source: Caselaw Access Project

author: LAVERY, C. J.

license: Public Domain

text:
    STEPHEN L. MASSAD v. EASTERN CONNECTICUT CABLE TELEVISION, INC.
    (AC 21726)
    Lavery, C. J., and Mihalakos and Bishop, Js.

      Argued March 27
    officially released July 2, 2002

      Steven M. Laput, for the appellant (plaintiff).

      Timothy S. Jajliardo, with whom, on the brief, was Peter J. Ponziani, for the appellee (defendant).
   Opinion

LAVERY, C. J.

In reviewing this appeal from the trial court’s rendering of summary judgment in the defendant’s favor, we address to what extent federal law shields cable operators from liability for slanderous comments made by individuals on public access cable television shows.

The plaintiff, Stephen L. Massad, brought a three count complaint grounded in common-law tort against the defendant, Eastern Connecticut Cable Television, Inc. The complaint alleged that by not prohibiting a telephone caller on consecutive live broadcasts of a public access show from making slanderous statements about the plaintiff, the defendant was liable under the theories of negligence, recklessness and slander per se. The court granted the defendant’s motion for summary judgment, concluding that the action was barred by the Cable Communications Policy Act of 1984, 47 U.S.C. § 521 et seq. We affirm the judgment of the trial court.

Summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Practice Book § 17-49. Although a negligence claim generally is ill suited to summary adjudication; see Henriques v. Magnavice, 59 Conn. App. 333, 335-36 n.2, 757 A.2d 627 (2000); there is an exception to the general rule where the defendant enjoys immunity. See Ascuitto v. Farricielli, 244 Conn. 692, 711, 711 A.2d 708 (1998) (affirming grant of summary judgment on negligence claim where parental immunity applied). In determining a motion for summary judgment, the court may rely on “affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like.” Practice Book § 17-45.

That evidence reveals the following. The plaintiff owns an insurance business in the New London area. On consecutive weeks in March, 1999, a call-in program, “Views from the Edge of the Field,” was broadcast live over the public access channel provided by the defendant that serves the greater New London area. On both occasions, the shows broadcasted comments from anonymous callers who made statements about the plaintiff that he alleged constituted slander per se, although he also alleged that he suffered actual damages.

“On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Because the trial court rendered judgment for the [defendant] as a matter of law, our review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record.” (Citation omitted; internal quotation marks omitted.) Kronberg v. Peacock, 67 Conn. App. 668, 672, 789 A.2d 510, cert. denied, 260 Conn. 902, 793 A.2d 1089 (2002).

The plaintiff has two bases for his appeal. First, he argues that the court misapplied the standard for deciding a summary judgment motion and improperly found facts. Second, he argues that the court misapplied federal law in concluding that the defendant was immune from suit. We disagree with both contentions.

I

The plaintiff first argues that the court improperly assumed the role of fact finder and then concluded that there were no issues of material fact. Specifically, he cites three findings that he argues should have been determined by a jury: That the defendant was solely a cable operator rather than a cable programmer; that the defendant took a more active role in producing the show than simply “carrying” it; and that the defendant provided more than technical assistance. We conclude that the court properly interpreted the relevant statutes.

“In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle [it] to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 550, 791 A.2d 489 (2002).

Despite the plaintiffs protestations, we agree with the court’s obseivation that the “parties do not so much appear to differ on the facts,” but on the application of the law to those facts. The defendant sought summary judgment largely based on the deposition of Mary Jane Rickard, the defendant’s public access coordinator. Rather than introduce contrary evidence through depositions or affidavits; see Practice Book § 17-45; the plaintiff argued that Rickard’s deposition showed that the defendant was intimately involved with the production of the show and was, therefore, liable. The court agreed with the defendant’s contrary assertion. “The question of whether a particular statute or regulation applies to a given state of facts is a question of statutory interpretation .... Statutory interpretation presents a question of law for the court.” (Internal quotation marks omitted.) Biller Associates v. Rte. 156 Realty Co., 52 Conn. App. 18, 26, 725 A.2d 398 (1999), aff'd, 252 Conn. 400, 746 A.2d 785 (2000). The court, therefore, had the power to interpret the statutory and regulatory language in light of the undisputed facts before it, and we conclude that it did not make improper factual findings.

Despite framing the issue as one where the court improperly found facts, the plaintiff in effect challenges the court’s conclusions of law on those issues. The disposition of all of those claims turns on whether the defendant exercised editorial control over the broadcasts or merely provided technical assistance. The court properly concluded that the defendant provided technical assistance.

Our agreement with the court is based on our interpretation of the relevant state and federal statutes. In doing so, “[o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . Furthermore, it is an elementary rule of statutory construction that we must read the legislative scheme as a whole in order to give effect to and harmonize all of the parts. . . . When statutes relate to the same subject matter, they must be read together and specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling.” (Citations omitted; internal quotation marks omitted.) Coregis Ins. Co. v. Fleet National Bank, 68 Conn. App. 716, 720, 793 A.2d 254 (2002).

Section 558 of title 47 of the United States Code provides in relevant part: “Nothing in [47 U.S.C. § 521 et seq.] shall be deemed to affect the criminal or civil liability of cable programmers or cable operators pursuant to the Federal, State, or local law of libel, slander ... or other similar laws, except that cable operators shall not incur any such liability for any program carried on any channel designated for public, educational, governmental use ... or under similar arrangements unless the program involves obscene material.” (Emphasis added.) The plaintiff argues that although the defendant is a cable operator, “its extensive participation in the production, editing, preparation and broadcast of the public access shows” meant that it also served as a programmer. Because 47 U.S.C. § 558 does not exempt cable programmers of public access shows from liability, the plaintiff argues that the court improperly concluded that the defendant was immune from suit.

The defendant urges us to decline to review the operator-programmer distinction, arguing that the plaintiff did not raise it before the trial court. Practice Book § 5-2 requires that “[a]ny party intending to raise any question of law which may be the subject of an appeal must either state the question distinctly to the judicial authority in a written trial brief ... or state the question distinctly to the judicial authority on the record before such party’s closing argument and within sufficient time to give the opposing counsel an opportunity to discuss the question. . . .’’In the past, we have considered claims that were “perhaps less than clear when raised on the record,” so long as they were distinctly raised in the posttrial brief. Biller Associates v. Rte. 156 Realty Co., supra, 52 Conn. App. 24. Our review of the transcript of the hearings on the summary judgment motion and the plaintiffs memorandum of law in opposition to that motion leads us to conclude that the plaintiff adequately raised the claim that 47 U.S.C. § 558 did not shield the defendant from liability. That also was recognized by the trial court, which stated in its memorandum of decision that “[a]ccording to the plaintiff, [the defendant’s] employees went far beyond the required level of support and participated in the actual preparation, production, editing and broadcasting of the public access show in question,” and that the plaintiff distinguished 47 U.S.C. § 558 by “argu[ing] first that the active participation in the production and broadcast of this program by [the defendant’s] employees preclude giving [the defendant] ‘blanket immunity’ under the statute . . . .” Accordingly, we review the merits of the plaintiffs claim.

Section 522 (5) of title 47 of the United States Code defines a “cable operator” as “any person or group of persons (A) who provides cable service over a cable system and directly or through one or more affiliates owns a significant interest in such cable system, or (B) who otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable system . . . .” Although 47 U.S.C. § 522 does not define a “cable programmer,” H.R. Rep. No. 98-934, 98th Cong., 2d Sess. 95 (1984), reprinted in 1984 U.S.C.C.A.N. 4732, which was adopted as the official legislative history, provides that “[c]able programmers shall include all parties that exercise control over the content of programs . . . .” We conclude that the defendant was not a programmer because it did not exercise control over the shows’ content. First, it is the intent of Congress and our state legislature that cable operators generally be prohibited from exercising editorial control over public access programming. See 47 U.S.C. § 531 (e) (“[s]ubject to section 544 (d) of this title, a cable operator shall not exercise any editorial control over any public, educational, or governmental use of channel capacity provided pursuant to this section, except a cable operator may refuse to transmit any public access program or portion of a public access program which contains obscenity, indecency, or nudity”); House Rep. No. 98-934, supra, 47 (“[t]he [Energy and Commerce Committee of the United States House of Representatives] believes that it is integral to the concept of the use of [public access] channels that such use be free from any editorial control or supervision by the cable operator”), reprinted in 1984 U.S.C.C.A.N. 4684; Regs., Conn. State Agencies § 16-333-33a (b) (“[n]o company shall exert editorial control over the content of [public access] programming”).

We conclude that the court properly determined that the defendant acted consistently with that prohibition. The plaintiff argues that the defendant was a programmer because the show literally could not have gone on without the defendant’s assistance. Indeed, Rickard testified that Kathleen Mitchell, the show’s host, did not provide anyone to work on the set, and that Rickard and others employed by the defendant switched the audio, answered the telephones and generated characters for the broadcasts, a level of involvement that the plaintiff alleges is contrary to the defendant’s own regulations filed with the state department of public utility control (department).

Despite that assistance, the defendant did not exercise control over the content of the show. Rickard testified that the defendant did not screen any telephone calls coming in to the live shows because “[w]e have no editorial control nor censorship of the content of the shows produced at the studios . . . .” Once the calls were transferred to the show’s host, the defendant “ha[s] no way of terminating them,” and it was its policy not to because it “ha[s] no editorial control nor censorship of the content of the show; therefore, we cannot control the content of the show.”

Rather, the defendant provided technical assistance, as required by § 16-333-33 (b) of the Regulations of Connecticut State Agencies. Although the plaintiff correctly notes that § 16-331a-ll (b) requires operators to train interested persons how to produce community access programs, there is nothing in the regulations to suggest that this training relieves the operator of its obligation to provide technical assistance. Accordingly, we conclude that the court properly determined that the defendant was a cable operator providing technical assistance.

II

Attempting to defy the plain language of the statute, the plaintiff next challenges the court’s conclusion that 47 U.S.C. § 558 immunized the defendant from suit. First, he argues that the statute does not apply because the defendant was a “gratuitous actor” that negligently provided telephone lines even though it was not required to do so. Second, the plaintiff argues that 47 U.S.C. § 544 (d) imposes liability on the defendant. We are not persuaded.

A

As we noted in part I, § 558 of title 47 of the United States Code provides in relevant part that “cable operators shall not incur any such [criminal or civil] liability for any program carried on any channel designated for public, educational, governmental use ... or under similar arrangements unless the program involves obscene material.” (Emphasis added.) We concluded in part I that the defendant was a cable operator. The plaintiff argues that this immunity applies only to cable operators that strictly comply with federal and state law and regulations. Because the defendant was not required to provide telephone lines, the plaintiff argues that by voluntarily doing so, it became hable for the comments broadcasted on the shows in question. We disagree.

Section 16-331a-ll (c) of the Regulations of Connecticut State Agencies requires that cable systems with more than 3500 subscribers provide an “equipped studio” for public access. The parties agree that the defendant was required to provide an equipped studio. The definition of “equipped studio” in § 16-333-31 makes no mention of telephones, telephone assistance or access to live telephone calls, and the defendant admitted in its answer that it voluntarily provided such equipment. Because telephones are not required under 47 U.S.C. § 558, the plaintiff opines, without support, that this “gratuitous conduct fell outside the conduct contemplated” under the blanket immunity in 47 U.S.C. § 558. Furthermore, the plaintiff argues that the defendant, by installing the telephones, was required to exercise editorial control, such as a “kill switch” or a delay system, to prevent slanderous remarks from being broadcast.

Not only is the plaintiff incorrect in his assertion that 47 U.S.C. § 558 limits immunity to operators that strictly comply with state regulations, but state regulations encourage operators to provide levels of support that exceed the statutory minimum. See Regs., Conn. State Agencies § 16-331a-12 (“[t]he [department] shall review each company’s support, according to the standards set in section 16-331a-ll, and may adjust the level of support below such standards if the following so warrant an adjustment ... (7) The existence of an agreement by the company to provide a level of support higher than that set by the standards in section 16-331a-ll”).

Equally meritless is the plaintiffs contention that an operator that provides a higher level of support is required to exercise editorial control. As we discussed in part I, the law is clear that cable operators generally should not exercise editorial control. In fact, a cable programmer very well could have a cause of action against a cable operator that exercises editorial control over the programmer’s public access show. See McClellan v. Cablevision of Connecticut, Inc., 149 F.3d 161, 165 (2d Cir. 1998) (producer of public access show has implied private right of action through 47 U.S.C. § 531 (e) against cable operator who exercises editorial control). Accordingly, we conclude that 47 U.S.C. § 558 provides immunity for cable operators for slanderous remarks made on public access shows.

B

The plaintiff finally argues that the court improperly concluded that 47 U.S.C. § 544 (d) did not require the defendant to exercise editorial control over the broadcast. We disagree.

As we discussed in part I, § 531 (e) of title 47 of the United States Code provides that “[sjubject to section 544 (d) of this title, a cable operator shall not exercise any editorial control over any public, educational, or governmental use of channel capacity provided pursuant to this section, except a cable operator may refuse to transmit any public access program or portion of a public access program which contains obscenity, indecency, or nudity.” Section 544 (d) (1) of title 47 of the United States Code provides that “[n]othing in [47 U.S.C. § 521 et seq.] shall be construed as prohibiting a franchising authority and a cable operator from specifying, in a franchise or renewal thereof, that certain cable services shall not be provided or shall be provided subject to conditions, if such cable services are obscene or are otherwise unprotected by the Constitution of the United States.” (Emphasis added.) Slander is speech that falls outside the protection of the first amendment. See Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 504, 104 S. Ct. 1949, 80 L. Ed. 2d 502 (1984). In addition to that statutory provision, the defendant’s “Public Access Channel Goals and Procedures,” filed with the department provides that “[t]he channel is not available for language or material, direct or indirect . . . (c) obscene, indecent, profane, slanderous, libelous, inflammatory, or invasion of privacy.” (Emphasis added.) Because the defendant’s material filed with the department stated that its channel was not available for slanderous statements, the plaintiff argues that the defendant could have exercised editorial control over such material.

The court disposed of that argument by distinguishing between prospective and retroactive enforcement. That is, “when prospective public access users apply for air time, it is permissible to enforce the 47 U.S.C. § 544 (d) considerations in deciding whether to allow the applicants public access air time. But the cable operator would not have the right to exercise ‘editorial control’ over a show that had actually been permitted to run or was in progress or on tape . . . .”

We need not reach that issue at this time. Even if the plaintiff is correct in his assertion that the defendant could have exercised editorial control under federal law, there is nothing to say that it had a duty to do so. As a result, the court properly concluded that the defendant was entitled to judgment as a matter of law.

The judgment is affirmed.

In this opinion the other judges concurred.

       In the first oral argument before the trial court on the defendant’s motion for summary judgment, the parties engaged in the following colloquy:
      "[Defendant’s Counsel]: [The plaintiffs] counsel also argues that there is a duty owed because they participated in the broadcasting. . . . [T]hey have to provide these studios and they also supply employees to help run the cameras, to run the control room; they may not have to do that. I’m not even sure about that, Your Honor, if they have to or they don’t have to, but I don’t think it makes any difference because they’re not exerting any control .... I don’t believe because they’re in the studio running some of this equipment that now develops a duty.
      * ** *
      “[Plaintiffs Counsel]: Our third argument is that they actively engaged in the preparation, production and the broadcast of the shows. At bar, this was brought out particularly in [the deposition of] Mary Jane Rickard ... in her testimony when she says she undertook personally, herself and another volunteer who was employed by [the defendant], to answer phones, man cameras, put phone callers through to the host, character generation, etc., etc. I asked her if anybody else was present on the show besides the host of the show . . . who was on the set. She said, ‘No, nobody whatsoever,’ just the host, her and another volunteer.
      “Regulations say that [the defendant] needs to coordinate and they need to provide technical support for the host of the show; however, they engaged in an active participation by answering phones and by monitoring cameras and by switching and by character generation, etc., etc. So, it’s their claim that they can’t do anything personal to the statute as far as editing or controlling, but yet they participated in the very shows at issue, which . . . I would certainly say that goes beyond control.
      * * *
      “[Defendant’s Counsel]: Lastly, the argument as to technical support. Counsel says — claims that since they were actively engaged, Your Honor, they were giving technical support specifically, in the statute, as plaintiffs counsel stated, requires they provided the control room, and they specifically ran the switching of the cameras, they answered the phone lines and told the host, Kathleen Mitchell, when a call was in. That’s all they did.”
      Similarly, at the second summary judgment hearing, the parties engaged in the following colloquy:
      “[Plaintiffs Counsel]: Furthermore, [47 U.S.C. § 558]. Apparently, what the statute is trying to do, it is trying to provide insulation to cable programmers or cable operators from liability. ... In other words, what the statute contemplates is, it contemplates someone going on a show and somebody saying something that is slanderous . . . and then being able to go after the cable company. And I believe that that is a proper interpretation of what the statute contemplates to limit the liability of cable operators from.
      “However, in the case at bar, the defendant actually participated in the broadcast. They were the ones who answered phones, they were the ones who operated cameras, they are the ones who operated the soundboard, they are the ones who generated characters necessary for the broadcast of the said show. For that reason, because they were active participants in the show, it only follows that they should be liable for any conduct which was under backing of them, be it intentional or not intentional.
      “This participation in the broadcast would pull their conduct outside of the conduct that is contemplated by § 558 and hold them liable.
      * * *
      “[Defendant’s Counsel]: As far as plaintiffs argument about [the defendant’s] role in the broadcast, they are required to give technical support, and . . . [t]hey were just there aiding, as they were required to do, and I don’t believe that creates any sort of duty.”

       The plaintiffs memorandum of law in support of his objection to the defendant’s motion for summary judgment states in relevant part:
      “The defendant, Eastern, is liable to the plaintiff, Massad, as the defendant was actively engaged in the preparation, production, broadcast and distribution of the alleged defamatory programming.
      “Throughout the memorandum of law submitted by the defendant, Eastern argues the position that there is just nothing that can be done with respect to interfering with the broadcast or the exertion of editorial control over the public access shows. This position, however, allows [the defendant] to turn a blind eye and refuse to accept the responsibility for its part in actually preparing, producing, editing and broadcasting the shows. The plaintiff, Massad, argues that the defendant, Eastern, is liable, as [the defendant] itself has voluntarily participated in the defamatory broadcasts making the defendant’s main argument of having no authority to exert editorial control over the shows of public access users moot.”
      Similarly, the plaintiff made many of the same arguments in his supplemental memorandum of law under a heading that states:
      “Although the defendant argues that 47 U.S.C. § 558 is applicable and insulates the defendant from liability, said statute does not contemplate the plaintiffs allegations that the defendant not only carried the subject program, but also participated in the production, broadcast and transmission of the subject program.”

       The plaintiff argues that 47 U.S.C. § 544 (d) imposes liability on the defendant. We disagree and address the merits of that claim in part II B.

       According to the defendant’s “Public Access Channel Goals and Procedures,” which it filed with the department, a producer “must provide [its] own crew (minimum 2) for production of each show.”

       Section 16-333-31 (8) of the Regulations of Connecticut State Agencies provides: “ ‘Equipped studio’ for the purposes of Section 16-331a-ll, shall mean the following:
      “(1) (A) a production room with ceiling height adequate to mount lighting equipment necessary for good quality production of video programming;
      “(B) two cameras having a minimum 350 lines of horizontal ,resolution and equipped with studio view finder, external synchronization capability and remote lens control;
      “(C) lighting equipment, microphones, intercom system, tripods, and microphone mixers sufficient for good quality production of video programming;
      “(2) (A) a control room, separate from the production room with adequate sound insulation and space and cable casting equipment sufficient to enable the good quality production and effective showing of video programming, including, but not limited to, the following equipment: three color capable video tape recorders, with video output jack, minimum 60 minute recording time, minimum 240 lines of resolution, and minimum of two audio tracks, at least two of which must be capable of forming an editing system with a controller, and capable of assemble and insert edit;
      “(B) two monitors with a minimum of nine inch screens; switching equipment and a sixteen-page character generator;
      “(C) an editing room, separate from the production and control rooms, unless the room is of sufficient size to provide for the editing and control functions to occur simultaneously in the same room without adverse impact to either function, with space and equipment sufficient to enable the effective editing of programming.”


author: SHEA, J.

text:
    JERRY HERRING v. YVONNE DANIELS ET AL.
    (AC 21352)
    Schaller, Bishop and Shea, Js.

      Argued January 11
    officially released July 2, 2002

      Robert J. Shluger, for the appellant (plaintiff).

      Valeria L. Caldwell-Gaines, for the appellee (named defendant).
   Opinion

SHEA, J.

The plaintiff, Jerry Herring, appeals from the judgment of the trial court in favor of the defendant, Yvonne Daniels, in a partition action in which the plaintiff claims an equitable interest in real property owned by the defendant.

On appeal, the plaintiff claims that the court improperly (1) failed to find that the parties held themselves out to the public as husband and wife, regarded the subject premises as marital property and treated it as such, (2) concluded that two mortgage loans were for the sole benefit of the plaintiff, (3) concluded that the failure of the parties to transfer title to one-half of the subject property to the plaintiff during the course of their relationship was dispositive as to the issue of the parties’ intent to treat the property as a shared asset, (4) failed to address the plaintiffs allegation that the parties’ conduct evinced an implied agreement to share ownership of the subject property, (5) failed to find that the plaintiff was entitled to a share of certain cash equity removed from the subject property by the defendant and (6) considered special defenses that previously had been stricken. We affirm the judgment of the trial court.

The following facts were adduced in a trial to the court. The defendant is the record titleholder of real property located at 81 Canterbury Street in Hartford. The defendant first met the plaintiff in 1981, and they had an affair that lasted for approximately six months. During that time, the plaintiff asked the defendant to cosign a $3000 loan for him, which she did. The parties resumed their relationship in 1985. In early 1987, the plaintiff moved into the house at 81 Canterbury Street and resided there on a semiregular basis until August, 1998, when the defendant obtained a restraining order against the plaintiff. During that period, the defendant’s daughter and son-in-law also lived in the subject premises. Although the defendant’s relatives paid rent to the defendant, the plaintiff did not pay any rent.

During the period in which the plaintiff was living at 81 Canterbury Street, he obtained two loans from his credit union, Hartford Firefighters Federal Credit Union, cosigned by the defendant and secured by mortgages on the defendant’s real estate. The first loan was in the amount of $60,000. At the time that loan was obtained, the defendant’s property was subject to three encumbrances, a first mortgage to Northeast Savings Bank for $23,327, a second mortgage held by the mortgage brokerage Conn and Conn Company for $11,610, and a lien for $2300 in favor of the state of Connecticut. As a condition to disbursing the loan proceeds, the second mortgage to Conn and Conn Company and the state tax lien had to be paid from the gross proceeds of the loan. The plaintiff received all of the net proceeds of the loan. Beginning in February, 1987, the monthly payments on that loan were made by automatic payroll deduction from the plaintiffs paycheck.

In May, 1993, the parties obtained a second loan with the Hartford Firefighters Federal Credit Union, this time in the amount of $100,000. The proceeds of that loan were used to pay off the first mortgage to Northeast Savings, an outstanding balance to Associated Financial Services for $2388.02 and the balance of the previous credit union loan. The net balance after paying those debts was approximately $60,000. Because the plaintiff was concerned that if the loan proceeds were deposited in an account under his name they would be seized to pay delinquent taxes, the defendant agreed to open a separate account in her name in which to deposit the funds. Accordingly, those proceeds were deposited in an account in the name of the defendant at Bank of Boston. Of those proceeds, the plaintiff received approximately $35,000 over the course of two months. The defendant received a $5000 cash disbursement at the time the check was deposited in the account. Although the record is unclear as to what became of the remaining $20,000, those funds apparently were dissipated as a result of various trips and gambling excursions made at the plaintiffs initiative. The payments on that loan were deducted from the plaintiffs monthly pension payments beginning on June 20,1993. The outstanding balance on the loan at the time of the plaintiffs last regular payment, in August, 1998, was $56,772.63.

In January, 1999, in an attempt at reconciliation, the plaintiff moved back into the defendant’s home. At that time, the plaintiff paid an additional $3500 on the loan, the automatic pension deductions having been previously discontinued. Despite tentative discussions regarding marriage, the reconciliation between the parties proved unsuccessful, and in December, 1999, the plaintiff was again forced to vacate the defendant’s house pursuant to a restraining order.

On December 22,1999, the plaintiff filed an amended complaint in three counts alleging an equitable interest in the property on the basis of his having resided there and assumed the mortgage payments, a contractual right based on express, verbal and implied understandings that the ownership of various assets was to be shared, and a claim for restitution based on quantum meruit.

The court found that there was insufficient evidence to support any of the claims asserted by the plaintiff and accordingly rendered judgment for the defendant. This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiffs first claim on appeal is that the court improperly failed to find that the parties held themselves out to the public as being married, and regarded the subject premises as marital property and treated it as such. The plaintiff argues that the court was required to make such a finding as a matter of law on the basis of the court’s subordinate finding that the parties were “cohabiting, unmarried lovers.”

Although a court’s findings of facts are ordinarily reviewed under a clearly erroneous standard, the plaintiffs claim raises a question of law and, therefore, our review is plenary. Lussier v. Spinnato, 69 Conn. App. 136, 144, 794 A.2d 1008 (2002).

In support of his first argument, the plaintiff cites the definition, adopted by our Supreme Court in Wolk v. Wolk, 191 Conn. 328, 332, 464 A.2d 780 (1983), that “[cjohabitation is a dwelling together of man and woman in the same place in the manner of husband and wife.” The plaintiff apparently interprets the phrase “in the manner of husband and wife” to suggest that cohabitation is for all intents and purposes synonymous with marriage, and that cohabitation raises all of the same presumptions regarding the treatment of assets as does marriage. Such an interpretation, however, would essentially transform cohabitation into common-law marriage, contrary to the refusal of this state to recognize such relationships. See McAnerney v. McAnerney, 165 Conn. 277, 285, 334 A.2d 437 (1973) (“Although other jurisdictions may recognize common-law marriage or accord legal consequences to informal marriage relationships, Connecticut definitely does not. ... It follows that although two persons cohabit and conduct themselves as a married couple, our law neither grants to nor imposes upon them marital status.” [Citations omitted.]) “[Cjohabitation alone does not create any contractual relationship or, unlike marriage, impose other legal duties upon the parties. "Boland, v. Catalano, 202 Conn. 333, 339, 521 A.2d 142 (1987).

Rather, where the parties have established an unmarried, cohabiting relationship, it is the specific conduct of the parties within that relationship that determines their respective rights and obligations, including the treatment of their individual property. See id., 340-41. Any such finding must be determined by reference to the unique circumstances and arrangements between the parties present in each case. Those matters are questions of fact that are within the singular province of the trial court, and can only be determined by evaluating the credibility of the witnesses and weighing conflicting evidence. See Vesce v. Lee, 185 Conn. 328, 335, 441 A.2d 556 (1981).

Accordingly, we conclude that the court was not bound as a matter of law to find that that the parties treated the subject property as a “marital asset” simply on the basis of having found that they were “unmarried, cohabiting lovers.”

II

The plaintiff next claims that the court improperly found that the two mortgage loans were for the sole benefit of the plaintiff. We conclude that the evidence presented was sufficient to permit the court, as the trier of fact, reasonably to find that the loans benefited the plaintiff rather than the defendant.

“When the factual basis of the court’s decision is challenged, the reviewing court must determine whether the facts are supported by the evidence or whether they are clearly erroneous. ... In such cases, the trier’s determination of fact will be disturbed only in the clearest of circumstances, where its conclusion could not reasonably be reached.” (Citation omitted; internal quotation marks omitted.) Hoffman Fuel Co. of Danbury v. Elliott, 68 Conn. App. 272, 276, 789 A.2d 1149, cert. denied, 260 Conn. 918, 797 A.2d 514 (2002).

It is undisputed that certain encumbrances on the defendant’s property were paid out of the gross proceeds of the two loans obtained by the plaintiff in 1987 and 1993. The plaintiff argues that discharging those encumbrances provided the defendant with a benefit and, accordingly, that the court’s conclusion that the loans were for the sole benefit of the plaintiff is not supported by the evidence and is clearly erroneous.

A benefit is “something that promotes well-being; advantage ... or useful aid: help.” Merriam-Webster’s Collegiate Dictionary (10th Ed. 1993). At the time that the parties renewed their relationship in 1987, but prior to obtaining the first loan, the total outstanding debt on the defendant’s property was $37,237. The value of the defendant’s property at that time was $165,000. At the conclusion of the parties’ dealings with each other, the debt on the defendant’s property had grown to $58,000 as a result of the various loans. Thus, after fourteen years, rather than having been reduced in any significant degree, the encumbrances on the defendant’s property actually increased by 64 percent. The defendant is liable on that debt as the cosigner of the loans. Such a circumstance can hardly be characterized as having conferred an advantage or benefit on the defendant.

Moreover, the court found that the monthly payments made by the plaintiff were in consideration of the defendant’s assistance to him. The evidence in the record supports that finding. From the proceeds of the first loan, $13,610 of the prior encumbrances were paid out of the gross proceeds. The payments on that loan were made from February, 1987, until May, 1993, when the parties refinanced. When averaged over the payment period, the plaintiffs payment of the prior encumbrances amount to approximately $181 per month for the use and occupancy of the subject premises. Similarly, the payment of the $25,715 in encumbrances on the property out of the gross proceeds of the second loan, when averaged over the five years that the plaintiff continued to make payments, amounts to approximately $428 per month. In light of the plaintiffs admission that he did not pay rent while he lived in the subject premises, the court was justified in finding that this sum was paid by the plaintiff in consideration of the defendant’s assistance to him. Certainly, that amount is not so large as to require the inference that it represented anything more than a reasonable rent substitute. Accordingly, we cannot say that the court’s finding in that regard was clearly erroneous.

We note that the plaintiff also directs this court’s attention to the apparent failure of the trial court to incorporate the defendant’s response to a “request for admission” into the operative facts of its memorandum of decision. Specifically, the plaintiff claims that the finding of the court that the loans at issue were for the sole benefit of the plaintiff conflicts with the defendant’s admission that “[t]he net proceeds in the amount of $62,685.86 . . . from the $100,000 loan [from the credit union] were initially deposited into the defendant’s bank account, and then subsequently divided and paid out to the two parties.” The court, however, did not find that the defendant received no money from the loan transactions. Rather, the court found merely that the loans were procured for the plaintiffs benefit. Our review of the record does not reveal an improper failure of the court to accord the defendant’s admission its appropriate weight. The evidence supports the finding that the loans were obtained for the plaintiffs benefit and that any benefit derived from those loans by the defendant merely was incidental. We conclude therefore that the court’s conclusion that the two mortgage loans were for the sole benefit of the plaintiff was not clearly erroneous.

Ill

The plaintiff also claims that the court improperly treated the fact that title to the property had not, in fact, been modified to reflect the parties’ joint ownership as dispositive of the issue of the parties’ intent to treat the property as a shared asset. The plaintiff infers that the court accorded that particular fact undue significance because “[the court] mentioned this underlying fact twice in its [d]ecision.”

We first briefly address the applicable standard of review. “The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court.” (Internal quotation marks omitted.) Pequonnock Yacht Club, Inc. v. Bridgeport, 259 Conn. 592, 598, 790 A.2d 1178 (2002). Because the claim, as framed by the plaintiff, essentially challenges the court’s finding as to the intent of the parties, we review the claim to determine whether that finding is clearly erroneous. The “determination of the parties’ intent, is a question of fact that is subject to reversal on appeal only if it is clearly erroneous.” (Internal quotation marks omitted.) HLO Land Ownership Associates Ltd. Partnership v. Hartford, 248 Conn. 350, 357, 727 A.2d 1260 (1999).

We agree with the plaintiff that a failure to transfer title is not dispositive in determining the rights and interests of the parties with respect to the subject property. See Boland v. Catalano, supra, 202 Conn. 336-38 (finding of implied agreement between parties to share fruits of joint labor despite fact that title to real property held only in name of defendant). There is, however, no evidence in the record to suggest that the court regarded the parties’ failure formally to transfer title to the subject property as dispositive. The court’s findings of fact cover two and one-half pages in the memorandum of decision and include numerous facts in addition to the parties’ failure to transfer title to the property. For example, the court stated in its findings that there was no credible evidence of any agreement between the parties to share the property, there was no credible evidence that the parties held themselves out to the public as husband and wife, and there was no credible evidence that the plaintiff performed maintenance and repairs on the house or that the parties had made any joint purchases of property. The plethora of operative facts cited by the court supports its conclusion regarding the intent of the parties and belies the plaintiffs suggestion that the court relied solely on any one fact as dispositive. We conclude, therefore, that the court’s finding was not clearly erroneous.

IV

The plaintiff claims that the court improperly failed to consider whether the evidence presented at trial supported a finding of an implied agreement between the parties to share equally the ownership of the subject property. The plaintiff argues that the court failed to consider whether the evidence presented showed conduct sufficient to establish an implied agreement or some other tacit understanding between the parties to share the subject property. The plaintiff argues that the court considered only whether an express contract had been proven. In support of his contention, the plaintiff cites the failure of the court to mention the case law discussed by the plaintiff and the court’s failure to find that the facts in those cases proved the existence of an implied contract as a matter of law.

We agree that “[i]n the absence of an express contract, the courts should inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract, agreement of partnership or joint venture, or some other tacit understanding between the parties.” (Internal quotation marks omitted.) Id., 340-41. We do not agree, however, that the court failed to do so in the present case.

“An implied contract depends upon the existence of an actual agreement between the parties. . . . Whether the parties have entered into such an agreement is a question of fact.” (Citation omitted.) Christensen v. Bic Corp., 18 Conn. App. 451, 454, 558 A.2d 273 (1989). “Our review of the trial court’s factual findings is limited to the question of whether the findings are clearly erroneous.” St. Catherine’s Church Corp. of Riversides. Technical Planning Associates, Inc., 9 Conn. App. 682, 685, 520 A.2d 1298 (1987).

Although the court’s memorandum of decision does not explicitly state that the proven facts failed to establish an implied agreement, the court’s catalog of findings clearly addresses the absence of those circumstances that would otherwise establish the existence of an implied agreement to share the subject property. The court found that the monthly payments were made by the plaintiff in consideration of the defendant’s assistance to him and, thus, were not based on an agreement, implied or otherwise, to share the property. The court also rejected the plaintiffs testimony that he performed substantial work on the property, finding that there was no credible evidence that he took care of the maintenance and repairs on the house. Finally, the court found that the plaintiff “offered no credible evidence to show that he and the defendant ever made any joint purchases of property; that he made any repairs or renovations that significantly improved the value of the defendant’s property; that they shared joint bank accounts, pooled their earnings or income, filed joint tax returns or ever had signatory powers to each other’s charge, bank or other accounts.” Each of those findings goes directly to circumstances that would, if supported by the evidence, tend to show an implicit agreement to share assets. See Boland v. Catalano, supra, 202 Conn. 340-41. We conclude, therefore, that the court properly addressed the plaintiffs cause of action alleging an interest in the subject property on the basis of an implied agreement between the parties and that the court’s failure to find such an agreement was not clearly erroneous.

V

The plaintiff also claims that the court improperly failed to find that he was entitled, under the doctrines of quantum meruit and unjust enrichment, to a share of the cash equity that had been removed from the subject property by the defendant in April and August, 1999. We disagree.

The plaintiffs claim involves three mortgage loans obtained by the defendant, the first on April 23, 1999, and the second and third on August 13, 1999. The first loan was for $30,000, out of which the defendant realized a net gain of $24,719. The gross amount of the second mortgage refinance loan was $82,500, and the third involved a gross balance of $ 16,500. The proceeds of the second loan were used to pay off the balance remaining on the $100,000 loan from the plaintiffs credit union, which was $50,375 at that time, as well as the outstanding balance on the loan of April 23,1999. The net proceeds realized on that loan were $11,842.

For the defendant to obtain those 1999 mortgage loans, it was necessary on both occasions to obtain a release of a lis pendens that the plaintiff had placed on the subject property. The plaintiffs only role in securing those loans consisted of releasing the lis pendens. In return for the plaintiffs release of the lien, the defendant paid him $2500.

The plaintiff argues that he is entitled to a share of the cash equity realized by those 1999 mortgage loans because he was responsible for the buildup of the equity in the property by paying down the balances of the previously obtained mortgage loans from his credit union. He also argues that he is entitled to a share of the cash equity because he was directly responsible for that equity being made available to the defendant by releasing the lis pendens on the property. We are unpersuaded.

“[T]he determinations of whether a particular [set of circumstances] was unjust and whether the defendant was benefited are essentially factual findings for the trial court that are subject only to a limited scope of review on appeal. . . . Those findings must stand, therefore, unless they are clearly erroneous or involve an abuse of discretion. . . . This limited scope of review is consistent with the general proposition that equitable determinations that depend on the balancing of many factors are committed to the sound discretion of the trial court.” (Citations omitted; internal quotation marks omitted.) Maris v. McGrath, 58 Conn. App. 183, 186, 753 A.2d 390, cert. granted on other grounds, 254 Conn. 919, 759 A.2d 1025 (2000); see also McNeil v. Riccio, 45 Conn. App. 466, 475, 696 A.2d 1050 (1997).

“Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs’ detriment. . . . McNeil v. Riccio, supra, 45 Conn. App. 475; see also Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 283, 649 A.2d 518 (1994).” (Internal quotation marks omitted.) Paulsen v. Kronberg, 66 Conn. App. 876, 878, 786 A.2d 453 (2001).

Accordingly, in the present case, the plaintiff was required to prove in the trial court that the defendant had received a benefit at his expense under circumstances that would otherwise make it unjust for her to retain the benefit. In part II, we concluded that the court’s findings that (1) the loans from the plaintiffs credit union were obtained for the sole benefit of the plaintiff and (2) that the payment of the preexisting debts on the property from the proceeds of those loans were in consideration of the defendant’s assistance to the plaintiff were not clearly erroneous. Thus, to the extent that the plaintiff made payments on those credit union loans, he did no more than fulfill his legal obligation as the beneficiary of those loans. Additionally, by the plaintiffs own admission, the defendant paid him $2500 in exchange for the release of the lis pendens. In light of those admissions and the findings by the court, we cannot conclude that the court abused its discretion in failing to find that the defendant was unjustly emichéd at the plaintiffs expense.

VI

The plaintiff claims finally that the court improperly considered special defenses that had been stricken. Because we already have determined that the court properly concluded that the plaintiff failed to meet his burden of proof to establish either an equitable interest in the subject property or to show a contractual right on the basis of an express or implied agreement between the parties, it is unnecessary for us to review his claim. “[T]his court is authorized to rely upon alternative grounds supported by the record to sustain a judgment.” (Internal quotation marks omitted.) CMG Realty of Connecticut, Inc. v. Colonnade One Ltd. Partnership, 36 Conn. App. 653, 660, 653 A.2d 207 (1995). The failure of the plaintiff to prove his case provides a ground for affirming the court’s judgment independent of any alleged reliance by the court on the stricken special defenses.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although the plaintiff also named the Hartford Firefighters Federal Credit Union as a defendant, the credit union did not participate in the action and is not a party to this appeal.

       That loan duly was repaid.

       In August, 1998, the plaintiff physically attacked one of the defendant’s friends. In retaliation for the defendant testifying against the plaintiff regarding that assault and battery, the plaintiff told federal authorities that the defendant was laundering drug money. As a consequence of that charge, the defendant’s son was arrested and currently is facing trial in federal court.

       We note that the plaintiff also challenges the court’s factual finding that there was no credible evidence that the plaintiff took care of the maintenance and repairs on the house. Rather than raising his claim separately, however, the plaintiff merely appends his argument to the end of his principal claim. Practice Book § 67-4 (d) requires that the arguments presented on appeal be “divided under appropriate headings into as many parts as there are points to be presented . . . .” Because the plaintiff has failed to comply with that rule, we decline to review his claim. See generally Mullen & Mahon, Inc. v. Mobilmed Support Services, LLC, 62 Conn. App. 1, 773 A.2d 952 (2001) (refusal to review inadequately briefed claim not included in statement of issues in brief).

       We note that even in some jurisdictions that do recognize common-law marriage, cohabitation alone is not enough to create a valid common-law marriage. See Cottier v. Milford, 206 Conn. 242, 252, 537 A.2d 474 (1988) (interpreting pertinent laws of South Carolina, Alabama).

       That figure represents a $23,327 first mortgage to Northeast Savings Bank, a second mortgage for $11,610 to Conn and Conn Company, and a lien for $2300 in favor of the state of Connecticut.

       We note that the plaintiff made payments on the loans only during the periods in which he actually was living in the house. He discontinued payment after he was forced to vacate the subject property. That circumstance supports the court’s finding that such payments were not made pursuant to any agreement between the parties that the plaintiff would obtain a permanent ownership interest in the subject property and is indicative that the plaintiff himself apparently did not consider the payments in that light.

       Although the plaintiff suggests that he was induced to release the lis pendens by the defendant’s expression of affection for him and by the parties’ indefinite marriage plans, there is nothing in the record to indicate that the court found that explanation credible. See Giulietti v. Giulietti, 65 Conn. App. 813, 839, 784 A.2d 905 (“ ‘[I]t is well established that [i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. . . . [T]he trial court is privileged to adopt whatever testimony he reasonably believes to be credible. ... On appeal, we do not retry the facts or pass on the credibility of witnesses.’ ”), cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001).


author: HENNESSY, J.

text:
    IN RE CLARK K. ET AL.

    (AC 21702)
    Foti, Dranginis and Hennessy, Js.

      Argued February 13
    officially released July 2, 2002

      Jeffrey W. Minnier, for the appellant (respondent mother).

      Maureen D. Regula, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

      Eric J. Palladino, for the minor children.

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

   Opinion

HENNESSY, J.

The respondent mother of the minor children, C and M, appeals from the judgments of the trial court terminating her parental rights with respect to both children. The respondent claims that the court improperly (1) admitted into evidence her alleged confession that she made in a criminal case against her stemming from injuries suffered by M, (2) proceeded with the termination of parental rights hearing during a time when the criminal charges were pending against her and when the court knew that she would assert her fifth amendment privilege against self-incrimination, thereby denying her a full hearing, and (3) deprived her of due process by terminating her parental rights prior to the resolution of the criminal case, which arose out of the same incident that led to the termination of her parental rights. We affirm the judgments of the trial court.

The following procedural history is relevant to the respondent’s appeal. The commissioner of the department of children and families (commissioner) filed petitions alleging, pursuant to General Statutes §§ 46b-129 (a) and 46b-120, that both children were neglected in that they were denied proper care and attention, physically, educationally, emotionally and morally, and that they had been abused and had sustained physical injuries by other than accidental means. Accompanying the petitions alleging neglect were coterminous petitions requesting that the parental rights of both the children’s parents be terminated. The petitions requesting the termination of parental rights were amended to allege that M “has been denied by reason of act or acts of commission or omission, including but not limited to . . . severe physical abuse or a pattern of abuse by the mother, [and] the care, guidance or control necessary for his physical, educational, moral or emotional well-being . ...” As to C, the amended petition alleged that the respondent had committed an assault through a deliberate, nonaccidental act that resulted in serious bodily injury to M. After a contested hearing, the court terminated the respondent’s parental rights. This appeal followed.

“The standard of review on appeal [from a termination of parental rights] is whether the challenged findings are clearly erroneous. In re Luis C., [210 Conn. 157, 166, 554 A.2d 722 (1989)]; In re Christina V., 38 Conn. App. 214, 223, 660 A.2d 863 (1995). The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous. . . .

“On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. In re Michael M., [29 Conn. App. 112, 121, 614 A.2d 832 (1992)]; In re Megan M., 24 Conn. App. 338, 342, 588 A.2d 239 (1991) .... We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached; Pandolphe’s Auto Parts, Inc. v. Manchester, [181 Conn. 217, 222, 435 A.2d 24 (1980)]; nor do we retry the case or pass upon the credibility of the witnesses. In re Christine F., 6 Conn. App. 360, 366-67, 505 A.2d 734, cert. denied, 199 Conn. 808, 809, 508 A.2d 769, 770 (1986). Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling.” In re John G., 56 Conn. App. 12, 16, 740 A.2d 496 (1999).

In a comprehensive memorandum of decision, the court found the following facts. The respondent, born on April 24, 1977, was married in January, 1997. She gave birth to C on July 18, 1997, and to M on June 10, 1998. Since the age of seventeen, the respondent has suffered from a seizure disorder and, on June 21, 1998, eleven days after M’s birth, she suffered from a seizure during which she dropped M. M, who as a result of the fall struck the edge of a couch, was brought to Waterbury Hospital, had his wound closed and was released. The respondent was given a prescription for Dilantin, an anticonvulsant medication, and counseled to sit while holding the children. On September 11, 1998, M was taken by ambulance to Waterbury Hospital and was found to have suffered three fractures of the skull. A piece of bone had been sheared off the right side of the skull. There was a subdural hematoma caused by blood having collected on the left side of the brain, and there was significant soft tissue swelling in the area of the right and left parietal skull fractures. M also had meningitis and was anemic.

When coterminous petitions are filed, the couit first must determine, by a fair preponderance of the evidence, whether the child has been neglected. If the court so finds, it then may consider, as a disposition of the matter, a request to terminate parental rights. That requires consideration of the accompanying termination petition and a hearing thereon. “The hearing on a petition to terminate parental rights consists of . . . two phases, adjudication and disposition. See Practice Book § [33-12]. In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interest of the child.” In re Tabitha P., 39 Conn. App. 353, 360, 664 A.2d 1168 (1995).

Before we examine whether the facts found by the court were clearly erroneous, we need to address the respondent’s claims concerning the admission of an alleged confession and court rulings that allegedly resulted in an unfair hearing.

I

The court, in part, based its findings of neglect and abuse and its resultant disposition on the respondent’s statements contained in a written confession made to the police. The police questioned the respondent in connection with the injuries suffered by M. The respondent signed a statement that described her interaction with M and included the following: “Because he was still crying that’s when I put my hand against his forehead and slammed [M] back against the floor.” The respondent, prior to the hearing on the coterminous petition to terminate her parental rights, filed a motion in limine, requesting the court to exclude from evidence her signed statement to the police. The court denied the motion.

The respondent argues on appeal that the statements made to the police were not voluntary and, therefore, not admissible. Specifically, the respondent’s attorney claims that the respondent’s interview with the police lasted much too long and, on the day of the interview, she may have been in such a state of confusion that she did not clearly understand the import of the statements that she was making. In her statement to the police, the respondent claimed that M had fallen out of his car seat and hit his head on the concrete driveway. She also stated that about two hours later while she was burping him, M lunged backward, hitting his head on a rocking horse. Additionally, she claimed that a short time later, while she was giving M a bottle, he again lunged backward and hit the rocking horse. At that point, M was not moving and his eyes were shut. The respondent went to a neighbor who called for an ambulance. The respondent subsequently told Captain Kathleen Wilson of the Waterbury police department that she had lied to other police officers about the events leading to M’s injuries. She admitted that she had pushed M’s head against the floor, “and his head slammed against the floor and made a noise as if I dropped a phone book.”

The respondent’s attorney argued to the trial court that the respondent was at the police station on September 11, 1998, for approximately six hours, as a result of which she may have believed that she was not allowed to leave. He contended that it is a matter of speculation as to her state of mind. It is questionable, he claimed, whether she believed that she had to say anything to get out of the police station. He further argued that those circumstances “[touched] upon the reliability and trustworthiness of the alleged confession.”

The court addressed the claim that the respondent’s written statement to the police was involuntary by reviewing the testimony of the police officers and the argument of the attorneys. The court found that the respondent was twenty-one years of age, intelligent and able to read, that she had been advised of her constitutional rights and had initialed the waiver of rights form. The court then concluded that the respondent’s signed statement was voluntary.

“Before addressing the merits of the defendant’s claims, we must first outline the proper scope of appellate review of a trial court’s determination of the voluntariness of a statement. [T]he proper scope of review [of] the ultimate issue of voluntariness requires us, not to ascertain whether the trial court’s finding is supported by substantial evidence, but to conduct a plenary review of the record in order to make an independent determination of voluntariness. . . . We make such a determination by examining the totality of the circumstances surrounding the [statement], and determining whether the [statement was] the product of an essentially free and unconstrained choice by the maker. . . . Factors that may be taken into account, upon a proper factual showing, include: the youth of the [individual]; his lack of education; his intelligence; the lack of any advice as to his constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; and the use of physical punishment, such as the deprivation of food and sleep. . . . With those principles in mind, we turn to the merits of the defendant’s claims.” (Citations omitted; internal quotation marks omitted.) State v. Williams, 65 Conn. App. 59, 70-71, 782 A.2d 149, cert. denied, 258 Conn. 923, 782 A.2d 1251 (2001).

Applying those factors to the present case, we conclude that the facts overwhelmingly support the court’s determination that the respondent’s written statement was voluntary. The respondent changed her story about how the injuries to M had occurred and, as a result, the length of time that the police spent questioning her was not inordinately long. She was not handcuffed or otherwise restrained, she was offered food and drink, she was questioned during the afternoon in an open room with windows where other people were working, and there were no claims that she was threatened or coerced. Accordingly, after conducting a plenary review of the entire record, we conclude that the court properly determined that the respondent voluntarily provided her written statement to the police on September 11, 1998.

II

The respondent further argues that the termination of parental rights hearing should not have proceeded while criminal charges were pending against her pertaining to the same incident involving M. Specifically, the respondent claims that her exercise of the right to remain silent, as guaranteed by the fifth amendment to the United States constitution, prevented her from fully explaining her actions in connection with the termination hearing. We disagree.

“The fifth amendment privilege against self incrimination ‘not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might, incriminate him in future criminal proceedings.’ Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S. Ct. 316, 38 L. Ed. 2d 274 (1973).” Olin Corp. v. Castells, 180 Conn. 49, 53, 428 A.2d 319 (1980).

That protection or privilege against self-incrimination has also been inscribed into our mies of practice. Practice Book § 34-1 (f) provides in relevant part: “No parent who is the subject of a petition shall be compelled to testify if the testimony might tend to incriminate in any criminal proceeding or to establish the validity of the facts alleged in the petition.” As the trial court stated in its memorandum of decision, however: “The privilege against self-incrimination ... is not a muzzle but a privilege.” The exercise of the privilege can be waived, but in doing so, one is obligated to answer the questions asked, which can be used against one not only in the civil proceedings at hand but also at criminal proceedings in the future.

The respondent chose to remain silent at the hearing on the motion in limine and the termination of parental rights hearing. She cannot now complain that there was not a full and fair hearing based on the premise that she, herself, did not tell her side of the story.

Ill

We now turn to a review of the court’s decision to determine if the court’s conclusions were in accordance with the facts and the law.

The commissioner filed a petition alleging that M had been neglected. General Statutes (Rev. to 1999) § 46b-120 provides in relevant part: “(8) a child . . . may be found ‘neglected’ who . . . (B) is being denied proper care and attention, physically ... or (C) is being permitted to live under conditions, circumstances or associations injurious to his well-being, or (D) has been abused . . . .” “ ‘[A]bused’ means that a child or youth (A) has had physical injury or injuries inflicted upon him other than by accidental means, or (B) has injuries which are at variance with the history given of them ”

The court found, and the evidence supported such a finding, that M had been admitted to Waterbury Hospital, having sustained three skull fractures and a subdural hematoma. That diagnosis was made by Betty Spivack, a board certified pediatrician who had a fellowship in child abuse and neglect at Hasbro Children’s Hospital in Rhode Island. Spivack testified during the hearing that the left parietal skull fracture was very recent and could not have resulted from M’s having been dropped from a sitting position. She further testified that it required the application of force such as could be exerted by a person of adolescence or older. The respondent admitted in her written statement to the police that she had placed her hand on M’s head and pushed it against the floor. The court reasonably could have found by a fair preponderance of the evidence that M had sustained physical injuries by other than accidental means. The evidence and the law support the conclusion that M was abused and neglected.

The court, having found M to be a neglected child, then was required to determine a proper disposition. The commissioner requested that the disposition be the termination of the respondent’s parental rights as to M. To accomplish that, the commissioner had filed a petition, alleging, in accordance with General Statutes § 17a-112 (j) (3) (C), that M “has been denied, by reason of an act or acts of parental commission or omission, including but not limited to . . . severe physical abuse or a pattern of abuse . . . the care, guidance or control necessary for [his] physical, educational, moral or emotional well-being.” Section 17a-112 (j) (3) (C) provides in relevant part: “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 >5

The court found, and the evidence is clear and convincing, that “the respondent deliberately and ‘nonaccidentally’ slammed [M’s] head against the floor on September 11,1998.” The resulting fracture of the skull, as testified about by Spivack, caused impaired functioning of the brain, seizures and the potential for permanent brain injury or death.

The respondent’s statement to the police that she placed her hand on M’s head and pushed it against the floor, coupled with the medical testimony about the injuries to M as a result of the respondent’s deliberate actions, presented the court with clear and convincing evidence that the statutory criteria required in the adjudicatory phase of a termination of parental rights hearing had been met.

The commissioner also petitioned the court to terminate the parental rights of the respondent as to C pursuant to General Statutes (Rev. to 1999) § 17a-112 (c) (3) (F), now (j) (3) (F), which authorizes the court to do so if it finds by clear and convincing evidence that a parent “has committed an assault, through [a] deliberate, nonaccidental act that resulted in serious bodily injury of another child of the parent . . . .” The respondent’s statement to the police that she deliberately slammed C’s brother’s head against the floor, which resulted in fractures of the skull would allow the court to conclude by clear and convincing evidence that the respondent committed an assault on C’s brother resulting in serious bodily injury.

“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. In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in § 17a-112 (d) [now (k)]. On appeal, we will disturb the findings of the trial court in both the adjudication and disposition only if they are clearly erroneous.” In re Tabitha P., supra, 39 Conn. App. 361-62.

The court, in its comprehensive decision, made detailed findings pursuant to § 17a-112 (k). Those findings can be summarized as follows. At the time of trial, C was a little more than three years old and M was almost one year younger. They were removed from the respondent when she was arrested on September 11, 1998, in connection with the injuries M had suffered three days earlier, and the commissioner has retained custody of the children from that time. As a condition of being released from jail, the respondent was ordered to have no contact with the children, and on December 31, 1998, she informed the department of children and families (department) that she would not have any further contact with the department. The respondent has not seen her children since September, 1998. The respondent regularly inquired about the children’s welfare, requested visitation and sent gifts, but never challenged the condition of her release that she have no contact with her children. The children were placed with foster parents with whom, during the subsequent two years, they resided and formed a close and loving attachment. The children have little memory of the respondent and perceive their foster parents, who want to adopt them, as their parents. There is no evidence that the respondent has been prevented from maintaining a meaningful relationship with the children by their father, any other person or by the economic circumstances of the respondent.

The court found that it would not be in the best interests of the children to reintroduce the respondent into their lives when they had not seen her in more than two years, nor would it be in the children’s best interests to have them remain in the uncertainty of foster care when permanency planning is the goal with respect to their lives. The court found by clear and convincing evidence that it is in the best interests of the children that the respondent’s parental rights be terminated. We do not find that conclusion to be clearly erroneous.

The judgments are affirmed.

In this opinion the other judges concurred.

       During the proceedings, the respondent father of the two children consented to the termination of his parental rights, and the court terminated his parental rights as part of its ruling. Because the respondent father has not appealed from the judgments, we refer in this opinion to the respondent mother as the respondent.

       Because issue three essentially restates issue two in general due process terms, we will not address issue three separately. We do, however, review the trial court’s decision to determine whether its conclusions were in accordance with the facts and the law.

       General Statutes § 17a-112 (7.) provides in relevant part: “Any petition brought by the Commissioner of Children and Families to the Superior Court, pursuant to subsection (a) of section 46b-129, may be accompanied by or . . . consolidated with a petition for termination of parental rights filed in accordance with this section with respect to such child. . . .”

        We note that subdivision (l) of § 17a-112 had been designated subdivision (e) before Public Acts 2000, No. 00-137, § 1, took effect on July 1, 2000. Although the wording of the subdivision was not changed by the redesignation, subdivision (e) is applicable to C and subdivision (l) is applicable to M because the court on November 20, 2000, granted the commissioner’s motion, as to M only, to amend the coterminous petitions.

       The respondent did not testify at the hearing on the motion in limine. Because she had been arrested on September 11, 1998, and charged with assault in the first degree in violation of General Statutes § 53a-59 and risk of injury to a child in violation of General Statutes § 53-21 in connection with the injuries suffered by M, she chose to remain silent.

       The respondent also argues that the statement that she provided to Wilson was not disclosed and that it had been the subject oí a prior written discovery request. The statement was introduced at the hearing on the motion in limine. The respondent, in arguing to the court that the confession to Wilson dated September 11, 1998, should not be admitted into evidence, stated: “There is a signed confession that I obtained through discovery of the [commissioner’s] file. The date is September 11, 1998.” The evidence convinces this court that the respondent’s written confession was in the possession of her attorney in time to advise her of its significance.

       Amendments to General Statutes § 46b-120 effective July 1,2001, renumbered subdivision (8) as subdivision (9).

       There was testimony from Eric Hyson, a radiologist from Waterbury Hospital, who was uncertain if X rays revealed infant markings (sutures) rather than fractures. There also was testimony from James Merikangas, a specialist in neurology and psychiatry, retained by the respondent, who opined that M most likely suffered injuries to his head and bleeding inside his skull by being dropped by the respondent during an epileptic seizure. The court found that the respondent’s own statement as to her assault on M and the skull fractures M suffered were more consistent with the testimony put forth by Spivack than with the testimony of Merikangas. “[I]t is in the sole province of the trier of fact to evaluate expert testimony, to assess its credibility, and to assign it a proper weight.” (Internal quotation marks omitted.) State v. Alterisi, 47 Conn. App. 199, 204, 702 A.2d 651 (1997).

       The court, in its decision, applied to both children the dispositional factors that are required to be considered.

       General Statutes § 17a-112 (k) provides: “Except in the case where termination is based on consent, in 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 by an agency to facilitate the reunion of the child with the parent; (2) whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended; (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 a parent 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.”
      We note that subdivision (k) of § 17a-112 had been designated subdivision (d) before Public Acts 2000, No. 00-137, § 1, took effect on July 1, 2000. Although the wording of the subdivision was not changed by the redesignation, subdivision (d) is applicable to C and subdivision (k) is applicable to M because the court on November 20, 2000, granted the commissioner’s motion, as to M only, to amend the coterminous petitions.