives behind the destruction of the evidence. ... In examining the motives . . . our courts have considered such factors as whether the destruction was deliberate and intentional rather than negligent ... or done in bad faith or with malice . . . or with reckless disregard ... or calculated to hinder the defendant’s defense, out of other animus or improper motive, or in reckless disregard of the defendant’s rights.” (Citations omitted; internal quotation marks omitted.) Id., 358. The record in this case does not disclose any evidence that the state was motivated by bad faith or improper motive in consuming both swabs. At the time the testing was done, the defendant was not a suspect in this case. Indeed, there were no suspects at that juncture. The record does not disclose any effort to suppress the evidence from the defendant but only that both swabs were needed in their entirety to compile a DNA profile.

Finally, in applying the fourth Asherman factor, we must consider the prejudice to the defendant caused by the unavailability of the swabs. See State v. Jones, supra, 50 Conn. App. 359. As noted, the genetic samples obtained from the swabs were available to the defendant for further testing. The defendant could have retained an expert to test the samples, but he did not avail himself of that opportunity. Additionally, because it was not possible to determine when the samples were deposited at the crime scene, we have no basis for believing that further testing likely could have advanced the defendant’s argument that the genetic material was left on a night prior to the incident in question. Accordingly, any prejudice to the defendant in this case was insubstantial.

In light of the foregoing, we conclude that the defendant’s state constitutional right to due process was not violated by the state’s consumption of the cotton swabs that were used to collect the genetic samples to compile the DNA evidence in this case.

II

The defendant next claims that the court improperly declined to give the jury his requested instruction regarding the DNA evidence presented by the state. Specifically, the defendant contends that the court should have given a specific instruction regarding the DNA evidence due to its “scientific and hypersensitive nature” and the consequential need for guidance in considering that evidence. We disagree.

At trial, the defendant provided the court with proposed jury instructions, including an instruction regarding the DNA evidence. During the charging conference, the court indicated that it was disinclined to give the requested instruction regarding DNA on the ground that it did not want to highlight any particular piece of evidence.

“When reviewing the challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper.” (Internal quotation marks omitted.) State v. Arroyo, 292 Conn. 558, 566, 973 A.2d 1254 (2009), cert. denied, 559 U.S. 911, 130 S. Ct. 1296, 175 L. Ed. 2d 1086 (2010). In other words, “we must consider whether the instructions [in totality] are sufficiently correct in law, adapted to the issues and ample for the guidance of the jury. ” (Internal quotation marks omitted.) State v. Dougherty, 123 Conn. App. 872, 885, 3 A.3d 208, cert. denied, 299 Conn. 901, 10 A.3d 521 (2010). Additionally, “[w]hile a request to charge that is relevant to the issues in a case and that accurately states the applicable law must be honored, a court need not tailor its charge to the precise letter of such a request. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper.” (Citations omitted; internal quotation marks omitted.) State v. Aviles, 277 Conn. 281, 309-10, 891 A.2d 935, cert. denied, 549 U.S. 840, 127 S. Ct. 108, 166 L. Ed. 2d 69 (2006). “To avoid the danger of improper influence on the jury, a recitation of the evidence should not be so drawn as to direct the attention of the jury too prominently to the facts in the testimony on one side of the case, while sinking out of view, or passing lightly over, portions of the testimony on the other side, which deserve equal attention.” (Internal quotation marks omitted.) State v. Luther, 114 Conn. App. 799, 820, 971 A.2d 781, cert. denied, 293 Conn, 907, 978 A.2d 1112 (2009).

We find no fault with the trial court’s conclusion that giving the requested instruction regarding DNA evidence risked highlighting that evidence. The court properly instructed the jury that it was the jury’s role to determine the weight to give all the evidence during the deliberations, and the defendant has failed to demonstrate how the lack of a specific instruction regarding DNA evidence likely misled the jury. Furthermore, as we have discussed, the defendant’s defense at trial was not that the DNA evidence was unreliable but that, having been a prior invited guest, he may well have deposited the urine on that occasion. Thus, we conclude that the court properly declined to give the defendant’s requested instruction regarding DNA evidence.

Ill

The defendant finally claims that the court improperly denied his motion for a new trial. The defendant asserts that the court should have granted his motion because the state failed to disclose certain exculpatory evidence and the prosecutor made an inappropriate comment during closing argument. We disagree.

“[T]he proper appellate standard of review when considering the action of a trial court granting or denying a motion to set aside a verdict and motion for a new trial . . . [is] the abuse of discretion standard. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. . . . We do not . . . determine whether a conclusion different from the one reached could have been reached. ... A verdict must stand if it is one that a jury reasonably could have returned and the trial court has accepted.” (Internal quotation marks omitted.) State v. Vazquez, 119 Conn. App. 249, 252, 987 A.2d 1063 (2010). With these principles in mind, we address the defendant’s arguments in turn.

A

The defendant claims that the state improperly failed to test or to produce certain fingerprint exemplars and a hair sample that were obtained from the crime scene and that this failure deprived him of exculpatory evidence. The following additional procedural background is pertinent to this claim. Prior to trial, the defendant filed a motion for discovery seeking a copy of the state’s file, including the records of the state forensic laboratory. In response, the state provided the defendant with the DNA reports from the lab, but, during Kovanda’s testimony, the defendant discovered that the police had also retrieved fingerprints and a hair sample from the scene, neither of which was produced in response to the defendant’s motion for discovery. Kovanda testified that the police obtained only one potential fingerprint that was sent to the laboratory for testing, which was determined as not having sufficient detail to be compared. He indicated that he did not send any other prints to the laboratory for testing because they were only partial, and he had determined that they were insufficient for testing. Kovanda testified that he did not send the hair sample to the laboratory for testing because, after magnified examination, he determined that it would not have been helpful because the sample did not include a hair root. Neither the partial prints nor the hair sample were provided to the defendant in response to his motion for discovery. On that basis, the defendant claims that his due process rights under the United States and Connecticut constitutions were violated.

The defendant claims that, by failing to produce the fingerprints and hair sample, the state suppressed exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). “In [Brady], the United States Supreme Court held that the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. To establish a Brady violation, the defendant must show that (1) the government suppressed evidence, (2) the suppressed evidence was favorable to the defendant, and (3) it was material [either to guilt or to punishment]. . . .

“In order to obtain relief under Brady, a defendant bears the heavy burden of satisfying all three prongs of the aforementioned test. . . . Even if a defendant is able to demonstrate that the government suppressed favorable evidence, he must still demonstrate that the evidence is material. The test for materiality is well established. Undisclosed exculpatory evidence is material, and constitutional error results from its suppression by the government, if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. . . . Accordingly, we concentrate on the overall fairness of the trial and whether nondisclosure of the evidence was so unfair as to undermine our confidence in the jury’s verdict.” (Citations omitted; internal quotation marks omitted.) State v. Garlington, 122 Conn. App. 345, 357-58, 998 A.2d 1197, cert. denied, 298 Conn. 910, 4 A.3d 835 (2010).

On appeal, the defendant has failed to establish the exculpatory nature of the allegedly suppressed evidence. The defendant argues that the fingerprints and hair sample obtained from the crime scene “could have generated new suspects and [led] to further investigation that could [have] exculpate[d] the defendant.” The defendant’s argument, however, rests on no more than speculation. See State v. Coleman, 41 Conn. App. 255, 265-66, 675 A.2d 887 (1996) (speculation to assume that sample could have been tested for DNA matter), rev’d on other grounds, 242 Conn. 523, 700 A.2d 14 (1997); see also State v. Morales, 39 Conn. App. 617, 623-24, 667 A.2d 68 (speculation to assume tests could have been performed and whether such tests would have revealed scientifically useful evidence had jacket been preserved), cert, denied, 235 Conn. 938, 668 A.2d 376 (1995). There is no indication that production of the partial fingerprints or hair sample would have strengthened the defendant’s case. See State v. Harden, 175 Conn. 315, 327, 398 A.2d 1169 (1978). The defendant has failed to establish that the evidence was either favorable or material, and, therefore, his Brady claim must fail.

B

The defendant claims that, during the rebuttal portion of the state’s closing argument, the prosecutor improperly imputed to the defendant a theory of defense that he never pursued and was not based on the evidence, specifically that evidence had been “ ‘planted’ ” at the scene of the crime. The defendant contends that the state’s improper remarks violated his due process rights. We are not persuaded.

Our Supreme Court previously has recognized that “a claim of prosecutorial impropriety, even in the absence of an objection, has constitutional implications and requires a due process analysis under State v. Williams, 204 Conn. 523, 535-40, 529 A.2d 653 (1987). . . . In analyzing claims of prosecutorial impropriety, we engage in a two step process. . . . First, we must determine whether any impropriety in fact occurred; second, we must examine whether that impropriety, or the cumulative effect of multiple improprieties, deprived the defendant of his due process right to a fair trial. ... To determine whether the defendant was deprived of his due process right to a fair trial, we must determine whether the sum total of [the prosecutor’s] improprieties rendered the defendant’s [trial] fundamentally unfair, in violation of his right to due process. . . . The question of whether the defendant has been prejudiced by prosecutorial [impropriety], therefore, depends on whether there is a reasonable likelihood that the jury’s verdict would have been different absent the sum total of the improprieties. . . .

“The . . . determination of whether the defendant was deprived of his right to a fair trial . . . involve[s] the application of the factors set forth by [our Supreme Court] in State v. Williams, [supra, 204 Conn. 540]. As [the court] stated in that case: In determining whether prosecutorial [impropriety] was so serious as to amount to a denial of due process, this court, in conformity with courts in other jurisdictions, has focused on several factors. Among them are the extent to which the [impropriety] was invited by defense conduct or argument . . . the severity of the [impropriety] . . . the frequency of the [impropriety] . . . the centrality of the [impropriety] to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case.” (Internal quotation marks omitted.) States. Reynolds, 118 Conn. App. 278, 291-92, 983 A.2d 874 (2009), cert. denied, 294 Conn. 933, 987 A.2d 1029 (2010). “The absence of an objection at trial . . . [also] plays a significant role in the application of the Williams factors: When defense counsel does not object, request a curative instruction or move for a mistrial, he presumably does not view the alleged impropriety as prejudicial enough to seriously jeopardize the defendant’s right to a fair trial. . . . [Thus], the fact that defense counsel did not object to one or more incidents of [impropriety] must be considered in determining whether and to what extent the [impropriety] contributed to depriving the defendant of a fair trial and whether, therefore, reversal is warranted.” (Internal quotation marks omitted.) States. Outing, 298 Conn. 34, 82 n.23, 3 A.3d 1 (2010), cert. denied, U.S. , 131 S. Ct. 1479, 179 L. Ed. 2d 316 (2011).

Here, the defendant claims that the prosecutor made four unfounded references during the state’s rebuttal closing argument that the defendant was contending that various evidence had been “ ‘planted.’ ” Because the prosecutor’s comments were made dining rebuttal, the defendant complains that he did not get the opportunity to respond to the remarks, and he was consequently prejudiced. In response, the state argues that the prosecutor’s comments during closing argument were induced by the defendant’s closing argument during which he stressed that much of the forensic evidence obtained from the crime scene could not be definitively attributed to the defendant. Because the defense theory throughout trial had been that the defendant had likely deposited the DNA evidence when he was at the premises as an invited guest on a day prior to the crime, the argument advanced by the defendant that the evidence did not match him, the state argues, likely confused the prosecutor as he was hearing this defense for the first time.

Having reviewed the transcripts of the closing arguments of both parties, it is not clear to us that the prosecutor’s remarks were in response to the defendant’s closing argument. Assuming, arguendo, that the remarks were inappropriate, we cannot conclude, however, that it is reasonably likely that the jury’s verdict would have been different if the prosecutor had not made them. The remarks were not the central point of the prosecutor’s closing argument; rather, they were cursorily made in the rebuttal portion of the argument. Although there were some references to evidence being planted or created, when viewed in the context of the entire trial, or even the prosecutor’s entire argument, they were not so severe as to have infected the fairness of the proceeding. Additionally, the defendant did not object at the time the remarks were made, and he did not request that a curative instruction be given to the jury. Thus, we can infer that the defendant did not find the remarks to be so prejudicial as to deprive him of a fair trial. Based on our assessment of the allegedly improper comments in the context of the entire trial, we cannot conclude that the defendant was denied his right to due process in this regard.

On the basis of the foregoing, we conclude that the court did not abuse its discretion in denying the defendant’s motion for a new trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       In Arizona v. Youngblood, supra, 488 U.S. 58, the United States Supreme Court stated: “We therefore hold that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.”

       Because the defendant has failed to establish materiality, we need not examine the other Asherman factors. We do so briefly, however, for the sake of completeness.

       The defendant requested that the court charge as follows: “Forensic DNA testing rarely occurs [under] idyllic conditions. Crime scene DNA samples do not come from a single source obtained in immaculate conditions; they are messy assortments of multiple unknown persons, often collected in the most difficult conditions. The samples can be of poor quality due to exposure to heat, light, moisture, or other degrading elements. They can be of minimal or insufficient quantity, especially as investigators push DNA testing to its limits and seek profiles from a few cells retrieved from cigarette butts, envelopes, or soda cans. And most importantly, forensic samples often constitute a mixture of multiple persons, such that it is not clear whose profile is whose, or even how many profiles are in the sample at all. All of these factors malee DNA testing in the forensic context far more subjective than simply reporting test results, accordingly, the circumstances surrounding the testing of DNA samples, as well as the testing itself must be subjected to scrutiny.” The requested instruction was taken from District Attorney’s Office v. Osborne, 557 U.S. 52, 81, 129 S. Ct. 2308, 174 L. Ed. 2d 38 (2009), which was quoted from a law review article.

       The defendant also claims that the court improperly coerced a witness to testily despite that witness’ attempt to invoke his constitutional right not to testify pursuant to the fifth amendment to the United States constitution. Because the defendant did not raise this evidentiary issue before the trial court, it is not properly preserved, and we, therefore, decline to review it. See State v. Outing, 298 Conn. 34, 72, 3 A.3d 1 (2010).

       Specifically, the prosecutor said: “You know what the underlying thing is? This is planted, created evidence. And you know where it falls apart? How do you plant evidence on someone when you don’t even have a suspect named? He doesn’t even know who the suspect is. . . . How is it all going to work if there’s planted evidence back on August 11, 2004? . . . There is no way to create all of that.
      “Again, you can’t plant evidence when you don’t even have a suspect in mind.

        “There’s no creation of items. There’s no creation of anything.”

       Because we conclude that the defendant was not prejudiced by the remarks in question, we need not determine if they were improper.

       The defendant also claims that the prosecutor misrepresented Kovanda’s testimony. Specifically, the defendant asserts that the prosecutor improperly said that: “[The defendant] made a comment about being at [Gardner’s] house after he was under arrest and advised that it was for a robbery . . . .” Our review of the record reveals that the prosecutor may simply have misspoken or misconstrued Kovanda’s testimony. To the extent that the prosecutor’s representation of the evidence may not have been accurate, any error in this regard was cured by the court’s instruction advising the jury that the arguments of counsel are not evidence and that the jury alone is the arbiter of the facts.


source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    FALLS MILL OF VERNON CONDOMINIUM ASSOCIATION, INC. v. JOHN R. SUDSBURY ET AL.
    (AC 32032)
    Gruendel, Beach and Pellegrino, Js.

      Argued March 8 —
    officially released April 26, 2011

      David F. Borrino, for the appellant (defendant Beneficial Mortgage Co. of Connecticut).

      Franklin G. Pilicy, for the appellee (plaintiff).
   Opinion

GRUENDEL, J.

The defendant mortgage lender, Beneficial Mortgage Co. of Connecticut, appeals from the judgment of the trial court denying its motion to open a judgment of strict foreclosure. The defendant contends that the court improperly concluded that it lacked authority to open that judgment. We disagree and, accordingly, affirm the judgment of the trial court.

In its memorandum of decision, the court found the following undisputed facts. The plaintiff, Falls Mill of Vernon Condominium Association, Inc., commenced this action on December 7, 2007, to foreclose its statutory lien on property over which the defendant also held a mortgage. The writ of summons named the defendant as “Beneficial Mortgage Co. of Connecticut, c/o CT Corporation System, Its Agent for Service, One Corporate Center, Floor 11, Hartford, CT 06103-3220.” The defendant previously had appointed CT Corporation System (agent) as its registered agent in Connecticut pursuant to General Statutes § 33-922. See also General Statutes § 33-926. On December 7,2007, service of process was made on the agent on behalf of the defendant, consistent with the mandate of General Statutes § 52-57 (c). Months later, the defendant was defaulted for failure to appear, and the plaintiff subsequently filed a motion for judgment of strict foreclosure. On July 21,2008, the court rendered a judgment of strict foreclosure. Notice thereof was sent to the defendant’s registered agent at that time. The law days thereafter passed and title vested in the plaintiff on September 25, 2008. A certificate of foreclosure dated September 28, 2008, which stated that title had vested in the plaintiff, was recorded on the Vernon land records on October 3, 2008.

More than one year later on October 26, 2009, the defendant filed a motion to open the judgment of strict foreclosure. In its accompanying memorandum of law, the defendant alleged that it did not receive proper notice of the plaintiffs motion for default, the court’s ruling thereon or the judgment of strict foreclosure, rendering the judgment of the court void ab initio. After initially denying the motion and then granting reargument thereon, the court in its February 18, 2010 memorandum of decision determined that it lacked authority to open the judgment of strict foreclosure. From that judgment, the defendant appeals.

The issue in this appeal is whether the court properly determined that it lacked authority to open the judgment of strict foreclosure. That issue presents a question of law over which our review is plenary. See Ins. Co. of Pennsylvania v. Waterfield, 102 Conn. App. 277, 281-82, 925 A.2d 451 (2007).

As a preliminary matter, we note that at no point in the course of this litigation has the defendant maintained that it was not provided actual notice of the plaintiffs motion for default, the court’s ruling thereon or the judgment of strict foreclosure rendered on July 21, 2008. In both its memorandum of law in support of its motion to open and its appellate brief, the defendant acknowledges that notice thereof was sent to its registered agent designated pursuant to § 33-922. The defendant further acknowledges that its May, 2007 filing with the secretary of the state, which it has appended to its appellate brief, lists a corporate address in Illinois and a “[pjrincipal [o]ffice [a]ddress in CT only” for its agent. The gist of the defendant’s claim is that although its agent received the requisite notice, the defendant did not receive notice at its address in Illinois. The trial court did not resolve that issue, concluding that whether the plaintiff or the court failed to provide notice to the defendant at its Illinois address was irrelevant to the jurisdictional question before it. On the facts of this case, we agree.

Resolution of this appeal involves the intersection of General Statutes § 49-15 (a) and Practice Book § 63-1 (b). Connecticut courts generally cannot open a civil judgment “unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed.” General Statutes § 52-212a. That general rule does not apply to judgments of strict foreclosure. Rather, the legislature has seen fit to distinguish motions to open such judgments by crafting a specific protocol therefor. Section § 49-15 (a) (1) provides in relevant part that “[a]ny judgment foreclosing the title to real estate by strict foreclosure may, at the discretion of the court rendering the judgment, upon the written motion of any person having an interest in the judgment and for cause shown, be opened and modified, notwithstanding the limitation imposed by section 52-212a, upon such terms as to costs as the court deems reasonable, provided no such judgment shall be opened after the title has become absolute in any encumbrancer . . . ,” (Emphasis added.) In interpreting that statute, our Supreme Court has explained that “the legislature’s purpose in barring courts from opening a judgment, after the mortgagor’s failure to redeem, was not to limit the mortgagee from further pursuit of its newly vested property rights but rather to prohibit the mortgagor from subsequent challenges to the enforceability of the mortgagee’s property rights.” New Milford Savings Bank v. Jajer, 244 Conn. 251, 260, 708 A.2d 1378 (1998). In the present case, it is undisputed that title to the property in question became absolute in the plaintiff on September 25, 2008, more than one year before the defendant filed its motion to open. Thus, § 49-15 (a) plainly indicates that the defendant could not prevail on that motion.

In response, the defendant submits that, because the court did not provide notice of the judgment of strict foreclosure to it at its Illinois address, the applicable period to appeal has not run, resulting in an automatic stay of execution pursuant to Practice Book § 61-11 (a) . The defendant is mistaken. Practice Book § 63-1 (b) specifies when an appeal period begins. It provides in relevant part: “If notice of the judgment or decision is given in open court, the appeal period shall begin on that day. If notice is given only by mail, the appeal period shall begin on the day that notice was mailed to counsel and pro se parties of record by the trial court clerk. The failure to give notice of judgment to a nonappearing party shall not affect the running of the appeal period.” Practice Book § 63-1 (b). That last sentence is implicated here. Assuming arguendo that the court’s notice to the defendant’s agent somehow was deficient, it has little bearing on the issue before us. Because the defendant was a nonappearing party, under Practice Book § 63-1 (b) any failure to provide proper notice of the judgment of strict foreclosure did not affect the running of the appeal period.

Moreover, the evolution of that rule of practice evinces an intent to preclude a nonappearing defendant in a foreclosure action from advancing the argument articulated by the defendant in this appeal. As the court discussed in detail in its memorandum of decision: “The last sentence of [Practice Book § 63-1 (b)] . . . was added to the Practice Book, effective January 1, 2000. This revision to [Practice Book] § 63-1 (b) served to clarify an ambiguity in the section that had led some clerks to take the position that the failure of a plaintiff or the clerk to send notice of judgment after default for failure to appear to a nonappearing defendant in a foreclosure action rendered the judgment ineffective.

“In a memorandum, dated March 29,1999, written by Hon. David M. Borden, former Justice of [our] Supreme Court, to Hon. Ellen A. Peters, former Senior Justice of [our] Supreme Court and Hon. Edward Y. O’Connell, former Chief Judge of [our] Appellate Court, Justice Borden set forth the rationale behind the proposed revision and stated that the Rules Committee recommended that the revision to [Practice Book] § 63-1 (b) be adopted.

“Justice Borden wrote that an issue had arisen among some court clerks ‘concerning the application of Practice Book [§] 17-22 to foreclosure actions. Some court clerks [took] the position that the failure of a plaintiff to send notice of a judgment of default for failure to appear to a nonappearing defendant in a foreclosure action renders the judgment ineffective as to that defendant. Consequently, these clerks refuse [d] to give recognition to the judgment against these nonappearing parties for all purposes for which a valid judgment is a prerequisite, such as applications for executions of ejectment and the filing of motions to open judgment to extend the law day or sale date.’ . . .

“Taking into account [Practice Book] § 63-1 (b), which provides that if notice of judgment is given by mail, the appeal period commences on the date notice was mailed by the trial court clerk, Justice Borden stated that the ‘Rules Committee [interpreted] this to mean that the notice referred to in [Practice Book] [§] 63-1 does not include the notice under [Practice Book] [§] 17-22. Therefore, the failure of the plaintiff in a foreclosure action to give a defaulted defendant the [Practice Book] [§] 17-22 notice has no bearing on the triggering of the twenty day appeal period or on the effectuation of the judgment.’ Justice Borden noted that despite this reasoning, ‘some clerks [did] not believe the issue [had] been resolved, because in order for the appeal period to be triggered under [Practice Book] [§] 63-1 in [Practice Book] [§] 17-22 cases, the clerk must send notice of judgment ... to the defaulted parties. However, there is no trial court rule that requires the court clerk to do so.’ . . . [Practice Book §] 17-22 only requires the prevailing party to mail notice of judgment after default for failure to appear to the party against whom judgment is directed and there is no trial court rule that requires the court clerk to send such notice. Practice Book § 7-5 only provides that the court clerk ‘give notice to the attorneys of record and pro se parties ... of all judgments, nonsuits, defaults, decisions, orders and rulings unless made in their presence.’ . . .

“Justice Borden wrote that the Rules Committee believed that the adoption of the revision to Practice Book § 63-1 (b) would ‘resolve the problem by providing that when judgment has been rendered against a nonappearing defendant, the lack of notice of judgment to such defendant will not affect the running of the appeal period in the case.’ ” (Citations omitted.) We agree with the court that this background further demonstrates that the plain language of Practice Book § 63-1 (b) means what it says — the failure to give notice of judgment to a nonappearing party does not affect the running of the appeal period.

In the present case, title to the property in question became absolute in the plaintiff more than one year before the defendant filed its motion to open. Accordingly, § 49-15 (a) precluded the court from granting the defendant’s motion to open the judgment of strict foreclosure.

The judgment is affirmed.

In this opinion the other judges concurred.

       John R. Sudsbury, Carla S. Sudsbury, Rae Barter, and Falls Mill of Vernon Condominium Association, Inc., were also defendants in this foreclosure action, but they are not parties to this appeal. In this opinion, we refer to Beneficial Mortgage Co. of Connecticut as the defendant.
      We further note that the defendant filed this appeal in its name. In its appellate brief, however, the defendant refers to itself as Mortgage Electronic Registrations Systems, Inc. It has provided no explanation for this change of name, and the record indicates that the defendant has not sought permission to substitute Mortgage Electronic Registrations Systems, Inc., as aparty to this appeal. We therefore disregard the defendant’s references to that entity in this opinion.

       The defendant raises two additional claims pertaining to the substance of the judgment of strict foreclosure, alleging (hat the court improperly rendered that judgment without first entering a judgment of default against the defendant and that it abused its discretion by rendering a judgment of strict foreclosure rather than a foreclosure by sale. Those claims are not properly before us. “[I]t is well established in our jurisprudence that [w]here an appeal has been taken from the denial of a motion to open, but the appeal period has run with respect to the underlying judgment, we have refused to entertain issues relating to the merits of the underlying case and have limited our consideration to whether the denial of the motion to open was proper. . . . When a motion to open is filed more than twenty days after the judgment, the appeal from the denial of that motion can test only whether the trial court abused its discretion in failing to open the judgment and not the propriety of the merits of the underlying judgment. . . . This is so because otherwise the same issues that could have been resolved if timely raised would nevertheless be resolved, which would, in effect, extend the time to appeal.” (Internal quotation marks omitted.) Langewisch v. New England Residential Services, Inc., 113 Conn. App. 290, 293, 966 A.2d 318 (2009). Because the defendant filed its motion to open more than one year after the appeal period passed with respect to the judgment of strict foreclosure, review of the aforementioned claims is precluded.

       General Statutes § 33-922 (a) provides in relevant part: “A foreign corporation may apply for a certificate of authority to transact business in this state by delivering an application to the Secretary of the State for filing. The application shall set forth: (1) The name of the foreign corporation or, if its name is unavailable for use in this state, a corporate name that satisfies the requirements of section 33-925; (2) the name of the state or country under whose law it is incorporated; (3) its date of incorporation and period of duration; (4) the street address of its principal office; (5) the address of its registered office in this state and the name of its registered agent at that office . . . .”

       General Statutes § 52-57 (c) provides in relevant part: “In actions against a private corporation established under the laws of any other state, any foreign country or the United States, service of process may be made . . . upon the agent of the corporation appointed pursuant to section 33-922.”

       Although the precise terminology utilized by the court referenced its jurisdiction to open the judgment of strict foreclosure, it more appropriately is termed a matter of substantive authority. See Kim v. Magnotta, 249 Conn. 94, 104, 733 A.2d 809 (1999) (holding that General Statutes § 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”).

       We note that § 49-15 (a) (2) contains a very limited exception to the rule set forth in § 49-15 (a) (1). It provides that “[a]ny judgment foreclosing the title to real estate by strict foreclosure may be opened after title has become absolute in any encumbrancer upon agreement of each party to the foreclosure action who filed an appearance in the action and any person who acquired an interest in the real estate after title became absolute in any encumbrancer, provided (A) such judgment may not be opened more than four months after the date such judgment was entered or more than thirty days after title became absolute in any encumbrancer, whichever is later, and (B) the rights and interests of each party, regardless of whether the party filed an appearance in the action, and any person who acquired an interest in the real estate after title became absolute in any encumbrancer, are restored to the status that existed on the date the judgment was entered.” General Statutes § 49-15 (a) (2). That limited exception patently is inapplicable to the present case, as the plaintiff has not agreed to the opening of the judgment of strict foreclosure, and the defendant’s motion was filed well beyond the limitation set forth in § 49-15 (a) (2) (A).

       Practice Book § 61-11 (a) provides in relevant part: “Except where otherwise provided by statute or other law, proceedings to enforce or carry out the judgment or order shall be automatically stayed until the time to take an appeal has expired. . . .”


author: BEAR, J.

text:
    IN RE SARAH O.

    (AC 32449)
    DiPentima, C. J., and Bear and Borden, Js.

      Argued March 8 —
    officially released April 26, 2011

      Inez M. Diaz Galloza, with whom, on the brief, was Christina D. Ghio, for the appellant (respondent mother).

      Colleen B. Valentine, assistant attorney general, with whom, on the brief, were Richard Blumenthal, former attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).

      Linda K. Herzner, 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

BEAR, J.

The respondent mother appeals from the judgment of the trial court rendered in favor of the petitioner, the commissioner of children and families, terminating her parental rights as to her daughter, Sarah O. On appeal, the respondent claims that the court improperly (1) violated her due process rights or committed plain error by treating as competent evidence the posttrial position statement of Linda K. Herzner, the attorney appointed to represent Sarah and serve as the child’s guardian ad litem; (2) found that the department of children and families (department) had made reasonable efforts to reunify her with Sarah; (3) found that she had failed to achieve a sufficient degree of rehabilitation; and (4) found that termination of her parental rights was in the best interest of Sarah. We affirm the judgment of the trial court.

The court found the following facts, which are relevant for our review. The respondent is an articulate and intelligent woman, who has an associate’s degree in business. She has maintained employment in the banking industry on a relatively consistent basis. The respondent has two children, a son, K, bom in October, 1992, now of the age of majority, and Sarah, bom in April, 2007. Neither child’s father has been a significant factor in the lives of the children. The respondent has a history of alcohol abuse, benzodiazepine dependence and mental health issues, including anxiety and depression, which, during 2008, caused her to be hospitalized on five different occasions. She previously has participated in inpatient detoxifications and resident rehabilitation but ultimately has suffered relapses.

The department first became involved with the respondent’s family when the respondent was admitted to Charlotte Hungerford Hospital (hospital) in Torrington for alcohol abuse on September 19, 2008. The hospital filed a neglect report with the department after the ambulance crew, which had transported the respondent to the hospital from her home, revealed that the home in which the respondent lived with her children “was filthy and that there was a very thin dog and cat and piles of animal feces in the house.” The children, however, were not present at the home because K had requested assistance from his maternal grandparents on a prior date due to the respondent’s continued incapacity from the consumption of alcohol, and the maternal grandparents had taken the children to their home.

After the department became involved, it permitted K to remain at the home of his maternal grandparents, but it removed Sarah because it believed that the home was in a state of disrepair and disorder, such that it was unsafe for Sarah. Initially, Sarah was placed with her maternal uncle and his girlfriend, who reported that when Sarah arrived she was unable to feed herself and almost exclusively obtained her “food” from a bottle containing either milk or cereal. They also reported that Sarah had no shoes and arrived with only two pairs of pajamas, both of which smelled of cat urine. Within one month of her placement with her maternal uncle and his girlfriend, Sarah seemed healthier and was eating more age appropriate table food.

After the respondent was discharged from the hospital in October, 2008, the department referred her to the hospital’s partial hospitalization program after she declined to participate in further inpatient rehabilitation that had been recommended in a clinical consultation from Waterbury Hospital because she believed that it would interfere with the holidays with her children. She did indicate, however, that she would consider an intensive outpatient program at the McCall Foundation (McCall). Nevertheless, she did not contact McCall at that time.

On November 21, 2008, the respondent telephoned the department and notified it that she had been admitted to Waterbury Hospital on November 18, due to depression and alcohol abuse. The maternal uncle and his girlfriend revealed that they no longer could care for Sarah, and the department obtained from the court an order of temporary custody of Sarah on November 24, 2008. The court approved specific steps for the respondent to complete for the purpose of facilitating reunification, and Sarah was placed in a licensed foster home operated by a nonrelative. The respondent was discharged from Waterbury Hospital on November 26, 2008. She contacted McCall and participated in its program from December 5, 2008, to February 11, 2009.

McCall recommended that the respondent participate in Alcoholics Anonymous (AA) programs and that she obtain a sponsor. The respondent admitted that she did not follow this recommendation in a timely fashion, failing to attend AA meetings until April 22, 2009, or to get a sponsor until June. The respondent also began attending counseling at Northwest Center in April, 2009. The respondent’s therapist, Michelle Santos, accommodated the respondent’s anxiety disorder and her work schedule by scheduling sessions every other week. On March 18, 2009, Sarah was adjudicated neglected and committed to the care, custody and guardianship of the petitioner, and on May 20, 2009, the court again approved specific steps for the respondent to complete for the purpose of facilitating reunification with Sarah, including that she receive individual counseling to help her gain insight into her mental health issues and how her substance abuse impacts her children. Despite this required step, the respondent failed to attend counseling between September, 2009, and January, 2010, offering conflicting statements as to the reasons for her nonattendance during that time frame, in which she claimed a lack of insurance or, alternatively, that she had to work. She, however, did not tell the department or Santos that she was experiencing any financial or insurance related difficulties.

The respondent attended parenting classes at Family Strides and was receiving hands-on parenting training through Community Residences, Inc., an agency that oversaw the respondent’s visits with Sarah until September, 2009. The respondent also attended supervised visits with Sarah on a consistent basis, and her behavior at these visits was appropriate. At the time of trial, these supervised visits had been ongoing and lasted one and one-half hours to two hours each week. However, employees of the department, as well as visitation supervisors, reported that Sarah appeared to have more of a parental relationship with K, her brother, than she did with the respondent.

With only one possible exception, no provider or department employee had noted any evidence that the respondent had consumed any alcohol since November, 2008. All drug tests also had been negative, and the respondent maintained that she remained sober.

Following a temporary period of unemployment, the respondent was evicted from her home in 2009 for nonpayment of rent, and she moved into the home of her parents. The department, however, already had deemed the home unsuitable for Sarah. Social workers from the department conducted a home visit on December 31, 2009, and reported that the home was dark, dreary, cluttered and dirty; there was no siding on the walls and there was exposed insulation; there was a cat litter box on the floor, and the home smelled of urine and feces; and the workers were not permitted to enter the bedrooms because they were, in the words of the respondent, “ ‘a disaster.’ ” The respondent agreed that the home was not suitable for Sarah. When the social workers returned for another home visit on January 20, 2010, they saw much of the same. Additionally, they noted an unlocked gun cabinet with the door slightly ajar. K permitted the workers to enter his bedroom, and they noted that his room was tidy.

The respondent testified that she had paid for some repairs to be made to her father’s home but that there was so much to be done that it was overwhelming. She indicated that if Sarah were permitted to return to her, they would share a bedroom there, however. Although a friend of the respondent had offered K, Sarah and the respondent an appropriate place to stay, the respondent stated that she had declined the offer because she did not want K to have to change schools.

The court found that there were three primary areas of concern that affected the respondent’s ability to parent Sarah properly, namely, her ability to remain sober, her mental health issues and her ability to provide a safe and appropriate home for Sarah. As to the respondent’s ability to remain sober, the court stated that it could find “no clear and convincing evidence that contradicts [the respondent’s] assertion that she is currently clean and sober and has been since November, 2008.” Nevertheless, the court noted that the respondent successfully has maintained her sobriety for various lengths of time in the past, only to relapse. The court also found that the respondent’s absences from necessary therapy could have been avoided if the respondent really had wanted to attend her sessions. It also noted that the respondent had failed to achieve her goal of gaining insight into her mental health issues and how her substance abuse impacts her children. The court also found that the respondent lacked any insight into how her living conditions affected K and that this demonstrated the unlikeliness of her being able to recognize and respond to problems that might affect Sarah in the future. The court further indicated that it was troubled by the respondent’s moving into her father’s home in 2009 and continuing to live there even after being told, and admitting herself, that the home was not suitable for Sarah. Although the respondent testified that she had been attempting to fix up her father’s home, but that there was too much work needed, the court found that by expending resources on her father’s home, she had further delayed finding a suitable home for Sarah, effectively opting to leave her in foster care. The court further explained: “The result is that eighteen months after Sarah was removed, [the respondent] still cannot offer her a safe and secure home.”

On the basis of these facts, the court, in the adjudicatory phase of the proceedings, found “by clear and convincing evidence that [the respondent] ha[d] failed to achieve such degree of rehabilitation as to encourage the belief that within a reasonable period of time, she could assume a role as a parent for Sarah. Accordingly, for all the reasons stated above, the court [further found that] the petitioner ha[d] met her burden and proved . . . the ‘failure to rehabilitate’ ground [of the petition to terminate parental rights] by clear and convincing evidence as to [the respondent].”

In the dispositional phase of the case, the court looked to whether termination was in the best interest of Sarah, considering and making written findings regarding the seven factors delineated in General Statutes § 17a-112 (k). The court found that the department had made reasonable efforts to reunite the respondent and Sarah and had made numerous services available to them. The court further found that the respondent had failed to comply with the specific steps that were necessary to enable her to rehabilitate and to parent Sarah effectively within a reasonable period of time. It found that she had failed to obtain suitable housing for Sarah and that her therapy attendance had been problematic. The court further found that, although the respondent had made progress, she “remain[ed] unable to offer Sarah secure, safe accommodation.” The court then found, “by clear and convincing evidence, that it [was] in the best interest of Sarah and that it is necessary for her well-being, growth, development, safety, security, stability, continuity, consistency and permanency, and for closure, that the right of [the respondent] be terminated.” This appeal followed. Additional facts will be set forth as necessary.

I

The respondent claims that the court violated her due process rights or committed plain error by treating as competent evidence Herzner’s posttrial position statement, which she claims provided extrarecord post-trial evidence rather than a mere statement of Herzner’s position. The respondent acknowledges that she did not raise this claim before the trial court rendered its decision but seeks to prevail under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine, codified in Practice Book § 60-5.

Under Golding, a party “can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the [respondent] of a fair trial; and (4) if subject to harmless error analysis, the [petitioner] has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the [respondent’s] claim will fail. The appellate tribunal is free, therefore, to respond to the [respondent’s] claim by focusing on whichever condition is most relevant in the particular circumstances.” (Internal quotation marks omitted.) In re Tremaine C., 117 Conn. App. 521, 528-29, 980 A.2d 317, cert. denied, 294 Conn. 920, 984 A.2d 69 (2009). To be entitled to prevail under the plain error doctrine, the respondent must show that failure to remedy an obvious error would result in manifest injustice. See, e.g., State v. Myers, 290 Conn. 278, 289, 963 A.2d 11 (2009) (“[an appellant] cannot prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice” [internal quotation marks omitted]). In this case, we conclude that the court’s consideration of the position statement was harmless because much of the information contained therein was cumulative, and, in light of this conclusion, we find that such consideration did not result in a manifest injustice constituting plain error.

The following additional procedural history is relevant. At the close of trial on March 31, 2010, the court and the parties, including Herzner, discussed the timing of posttrial briefs. The court stated that the petitioner’s brief would be due by April 14,2010, and that the respondent’s brief was due on April 28, 2010. The court asked Herzner if she preferred to submit a posttrial brief or a position statement. She opted for the position statement, which the court ordered to be submitted by May 5,2010, after the parties had filed their briefs. All parties agreed to this schedule.

Herzner submitted her position statement to the court, dated May 20, 2010, stating that she supported the petitioner’s position and recommending that the respondent’s parental rights be terminated because it was in Sarah’s best interest. In addition to a statement of her position, however, Herzner also provided the court with some information on the posttrial situation of the respondent and her children. This information, the respondent argues, was improper extrarecord evidence of posttrial events, the consideration of which violated her right to due process and created a manifest injustice. We conclude that any violation was harmless beyond a reasonable doubt, there being clear and convincing record evidence to support the court’s decision; this evidence will be discussed in parts II and III of this opinion.

II

The respondent also claims that the court erred when it found that the department had made reasonable efforts to reunify her with Sarah because the department never provided her with individual treatment or with housing assistance. We disagree.

“In order to terminate parental rights under § 17a-112 (j), the department is required to prove, by clear and convincing evidence, that it has made reasonable efforts ... to reunify the child with the parent, unless the court finds . . . that the parent is unable or unwilling to benefit from reunification .... [Section 17a-112] imposes on the department the duty, inter alia, to make reasonable efforts to reunite the child or children with the parents. The word reasonable is the linchpin on which the department’s efforts in a particular set of circumstances are to be adjudged, using the clear and convincing standard of proof. Neither the word reasonable nor the word efforts is, however, defined by our legislature or by the federal act from which the requirement was drawn. . . . [Reasonable efforts means doing everything reasonable, not everything possible. . . . The trial court’s determination of this issue will not be overturned on appeal unless, in light of all of the evidence in the record, it is clearly erroneous. . . . A finding is clearly erroneous when either there is no evidence in the record to support it, or the reviewing court is left with the definite and firm conviction that a mistake has been made.” (Citation omitted; internal quotation marks omitted.) In re Devon W., 124 Conn. App. 631, 642, 6 A.3d 100 (2010).

We have carefully reviewed the record, which reveals that there was clear and convincing evidence to support the court’s finding that the department had made reasonable efforts to reunify the respondent with Sarah. The respondent was offered many services to support her in attaining the steps necessary to secure reunification, including the hospital’s partial hospitalization program, intensive outpatient treatment at McCall, parenting education programs, AA, Community Residence, Inc., All Point visitation services, case management services by the department, and a referral to the department of social services and licensed foster care for Sarah. Although the respondent argues that the department did not make reasonable efforts because it failed to provide her with individual treatment or housing assistance, we conclude that the efforts made by the department were sufficient. “[Reasonable efforts means doing everything reasonable, not everything possible.” (Internal quotation marks omitted.) In re Samantha C., 268 Conn. 614, 632, 847 A.2d 883 (2004). In this case, the respondent did obtain counseling, albeit initially through self-referral; she, nonetheless, was in treatment. Her failure to make regular and continued use of this treatment, or to make progress with her mental health issues, was not the fault of the department. As for her allegation that the department had a responsibility to provide housing assistance for her, the record reveals that the respondent knew that her housing situation was unsuitable for Sarah, yet, she made no effort to secure suitable housing despite being offered a place to stay by a friend and being encouraged by the department to have this friend attend a meeting with department personnel. The respondent also testified that she was using her own resources to fix up her father’s home, despite knowing that the work needed to be done was overwhelming. Rather than spend those resources on a safe and secure home for her and Sarah, she chose to do otherwise, leaving Sarah in foster care. Furthermore, when the respondent was facing eviction from her apartment in 2009, the department referred her to the department of social services, but the respondent chose not to make contact. On the basis of this evidence, we conclude that the court’s finding that there was clear and convincing evidence that the department had made reasonable efforts to reunify the respondent and Sarah was not clearly erroneous.

m

The respondent next claims that the court erred in finding that she had failed to achieve a sufficient degree of rehabilitation. We disagree.

Our standard of review is well established. “[W]e 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.” (Internal quotation marks omitted.) In re Jordan T., 119 Conn. App. 748, 755, 990 A.2d 346, cert. denied, 296 Conn. 905, 992 A.2d 329 (2010).

In order to terminate parental rights under § 17a-112 (j), the department is required to prove, by clear and convincing evidence that “(B) the child . . . has been found by the Superior Court or the Probate Court to have been neglected or uncared for in a prior proceeding .. . and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent. . . and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .”

The respondent argues that “[t]he record unmistakably demonstrates that the mother benefited from [the department’s] services to reunify her with Sarah and is now able to care for Sarah once she secures appropriate housing.” We agree that the respondent benefited from the department’s services and that she made progress, for which she should be proud; nevertheless, the record supports the court’s finding that she failed to rehabilitate sufficiently, such that she could parent Sarah within a reasonable amount of time.

Our Supreme Court has instructed that “[i]n determining whether a parent has achieved sufficient personal rehabilitation, a court may consider whether the parent has corrected the factors that led to the initial commitment, regardless of whether those factors were included in specific expectations ordered by the court or imposed by the department. . . . Accordingly, successful completion of expressly articulated expectations is not sufficient to defeat a department claim that the parent has not achieved sufficient rehabilitation.” (Internal quotation marks omitted.) In re Melody L., 290 Conn. 131, 150-51, 962 A.2d 81 (2009).

In this case, everyone, including the respondent, agreed that her father’s home was not an appropriate location for Sarah. Yet, the respondent continued to stay in that home while her daughter was in foster care. Although she apparently had some resources, she expended those resources to begin to fix up her father’s home, knowing that it had overwhelming problems, while her daughter remained in foster care. Further, although given an opportunity by a friend to move to a more appropriate home, she declined the invitation, while her daughter remained in foster care. It appears that she simply did not recognize the urgency of the situation, but, instead, believed that her daughter could wait out the housing situation while remaining in foster care. Additionally, the court was troubled by the respondent’s failure to recognize the impact of her living conditions and her choices on her son and on Sarah. We conclude that the record supports the court’s concerns and its findings. Accordingly, we conclude that the court’s finding that the respondent has failed to achieve such a degree of rehabilitation as to encourage the belief that within a reasonable period of time, she could assume the role of parent for Sarah was not clearly erroneous.

IV

The respondent next claims that the court erred in finding that termination of her parental rights was in Sarah’s best interest. We disagree.

“In the dispositional phase of a termination of parental rights hearing, the emphasis appropriately shifts from the conduct of the parent to the best interest of the child. ... It is well settled that we will overturn the trial court’s decision that the termination of parental rights is in the best interest of the children only if the court’s findings are clearly erroneous. . . . The best interests of the child include the child’s interests in sustained growth, development, well-being, and continuity and stability of [his or her] environment. ... In the dispositional phase of a termination of parental rights hearing, the trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent’s parental rights is not in the best interest of the child.” (Citations omitted; internal quotation marks omitted.) In re Janazia S., 112 Conn. App. 69, 97-98, 961 A.2d 1036 (2009).

In this case, the court explained that by the time of trial Sarah had been out of her mother’s care for more than one half of her three year life, due, in no small part, to the respondent’s living arrangements and inability to appreciate how her life choices have affected her children. Even at the time of trial, the respondent, although recognizing herself that her father’s home was unsafe and inappropriate for Sarah, continued to reside at her father’s home while Sarah remained in foster care. Furthermore, although Sarah and the respondent had a bond, and it was obvious to those supervising their visits that the respondent loved Sarah, Sarah looked more to her teenaged brother, K, as her parent and appeared to have a closer parental type bond to him than she did to the respondent. Furthermore, the court concluded that although the respondent “did make some progress in that she has remained sober, she has consistently failed to make reunification with Sarah a priority in her life.” It was on the basis of these facts that the court, in looking to the future, found that it was not in Sarah’s best interest to continue the respondent’s parental rights. We conclude that the court’s finding was not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       The petitioner also filed a termination of parental rights petition as to the father of Sarah. He was defaulted prior to the hearing on the petition, and the court thereafter terminated his parental rights. Because only the respondent mother has appealed, we refer to her in this opinion as the respondent.

       Pursuant to General Statutes § 46b-129a: “In proceedings in the Superior Court under section 46b-129 . . . (2) a child shall be represented by counsel knowledgeable about representing such children who shall be appointed by the court to represent the child and to act as guardian ad litem for the child. . . .”
      Herzner also has filed a position statement in this appeal on behalf of Sarah in which Herzner adopts the position of the petitioner.

       The respondent’s first sponsor reported that the respondent had failed to maintain daily contact or attend AA meetings with her. After this sponsor relocated, the respondent obtained another sponsor in August, 2009. The new sponsor initially reported that things were going well, but, by October, 2009, she stated that she had not seen or heard from the respondent recently and that she did not know if the respondent was attending AA meetings. Subsequently, this sponsor also left the area. The respondent stated that she had obtained another sponsor and gave her name to the court; the department, however, stated that it was not aware of the new sponsor.

       The respondent entered a plea of nolo contendere to the ground of the neglect petition alleging that K and Sarah were placed in conditions injurious to their health and well-being. See General Statutes (Rev. to 2007) § 46b-120 (9) (C).

       Marilyn Flores, a former department employee, testified that she thought she smelled alcohol when leaning close to the respondent in early February, 2010. The court, however, stated that it did not give much weight to this suspicion in light of the respondent’s continued clean drug screens and the testimony of other witnesses.

       There is evidence in the record that the respondent’s mother was dying of cancer and that she died during the pendency of this proceeding. After her mother died, the respondent continued to work with her therapist on her identified goals of achieving financial and housing stability, compliance with other specific steps, and development of insight into how she had reached her present circumstances. At the trial in March, 2010, the respondent’s therapist testified that the respondent needed to continue in therapy and that they still were working on issues that included maintaining financial stability, obtaining stable housing, and achieving other goals established by the department. At trial, the court evaluator reported that the respondent had made progress in her goals of remaining sober and securing employment but had not become involved in individual and parenting counseling sufficiently to gain insight into her mental health issues, to understand how her substance abuse impacted her children, and to build up her parenting skills to the point that she was capable of fulfilling the responsibilities of a healthy parent. The evaluator found that the respondent did not understand the effect of her behavior on her children. The trial court found that the mother had not been able to provide suitable long-term housing for Sarah, her son and herself since September, 2008. The effect of her inability or unwillingness to find such housing was to have Sarah remain in foster care. In September, 2008, Sarah was approximately seventeen months old, and eighteen months later at the end of March, 2010, Sarah was almost three years old.

       The department, in October, 2008, had reported that the home was cluttered, had dishes in the sink, insulation hanging from the ceiling and many filled garbage bags near a woodstove.

       There is no indication in the record that there were any guns present in the cabinet.

       General Statutes § 17a-112 (k) provides in relevant part: “[I]n determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered, provided and made available to the parent and the child ... (2) whether the Department . . . has made reasonable efforts to reunite the family ... (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (4) the feelings and emotional ties of the child with respect to the child’s parents, any guardian of such child’s person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (5) the age of the child; (6) the efforts the parent has made to adjust such parent’s circumstances, conduct, or conditions to make it in the best interest of the child to return such child home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions, and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (7) the extent to which aparent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.”

        Golding review is applicable in civil as well as criminal cases. Perricone v. Perricone, 292 Conn. 187, 212 n.24, 972 A.2d 666 (2009).

       Practice Book § 60-5 provides in relevant part: “The court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law. . . . The court may in the interests of justice notice plain error not brought to the attention of the trial court. ...”

       Because it is clear that the court’s consideration of the position paper was harmless, we need not consider the other prongs of Golding. See In re Tremaine C., supra, 117 Conn. App. 528-29.

       The petitioner argues that the respondent waived her right to challenge the court’s consideration of the position statement by failing to object at this time. We are not persuaded by this argument in light of the content of the position statement, which contains factual allegations in addition to Herzner’s statement of her position.

       The actual date of submission is not in the record.