author: Per Curiam.

text:
    In re Ernest B.

    (11322)
    Daly, Foti and Heiman, Js.
    Submitted on briefs October 30
    decision released December 1, 1992

      Dante R. Gallucci, special public defender, filed a brief for the appellant (respondent).

      Thomas McCullough O’Brien, state’s advocate, filed a brief for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 4166B.2, 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.

   Per Curiam.

The respondent, Ernest B., appeals from an order of the Superior Court for Juvenile Matters at Bridgeport, entered pursuant to General Statutes § 46b-127, transferring him to the regular criminal docket of the Superior Court to be tried, and if convicted, sentenced as an adult. The respondent alleges that the court improperly ordered him transferred in that the evidence was insufficient to find probable cause to believe that he had committed the crime of murder in violation of General Statutes § 53a-54a (a).

On March 9, 1992, the court held a hearing on the motion of the state’s advocate to transfer the respondent. The court found that the respondent, born on July 9, 1976, was fifteen years of age on October 3, 1991, the date on which Joseph (Jose) Nieves, Jr., was fatally shot. The court also found, from the evidence presented, that there was probable cause to believe that Nieves was the victim of murder, and that the respondent, Ernest B., intentionally caused Nieves’ death by firing four or more bullets from a 0.25 caliber gun, one of which entered Nieves’ chest, passed through vital organs and caused death within hours.

On appeal, our function is to determine whether the trial court’s decision that probable cause existed was clearly erroneous. In re David M., 29 Conn. App. 499, 503, 615 A.2d 1082 (1992); In re Lloyd W., 28 Conn. App. 608, 611, 611 A.2d 461 (1992). “The quantum of evidence required to establish probable cause is less than that required to establish proof beyond a reasonable doubt at trial. It is more than mere suspicion but substantially less than that required for conviction. In re Keijam T., 221 Conn. 109, 115-16, 602 A.2d 967 (1992). Moreover, in viewing this evidence and the permissible inferences drawn from it to determine whether the decision was clearly erroneous, we do so in the light most favorable to sustaining the trial court’s determination of probable cause.” In re David M., supra.

Our examination of the whole record, including the transcript of the testimony before the trial court, persuades us that the trial court’s order of transfer was proper. Our review of the record discloses that the evidence was sufficient to support the court’s factual findings, and that these findings legally, logically and reasonably support the court’s determination that probable cause existed. We cannot say that this decision was clearly erroneous.

The order of transfer is affirmed.

       The execution of the transfer order has been stayed pending this appeal. In re Bromell G., 214 Conn. 454, 572 A.2d 352 (1990).

       The respondent also claims that the evidence was insufficient to find probable cause to believe that he had committed felony murder in violation of General Statutes § 53a-54c. Because we affirm the trial court’s decision that there was probable cause as to violation of General Statutes § 53a-54a (a), we need not reach this claim.


source: Caselaw Access Project

author: Landau, J.

license: Public Domain

text:
    Lois Schallenkamp v. Lawrence DelPonte, Commissioner of Motor Vehicles
    (10697)
    O’Connell, Foti and Landau, Js.
    Argued October 8
    decision released December 1, 1992

      Francis S. Holbrook II, with whom was Donald G. Leis, Jr., for the appellant (plaintiff).

      Kathryn Mobley, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Landau, J.

The plaintiff, Lois Schallenkamp, appeals from the trial court’s dismissal of her administrative appeal. A hearing was held to determine whether the plaintiffs nonresident privilege to operate a motor vehicle should be suspended pursuant to General Statutes § 14-227b. The hearing was limited to the four issues set forth in General Statutes § 14-227b (f). A hearing officer found each issue in the affirmative and, by notice dated October 12, 1990, suspended her nonresident operating privilege for ninety days, effective November 10, 1990, in accordance with General Statutes § 14-227b (g). The plaintiff appealed the suspension to the Superior Court and filed a motion to stay the suspension, which the trial court granted. The trial court upheld the decision of the hearing officer. The plaintiff sought review in this court, but did not seek to have the stay continued. She has since served the suspension and her operating privilege has been reinstated by the defendant commissioner of motor vehicles. On appeal, the plaintiff claims that the record does not contain substantial evidence supporting the suspension decision. We disagree.

The following facts are pertinent to this appeal. The plaintiff, in view of the arresting officer, stopped her vehicle in the travel lane of Elm Street in Windsor Locks. After three or four minutes watching the plaintiff, the officer flashed his emergency lights and approached the car. Upon speaking with the plaintiff, the officer smelled a strong odor of alcohol and observed that the plaintiffs eyes appeared red and glassy. The plaintiff failed the field sobriety tests and was placed under arrest. After reaching the police station, the plaintiff submitted to breathalyzer tests, which showed that she had a blood alcohol content of 0.199 at 2:39 a.m. and 0.184 at 3:15 a.m. On the basis of these findings, the commissioner of motor vehicles suspended her nonresident operating privilege. The plaintiff requested and was subsequently given an administrative hearing on the proposed license suspension.

At the administrative hearing, the police officer’s sworn report was admitted over the objection of the plaintiff. The report contained, inter alia, a box that was checked that showed “the analytical device was operated by a certified analyst.” The plaintiff introduced a single piece of paper on the letterhead of the department of health services that she claimed proved the testing officer was not certified to operate the equipment. This is the sole basis for the plaintiffs claim that the record does not contain substantial evidence to support the suspension.

I

Before we reach the plaintiff’s evidentiary claim, we must first determine whether the plaintiff’s claim is moot. Although the mootness issue was not raised by either of the parties, we raise it sua sponte because mootness implicates this court’s subject matter jurisdiction. Daly v. DelPonte, 27 Conn. App. 495, 502, 608 A.2d 93, cert. granted, 223 Conn. 903, 610 A.2d 177 (1992); see also Gagnon v. Planning Commission, 24 Conn. App. 413, 415, 588 A.2d 1385 (1991), aff’d, 222 Conn. 294, 608 A.2d 1181 (1992). “It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 (1944).

In Collins v. Goldberg, 28 Conn. App. 733, 611 A.2d 938 (1992), we held that the plaintiff’s appeal challenging his license suspension was not moot even where the suspension had ended by the time of the appeal. We concluded that the appeal fell within the “capable of repetition, yet evading review” exception to the mootness doctrine, because the facts fulfilled the considerations outlined in Plourde v. Liburdi, 207 Conn. 412, 415 n.5, 540 A.2d 1054 (1988). In Plourde, our Supreme Court noted that the issues involved in that appeal were not moot because “(1) the issues raised are capable of repetition yet evade review because of the historically short terms of alcohol related confinements; (2) presently there are over 200 inmates identically situated and thus affected by this ongoing program of the state’s penal system; (3) the petitioner could very well be affected if convicted in the future; and (4) there is significant public interest in the disposition of alcohol related offenses.” Id.; Collins v. Goldberg, supra, 736.

Here, we conclude, as we did in Collins, that the issues raised in this case are not moot because (1) the issues raised are capable of repetition yet evading review because the period of suspension (ninety days) is relatively brief, (2) many Connecticut drivers have had their licenses suspended under the ongoing statutory scheme, (3) if the plaintiff again violates § 14-227b she would be subject to a longer suspension, and (4) there is significant public interest in the disposition of alcohol related offenses.

II

Having concluded that the issue is not moot, we now turn to the plaintiffs evidentiary claim. In order to prevail in this appeal, the plaintiff bears the burden of proving that substantial rights possessed by her have been prejudiced because the decision to suspend her right to operate a vehicle in this state was “clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.” General Statutes § 4-183 (j) (5); Lawrence v. Kozlowski, 171 Conn. 705, 713-14, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977). “Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred.” (Citations omitted; internal quotation marks omitted.) Connecticut Light & Power Co. v. Department of Public Utility Control, 216 Conn. 627, 639, 583 A.2d 906 (1990). In the context of a license suspension under the implied consent law, if the administrative determination of the four license suspension issues set forth in § 14-227b (f) is supported by substantial evidence in the record, that determination must be sustained. Clark v. Muzio, 40 Conn. Sup. 512, 514, 516 A.2d 160 (1986).

The plaintiff claims that the hearing officer accorded more probative weight to the certification in the police officer’s report than to the assertions in the letter from the department of health services. The record contains substantial evidence supporting the suspension. We agree with the trial court that the police officer’s statement in his report, made under oath, to the effect that he was certified at the time he administered the tests, was evidence that would reasonably support the finding of the hearing officer notwithstanding conflicting evidence presented by the plaintiff.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-227b (d) provides in pertinent part that if the blood alcohol content is found to be greater than 0.10 of 1 percent, “the commissioner of motor vehicles shall suspend any license or nonresident operating privilege of such person . . . . Any person whose license or operating privilege has been suspended in accordance with this subsection shall automatically be entitled to a hearing before the commissioner to be held prior to the effective date of the suspension. . . .”

       General Statutes § 14-227b (f) provides in pertinent part: “The hearing shall be limited to a determination of the following issues: (1) Did the police officer have probable cause to arrest the person for manslaughter in the second degree with a motor vehicle or for assault in the second degree with a motor vehicle or for operating a motor vehicle while under the influence of intoxicating liquor or drug or both or while his ability to operate such motor vehicle was impaired by the consumption of intoxicating liquor; (2) was such person placed under arrest; (3) did such person refuse to submit to such test or analysis or did such person submit to such test or analysis and the results of such test or analysis indicated that at the time of the alleged offense the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight; and (4) was such person operating the motor vehicle. ...”

       General Statutes § 14-227b (g) provides in pertinent part: “If, after such hearing, the commissioner finds on any one of the said issues in the negative, the commissioner shall reinstate such license or operating privilege. If, after such hearing, the commissioner does not find on any one of the said issues in the negative or if such person fails to appear at such hearing, the commissioner shall affirm the suspension contained in the suspension notice for the appropriate period specified in subsection (h) of this section. ...”

       General Statutes § 4-183 (f) provides in pertinent part: “The filing of an appeal shall not, of itself, stay enforcement of an agency decision. . . .” This stay terminates upon the dismissal of the appeal by the trial court. The plaintiff must file another stay of the agency action when she appeals the trial court’s decision to this court. See also Practice Book §§ 4046 and 4047.

       In 1991 alone, over 14,000 Connecticut drivers had their licenses suspended for violating this statute. Collins v. Goldberg, 28 Conn. 733, 736 n.2, 611 A.2d 938 (1992).

       We are not unaware that, in the recent past, appellate tribunals have held that an appeal challenging a license suspension is moot after the license has been reinstated. Daly v. DelPonte, 27 Conn. App. 495, 608 A.2d 93 (1992); see also Phaneuf v. Commissioner of Motor Vehicles, 166 Conn. 449, 352 A.2d 291 (1974). In these cases, however, the court’s were unable to perceive any collateral legal consequences that would be dispelled or remedied by an order of the court reversing the defendant’s order. Phaneuf v. Commissioner of Motor Vehicles, supra, 453. In the instant case, however, a reversal of the suspension would lessen the effect of a future violation of this statute on the plaintiff. Therefore, such collateral legal consequences are present here.

       While we are not bound by a decision of the Superior Court; State v. Johnson, 28 Conn. App. 708, 716 n.5, 613 A.2d 1344 (1992); we agree with the Clark court’s interpretation and adopt it here. See id., 717.


text:
    Francis Harrington v. Lawrence DelPonte, Commissioner of Motor Vehicles
    (10830)
    O’Connell, Foti and Landau, Js.
    Argued October 8
    decision released December 1, 1992

      Donald G. Leis, Jr., with whom was Francis S. Holbrook II, for the appellant (plaintiff).

      Robert T. Morrin, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Per Curiam.

The plaintiff appeals from the trial court’s dismissal of his administrative appeal. A hearing was held to determine whether the plaintiffs license to operate a motor vehicle should be suspended pursuant to General Statutes § 14-227b (d). The hearing was limited to the four issues set forth in General Statutes § 14-227b (f). A hearing officer found each issue in the affirmative and, by notice dated June 21,1990, suspended the plaintiffs license to operate a motor vehicle for ninety days, effective July 8, 1990. The plaintiff appealed the suspension to the Superior Court, which granted his motion to stay the suspension, pending resolution of the appeal.

The following facts are pertinent to this appeal. The plaintiff was arrested on June 3, 1990, for operating a motor vehicle while under the influence of drugs or alcohol or both in violation of General Statutes § 14-227a. The plaintiff submitted to a breathalyzer test; it registered a reading of 0.155 percent blood alcohol content. At the time of the arrest, the officer who operated the Intoximeter 3000 checked a box on the arrest form indicating that he was certified to perform the breathalyzer test. At the administrative hearing, the plaintiffs attorney alleged that the certification of the officer who operated the Intoximeter 3000 had lapsed prior to the test on the plaintiff. The plaintiffs attorney represented to the hearing officer that he had spoken to Sanders Hawkins of the department of health services that morning and that Hawkins had stated that “he did not have in his possession, the copy of the re-certification [report] of the officer [who performed the test] . . . .’’The attorney offered no evidence or testimony to support this allegation.

The plaintiff claims that the results of the test should not be admitted because there is not substantial evidence to support the hearing officer’s determination that the officer who administered the test was certified. This case is controlled by our decision in Schallenkamp v. DelPonte, 29 Conn. App. 576, 616 A.2d 1157 (1992).

The judgment is affirmed.

       General Statutes § 14-227b (d) provides in pertinent part that if the blood alcohol content is found to be greater than 0.10 of 1 percent, “the commissioner of motor vehicles shall suspend any license or nonresident operating privilege of such person . . . .Any person whose license or operating privilege has been suspended in accordance with this subsection shall automatically be entitled to a hearing before the commissioner to be held prior to the effective date of the suspension.”

       General Statutes § 14-227b (f) provides in pertinent part: “The hearing shall be limited to a determination of the following issues: (1) Did the police officer have probable cause to arrest the person for manslaughter in the second degree with a motor vehicle or for assault in the second degree with a motor vehicle or for operating a motor vehicle while under the influence of intoxicating liquor or drug or both or while his ability to operate such motor vehicle was impaired by the consumption of intoxicating liquor; (2) was such person placed under arrest; (3) did such person refuse to submit to such test or analysis or did such person submit to such test or analysis and the results of such test or analysis indicated that at the time of the alleged offense the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight; and (4) was such person operating the motor vehicle. . . .”

       There is no indication in the record that the plaintiff filed a motion to stay execution of the suspension after the trial court’s ruling. At oral argument, plaintiff’s counsel indicated that the license suspension had not yet gone into effect. The plaintiff, under our rules of practice, is required to file such a stay after an adverse trial court ruling. See Schallenkamp v. DelPonte, 29 Conn. App. 576, 577-78 n.4, 616 A.2d 1157 (1992).


author: Cretella, J.

text:
    State of Connecticut v. Roscoe Johnson
    (10084)
    O’Connell, Foti and Cretella, Js.
    Argued September 28
    decision released December 1, 1992

      Richard Emanuel, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Richard L. Palombo, Jr., assistant state’s attorney, for the appellee (state).
   Cretella, J.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of possession of narcotics with the intent to sell in violation of General Statutes § 2 la-277 (a). The defendant claims that the trial court improperly (1) admitted into evidence a prior conviction identical to the crime charged, (2) imposed a fine on him despite his apparent indigence, and (3) charged the jury on reasonable doubt. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On April 18,1990, Officer Roberto Melendez of the Bridgeport police department was patrolling the Father Panik Village area of Bridgeport. Toward midday, an individual approached Melendez and explained that he had observed a black male standing in a courtyard near buildings twenty-three and twenty-seven holding a large bag of crack cocaine. The informant also described the person’s clothing.

In a marked patrol car, Melendez approached the area in question and positioned the car so that his view of the courtyard was unobstructed. From a distance of roughly 250 feet, Melendez observed a black male matching the description given by the informant. Melendez later identified this person as the defendant. According to Melendez, the defendant placed a brown paper bag underneath a tree stump and sat down on a nearby concrete pylon.

At this point, Melendez requested backup support and drove toward the courtyard. When additional police arrived, Melendez left his car, walked over to the tree stump and found the brown bag that the defendant had placed under the stump. After a field test revealed that the bag contained crack cocaine and heroin, the police arrested the defendant who had remained seated during the investigation.

During the trial, there was substantial testimony on the issue of the defendant’s addiction to drugs. Over the defendant’s objection, testimony was also admitted to establish that the defendant had been convicted in 1987 of possession of narcotics with the intent to sell. Ultimately, the jury returned a verdict of guilty of possession with the intent to sell. The trial court sentenced the defendant to the statutory maximum of fifteen years and imposed a fine of $50,000. This appeal followed.

I

The defendant first claims that the trial court improperly admitted into evidence the name of a prior felony conviction. Specifically, the defendant asserts that the admission of the precise name of the felony was unfairly prejudicial because the prior conviction was identical to the crime for which the defendant was on trial. We disagree.

The following additional facts are necessary to the resolution of this issue. The defendant filed a motion in limine seeking the exclusion of any testimony regarding the defendant’s criminal history, in particular, his conviction for possession of narcotics with intent to sell. Again, the theory was that the conviction, being identical to the pending charges, would unfairly prejudice the defendant. The trial court denied the motion. After the completion of the state’s case, defense counsel indicated that the defendant would testify and asked the court to reconsider its earlier ruling on the motion in limine. The court then modified its previous ruling to allow the state to elicit testimony as to the felony conviction, but only to the extent that it remained unnamed.

During his direct examination, the defendant acknowledged that in 1987 he had been convicted of two felonies, which arose out of his addiction, but he did not specify the underlying offenses. Defense counsel then asked, “Do you deal drugs to maintain your lifestyle?” The defendant answered, “No, I can’t.” Upon the completion of direct examination, the court excused the jury and entertained argument by the state that the defendant had “opened the door” for a rebuttal when he denied dealing drugs. The court ruled that the state could question the defendant as to the name of the prior drug related conviction. The state then elicited testimony in which the defendant acknowledged his felony conviction for possession of narcotics with intent to sell.

At the outset we note that “[o]ur standard of review regarding challenges to a trial court’s evidentiary rulings is clear. ‘ “Evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” ’ ” State v. Indrisano, 29 Conn. App. 283, 291, 613 A.2d 1375 (1992), quoting State v. Alvarez, 216 Conn. 301, 306, 579 A.2d 515 (1990). It is well established that the trial court has discretion on the admissibility of prior convictions. In such instances, the test is whether the “prejudicial effect of the evidence did not outweigh its probative value.” State v. Rivera, 221 Conn. 58, 72, 602 A.2d 571 (1992).

The defendant relies heavily on our Supreme Court’s decision in State v. Geyer, 194 Conn. 1, 15, 480 A.2d 489 (1984). There, the court held that the defendant’s prior convictions, being similar to the charges then pending, “gave rise to extraordinary prejudice that far outweighed their marginal probative value as to the defendant’s credibility.” Id. The court, therefore, concluded that the prior convictions were inadmissible. Id.

Where, as the defendant did here, a party “opens the door” to a subject that goes directly to the credibility of the witness, he does so at his risk. In such cases, the rule is that “a party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject.” State v. Graham, 200 Conn. 9, 13, 509 A.2d 493 (1986). That is the case “[e]ven though the rebuttal evidence would ordinarily be inadmissible on other grounds. . . .’’Id.; see also State v. Paulino, 223 Conn. 461, 467, 613 A.2d 720 (1992). The reason for such a rule is that it “prevent[s] a defendant from successfully excluding inadmissible prosecution evidence and then selectively introducing pieces of this evidence for his own advantage, without allowing the prosecution to place the evidence in its proper context. . . .” (Internal quotation marks omitted.) State v. Paulino, supra, quoting United States v. Lum, 466 F. Sup. 328, 334 (D. Del. 1979).

In this context, we conclude that the defendant’s reliance on State v. Geyer, supra, is misplaced in this case. While it is true that the defendant’s prior conviction involved a crime identical to the crime now at issue, the fact remains that defense counsel “opened the door” for the state’s rebuttal. In response to questioning by defense counsel, the defendant testified that he did not sell drugs to maintain his lifestyle. This testimony suggested the nonexistence of the defendant’s prior conviction for possession with intent to sell and squarely implicated the defendant’s credibility. Accordingly, we cannot, conclude that the trial court abused its discretion in permitting the prosecution to elicit from the defendant the name of his prior drug related conviction.

II

The defendant’s next claim is that the trial court’s imposition of a fine was improper in light of his apparent indigence. We disagree.

Our recent decision in State v. Zakrzewski, 26 Conn. App. 716, 603 A.2d 432 (1992), is thoroughly dispositive of this claim. In Zakrzewski, this court held that “the possibility that the defendant may be incarcerated for his failure to pay will not arise, as a practical matter, until he has served his sentence.” Id., 719. Therefore, a challenge to the fine imposed is not ripe for review until the failure to pay becomes the cause of any prolonged incarceration. Id. We remain mindful of the United States Supreme Court’s mandate that the state may not “subject a certain class of convicted defendants to a period of imprisonment beyond the statutory maximum solely by reason of their indigency.” Williams v. Illinois, 399 U.S. 235, 241-42, 90 S. Ct. 2018, 26 L. Ed. 2d 586 (1970). In this case, however, the defendant’s indigence will not affect the period of incarceration until the end of the fifteen year sentence. As such, our decision in State v. Zakrzewski, supra, is controlling, and the defendant’s claim must fail.

Ill

The defendant’s final claim is that the trial court improperly instructed the jury on “reasonable doubt” in violation of the due process clauses of our state and federal constitutions. Specifically, the defendant challenges the trial court’s definition of reasonable doubt as “a doubt for which a valid reason may be assigned.” We disagree.

As a threshold matter, the defendant’s failure to object to this portion of the jury instruction militates against the reviewability of his claim. Recognizing this deficiency, the defendant seeks to invoke State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), which permits appellate review of unpreserved claims that implicate clear constitutional rights. The doctrine of State v. Golding, supra, is unavailing, however, in this case because our Supreme Court has specifically upheld the constitutionality of a jury charge identical to the one before us. State v. Thomas, 214 Conn. 118, 120, 570 A.2d 1123 (1990). In short, because the trial court’s instruction did not infringe on a clear constitutional right, we are unwilling to review the defendant’s claim under State v. Golding, supra, 239-40. State v. Thomas, supra; State v. Smith, 26 Conn. App. 279, 280-82, 600 A.2d 1036 (1991).

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was charged in a substitute information with possession of narcotics with intent to sell; General Statutes § 21a-277 (a); and possession with intent to sell by a person who is not drug-dependent. General Statutes § 21a-278 (b). He was found not guilty of violating General Statutes § 21a-278 (b). General Statutes § 21a-277 (a) provides in pertinent part: “Any person who . . . possesses with the intent to sell or dispense . . . any controlled substance which is a hallucinogenic substance other than marihuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned; and for a second offense shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”

       The judgment mittimus directed in pertinent part that “said defendant pay to the State of Connecticut the amount of fines . . . now unpaid as shown below [i.e., $50,000] and be committed to the above facility in default of payment of said fees.”

       See Conn. Const., art. I, § 8; U.S. Const., amends. V and XIV.

       Practice Book § 4185 provides in pertinent part that “the [appellate] court may in the interest of justice notice plain error not brought to the attention of the trial court.” Again, however, our decision in State v. Thomas, 214 Conn. 118, 570 A.2d 1123 (1990), is dispositive as that case approved of a charge identical to the one before us. Thus, there are no grounds on which we can conclude that the instruction constituted plain error.


text:
    State of Connecticut v. Vincent Erzen
    (10858)
    O’Connell, Landau and Heiman, Js.
    Argued October 1
    decision released December 1, 1992

      James P. Ginocchio, assistant public defender, for the appellant (defendant).

      Mary H. Lesser, assistant state’s attorney, with whom, on the brief, were Eugene J. Callahan, state’s attorney, and Robert Katz, assistant state’s attorney, for the appellee (state).
   Landau, J.

The defendant appeals from the judgment of conviction, rendered after a trial to the court, of two counts of risk of injury to a child in violation of General Statutes § 53-21. The defendant claims that § 53-21 as applied to the facts of this case is so vague and indefinite as to violate the due process provisions of article first, § 8, of the Connecticut constitution and the fourteenth amendment to the United States constitution. We disagree.

The trial court could reasonably have found the following facts. On Saturday, May 18, 1991, P took her eight year old daughter, C, and her daughter’s eight year old friend, E, to the playground located at Weston Elementary School. While C and E were riding their bicycles in front of the school building, the defendant approached them and requested their help in looking for “his lost puppy.” He asked C and E to go around the right side of the building while he went around the left side. The children followed the defendant’s directions and they all met in a small alcove at the rear of the building.

Once at the rear of the building, the defendant asked C if she knew how to “unzip his zipper.” C, knowing that the defendant meant the zipper on his trousers,, said, “No.” He then asked C to unzip his zipper and the child again replied, “No.” Directing himself to E, the defendant inquired whether she knew how to unzip a zipper. E also knew that the defendant was speaking of the zipper on his trousers and made no reply. The defendant then opened his zipper, exposed his penis, and asked the children to stand guard. Both C and E saw the defendant “pat” or “tap” his penis with a tissue. During this time, the defendant asked the children if anyone was coming. The defendant did not ask the children to touch his penis, nor did he touch the children. C then said that she was going to leave and the defendant asked her to stay. C was afraid to leave because she thought the defendant might grab her or hit her. The children heard C’s mother calling to them and they ran to her. Both children were agitated and upset and, upon being questioned by P, told her what had occurred.

P, who had previously walked to the back of the building looking for the children, asked a woman to look after them and looked toward where the girls indicated the event had occurred. She saw the defendant walking from the alcove zipping up his pants. She ran after him and questioned his presence and his actions. The defendant falsely identified himself as Joe, a worker at the school, and said, “Leave me alone or I’ll have to hit you.” He then gestured with his open hand towards P’s face, stopping about six inches from it. She stopped following the defendant at this point and reported the episode to the police.

At the time the defendant exposed himself to the children, he was wearing glasses, a plaid shirt, a baseball cap, and had a bandage on his chin. When the defendant was arrested he was wearing glasses, a white T-shirt, a baseball cap, had a bandage on his chin, and was carrying a plaid shirt. At the police station, the defendant removed the bandage from his chin and flushed it down the toilet. The policeman who arrested the defendant observed that there was nothing on the defendant’s chin that would require a bandage. The defendant was convicted of both counts of risk of injury to a child. On appeal, the defendant challenges the constitutionality of General Statutes § 53-21 by asserting that the statute, as applied to him, is vague and lacks specificity.

“In order to surmount a vagueness challenge, a statute must afford a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited. McKinney v. Coventry, 176 Conn. 613, 618, 410 A.2d 453 (1979).” (Internal quotation marks omitted.) State v. Palangio, 24 Conn. App. 300, 302-303, 588 A.2d 644, cert. denied, 218 Conn. 911, 591 A.2d 813 (1991). “The constitutional requirement of definiteness applies more strictly to penal laws than to statutes that exact civil penalties. Winters v. New York, 333 U.S. 507, 515, 68 S. Ct. 665, 92 L. Ed. 2d 840 (1948). . . . Furthermore, a facially vague law may nonetheless comport with due process if prior judicial decisions have provided the necessary fair warning and ascertainable enforcement standards. Bishop v. Kelly, 206 Conn. 608, 613, 539 A.2d 108 (1988).” (Citations omitted.) State v. Schriver, 207 Conn. 456, 460-61, 542 A.2d 686 (1988). A penal statute may survive a vagueness attack solely on a consideration of whether it provides fair warning. State v. Pickering, 180 Conn. 54, 61, 428 A.2d 322 (1980). A determination of fair warning is ascertained in several ways. We review prior case law to determine whether the defendant had fair warning that his acts violated § 53-21; we look to the penal code for guidance because General Statutes § 53a-2 provides that “[t]he provisions of this title shall apply to any offense defined in this title or the general statutes, unless otherwise expressly provided or unless the context otherwise requires . . . .” We also look to see whether a person of ordinary intelligence would reasonably know what acts are permitted or prohibited by the use of his common sense and ordinary understanding.

Section § 53-21 proscribes two general types of behavior: “(1) deliberate indifference to, acquiescence in, or the creation of situations inimical to the minor’s moral or physical welfare . . . and (2) acts directly perpetrated on the person of the minor and injurious to his moral or physical well-being.” (Citation omitted.) State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963). It is this first prong of the statute that the defendant challenges. Under this prong, it is not necessary, nor have the courts required, that a defendant touch any part of the victim’s body to violate § 53-21. Rather, the creation of a prohibited situation is sufficient to breach the statute. State v. Perruccio, 192 Conn. 154, 159-60, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S. Ct. 55, 83 L. Ed. 2d 6 (1984). Section 53-21 does not specify the “situations” deemed likely to impair the morals of a child. Id., 160. An examination of prior judicial decisions and other penal statutes, and common sense show, however, that the defendant had fair warning that this situation would impair the morals of a minor.

In State v. Tirado, 21 Conn. App. 449, 574 A.2d 252 (1990), we upheld the conviction of a defendant charged with violating the first prong of § 53-21 where the evidence showed that the defendant impaired the morals of a child by kissing the victim, exposing himself to her and requesting her to engage in sexual contact. In Tirado, we made it abundantly clear that the kissing of the victim was not intended to be the sole basis for the conviction, but rather was part of a pattern of sexual conduct. That pattern, we held, also included the defendant’s exposing himself to the victim and requesting her to engage in sexual contact with him. Here, the defendant, using a ploy, placed two children in a similar situation. He lured them into a secluded area, asked them to stand guard, asked them to open his zipper and, when they refused, proceeded to open his zipper himself and touch his penis. Although he did not touch the children, he did expose himself, and the request to open Ms zipper is easily seen as both a request for and a step towards sexual contact. It is this pattern of lewd and sexual conduct that clearly demonstrates that the defendant violated § 53-21.

The defendant relies on State v. Schriver, supra, to support his claim. The defendant’s reliance is misplaced. The defendant in Schriver was charged with violating the second prong of § 53-21; Erzen is charged with violating the first prong. The defendant in Schriver did not expose himself to the victim, nor did the defendant deliberately touch the private parts of the victim. The court held that because there was no deliberate toucMng of the private parts of a child, wMch is the standard furnished in State v. Pickering, supra, for the violation of the second prong of § 53-21, the defendant’s conviction could not stand. The court did state, however, in obiter dictum, that “[u]nder different circumstances, the state might elect to prosecute under the first part of § 53-21, which proscribes the .... creation of situations inimical to the minor’s moral or physical welfare . . . . A defendant need not physically touch a minor in order to violate [the first prong] of § 53-21.” (Citation omitted; internal quotation marks omitted.) State v. Schriver, supra, 467. The defendant in this case did not physically touch the victims. The defendant did, however, expose and touch his penis in the presence of these children. By his actions in the children’s presence, he created a situation inimical to the children’s moral welfare. Such actions are violative of the first prong of § 53-21.

The defendant, citing State v. Hauck, 172 Conn. 140, 374 A.2d 150 (1976), places great emphasis on the fact that his actions were both isolated and momentary in nature. In Hauck, the defendant, a high school science teacher, was charged with violating § 53-21 after photographing the victim in nude and seminude poses in exchange for a passing grade in his science course. These photographic sessions occurred repeatedly over the course of the school year. The defendant argues that, unlike in Hawk, his actions were isolated in nature and, therefore, it is not likely that they impaired the morals of C and E. The court in Hawk, however, did not address the number or continuity of the occurrences in that case in light of the violation of § 53-21, but rather decided the case on evidentiary grounds. We decline to set out a bright line rule requiring a specific or minimum number of occurrences before a person can be charged with impairing the morals of a minor. In a particular situation, one instance is enough. Our case law provides a judicial gloss and gives the defendant fair warning that his actions were violative of the statute.

It is axiomatic that we interpret statutes, where possible, to create a consistent body of law. State v. Schriver, supra, 463 n.4; State v. Kozlowski, 199 Conn. 667, 677-78, 509 A.2d 20 (1986); and we “recognize the desirability of reconciling the scope of § 53-21 with similar provisions of the penal code. See General Statutes § 53a-2.” State v. Schriver, supra. Therefore, we look to comparable statutes to determine the reach of the challenged statute. Grayned v. Rockford, 408 U.S. 104, 109-110, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972). The public indecency statute, General Statutes § 53a-186, is instructive as to what behavior is likely to impair the morals of a minor. Section 53a-186 prohibits lewd exposure of the body in a public place with intent to arouse or to satisfy the sexual desire of the person. Cases sustaining convictions under this statute inform the person of average intelligence that the conduct of the defendant in this case is offensive to morality and decency.

In State v. Cruz, 18 Conn. App. 482, 559 A.2d 231 (1989), we affirmed the defendant’s conviction of violating § 53a-186. The defendant, while operating his automobile, cut in front of a woman walking along the road. He asked the woman to come to his car and, when she refused, he pulled alongside her; at that point the victim saw that the defendant’s pants were around his knees and he was masturbating. The act of exposing oneself and masturbating is prohibited. In State v. Vega, 38 Conn. Sup. 313, 314-15, 444 A.2d 927 (1982), the victim was alighting from her car when she heard a loud knocking and observed the defendant standing at the window of his apartment. The defendant, naked and visible from the knees up, was holding his penis and smiling. The court upheld his conviction under § 53a-186 for “ ‘a lewd exposure of the body with the intent to arouse or to satisfy the sexual desire of the person.’ ” Id., 315.

In State v. Sousa, 2 Conn. Cir. Ct. 452, 201 A.2d 664 (1964), the defendant was convicted of exposing his genitals and masturbating in the view of the complainant and her daughter. The court stated that “[ijndecent exposure is the intentional or negligent indecent exposure of the private parts of the person to the public view. . . . Indecent exposure of person is a criminal offense at common law, and also by virtue of statutory provision in many jurisdictions. . . . The common sense of the community, as well as the sense of decency, propriety and morality, which most people entertain, is sufficient to apply the statute to each particular case, and point out what particular conduct is rendered criminal by it.” (Citations omitted; internal quotation marks omitted.) Id., 454. It is clear that exposing oneself to a child is an act that is “likely to impair the morals” of that child. General Statutes §§ 53-21 and 53a-186, and the cases that have construed these statutes, give fair notice that this defendant’s conduct violated the criminal law and was offensive to morals. Any person of average intelligence would know that when a man lures children to a secluded area, asks them to unzip his trousers, exposes himself to them, and touches his penis in front of them, he is creating a situation likely to impair their morals and his actions are within the purview of the risk of injury statute.

The defendant’s actions, in themselves, lead us to no other conclusion than that he knew what he was doing was prohibited. When he lured the children to the secluded area, he asked them if anyone was coming and asked them to act as guards. After the children ran, the defendant himself fled and, when approached by P., falsely identified himself and threatened her. He also made efforts to change his appearance both at the scene and at the police station after his arrest. These efforts clearly demonstrate the defendant’s knowledge of the criminality of his actions.

The defendant also argues that the statute delegates too much discretion to law enforcement agencies because state’s attorneys could take public indecency cases and prosecute them under the risk of injury statute and thus increase the penalty from six months to ten years. This presents no constitutional problem. United States v. Batchelder, 442 U.S. 115, 127-28, 99 S. Ct. 2198, 60 L. Ed. 2d 755 (1979); State v. Grullon, 212 Conn. 195, 217, 562 A.2d 481 (1989); State v. Chetcuti, 173 Conn. 165, 168, 377 A.2d 263 (1977). The state has broad discretion to choose which crimes to charge in particular circumstances and as long as the state does not discriminate against any class, the state may choose to prosecute a defendant under either applicable statute. State v. Chetcuti, supra. Again, where a defendant, as in this case, lures the children away from a public area to a secluded section and asks them to participate in this type of conduct, he is guilty of more than public indecency.

The defendant had fair notice that the conduct in which he engaged would subject him to the penalties of the risk of injury statute and thus has not met his heavy burden of demonstrating that, as applied to his case, General Statutes § 53-21 is unconstitutional.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53-21 provides: “injury or risk of injury to, or impairing morals of, children. Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       In State v. Tirado, 21 Conn. App. 449, 574 A.2d 252 (1990), the defendant was also accused of masturbating in the presence of the victim. Masturbation is defined in General Statutes § 53a-193 (h), which deals with obscenity as to minors, as “the real or simulated touching, rubbing or otherwise stimulating a person’s own clothed or unclothed genitals . . . .’’In the case before us, the defendant was described as “patting” or “tapping” his penis in front of the children. The trial court could have drawn an inference that the defendant was masturbating in front of the children.

       See, e.g., State v. Thomas, 19 Conn. App. 44, 47, 560 A.2d 486 (1989).

       General Statutes § 53a-186 provides in pertinent part: “public indecency: CLASS B MISDEMEANOR, (a) A person who performs any of the following acts in a public place is guilty of public indecency . . . (2) a lewd exposure of the body with intent to arouse or to satisfy the sexual desire of the person . . . .”

       This case was decided in the Appellate Session of the Superior Court. While this is not a constitutional court and we are not bound by its decision; State v. Johnson, 28 Conn. App. 708, 716 n.5, 613 A.2d 1344 (1992); we find that it is illustrative of the type of conduct that is likely to impair the morals of a child. It, too, provides the defendant with fair warning that his actions are violative of the statute.

       See footnote 5, supra.

       The defendant in State v. Sousa, 2 Conn. Cir. Ct. 452, 201 A.2d 664 (1964), was charged with violating General Statutes (1958 Rev.) § 53-220 entitled Indecent Exposure, the predecessor to § 53a-186.


author: Freedman, J.

text:
    In re Kelly S.

    (10979)
    Dupont, C. J., Lavery and Freedman, Js.

      Argued September 23
    decision released December 1, 1992

      Maureen A. Chmielecki and Mark Shapera, for the appellant (respondent mother).

      Michael McKenna, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 4166B.2, 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.

   Freedman, J.

This appeal involves coterminous petitions for custody and for termination of parental rights filed by the commissioner of children and youth services (commissioner or DCYS). The respondent mother appeals from the judgment of the trial court adjudicating Kelly S. to be a neglected and uncared for child under General Statutes § 46b-129 and terminating the respondent’s parental rights pursuant to General Statutes § 45a-717. On appeal, the respondent argues that the trial court improperly (1) permitted the introduction of certain hearsay evidence, (2) concluded that Kelly S. was neglected and uncared for under General Statutes § 46b-129, (3) concluded that there were parental acts of commission or omission that denied the child the care, guidance or control necessary for her physical, educational or moral well-being under General Statutes § 45a-717 (f) (2), (4) concluded that there was no ongoing parent-child relationship pursuant to § 45a-717 (f) (3), and (5) concluded that DCYS had met its statutory duty to provide reunification services. We affirm the trial court’s judgment to the extent that it granted custody of the child to DCYS pursuant to § 46b-129, but reverse the judgment as to the termination of respondent’s parental rights pursuant to § 45a-717.

Kelly S. was born on November 5, 1990. On November 8, 1990, while Kelly was still in the hospital, an order of temporary custody was granted by the trial court, Potter, J., on the ground that she was in immediate physical danger from her surroundings and that immediate removal from such surroundings was necessary to ensure her safety. Simultaneously with the order of temporary custody, coterminous petitions were served on the respondent. The petitions, as amended on October 17, 1991, alleged that Kelly is neglected and uncared for, and sought to terminate the parental rights of the respondent on the ground of parental acts of commission or omission and on the ground of no ongoing parent-child relationship.

After hearing testimony from numerous witnesses, the trial court, Teller, J., found the following facts. The respondent mother, Lynn, is thirty-six years old and has a long history of mental illness, including psychiatric hospital admissions. She has a psychotic disorder, which has manifested itself with two distinct personalities, “Lynn I” and “Lynn II.” Lynn I carries on an internal conversation with Lynn II. The respondent has demonstrated poor hygiene and urinary incontinence and has shown angry, aggressive behavior. She has hallucinated, and was unable to participate meaningfully in prenatal visits because of distractions relating to the hallucinations, which were, most likely, interactions with her other personality. She demonstrated no initiative or motivation to attend prenatal visits and would do so only when transportation was provided. She failed to attend postnatal visits. The respondent has denied that she had any mental illness or emotional disorder. In addition to Kelly, the respondent has given birth to three other children, one fathered by Kelly’s father. All three were taken from her at birth by the New Hampshire equivalent to DCYS and placed in foster care because that agency felt she could not appropriately care for them. Termination proceedings in New Hampshire were completed as to the two older children and were pending as to the third at the time of the hearing in this case.

At the time the petitions were served, the respondent was living in a shelter for the homeless. At the time of trial, she resided with Kelly’s father and two pets in a single room in the town of Rogers. That room had no cooking facilities and the residents use a common bathroom in the hall, which is not suitable for a child. Neither parent is employed, and both receive public assistance.

Kelly is a child with special needs. At the time of the hearing, she was developmental^ delayed by at least six months. According to her pediatrician, Kelly is a high risk baby with special needs and is demanding. Rearing a child in this condition would be taxing for a parent with ordinary abilities, as her medication and feedings require strict regulation. Caring for her requires constant diligence and vigilance. She has a gastroesophageal reflux condition that could cause food to be regurgitated into her lungs. This condition could be life threatening. Kelly must be held and positioned in a special way; she will not tolerate lying on her stomach or on her back for long. The “birth-to-three” program performed a developmental evaluation of Kelly when she was three months old at the request of Kelly’s foster mother. Nancy Canata, the birth-to-three social worker, found that Kelly had developmental delays in visual tracking, language and motor development, and she recommended early intervention services. These services were arranged for and provided so that Kelly is seen by a visiting nurse and a speech-occupational therapist on a regular basis. These professionals have instructed the foster mother on the therapies she performs on Kelly. According to the foster mother, who has been a foster mother for ten years, she has three to four people in her home every week who help her with Kelly, including a department of mental retardation aide, an occupational therapist, a visiting nurse and a speech therapist. The therapists and foster mother try to teach Kelly to grasp and squeeze toys, roll over, track things visually and the like. Kelly needs full-time care, including therapy, medication, slow feedings of thirty to thirty-five minutes, sphincter muscle stimulation and other care beyond that required by a “normal” baby. It is reasonably likely that she will require such care in the future. The court found it significant that with all of this intervention and therapy and with round-the-clock care of a loving foster mother whose family helps care for the child, Kelly remains substantially developmentally delayed.

The court further found that the respondent was barely able to care for herself. She did not have a secure, stable, adequate home in which the child could reside. She did not exercise appropriate judgment and was no better able to deal with her ongoing psychiatric difficulties at the time of trial than she had in the past. According to the psychologist who performed a court ordered evaluation of the respondent, the respondent’s impairments, which go back to at least 1975, greatly affect her ability to parent, rendering her unable to do so. He testified that the child would be placed at emotional risk and risk of physical harm if she were in the respondent’s care. He opined that even with intensive therapy and treatment there is no reasonable likelihood that the respondent could ever be an adequate parent. Even if she were placed in a supervised residential setting with the child, the respondent would be unable to parent a child effectively.

In its memorandum of decision, the trial court observed that there was “no evidence that Kelly has been actually neglected or uncared for by her parents” since she had never been in their custody. (Emphasis in original.) On the basis of its findings of fact, however, the court concluded that the respondent’s parental deficiencies, if Kelly were in her care, would have permitted the child to live under conditions, circumstances or associations injurious to her well-being and would have denied her proper care and attention physically, educationally, emotionally or morally. The court also found that the respondent’s instability and inability to parent rendered Kelly homeless. The court further found that, although the respondent had obtained housing at the time of trial, it was totally inadequate, in light of the parents’ deficiencies, to be viewed as a home for the child. Additionally, the court found that the respondent’s home could not provide the specialized care that Kelly’s physical, emotional or medical condition requires. Accordingly, the court adjudicated Kelly to be a neglected and uncared for child pursuant to § 46b-129.

With respect to the termination petition, the court found the following additional facts. The respondent visited the child regularly between December 17,1990, and October 17,1991. The twenty-six, one hour visits were supervised by DCYS. During the visitation sessions, however, the respondent expressed no real depth of understanding of the needs of the child or her condition. The respondent did not question the foster mother or the DCYS worker about the child’s care, requirements or her medical condition. The respondent did not ask to feed, diaper or even hold the child. Indeed, on several occasions when she was instructed to hold the child in a special way, she promptly forgot or ignored these instructions. The visits were treated by both parents in large part as social occasions. In one instance, when DCYS had prepared a twelve minute video tape featuring the therapies required to be performed with the child, the parents lost interest after a few minutes and began conversing with each other about other matters. This was so even though a DCYS worker discussed with both parents the importance of looking at the video and concentrating on it. The respondent talked during the video about other things, and frequently looked elsewhere than at the screen.

These visits did not permit the child to develop any recognition of her parents. The child did not react to them when they arrived or when they left. The child appeared to have “bonded” to her foster mother, to whom she looks and on whom she relies for all of her needs.

Susan Kristoff, a DCYS intake social worker, investigated a referral concerning a different family with whom the respondent was residing in October, 1991. This family had young children, and the respondent was alleged to have attempted to suffocate one of the children. Kristoff testified that when asked about this allegation, the respondent replied, “I didn’t try to kill the kid, just suffocate it.”

On the basis of these findings, the trial court first addressed termination of parental rights under § 45a-717 (f) (2), which requires proof that the child has been denied, by reason of parental acts of commission or omission, the care, guidance or control necessary for her physical, educational, moral or emotional well-being. The court concluded that, by clear and convincing evidence, the commissioner had shown that the respondent is neither aware of nor able to provide for even the most basic needs of the child and that she will not be able to provide for such needs in the foreseeable future. The court expressly recognized that mental illness is not a ground for termination of parental rights but concluded that when mental impairments have an impact on a person’s ability to function as a parent, that impact can be the basis for terminating parental rights. Accordingly, the court concluded that the evidence clearly and convincingly proved that acts of parental commission and omission demonstrative of an inability to care for her children were “reasonably certain to occur” and that these parental acts or deficiencies supported the conclusion that the respondent could not, in the best interests of the child, be permitted to exercise her parental rights and duties.

The trial court next considered termination of parental rights under § 45a-717 (f) (3), which requires proof of the lack of an ongoing parent-child relationship. The court concluded that no ongoing parent-child relationship existed between the respondent and Kelly. The court concluded that no such relationship could exist in light of the order of temporary custody and the filing of coterminous petitions three days after Kelly’s birth. The court observed that “while the mother obviously cares for and loves the child, there was no opportunity for the child to bond to her mother.” The court also concluded that the petitioner had demonstrated by clear and convincing evidence that to allow more time to establish such a relationship would be detrimental to the best interests of the child.

The court further found, by clear and convincing evidence, from the totality of the circumstances surrounding the child that a waiver of the one year requirement pursuant to § 45a-717 (g) was necessary. In this regard, the court found “that by reason of their impairments, the parents are unable to provide even basic care for this specially needy child. The evidence is also clear and convincing that this condition had existed for a long time since Kelly’s birth, and existed at the time of trial, and is not likely to improve within the foreseeable future. . . . [W]aiting for the statutory period to go by will not be in the child’s best interests or change the situation. At the same time, however, the need to obtain a stable, permanent home for the child at as early an age as possible is compelling. There is therefore no reason to delay termination which is inevitable under these facts as the court perceives them.”

I

The respondent’s first claim is that the trial court improperly admitted into evidence certain medical and psychiatric records of Concord Hospital, a New Hampshire facility, which were contained in the records of Day Kimball Hospital. These New Hampshire records were obtained by Day Kimball Hospital either directly from Concord Hospital or from the Connecticut department of mental retardation, pursuant to releases signed by the respondent. The respondent argues that an inadequate foundation was laid for the admissibility of these documents created in New Hampshire. We disagree.

The trial court concluded, and the respondent does not dispute, that the records of Day Kimball Hospital qualify as business records under General Statutes § 52-180 (a). Yet, “not every statement contained in a document qualifying as a business record is necessarily admissible. To be admissible under § 52-180, the contents of a business record must be based on the entrant’s own observations or on information transmitted to him by an observer whose business duty it was to transmit it to him. Statements obtained from volunteers are not admissible, although included in a business record, because it is the duty to report in a business context that provides the reliability to justify this hearsay exception.” Raino v. Supermarkets General Corporation, 28 Conn. App. 56, 60, 609 A.2d 1047, cert. denied, 223 Conn. 924, 614 A.2d 825 (1992). The trial court found the necessary business duty to exist under the circumstances of this case. We agree with the trial court that medical and psychiatric information provided to and relied on by a health provider that comes from a coordinate health or human service agency is information provided by one with a sufficient business duty to the ultimate health provider to allow the admission of the information into evidence despite its hearsay nature if it (1) is contained in the properly admitted business records of the ultimate health provider; compare Orzechowski v. Higgins, 146 Conn. 463, 466, 152 A.2d 510 (1959) (hospital record taken from doctor’s file not admissible as business record of doctor); and (2) was related to the diagnosis or treatment provided by the ultimate health care provider to the patient. See Perry v. Hospital of St. Raphael, 17 Conn. App. 121, 125-26, 550 A.2d 645 (1988) (record of prior hospitalization included in records of different hospital during second hospitalization admissible as part of business record of second hospital); Crest Plumbing & Heating Co. v. DiLoreto, 12 Conn. App. 468, 472-76, 531 A.2d 177 (1987); Shuchman v. State Employees Retirement Commission, 1 Conn. App. 454, 458, 472 A.2d 1290 (1984). Here, it is not the mere receipt of documents in the ordinary course of business that permits their admissibility. River Dock & Pile, Inc. v. O & G Industries, Inc., 219 Conn. 787, 801, 595 A.2d 839 (1991). Rather, the challenged documents were part of Day Kimball Hospital’s records and were relied on by the hospital in its treatment of the respondent.

In addition, we note that in this case not only were the challenged documents relied on by Day Kimball Hospital in its treatment of the respondent, but they were also provided to Day Kimball Hospital pursuant to a written authorization signed by the respondent. The trial court concluded, and we agree, that this fact further enhances their reliability. The reliability and trustworthiness of an out-of-court statement offered to establish the truth of the matters contained therein is a primary concern of any exception to the hearsay rule. See State v. Oquendo, 223 Conn. 635, 664-69, 613 A.2d 1300 (1992); Raino v. Supermarkets General Corporation, supra, 63-64.

Accordingly, we conclude that the trial court did not abuse its discretion in admitting and relying on the New Hampshire medical and psychiatric information contained in the records of Day Kimball Hospital.

II

The respondent’s second claim is that the trial court improperly concluded that Kelly S. was neglected and uncared for because the court rested its determination on probabilities, rather than actual incidents of abuse or neglect. We disagree.

A child may be committed to the custody of the commissioner upon a finding that the child is uncared for, neglected or dependent. General Statutes § 46b-129. “[A] child or youth may be found ‘neglected’ who (i) has been abandoned or (ii) is being denied proper care and attention, physically, educationally, emotionally or morally or (iii) is being permitted to live under conditions, circumstances or associations injurious to his well-being, or (iv) has been abused . . . .” General Statutes § 46b-120. “[A] child or youth may be found ‘uncared for’ who is homeless or whose home cannot provide the specialized care which his physical, emotional or mental condition requires.” General Statutes § 46b-120. We review only the claim that the court improperly concluded that Kelly was “uncared for” under the “specialized care” section of the statute, since our decision that the court was correct in this finding alone is sufficient to sustain the court’s custody determination under General Statutes §§ 46b-120 and 46b-129. In re Carl O., 10 Conn. App. 428, 435, 523 A.2d 1339, cert. denied, 204 Conn. 802, 525 A.2d 964 (1987).

There is no dispute that Kelly has specialized needs necessitated by her physical condition. The trial court found that the respondent was not capable of providing the necessary care. The evidence fully supports that conclusion. See id., 436. Actual incidents of abuse or neglect are not required in determining that a child is uncared for under the “specialized needs” section of the statute. Id., 435-36. For purposes of commitment of a child to the custody of the commissioner pursuant to § 46b-129, proof of ongoing parenting deficiencies is sufficient to satisfy the statute where those deficiencies mean that the child’s home is unable to provide the care required for her special needs. Id.

Ill

The respondent next challenges the two grounds on which the trial court based its termination of parental rights. In order to prevail, the respondent must successfully challenge both bases of the judgment terminating her parental rights. If either ground relied on by the trial court is upheld on appeal, the termination of parental rights must stand. In re Juvenile Appeal (84-BC), 194 Conn. 252, 258, 479 A.2d 1204 (1984). We conclude, however, that because neither ground supporting that determination can be sustained, the termination of the respondent’s parental rights must be reversed.

A

The respondent claims that General Statutes § 45a-717 (f) (2) cannot provide the basis for the termination of parental rights in this case because there was no evidence of parental acts or omissions that denied Kelly the care necessary to her well-being. We agree.

The trial court found that “the evidence clearly and convincingly proves that acts of commission or omission are reasonably certain to occur . . . .’’(Emphasis added.) Section 45a-717 (f) (2), however, authorizes the termination of parental rights where “the child has been denied, by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for his [or her] physical, educational, moral or emotional well-being. . . .’’(Emphasis added.) This provision authorizes the termination of parental rights where specific acts of parental commission or omission have caused serious physical or emotional injury to the child. See In re Theresa S., 196 Conn. 18, 25-27, 491 A.2d 355 (1985); In re Sean H., 24 Conn. App. 135, 144-45, 586 A.2d 1171, cert. denied, 218 Conn. 904, 588 A.2d 1078 (1991). It does not permit the termination of parental rights based on speculation as to what acts may befall a child.

Here, Kelly has been in the custody and control of the commissioner since shortly after her birth. No injury has befallen her as a result of acts of commission or omission by her parents. The trial court itself recognized this when it observed that “there is no evidence that Kelly has been actually neglected or uncared for by the parents, as she has since birth been either in a hospital or competent foster home.” (Emphasis in original.) Thus, she could not have been denied the care, custody or control necessary for her physical, educational, moral or emotional well-being by reason of parental acts of commission or omission while in foster care. See In re Shannon S., 41 Conn. Sup. 145, 157, 562 A.2d 79, aff’d, 19 Conn. App. 20, 560 A.2d 993 (1989).

The trial court’s reliance on In re Juvenile Appeal (84-AB), 192 Conn. 254, 471 A.2d 1380 (1984), and In re Nicolina T., 9 Conn. App. 598, 520 A.2d 639, cert. denied, 203 Conn. 804, 525 A.2d 519 (1987), was misplaced. Both of those cases concerned circumstances of serious physical injury, and accompanying emotional trauma, to the children involved. This was also true in In re Theresa S., supra, and in In re David E., 4 Conn. App. 653, 496 A.2d 229 (1985), the cases relied on in In reNicolina T., supra. Furthermore, while we share the trial court’s concern for Kelly’s well-being, we do not believe our more limited interpretation of § 45a-717 (f) (2) will “require this child to be placed in the custody of parents who clearly are and will be incapable of providing even basic care for her let alone the specialized care that [she] needs, for the sole purpose of demonstrating that she will suffer actual harm” as suggested by the trial court. As already discussed, Kelly’s commitment to the custody of the commissioner is amply supported by the record. See part II, supra. Pursuant to General Statutes § 17a-112 (b) (2), parental rights may be terminated where “the parents of a child who has been found . . . to have been neglected or uncared for in a prior proceeding have 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, they could assume a responsible position in the life of the child . . . .” On this ground, termination can occur without the child’s ever being in the custody of the parents. By contrast, the termination of parental rights under the ground relied on in the petition, that is, where a child has been denied necessary care, guidance or control by reason of parental acts of commission or omission, requires proof of specific conduct that has caused serious injury to the child. In re Theresa S., supra; In re Nicolina T., supra. Lacking evidentiary support for this conclusion, the judgment of the trial court terminating parental rights pursuant to § 45a-717 (f) (2) cannot be sustained.

B

The respondent also claims that General Statutes § 45a-717 (f) (3) cannot provide the basis for the termination of parental rights in this case. We agree.

Section 45a-717 (f) (3) permits the termination of parental rights where “there is no ongoing parent child relationship . . . .” Recently, in In re Valerie D., 223 Conn. 492, 526-35, 613 A.2d 748 (1992), our Supreme Court interpreted § 45a-717 (f) (3) in the context of a proceeding based on coterminous petitions for custody and termination of parental rights with respect to an infant where the infant was taken from the parent shortly after birth. There, as here, “the lack of an ongoing parent-child relationship between the respondent and the child was the direct result of the fact that the child was in foster care apart from the respondent for almost the entire period of time between the birth and the adjudication date.” Id., 531. Under those facts, the Valerie D. court concluded that § 45a-717 (f) (3) would not authorize the termination of parental rights. The court observed that once the child was placed in foster care pursuant to an order for temporary custody under § 46b-129, a finding of a lack of an ongoing parent-child relationship soon thereafter was inevitable. The court therefore refused to apply §§ 45a-717 (f) (3) and 46b-129 “to enable the petitioner to gain and maintain custody of a newborn infant pursuant to § 46b-129 under circumstances, as in this case, that will lead almost inevitably to the ground for termination under § 45a-717 (f) (3).” Id., 533. To conclude otherwise, the court reasoned, would allow the factual predicate for custody, established by the lesser standard of a preponderance of the evidence, to lead inexorably, for all practical purposes, to the factual predicate for termination required to be established by the higher standard of clear and convincing evidence. Id., 533-34. The court refused to interpret § 45a-717 (f) (3) to permit such a scenario. Consequently, the Valerie D. court concluded that the fact that the custody determination was permitted to lead directly to the termination determination “fatally undermine[d] the finding of a lack of an ongoing parent-child relationship under § 45a-717 (f) (3).” Id., 535.

The factual setting of Valerie D. and the analysis of the Supreme Court in that case appear to be on all fours with this case. Kelly was taken from the respondent at birth by DCYS pursuant to an order of temporary custody. The lack of an ongoing parent-child relationship in this case, as in Valerie D., appears to be the direct result of that custody determination. Accordingly, the termination of the respondent’s parental rights cannot be sustained under § 45a-717 (f) (3).

Neither ground relied on by the trial court to terminate the respondent’s parental rights is supported by the record. “Our statutes and caselaw make it crystal clear that the determination of the child’s best interests comes into play only after [the] statutory grounds for termination of parental rights [relied on in the petition] have been established by clear and convincing evidence.” (Emphasis in original.) Id., 511. We do not disturb the trial court’s custody determination pursuant to § 46b-129, but we conclude that the trial court improperly determined that the record supports the termination of the respondent’s parental rights under the applicable statute, § 45a-717. While custody of Kelly will remain with the commissioner, this petition for termination of the respondent’s parental rights must be denied.

The judgment is affirmed as to the child’s commitment to the custody of the petitioner. The judgment is reversed as to the termination of the respondent’s parental rights, and the case is remanded with direction to render judgment for the respondent on the petition for termination of parental rights.

In this opinion the other judges concurred.

       The father of the infant has not appealed from the judgment of the trial court terminating his parental rights with respect to the infant involved. We will refer in this opinion to the respondent mother as the respondent.

       General Statutes § 17a-112 governs the termination of parental rights regarding a child previously committed to the custody of the commissioner of children and youth services. In this case, however, there were coterminous petitions for such a commitment and for termination of parental rights, a procedure authorized by § 17a-112 (e). Under that procedure, the court in terminating parental rights does so pursuant to General Statutes § 45a-717. Although the petitioner in her pleadings relied on General Statutes § 17-43a, the statutory predecessor to § 17a-112, and the trial court relied on § 17a-112, the provisions governing termination of such rights under both statutes are identical with respect to the grounds relied on by the commissioner and sustained by the trial court. The provisions of General Statutes § 45a-717 pertinent to this appeal are as follows: “(f) At the adjourned hearing or at the initial hearing where no investigation and report has been requested, the court may approve the petition terminating the parental rights and may appoint a guardian of the person of the child, or if the petitioner requests, the court may appoint a statutory parent, if it finds, upon clear and convincing evidence that the termination is in the best interest of the child and that . . . with respect to any nonconsenting parent, over an extended period of time which, except as provided in subsection (g) of this section, shall not be less than one year: (1) The child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child; or (2) the child has been denied, by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for his physical, educational, moral or emotional well-being. Nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights; or (3) there is no ongoing parent child relationship which is defined as the relationship that ordinarily develops as a result of a parent having met on a continuing, day-to-day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of the parent child relationship would be detrimental to the best interests of the child. If the court denies a petition for consent termination of parental rights, it may refer the matter to an agency to assess the needs of the child, the care the child is receiving, and the plan of the parent for the child.
      “(g) The court may waive the requirement that one year expire prior to the termination of parental rights if it finds from the totality of the circumstances surrounding the child that such a waiver is necessary to promote the best interest of the child.”

       The respondent also claims that the trial court improperly admitted evidence of the New Hampshire termination proceedings involving the respondent’s other children. This claim, however, has not been properly presented for our review. Practice Book § 4065 (d) (3); In re Robert K., 12 Conn. App. 585, 591-92, 532 A.2d 1319 (1987).

       General Statutes § 52-180 (a) provides: “Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.”

       The respondent frames much of her argument in terms of “whether a court may adjudicate a child as neglected or uncared for and terminate parental rights based on what might be.” (Emphasis added.) The trial court, however, did not terminate the respondent’s parental rights on the basis of the finding of neglect or of being uncared for. We nonetheless review her claim in the context of the trial court’s decision to commit the child to the custody of the commissioner under General Statutes § 46b-129 both because she challenges the finding that supports that commitment and because that commitment is a statutory prerequisite to any petition for termination of parental rights pursuant to General Statutes § 17a-112, especially § 17a-112 (b) (2), which may be filed after our disposition of this appeal.

       It is significant, in our view, that the “personal rehabilitation” ground set forth in General Statutes § 17a-112 (b) (2) cannot be relied on in a coterminous petition for termination of parental rights pursuant to General Statutes § 45a-717.

       We note that In re Valerie D., 223 Conn. 492, 613 A.2d 748 (1992), was decided after the trial court decided this case.

       In fact, in this regard the trial court quite succinctly observed that “no ongoing parent-child relationship exists between the parents and Kelly. Nor could there be. The [order of temporary custody] and coterminous petitions were filed three days after her birth. During the child’s stay at Day Kim-ball Hospital, the mother did see the child for brief times . . . [but] there was no opportunity for the child to bond to her mother.” The court also observed that the supervised visitation sessions “did not permit the child to develop any recognition of the parents as her parents.”

       Because we conclude that the grounds alleged in support of the termination of the respondent’s parental rights are not supported by the record, we do not address the respondent’s claim that the commissioner failed to provide sufficient services aimed at reuniting her with her child.