text:
    ROY SASTROM v. PSYCHIATRIC SECURITY REVIEW BOARD
    (AC 28473)
    Graendel, Lavine and Mihalakos, Js.

      Argued October 16, 2007
    officially released January 29, 2008

      Robert E. Byron, for the appellant (plaintiff).

      Jacqueline S. Hoell, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Richard J. Lynch, assistant attorney general, for the appellee (defendant).
   Opinion

MIHALAKOS, J.

The plaintiff, Roy Sastrom, appeals from the judgment of the trial court dismissing his action for a declaratory judgment against the defendant, the psychiatric security review board. On appeal, the plaintiff claims that the court improperly determined that it lacked subject matter jurisdiction to consider his claim that General Statutes § 17a-581 requires the defendant to have a psychiatrist and a psychologist as active, voting members. We reverse the judgment of the trial court.

The record reveals the following undisputed facts and procedural history. On July 11, 1994, the plaintiff was committed to the jurisdiction of the defendant for a period of time not to exceed forty years after he was acquitted by reason of mental disease or defect of two counts of harassment in the first degree, four counts of threatening and two counts of attempt to commit larceny in the first degree. The plaintiff was confined at Connecticut Valley Hospital, a facility of the department of mental health and addiction services. The defendant is an administrative agency within the department of mental health and addiction services and is responsible for monitoring the confinement, conditional release and discharge of acquittees. See General Statutes § 17a-581.

On August 24, 2006, the plaintiff filed a declaratory judgment action in Superior Court, seeking a ruling that, inter alia, the defendant’s composition did not comply with its enabling statute because it did not include a psychiatrist and psychologist and that the defendant consequently lacked jurisdiction over him. See General Statutes § 17a-581. On September 13, 2006, the defendant filed a motion to dismiss the complaint on the ground that the court lacked subject matter jurisdiction because the plaintiff failed to exhaust his administrative remedies. The court subsequently ruled that it lacked subject matter jurisdiction on the basis of the plaintiffs failure to exhaust administrative remedies and, accordingly, granted the defendant’s motion to dismiss.

On appeal, the plaintiff claims that the court improperly dismissed his complaint. The plaintiff contends that the general rule requiring exhaustion of administrative remedies before appealing to the Superior Court is inapplicable in this case because the statutory framework of the Uniform Administrative Procedure Act (act); General Statutes § 4-166 et seq.; does not afford a mechanism for adequate judicial review of challenges to the defendant’s jurisdiction. Consequently, the plaintiff maintains that he may bring a declaratory judgment action in Superior Court to determine whether the defendant has jurisdiction over him. The defendant argues that the general rule requiring exhaustion of administrative remedies requires the plaintiff to exhaust his administrative remedies by seeking a declaratory ruling from it regarding its jurisdiction. We agree with the plaintiff that the general rule requiring exhaustion of administrative remedies is inapplicable in this case because there is not a mechanism for adequate judicial review of the defendant’s decision regarding its own jurisdiction. See Bridgeport Transit District v. Local Union 1336, 211 Conn. 436, 439, 559 A.2d 1113 (1989).

We begin by setting forth our standard of review. “The standard of review of a motion to dismiss is . . . well established. In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.” (Internal quotation marks omitted.) Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 773, 826 A.2d 138 (2003). “[Bjecause [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary. . . . [T]he question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court, sua sponte, at any time. . . . Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . .” (Citations omitted; emphasis in original; internal quotation marks omitted.) Commissioner of Transportation v. Larobina, 92 Conn. App. 15, 28-29, 882 A.2d 1265, cert. denied, 276 Conn. 931, 889 A.2d 816 (2005).

An administrative agency, generally, must determine in the first instance whether it has the authority to act in a particular circumstance before a Superior Court may review the jurisdiction of the agency. See General Statutes § 4-183. “A claim that an administrative agency has acted beyond its statutory authority or jurisdiction properly may be the subject of an administrative appeal. . . . Where there is in place a mechanism for adequate judicial review, such as that contained in § 4-183, [i]t is [the] general rule that an administrative agency may and must determine whether it has jurisdiction in a particular situation. When a particular statute authorizes an administrative agency to act in a particular situation it necessarily confers upon such agency authority to determine whether the situation is such as to authorize the agency to act—that is, to determine the coverage of the statute—and this question need not, and in fact cannot, be initially decided by a court. . . . This general rule is in accord with our frequently stated observation that when a party has a statutory right of appeal from the decision of an administrative agency, he may not, instead of appealing, bring an independent action to test the very issue which the appeal was designed to test.” (Citations omitted; internal quotation marks omitted.) Greater Bridgeport Transit District v. Local Union 1336, supra, 211 Conn. 439. We note that the general rule set forth in Greater Bridgeport Transit District is limited by its prefatory clause to situations “[w]here there is in place a mechanism for adequate judicial review . . . .” (Internal quotation marks omitted.) Id.

When there is no mechanism in place for adequate judicial review of an agency’s ruling, a plaintiff is permitted to bring a declaratory judgment action in Superior Court in the first instance to determine whether an agency has jurisdiction. See Aaron v. Conservation Commission, 178 Conn. 173, 422 A.2d 290 (1979). In Aaron, the plaintiff brought a declaratory judgment action challenging the jurisdiction of the conservation commission of the town of Redding and attacking the validity of certain of its regulations that required the plaintiff to obtain an inland wetlands permit to install a septic system. Id., 176. The trial court declined to entertain the action on the ground that the issue the plaintiff sought to have litigated could be more appropriately resolved by applying to the commission for an inland wetlands permit and, if unsuccessful, by appealing from such denial pursuant to General Statutes (Rev. to 1979) § 22a-43. Aaron v. Conservation Commission, supra, 177. The Supreme Court reversed, holding that “declaratory judgment proceedings are appropriate for determining jurisdictional issues or questions concerning the validity of the regulations of an administrative agency, while questions concerning the correctness of an agency’s decision in a particular case or of the sufficiency of the evidence can properly be resolved only by appeal.” Id., 178. The court also held that “exhaustion of administrative remedies will not be required when the remedies available are futile or inadequate,” concluding that “there is some question as to whether the plaintiffs claims could properly be litigated by way of appeal because of the rule that a party who seeks some advantage under a statute or ordinance, such as a permit or a variance, is precluded from subsequently attacking the validity of the statute or ordinance.” Id., 179. The court concluded that the Superior Court had jurisdiction over the claim because there was no mechanism for judicial review of the administrative decision. Id.

In the present case, a review of the plaintiffs ability to obtain judicial review of board decisions is necessary to facilitate our discussion. Our Supreme Court has “declared that [tjherc is no absolute right of appeal to the courts from a decision of an administrative agency. . . . Appeals to the courts from administrative [agencies] exist only -under statutory authority .... Appellate jurisdiction is derived from the . . . statutory provisions by which it is created . . . and can be acquired and exercised only in the manner prescribed. ... In the absence of statutory authority, therefore, there is no right of appeal from [an agency’s] decision . . . .” (Emphasis in original; internal quotation marks omitted.) Fullerton v. Administrator, Unemployment Compensation Act, 280 Conn. 745, 760, 911 A.2d 736 (2006); Chatterjee v. Commissioner of Revenue Services, 277 Conn. 681, 688, 894 A.2d 919 (2006).

Section 4-183 (a) of the act generally governs judicial review of administrative decisions and provides in relevant part that “[a] person who has exhausted all administrative remedies . . . and who is aggrieved by a final decision may appeal to the Superior Court . . . .” The act, however, does not permit appeals from all types of administrative decisions. Specifically, General Statutes § 4-186 (f) provides that a plaintiff may appeal from the defendant’s decisions pursuant to the provisions of General Statutes § 17a-597. Section 17a-597 provides that a plaintiff may appeal, inter alia, those decisions entered pursuant to subdivision (2) or (3) of General Statutes § 17a-584. Section 17a-584 requires the defendant, at any hearing considering the discharge, conditional release or confinement of an acquittee, to make a finding as to the mental condition of the acquittee and (1) to recommend that the acquittee be discharged, (2) to order the acquittee conditionally released or (3) to order the person confined in a hospital for persons with psychiatric disabilities. In effect, the act limits a plaintiffs ability to appeal from the orders of the defendant entered pursuant to subdivisions (2) or (3) of § 17a-584. See Dyous v. Psychiatric Security Review Board, supra, 264 Conn. 774-75 (stating that it is “clear and unequivocal” that § 17a-597 [a] limits a plaintiffs right to appeal any order of the board entered pursuant to § 17a-584 [2] or [3]).

In the present case, the plaintiff seeks a declaratory judgment that the defendant does not have jurisdiction over him. If we assume for a moment that the plaintiff were required to bring his claim before the defendant in the first instance, a declaratory ruling by the defendant would be entered pursuant to General Statutes § 4-176. This ruling would not be enumerated as an appealable decision under § 17a-597, and the plaintiff, consequently, would have no avenue by which to appeal from the defendant’s jurisdictional determination. Therefore, the precedent established in Greater Bridgeport Transit District that “[w]here there is in place a mechanism for adequate judicial review, such as that contained in § 4-183, [i]t is [the] general rule that an administrative agency may and must determine whether it has jurisdiction in a particular situation” is inapplicable in the present case because the statutory framework of § 4-183 does not afford a mechanism for adequate judicial review of the defendant’s determination of its own jurisdiction. (Emphasis added; internal quotation marks omitted.) Greater Bridgeport Transit District v. Local Union 1336, supra, 211 Conn. 439.

Consequently, we conclude that the exception to the general rule, as set forth in Aaron v. Conservation Commission, supra, 178 Conn. 173, applies in this situation. We find that the statutoiy framework of the act deprives the plaintiff of an adequate administrative remedy because he has no judicial mechanism to challenge the defendant’s determination of its own jurisdiction. The plaintiffs declaratory judgment action challenging the jurisdiction of the defendant, therefore, falls within the subject matter jurisdiction of the Superior Court.

The judgment is reversed and the case is remanded for further proceedings in accordance with law.

In this opinion the other judges concurred.

       General Statutes § 17a-581 provides in relevant part: “(a) There is hereby established a Psychiatric Security Review Board .... The board shall consist of six members . . . . (b) The membership shall be composed of: (1) A psychiatrist ... (2) a psychologist ... (3) a person with substantial experience in the process of probation; (4) a member of the general public; (5) an attorney . . . and (6) a member of the general public with substantial experience in victim advocacy. . . .”

       General Statutes § 4-183 (a) provides in relevant part: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section. . . .” The remainder of the section proscribes the procedure to be followed in an administrative appeal.

       Our Supreme Court subsequently has recognized the seemingly inherent conflict with the holdings of Greater Bridgeport Transit District and Aaron. The court has stated that although Greater Bridgeport Transit District and Aaron are distinguishable on the basis of the type of relief sought and the availability of an administrative remedy, it regarded Greater Bridgeport Transit District as implicitly overruling Aaron “with respect to the absence of an exhaustion requirement for the determination of an agency’s jurisdiction when an adequate administrative remedy is available.” Cannata v. Dept. of Environmental Protection, 215 Conn. 616, 622 n.7, 577 A.2d 1017 (1990). We conclude, however, that Greater Bridgeport Transit District overrules Aaron only when an adequate administrative remedy is available. Because “an administrative remedy is adequate when it could provide the plaintiff with the relief that it seeks and provide a mechanism for judicial review of the administrative decision”; (emphasis added) O & G Industries, Inc. v. Planning & Zoning Commission, 232 Conn. 419, 426, 655 A.2d 1121 (1995); we regard Aaron as having validity when a plaintiff wants to challenge an agency’s jurisdiction but there is no mechanism in place for judicial review of the administrative decision.

       General Statutes § 4-186 (f) provides in relevant part: “The provisions of section 4-183 shall apply to the Psychiatric Security Review Board in the manner described in section 17a-597 . . . .”

       General Statutes § 17a-597 (a) provides in relevant part: “Any order of the board entered pursuant to subdivision (2) or (3) of section 17a-584 . . . may be appealed to the Superior Court pursuant to section 4-183. . . .”

       General Statutes § 17a-584 provides in relevant part: “At any hearing before the board considering the discharge, conditional release or confinement of the acquittee . . . the board shall make a finding as to the mental condition of the acquittee and . . . shall do one of the following: (1) If the board finds that the acquittee is a person who should be discharged, shall recommend such discharge to the court .... (2) If the board finds that the acquittee is a person who should be conditionally released, the board shall order the acquittee conditionally released .... (3) If the board finds that the acquittee is a person who should be confined, the board shall order the person confined . . . .”

       General Statutes § 4-176 (a) provides in relevant part: “Any person may petition an agency . . . for a declaratory ruling as to the validity of any regulation, or the applicability to specified circumstances of a provision of the general statutes, a regulation, or a final decision on a matter within the jurisdiction of the agency.”


source: Caselaw Access Project

author: MIHALAKOS, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. RICHARD P. LEMAY
    (AC 27338)
    McLachlan, Harper and Mihalakos, Js.

      Argued October 19, 2007
    officially released January 29, 2008

      Michael Zariphes, special public defender, for the appellant (defendant).

      Thomas M. DeLillo, assistant state’s attorney, with whom, on the brief, were Michael Regan, state’s attorney, and Sarah E. Steere, assistant state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, Richard P. Lemay, appeals from the judgment of conviction, following a jury trial, of two counts of violation of a protective order in violation of General Statutes § 53a-223 (a) and one count of harassment in the second degree in violation of General Statutes § 53a-183 (a) (3). The defendant claims that the trial court improperly (1) denied his motion in limine to preclude the introduction of evidence of telephone calls made to the victim that were not the basis of the charged crimes and (2) restricted his cross-examination of the complaining witness. We affirm the judgment of the trial court.

The juiy reasonably could have found the following facts. Pamela Smith and the defendant were married for thirteen years prior to divorcing in December, 2003. In April, 2004, the defendant was arrested on a warrant for allegedly stalking Smith during the prior month. On April 26, 2004, the court issued a protective order that prohibited the defendant from having any contact with Smith. The defendant was present at the hearing on that matter and received a copy of the order.

In July, 2004, the defendant was arrested once again for an incident involving Smith. On July 12, 2004, the court issued a second protective order that prohibited him from having contact with Smith. The defendant also was present at the hearing and received a copy of the order.

At some point prior to November, 2004, Smith began to receive anonymous calls on her home and cellular telephones in which the caller, without speaking, would make a “banging” noise before hanging up. In November, 2004, Smith began keeping a handwritten log of those incoming calls to her home and cellular telephones where the caller made a banging noise. Smith also used her answering machine to record the calls. Smith contacted the Old Lyme police department, seeking its help in ascertaining who was placing the anonymous telephone calls. The Old Lyme police department was unable to identify who was placing the anonymous telephone calls. Smith, with the assistance of her brother, thereafter retained the services of a private investigative firm in an attempt to ascertain the source of the calls.

On June 20, 2005, Michael Melillo and Deborah Uber-talli, two private investigators from Maride Investigations, began a three to four day surveillance operation of the defendant. The investigators were given a photograph of the defendant and a description of his vehicle from which they were able to identify the defendant for their surveillance. At approximately 12:30 a.m. on June 21, 2005, they observed the defendant place a telephone call from a pay telephone located in a convenience store parking lot at 227 Shore Road, Old Lyme. The investigators then observed the defendant bang the telephone receiver on the metallic box on the outside of the pay telephone. Melillo videotaped the defendant placing this telephone call. The defendant then hung up the telephone, got back into his car and returned home.

Smith testified that at approximately 12:30 a.m. on June 21,2005, she received a call on her home telephone line in which she heard a banging noise, but the caller did not engage in any conversation before hanging up. On June 24, 2005, Smith filed a complaint with the state police stemming from the June 21, 2005 telephone call. On the basis of the information provided by Smith and that collected by the private investigators, state police Trooper Christopher Olsen was granted a search warrant for Smith’s telephone records. The telephone records establish that on June 21, 2005, at approximately 12:31 a.m., Smith received a telephone call that originated from a pay telephone located at a convenience store at 227 Shore Road, Old Lyme. The defendant subsequently was arrested and charged with two counts of violation of a protective order in violation of § 53a-223 and one count of harassment in the second degree in violation of § 53a-183.

The defendant’s case was tried in September and October, 2005. Following the jury’s verdict of guilty of all counts charged, the defendant was sentenced on December 20,2005, to a total effective term of imprisonment of five years, suspended after three years, and five years probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly denied his motion in limine to preclude the introduction of evidence of other anonymous telephone calls received by the victim that were not the basis of the charged crimes. Specifically, the defendant asserts that (1) the evidence was not relevant to the issue of whether he made a telephone call to Smith on June 21, 2005, (2) information about the telephone calls was evidence of inadmissible, uncharged misconduct, (3) the evidence did not fall into the common scheme, design or pattern exception, (4) the prejudicial effect of the evidence outweighed its probative value, (5) the evidence was cumulative and (6) the introduction of the evidence was not harmless error. We disagree.

The following additional facts are required for the resolution of the defendant’s claim. At trial, the defendant filed a motion in limine to preclude the state’s introduction into evidence of (1) Smith’s handwritten log of incoming calls to her home and cellular telephones, (2) an answering machine recording that Smith used to record incoming calls and (3) testimony from a Southwest Bell Corporation official establishing that a number of telephone calls to Smith’s residence were placed from various locations throughout Connecticut. In support of his motion, the defendant argued that the evidence was not relevant, that it was evidence of uncharged misconduct and that its prejudicial effect outweighed its probative value. The state argued that the evidence was necessary to establish for the juiy the reason why Smith called the police department and enlisted her brother’s help in obtaining the services of a private investigative firm. The court, after hearing oral argument, denied the defendant’s motion.

The defendant thereafter objected when the state sought to introduce into evidence Smith’s handwritten log of incoming telephone calls. The court overruled the objection but gave the jury a limiting instruction. The state next sought to have Smith’s answering machine recording admitted into evidence and played for the jury. The defendant stated that he did not object, subject to the court’s giving the jury a limiting instruction. After the recording was played, the court gave the jury a limiting instruction regarding its use of the answering machine recording. The state thereafter elicited testimony from a Southwest Bell Corporation official that established where the incoming calls to Smith’s home originated. The defendant objected to this testimony on ground of relevance. The court overruled the objection and gave a limiting instruction.

Our standard of review for evidentiary rulings is well established. “[T]he trial court has broad discretion in ruling on the admissibility [and relevancy] of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” (Internal quotation marks omitted.) State v. Pilotti, 99 Conn. App. 563, 567, 914 A.2d 1067, cert. denied, 282 Conn. 903, 919 A.2d 1037 (2007).

“Evidence is relevant if it has any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence. . . . The proffering party bears the burden of establishing the relevance of the offered testimony.” (Citations omitted; internal quotation marks omitted.) State v. Glenn, 97 Conn. App. 719, 726-27, 906 A.2d 705 (2006), cert. denied, 281 Conn. 913, 916 A.2d 55 (2007).

Although relevant evidence is generally admissible, it may be excluded if such evidence is unfairly prejudicial. See Conn. Code Evid. § 4-3. “[E]vidence may be excluded by the trial court if the court determines that the prejudicial effect of the evidence outweighs its probative value. ... Of course, [a]ll adverse evidence is damaging to one’s case, but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted. . . . The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the jury.” (Internal quotation marks omitted.) State v. Bennett-Gibson, 84 Conn. App. 48, 66, 851 A.2d 1214, cert. denied, 271 Conn. 916, 859 A.2d 570 (2004). “[T]he primary responsibility for conducting the balancing test to determine whether the evidence is more probative than prejudicial rests with the trial court, and its conclusion will be disturbed only for a manifest abuse of discretion.” (Internal quotation marks omitted.) State v. John G., 100 Conn. App. 354, 363, 918 A.2d 986, cert. denied, 283 Conn. 902, 926 A.2d 670 (2007); see also State v. Gibson, 75 Conn. App. 103, 110-13, 815 A.2d 172 (2003), rev’d in part on other grounds, 270 Conn. 55, 850 A.2d 1040 (2004).

In the present case, the court denied the defendant’s motion in limine to preclude evidence of other telephone calls that were made to Smith. The defendant argues that the evidence had little probative value and that its prejudicial effect clearly outweighed any probative value that the evidence may have had. The defendant contends that once the jury heard this evidence, it was predisposed to conclude that he was harassing Smith and, therefore, was guilty of the present charges against him.

We conclude that the court properly weighed the prejudicial impact that the evidence would have on the defendant, along with its probative value. The state argued that the evidence was relevant because it could assist the juiy in understanding why Smith hired a private investigative firm to follow and to videotape the defendant. The court properly exercised its discretion in determining that the testimony was relevant on the basis of this rationale. We note further that the court minimized any potential prejudice by giving the jury a detailed limiting instruction at each juncture in the trial when the specific pieces of evidence were offered. These limiting instructions sought to obviate any prejudicial effect that the evidence might have had by informing the jury that the evidence was not evidence of wrongdoing on the part of the defendant but simply evidence that Smith had received anonymous telephone calls. “[I]n the absence of a showing that the jury failed or declined to follow the court’s instructions, we presume that it heeded them.” (Internal quotation marks omitted.) See State v. Carpenter, 275 Conn. 785, 828, 882 A.2d 604 (2005), cert. denied, 547 U.S. 1025, 126 S. Ct. 1578, 164 L. Ed. 2d 309 (2006). The defendant has not demonstrated that the court’s limiting instruction was ineffective or not followed by the jury, and we conclude that the limiting instruction sufficiently eliminated any possible prejudice to the defendant.

In short, we conclude that the court did not abuse its discretion denying the defendant’s motion in limine to preclude the introduction of evidence of other anonymous telephone calls received by the victim that were not the basis of the charged crimes. Because we conclude that the court did not abuse its discretion in admitting the evidence, we need not reach the question of whether any error in admitting the evidence nevertheless was harmless error. See State v. Hedge, 93 Conn. App. 693, 698-99, 890 A.2d 612 (noting that if trial court abused discretion, appellate court must proceed with harmless error analysis), cert. denied, 277 Conn. 930, 896 A.2d 102 (2006).

II

The defendant’s second claim is that the court violated his constitutional right to confrontation under the sixth amendment to the United States constitution. Specifically, the defendant argues that his constitutional rights were violated when the court limited his ability to cross-examine Smith regarding (1) her bias, prejudice, motive and interest in testifying against him and (2) third party culpability. Alternatively, he claims that if the court’s ruling was an evidentiary issue, the court abused its discretion. We are not persuaded by either argument.

The following additional facts are required for the resolution of the defendant’s claim. At trial, the state called Smith to testify. On cross-examination, the defendant sought to elicit testimony from Smith in a number of areas that the state objected to as irrelevant to the matter for which the defendant was charged.

The defendant first attempted to ask Smith about the degree of hostility in the couple’s divorce. The defendant wanted to show that Smith’s hostility toward him was motivation to frame him. After the state objected, the court permitted the defendant to ask Smith whether it was “a litigious divorce.” The court, however, did not permit the defendant to delve deeper into the nature of the divorce proceedings, including inquiry into the specific issues that were contested and the number and substance of court filings.

The defendant then sought to elicit testimony showing that Smith had prevented him from having contact with their daughter and asked Smith whether it was true that he had alleged in the divorce proceedings that she had kidnapped the couple’s daughter. After the state objected and the jury was excused, the defendant argued that this testimony was necessary to provide the jury with an adequate picture of the custody dispute and its associated level of hostility. The defendant also believed that the evidence pertained to Smith’s credibility. The state argued that this testimony was irrelevant and that the defendant improperly was attempting to establish a possible motive for his having called Smith’s telephone number. The court ruled that the proposed testimony was inadmissible because it did not attack Smith’s credibility but, rather, was an attempt to establish the defendant’s motive for calling.

The defendant next sought to question Smith about a prior restraining order that he alleged was secured through Smith’s perjury. The defendant believed that this alleged instance of uncharged perjury was directly relevant to Smith’s credibility as a witness. The state objected and argued that any alleged perjury by Smith was a collateral matter that was not related to the charges against the defendant. The court ruled that because the defendant was not charged with violating the prior restraining order, the facts and circumstances surrounding its issuance were irrelevant in the current proceeding and that no prejudice would flow from excluding any evidence on the matter.

Last, the defendant asked Smith whether she had a profile on “match.com,” an Internet dating site. The state again objected on the ground of relevance. The defendant stated that he sought to elicit testimony from Smith on whether she currently was dating and whether any of her dates matched the physical description of the person seen on the videotape made by the private investigators. The court ruled that any evidence of Smith’s social life was irrelevant and that the private investigators, not Smith, were the proper individuals to question about the videotape and its contents.

The defendant now claims that the court’s evidentiary rulings so hampered his ability to cross-examine Smith that his constitutional right of confrontation was violated.

Our Supreme Court has articulated the legal principles that govern our analysis of the defendant’s claims. “The federal constitution require [s] that criminal defendants be afforded a meaningful opportunity to present a complete defense. . . . The sixth amendment . . . includes the right to offer the testimony of witnesses, and to compel their attendance, if necessary, [and] is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so that it may decide where the truth lies. . . .

“A defendant is, however, bound by the rules of evidence in presenting a defense. . . . Although exclusionary rules of evidence cannot be applied mechanistically to deprive a defendant of his rights, the constitution does not require that a defendant be permitted to present every piece of evidence he wishes. . . . Thus, our law is clear that a defendant may introduce only relevant evidence, and, if the proffered evidence is not relevant, its exclusion is proper and the defendant’s right is not violated. . . .

“Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter. . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not [unfairly] prejudicial or merely cumulative. . . .

“Finally, [i]t is well established that a trial court has broad discretion in ruling on evidentiary matters, including, matters related to relevancy. . . . Accordingly, the trial court’s ruling is entitled to every reasonable presumption in its favor . . . and we will disturb the ruling only if the defendant can demonstrate a clear abuse of the court’s discretion.” (Citations omitted; internal quotation marks omitted.) State v. Sandoval, 263 Conn. 524, 541-43, 821 A.2d 247 (2003).

A

The defendant’s first evidentiary claim is that the court unduly restricted his ability to examine Smith regarding her bias, prejudice, motive and interest in testifying. The defendant argues that the sixth amendment’s confrontation clause dictates that he be allowed to cross-examine Smith regarding, among other things, the nature of the couple’s divorce and the alleged kidnapping and perjury and that the court’s preclusion of this evidence was an abuse of discretion. We are not persuaded.

“Although the trial court has broad discretion in determining the admissibility of evidence and the extent of cross-examination, the preclusion of sufficient inquiry into a particular matter tending to show motive, bias and interest may result in a violation of the constitutional requirements of the sixth amendment to the United States constitution. . . . The sixth amendment to the United States constitution guarantees the right of an accused in a criminal prosecution to confront and cross-examine the witnesses against him. . . . [Our Supreme Court has] held that [t]he primary interest secured by confrontation is the right to cross-examination . . . and an important function of cross-examination is the exposure of a witness’ motivation in testifying. . . . Therefore, an accused’s right to cross-examination to elicit facts tending to show motive, interest, bias and prejudice may not be unduly restricted by the wide discretion of the trial court. ... In determining whether a defendant’s right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial. ... In order to comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defendant to expose to the jury facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” (Citations omitted; internal quotation marks omitted.) State v. Valentine, 255 Conn. 61, 70-71, 762 A.2d 1278 (2000).

The confrontation clause does not give the defendant the right to engage in unrestricted cross-examination. Id., 71. The defendant was able to elicit testimony from Smith that both of them had been engaged in a litigious divorce and custody dispute. The court, however, precluded testimony on the specific details of the divorce and custody dispute because those details were collateral matters and irrelevant to the issues being tried. The nature of the excluded inquiry went far beyond what was necessary to establish that Smith’s testimony was possibly tainted by bias, prejudice, motive and interest. Furthermore, the court did allow the defendant latitude in questioning Smith regarding any bias, prejudice, motive and interest that she may have had by permitting a limited inquiry into the divorce and custody dispute and did not exclude other avenues of questioning regarding bias, prejudice, motive and interest.

In light of the foregoing, we conclude that the defendant was allowed sufficient cross-examination into the areas of bias, prejudice, motive and interest so as to satisfy the requirements of the federal constitution.

B

The defendant also challenges the court’s evidentiary ruling excluding all evidence of Smith’s social life as irrelevant. The defendant argues that he was deprived of his constitutional right to present a defense because the court precluded all testimony on this subject. We do not agree.

The defendant has framed this component of his second claim, in part, on constitutional grounds. Our resolution of his claim, however, turns on evidentiary grounds. “Our Supreme Court has stated that the defendant’s constitutional right to present a defense does not require the trial court to forgo completely restraints on the admissibility of evidence. . . . Generally, an accused must comply with established rules of procedure and evidence in exercising his right to present a defense. ... A defendant, therefore, may introduce only relevant evidence, and, if the proffered evidence is not relevant, its exclusion is proper and the defendant’s right is not violated.” (Internal quotation marks omitted.) State v. Eagles, 74 Conn. App. 332, 335, 812 A.2d 124 (2002), cert. denied, 262 Conn. 953, 818 A.2d 781 (2003).

“[A defendant has] the right to present a defense [and] the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so that it may decide where the truth lies.” (Internal quotation marks omitted.) State v. Cerreta, 260 Conn. 251, 261, 796 A.2d 1176 (2002). In exercising his constitutional right to present a defense, “a defendant may introduce evidence which indicates that a third party, and not the defendant, committed the crime with which the defendant is charged. . . . The defendant, however, must show some evidence which directly connects a third party to the crime with which the defendant is charged. ... It is not enough to show that another had the motive to commit the crime . . . nor is it enough to raise a bare suspicion that some other person may have committed the crime of which the defendant is accused.” (Internal quotation marks omitted.) State v. Ferguson, 260 Conn. 339, 354, 796 A.2d 1118 (2002). “Unless that direct connection exists it is within the sound discretion of the trial court to refuse to admit such evidence when it simply affords a possible ground of possible suspicion against another person.” (Internal quotation marks omitted.) State v. Baker, 50 Conn. App. 268, 279, 718 A.2d 450, cert. denied, 247 Conn. 937, 722 A.2d 1216 (1998).

“The admissibility of evidence of third party culpability is governed by the mies relating to relevancy. . . . No precise and universal test of relevancy is furnished by the law, and the question must be determined in each case according to the teachings of reason and judicial experience. . . . The trial court has wide discretion in its rulings on evidence and its mlings will be reversed only if the court has abused its discretion or an injustice appears to have been done.” (Internal quotation marks omitted.) State v. Rivera, 70 Conn. App. 203, 211, 797 A.2d 586, cert. denied, 261 Conn. 910, 806 A.2d 50 (2002). “Relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice or surprise, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.” Conn. Code Evid. § 4-3. Unless there is a direct connection between the third party and the crime charged, “it is within the sound discretion of the trial court to refuse to admit such evidence when it simply affords a possible ground of possible suspicion against another person.” (Internal quotation marks omitted.) State v. Boles, 223 Conn. 535, 549-50, 613 A.2d 770 (1992).

In order to cross-examine Smith on her social life and to argue to the jury that the telephone call on June 21, 2005, was made by someone Smith previously had dated, the defendant was required to make an offer of proof directly linking this person to the telephone call. See State v. West, 274 Conn. 605, 625, 877 A.2d 787 (not enough to show another had motive to commit crime), cert. denied, 546 U.S. 1049, 126 S. Ct. 775, 163 L. Ed. 2d 601 (2005). Although there was evidence of a number of anonymous telephone calls made to Smith’s residence, that in and of itself was not sufficient to connect an acquaintance of Smith to the call on June 21, 2005. Merely establishing that Smith was acquainted with other men is not sufficient proof to link them to the telephone call in question. Because there was no direct evidence of third party culpability, the cross-examination proposed by the defendant was irrelevant in this case. The court, therefore, did not abuse its discretion in excluding testimony about Smith’s dating habits.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court's limiting instruction was: “This is a, as the witness testified, a list that she kept. There’s no charges pending against the defendant based on that list, right.
      “There’s no evidence in front of you or the court that those calls were made by the defendant. Okay. This is a list that the alleged victim kept based on phone calls that were coming into her home.
      “So, [the telephone call oí] June 21, 2005, for everyone’s benefit, is the call that is currently charged against he defendant.
      “The other calls are not. And, in fact, there’s no evidence whatsoever at this point that there were—ihose other calls were made by the defendant.”

       The court’s limiting instruction was: “This is a full exhibit, but as I told you before, there’s no evidence about who made these calls. All right. There’s no evidence that the defendant, the accused, made those particular calls, all right, just that they came into this answering machine at those various times. That’s what that—that’s what that tape is.”

       The court’s limiting instruction was: “I’m allowing this, but that’s not to say the defendant is charged with anything to do with them, just where they emanated from. Okay?”

       The defendant claims that the court improperly denied him his right to cross-examine an adverse witness in violation of the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the constitution of Connecticut.
      Although the defendant refers to his right to confrontation under article first, § 8, of the Connecticut constitution, he has failed to explain why he is entitled to any greater protection under the confrontation clause of the state constitution than he is under the analogous provisions of the federal constitution. See State v. Sullivan, 244 Conn. 640, 646 n.6, 712 A.2d 919 (1998). We therefore limit our review to the defendant’s federal constitutional claim. See, e.g., State v. Eady, 249 Conn. 431, 435 n.6, 733 A.2d 112, cert. denied, 528 U.S. 1030, 120 S. Ct. 551, 145 L. Ed. 2d 428 (1999).

       For example, the defendant sought to ask Smith about the expenses and the amount of time that the divorce consumed, whether there were 122 motions filed and whether he had filed a motion for contempt against her.


author: LAVINE, J.

text:
    IN RE T.K

    (AC 28458)
    Gruendel, Lavine and Foti, J.

      Argued November 27, 2007
    officially released January 29, 2008

      Penn Rhodeen, for the appellants (respondents).

      Jon Femia, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman and Jessica Gauvin, assistant attorneys general, for the appellee (petitioner).

       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

LAVINE, J.

“Parents have a constitutionally protected right to raise and care for their own children. . . . This right is not free from intervention by the state, however, when the continuing parens patriae interest of the state in the well being of children is deemed by law to supersede parental interests.” (Citation omitted.) In re Juvenile Appeal (83-DE), 190 Conn. 310, 318-19, 460 A.2d 1277 (1983); see Santosky v. Kramer, 455 U.S. 745, 766, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). In furtherance of the state’s parens patriae interest, the legislature has enacted a comprehensive statutory scheme; see General Statutes § 46b-120 et seq.; to protect children who have been adjudicated neglected due to either the conscious acts or omissions of a parent; see, e.g., In re Allison G., 276 Conn. 146, 164, 883 A.2d 1226 (2005); or the personal limitations of a parent. See, e.g., In re Migdalia M., 6 Conn. App. 194, 205-207, 504 A.2d 533, cert. denied, 199 Conn. 809, 508 A.2d 770 (1986). The case on appeal demonstrates how that statutory scheme permits the state to intervene to protect the well-being of a child, to assist troubled parents who are receptive to services and to preserve the family. See General Statutes § 17a-101 (a).

The respondent parents appeal from the judgment of the trial court adjudicating their child neglected. On appeal, the respondents claim that (1) there was insufficient evidence, as a matter of law, from which the court could conclude that the child was neglected and (2) one of the court’s factual findings was clearly erroneous. We affirm the judgment of the trial court.

The following background is relevant to our review. The child, the respondents’ first, was bom on November 30, 2005. During the period of her lying-in, the mother told a hospital social worker that she had recurring thoughts of harming herself and the child. The department of children and families (department) received a referral concerning the child on December 13, 2005. On December 15, 2005, the petitioner, the commissioner of children and families, filed a neglect petition and a motion for an order of temporary custody. That same day, the motion for temporary custody was granted by the court, Conway, J. The petitioner filed the neglect petition premised on the doctrine of predictive neglect. See In re Michael D., 58 Conn. App. 119, 123-25, 752 A.2d 1135, cert. denied, 254 Conn. 911, 759 A.2d 505 (2000). On December 23, 2005, the order of temporary custody was vacated by the court, B. Kaplan, J., pursuant to an agreement under which the mother would have only supervised contact with the child. The child’s maternal grandmother was approved as a supervisor, and the respondents were ordered to undergo psychological evaluations. Following a four day trial, on November 30, 2006, Judge Kaplan adjudicated the child neglected, as she was permitted to live under conditions, circumstances or associations injurious to her well-being, pursuant to § 46b-120 (9) (C). Judge Kaplan ordered a six month period of protective services from May 30 to November 30, 2006. The respondents filed a motion for reargument, which the court denied. This appeal followed.

We are mindful of the purpose of a finding of neglect. “[A]n adjudication of neglect relates to the status of the child and is not necessarily premised on parental fault. A finding that the child is neglected is different from finding who is responsible for the child’s condition of neglect. Although [General Statutes] § 46b-129 requires both parents to be named in the petition, the adjudication of neglect is not a judgment that runs against a person or persons so named in the petition; [i\t is not directed against them as parents, but rather is a finding that the children are neglected . . . .” (Emphasis in original; internal quotation marks omitted.) In re Jeffrey C., 64 Conn. App. 55, 62, 779 A.2d 765 (2001), rev’d on other grounds, 261 Conn. 189, 802 A.2d 772 (2002); see also In re Allison G., supra, 276 Conn. 164 (focal point of neglect petition is not condemnation of parents but status of child). The application of a statute to a particular set of facts is a question of law to which we apply a plenary standard of review. See In re Nasia B., 98 Conn. App. 319, 328, 908 A.2d 1090 (2006).

I

The respondents’ first claim is that the court improperly determined that the child was neglected because she was being permitted to live under conditions, circumstances or associations injurious to her well-being. We disagree.

The court found by the preponderance of the evidence the following facts that occurred prior to the filing of the neglect petition. “[T]he facts seem almost undisputed that after the child was bom and she was in the hospital, that the mother reported to the staff that she had obsessive thoughts and anxieties. The mother had thoughts of hurting herself and also hurting the baby. Those thoughts were reported to the [department], The nurses were also concerned about the boundaries the mother had with the child while the mother also had ... a higher level of anxiety . . . than a normal parent of a newborn. The father also had some symptoms, and the mother said that if she dropped the baby, then this would be over. And there was also an incident at the hospital involving the father and a mattress.

“All of these factors taken into consideration, and especially the testimony of the father, who, unlike the other people, was aware of his wife’s thoughts about hurting herself, and when he heard about her thoughts of hurting the child, was himself overly concerned and fearful for the welfare of the child, as was the mother at that time. That type of testimony is leading the court to its conclusion today. So, I adjudicate the child neglected.” (Emphasis added.)

“Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) In re Jessica S., 51 Conn. App. 667, 674-75, 723 A.2d 356, cert. denied, 251 Conn. 901, 738 A.2d 1090 (1999). Having reviewed the evidence presented at trial, we conclude that the court’s decision adjudicating the child neglected because she was being permitted to live under conditions, circumstances or associations injurious to her well-being was not clearly erroneous.

The respondents were referred to S. David Bernstein, a clinical forensic psychologist, for psychological evaluations. The court had identified eight concerns, including the emotional and psychological status of the respondents, the present relationship between the respondents, the nature of the marital relationship between the respondents, who will provide the child’s primary care, whether the caregivers require services, the nature and extent of the extended family relationships and whether major figures in the child’s life have intellectual, emotional or physical characteristics that may impair their ability to develop appropriate relationships or to discharge their child care responsibilities.

The evidence discloses that Bernstein conducted clinical interviews with the respondents individually and together with the child in January, 2006. Bernstein conducted collateral interviews with the mother’s psychiatrist and the couple’s marriage counselor. He also administered the Child Abuse Potential Inventory and the Wechsler Abbreviated Scale of Intelligence to both of the respondents and the Minnesota Multiphasic Personality Inventory to the mother. In addition, he reviewed a number of department and court records concerning the respondents.

Bernstein’s report indicates, among other things, that at all relevant times, the mother was a twenty-six year old high school graduate who had earned two certificates from a community college and studied at a seminary abroad. She reported having grown up in a loving home. At the time of the interview, she had a job selling newspapers and Mary Kay cosmetics. The mother has had obsessive thoughts of harming herself since she was seven years old, and she has been diagnosed with obsessive compulsive disorder. She regularly sees a psychiatrist, who prescribes for her antidepressant and antipsychotic medications. Despite her history of suicidal ideation, the mother has never acted on those thoughts, nor has she acted on her troubling thoughts as they relate to the child. She knows that harming herself is wrong, and she believes that she is a good person.

Following the birth of the child, the mother had obsessive thoughts of harming the child and was feeling overwhelmed by the new responsibility. She informed the father, who was aware of her obsessive compulsive disorder, of her thoughts. He advised her to speak with the hospital social worker about her thoughts because the social worker might be of help. The social worker reported the mother’s anxieties to the physician responsible for discharging the mother and child. The physician indicated that the department would have to become involved. The hospital social worker spoke with the respondents and the maternal grandparents in an effort to arrange a supportive plan for caring for the child but believed that the maternal grandparents minimized the situation. According to the father, the mother’s thoughts of dropping the child or drowning her continued after the mother was discharged from the hospital.

The father is a twenty-eight year old college graduate who works as a computer technology support engineer. According to him, he grew up in a home in which he was subjected to physical and psychological abuse. He also reported that he had been hospitalized twice when he was a teenager for anger and violent behavior for which he was treated medically and therapeutically. In the past, he took medication to deal with his anger and anxiety. The father appeared excitable to Bernstein and reported feeling angry, irritable, isolated, sad and having problems with his self-image. He, too, has suicidal thoughts. The father had been told recently by a psychiatrist that he would benefit from medication.

Bernstein also obtained a marital history from the respondents. They met in February, 2003, when they were introduced by friends in anticipation of marriage, and were married in November, 2003. When the mother discovered her pregnancy in March, 2005, she believed that she was not ready to have a child, but the father was excited. The respondents lived in an apartment prior to the birth of the child, but they had been living with the child’s maternal grandparents in another city since the child was bom. Both of the respondents reported conflict within their marriage ranging from vociferous arguments to physical altercations. When asked what typically prompted conflicts between the two, the father stated, “I’m usually not happy with the way she’s doing something, and I try to, maybe in a nice way, maybe not in a nice way, to get her to do things the way I want them to be done, and she challenges me, and we end up getting into an argument.” (Internal quotation marks omitted.) He also stated that the respondents had arguments in the presence of the child and that the mother has cried in front of the child. The mother described the source of their conflicts as the father’s getting “very particular about things, and I’m very sensitive, so I would get upset.” (Internal quotation marks omitted.) The mother’s psychiatrist and the marriage counselor both indicated that the father’s anxiety often triggers the mother’s obsessive thoughts. As a result of marriage counseling, the respondents reported that they were communicating better. The psychiatrist and marriage counselor agreed that therapy was helping the respondents.

The mother’s psychiatrist was of the opinion that the mother would never act on her obsessive thoughts of harming herself or the child because she had not done so in the past. Bernstein’s testimony at trial, however, expressed a different view: “So, the question then becomes, well, is there a first time for everything? And I think that’s the root of this, and the answer is yes, there is a first time for everything. But there is nothing here to indicate that [the mother] has ever acted on any of these compulsions. Not saying, I mean, nobody can read anyone’s mind and know if this will occur. What we do know is that these thoughts are clearly associated with anxiety.”

“Our statutes clearly and explicitly recognize the state’s authority to act before harm occurs to protect children whose health and welfare may be adversely affected and not just children whose welfare has been affected.” In re Michael D., supra, 58 Conn. App. 124. General Statutes § 17a-101 (a) provides: “The public policy of this state is: To protect children whose health and welfare may be adversely affected through injury and neglect; to strengthen the family and to make the home safe for children by enhancing the parental capacity for good child care; to provide a temporary or permanent nurturing and safe environment for children when necessary; and for these purposes to require the reporting of suspected child abuse, investigation of such reports by a social agency, and provision of services, where needed, to such child and family.” (Emphasis added.) In re Michael D., supra, 123.

On the basis of our review of the evidence, we conclude that as a matter of law, there was sufficient evidence by which the court reasonably could have found by a preponderance of the evidence that the child was neglected by reason of being permitted to live under conditions, circumstances or associations injurious to her well-being. Compare In re Brianna C., 98 Conn. App. 797, 803, 912 A.2d 505 (2006). For almost twenty years, the mother has had obsessive thoughts of harming herself, and the stress and responsibility of the newborn child caused her to obsess about hurting the child. She shared these thoughts with the father, who was so concerned that he told the mother to seek help from the hospital social worker. The record also discloses that the father has had suicidal thoughts himself and that he would benefit from medical treatment. Furthermore, prior to the time they entered marriage counseling, the respondents’ marital relationship was strained, resulting in verbal and physical conflict. Both the mother’s psychiatrist and the marriage counselor noted that the father’s anxious nature had a tendency to exacerbate the mother’s obsessive thoughts. Although the department approached the maternal grandparents to be a resource for the respondents, the maternal grandparents minimized the situation. The situation called out for intervention, as the circumstances into which the child was bom put her well-being at risk. The fact that the respondents welcomed and benefited from the services provided to them, and that the family was reunified, is itself a vindication of the court’s judgment.

On appeal, the respondents argue that this is not a case to which the doctrine of predictive neglect applies. The respondents claim that the elements of predictive neglect are (1) a serious prior history of neglectful or abusive parenting of one or more children or (2) a serious inability or unwillingness of the parents to accept, cooperate with or benefit from services necessary to help them care for their child. We disagree. Although many of the cases on which the respondents rely for that argument concerned families in which older children had been harmed or permitted to be harmed by a parent, neither the legislature nor the courts of this state have set forth such requirements. If the first of the respondents’ arguments were accepted, no firstborn child could ever be adjudicated neglected under the doctrine of predictive neglect because the parents could have no history of prior abuse. Our child protection laws are designed to prevent injury to the welfar e of a child, not to wait until it occurs. As to the second of the elements asserted by the respondents, again their argument is predicated on the facts of the case law on which they rely. Just because a parent has never refused services does not mean that the services are not warranted, as this case illustrates. Just because services are accepted, on the other hand, does not mean that a child cannot be deemed neglected under our law. The doctrine of predictive neglect is grounded in the state’s responsibility to avoid harm to the well-being of a child, not to repair it after a tragedy has occurred.

For all of the foregoing reasons, we conclude that there was sufficient evidence, as a matter of law, from which the court could have adjudicated the child neglected.

II

The respondents’ second claim is that the court made a factual finding that is clearly erroneous. We need not decide from the conflicting evidence in the record whether the factual finding was clearly erroneous. Even if the court’s finding was erroneous, the error was harmless.

In its memorandum of decision, the court stated that “there also was an incident at the hospital involving the father and a mattress.” The respondents claim that the finding is clearly erroneous because the incident did not take place at the hospital but in the home of the maternal grandparents. The following facts appear to underlie the respondents’ claim. Due to some health issues of her own, the child remained in the hospital after the mother was discharged, and the respondents spent long hours at the hospital. One morning, the father was up and eager to return to the hospital, but the mother had lingered in bed. The father picked up the mattress causing the mother to fall to the floor.

In our view, it does not matter where this incident occurred because the respondents do not deny that it occurred. This incident, more than any other, underscores the conflict in the respondents’ relationship, which, if not addressed, would have put the welfare of the child at risk. Even if we assume, without deciding, that the court found the wrong locus of the mattress incident, the error was harmless in view of the other ample evidence on which the court relied in adjudicating the child neglected. See Doody v. Doody, 99 Conn. App. 512, 518, 914 A.2d 1058 (2007).

The judgment is affirmed.

In this opinion the other judges concurred.

       In this opinion, we refer to the respondents collectively as the respondents and individually as the mother or the father.

       The petition was filed pursuant to General Statutes § 46b-120 (9), which alleges in relevant part that “a child . . . may be found ‘neglected’ who . . . (B) is being denied proper care and attention, physically, educationally, emotionally or morally, or (C) is being permitted to live under conditions, circumstances or associations injurious to the well-being of the child . . . .”
      The court specifically stated that it did not find that the child had been denied proper care and attention pursuant to § 46b-120 (9) (B).

       In the social study the department submitted to the court, the following reasons for the petition were listed:
      “1. On 12/13/05, mother reported to hospital staff that she had obsessive compulsive disorder and anxiety. Mother also reported having thoughts of hurting herself and the baby.
      “2. On 12/14/05, mother reported to a [department] Social Worker that [she] continued to have thoughts of hurting herself and the baby and believed these thoughts to be normal.
      “3. While in the hospital, it was noted that mother did not want to feed the baby, was reluctant to participate in the child’s care and was often instructed to be gentle with the infant when holding her.
      “4. The father also has symptoms of [obsessive compulsive disorder] and was not involved in counseling or prescribed any medications.
      “5. The maternal grandparents minimized the seriousness of mother’s statements and her mental health.”

       The adjudication period was from November 30, 2005, to December 15, 2005.

       At no time did the respondents object to the intervention and services offered by the department, and the court commended them for their openness and receptivity. It appears to us that the term neglected child is most troubling to the respondents, as they view it as stigmatizing. Although we are sympathetic to the respondents’ concern under the facts of this case, it is not the function of the judiciary to alter the language of a statute enacted by the legislature. What is important, however, is not the terminology that is used to define a child whose welfare is at risk, but the fact that the family has been in need of services that the department can offer.

       See part II.

       The court also stated with respect to the disposition of the case that “never since I have been in Juvenile Court have I seen two parents who have cooperated more fully, done everything that they [were] supposed to and have formed a loving relationship with the child than I have seen here today. The court feels that it is in the child’s best interest that there be a period of protective supervision. Referring to Dr. S. David Bernstein’s testimony of six months ago at May 30, he felt that . . . they should stay under the control of [the department] so they could receive [the department’s] guidance and they could oversee them for a period of six months. Coincidentally, the sixth month period of protective supervision would be today. Therefore, the court feels that a period of protective supervision is in order and that protective supervision will end at five o’clock, November 30, 2006.”

       The court qualified Bernstein as an expert witness.

       The father responded to some of the items on the inventory of child abuse in a manner consistent with individuals who have physically abused their children. There is no evidence in the record, however, that he actually had abused the child. The mother did not respond in a manner consistent with individuals who physically abuse their children.

       Due to medical issues not related to this appeal, the child remained in the hospital until December 15, 2005.