author: DUPONT, J.

text:
    MEGAN BOCHANIS ET AL. v. FRANCES SWEENEY ET AL.
    (AC 34756)
    DiPentima, C. J., and Keller and Dupont, Js.

      Argued November 18, 2013
    officially released March 11, 2014

      Thomas J. Weihing, for the appellants (plaintiffs).

      John F. Fallon, for the appellee (named defendant).

      Barbara M. Schellenberg, with whom, on the brief, was Ari J. Hoffman, for the appellees (defendant Town of Fairfield Conservation Commission et al.).
   Opinion

DUPONT, J.

The plaintiffs, Megan Boehanis, John Boehanis, John McMillan, and Lori McMillan, appeal from the judgment of the trial court rendered after it had granted the motions to dismiss filed by the defendants,

Frances Sweeney, Kevin Sweeney, the Fairfield Conservation Commission (commission) and the Fairfield Zoning Board of Appeals (board). This case is another in the litany of cases involving “neighborly” disputes between landowners as to the usage of their abutting real estate. The plaintiffs claim that the court erred in concluding that: (1) they failed to exhaust their administrative remedies by failing to directly appeal from the granting of an inland wetlands permit to the defendants in 2006, which, accordingly, deprived the court of subject matter jurisdiction; and (2) the wetlands permit issued to the defendants properly was extended. With respect to the plaintiffs’ second argument that the permit improperly was extended, the plaintiffs specifically claim that: (1) the court’s reliance on General Statutes (Supp. 2010) § 22a-42a (g) was misplaced and that notice of the permit extension was required before the extension could be granted; and (2) the expiration date of the permit was not tolled because of the defendants appeal from the denial of their two requested zoning variances. We conclude that the plaintiffs’ failure to exhaust their administrative remedies deprived the court of subject matter jurisdiction to address the validity of the defendants’ wetlands permit. To the extent that the plaintiffs claim the permit was improperly extended as a procedural matter, we conclude that the permit properly was renewed and extended in all respects. Accordingly, we affirm the judgment of the court.

The following facts, as found by the trial court, are relevant to the resolution of the plaintiffs’ appeal. Megan Bocharás and John Bocharás are the owners of the property located at 963 South Pine Creek Road, where they reside. This property abuts a vacant parcel of land located at 995 South Pine Creek Road (property) owned by the defendants. On October 4, 2006, Frances Sweeney submitted an inland wetlands permit application to the commission in order to construct a single family residence within a regulated area on the property. After receiving the application, the commission did not hold a public hearing on the application. On December 7, 2006, the commission voted to conditionally approve the application, effective December 16, 2006, with an expiration date of December 16, 2008. Notice of the commission’s decision was published in the Fairfield Citizen News. No appeal by the plaintiffs was taken from the approval of the permit.

After the commission approved the wetlands permit, the defendants sought variances from the board regarding two separate provisions of the Fairfield Zoning Regulations. The defendants’ application was heard by the board on July 5, 2007, and, after the hearing, the board denied the defendants’ variance requests. The defendants appealed that decision to the Superior Court, which sustained the appeal on July 10,2009, concluding that the defendants had met their burden of demonstrating that the denial of their application for two variances was arbitrary, illegal, and an abuse of discretion. Megan Bochanis and John Bochanis, as intervening parties in that action, then filed a petition in this court for certification to appeal from the Superior Court’s judgment sustaining the defendants’ appeal, which this court denied on October 14, 2009. Thereafter, counsel for the defendants wrote to the commission alerting them to the fact that certification had been denied. On November 16, 2009, the commission sent the defendants’ counsel a letter, informing him that the defendants’ permit had been extended to October 14, 2011 “[b]ased upon past practice on similar permit expiration issues.”

The plaintiffs commenced the present action on April 22, 2010, and thereafter filed an amended complaint on October 21, 2010, in which they claimed that the permit issued by the commission in December, 2006, was invalid because it had not been extended properly by vote of the commission. The plaintiffs requested money damages and sought an injunction prohibiting the defendants from constructing a residence on the property without obtaining proper zoning and wetlands approval. The board and the commission, joined by the defendants, filed motions to dismiss the plaintiffs’ complaint on the ground that the plaintiffs had failed to exhaust available administrative remedies pursuant to General Statutes § 22a-43 and that, therefore, the court lacked subject matter jurisdiction to hear the case pursuant to Practice Book § 10-33. The court granted the motions to dismiss on May 30, 2012. In dismissing the plaintiffs’ action for lack of subject matter jurisdiction, the court concluded that, contrary to the plaintiffs’ contentions, neither actual nor constructive notice of the permit extension was required by § 22a-42a (g) and that the permit had been extended both by § 22a-42a (g) and due to the defendants’ appeal from the board’s denial of the defendants’ requested variances. This appeal followed.

On appeal, the plaintiffs claim that the court erroneously concluded that: (1) it lacked subject matter jurisdiction due to their failure to exhaust their administrative remedies by directly appealing the 2006 wetlands permit approval; and (2) the permit issued to the defendants properly was renewed. With respect to the plaintiffs’ second argument, the plaintiffs specifically assert that: (1) the court’s reliance on § 22a-42a (g) was misplaced and that notice of the permit extension was required before the extension was granted; and (2) the expiration date of the permit was not tolled because of the defendants’ appeal from the denial of the requested variances. We disagree with the plaintiffs.

We begin our analysis with the appropriate standard of review. “The standard of review for a court’s decision on a motion to dismiss is well settled. A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [0]ur review of the court’s ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo. . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. ... In this regard, 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 maimer most favorable to the pleader. . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.” (Internal quotation marks omitted.) Gold v. Rowland, 296 Conn. 186, 200-201, 994 A.2d 106 (2010). “Because the exhaustion [of administrative remedies] doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the [plaintiffs’] claim. . . . [B]ecause [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary.” (Internal quotation marks omitted.) Gerardi v. Bridgeport, 99 Conn. App. 315, 317, 913 A.2d 1076 (2007).

I

The plaintiffs first claim that the court erroneously concluded that their failure to exhaust their administrative remedies by failing to directly appeal from the granting of the permit in 2006 pursuant to § 22a-43 (a) deprived the court of subject matter jurisdiction. Specifically, the plaintiffs contend that the exhaustion doctrine is inapplicable to them because injunctive relief is necessary to prevent immediate and irreparable harm. We disagree.

“It is a settled principle of administrative law that if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter. . . . We have frequently held that where a statute has established a procedure to redress a particular wrong a person must follow the specified remedy and may not institute a proceeding that might have been permissible in the absence of such a statutory procedure. . . . [B]ecause the exhaustion doctrine implicates subject matter jurisdiction, we must decide as a threshold matter whether that doctrine requires dismissal of the [plaintiffs’] claim.” (Citations omitted; internal quotation marks omitted.) Stepney, LLC v. Fairfield, 263 Conn. 558, 563, 821 A.2d 725 (2003).

“There 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 a planning commission’s decision .... Under our exhaustion of administrative remedies doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum. ... In the absence of exhaustion of that remedy, the action must be dismissed. . . . [W]hen a party has a statutory right of appeal from the decision of an administrative agency, he may not, instéad of appealing, bring an independent action to test the very issue which the appeal was designed to test.” (Citations omitted; internal quotation marks omitted.) Caltabiano v. L & L Real Estate Holdings II, LLC, 122 Conn. App. 751, 758-59, 998 A.2d 1256 (2010). Moreover, as a general rule, a party’s failure to appeal from the action of a municipal land use authority generally renders that action final such that corrective action is no longer subject to review by a court. Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 102, 616 A.2d 793 (1992).

With these general principles in mind, we turn now to the relevant statutory provisions. Section 22a-43 (a) provides in relevant part: “ [A]ny person owning or occupying land which abuts any portion of land within, or is within a radius of ninety feet of, the wetland or watercourse involved in any regulation, order, decision or action made pursuant to [certain] sections may, within the time specified in subsection (b) of section 8-8, from the publication of such regulation, order, decision or action, appeal to the superior court for the judicial district where the land affected is located . . . .” General Statutes § 8-8 (b) provides in relevant part: “Except as provided in subsections (c), (d) and (r) of this section . . . any person aggrieved by any decision of a board . . . may take an appeal to the superior court for the judicial district in which the municipality is located .... The appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes. . . .”

This court’s decision in Caltabiano v. L & L Real Estate Holdings II, LLC, supra, 122 Conn. App. 751, provides guidance for our analysis of the plaintiffs’ first claim. In Caltabiano, the plaintiffs appealed to the Superior Court from decisions made by the local zoning board of appeals and zoning commission granting the defendant’s requested variances and amendments to zoning regulations pursuant to § 8-8 (b). Id., 765. The court dismissed those appeals and the plaintiffs failed to file a petition for certification to appeal to this corut pursuant to § 8-8 (o). Id. The plaintiffs thereafter commenced a separate civil action seeking injunctive relief in which the first two counts attacked the decisions of the board and zoning commission. Id., 756. The defendant moved to dismiss counts one and two, claiming that the court lacked subject matter jurisdiction because the plaintiffs had failed to exhaust their administrative remedies. Id. The court granted the defendant’s motion to dismiss counts one and two in their entirety. Id., 756-57. On appeal to this court, the plaintiffs claimed that they had exhausted their administrative remedies by appealing from the original decisions of the board and zoning commission and that therefore, this court could hear their civil action seeking injunctive relief. Id., 757. The plaintiffs went on to claim that even if they had failed to exhaust their administrative remedies, they fell within an exception to the exhaustion doctrine because it would have been futile to appeal further from the court’s decision. Id. This court found that the plaintiffs’ arguments underlying their claim of futility should have been raised in a direct appeal from the action of the zoning board and that therefore, the plaintiffs did not fall within the futility exception to the exhaustion doctrine. Id., 760. We went on to note that although the plaintiffs had not exhausted their administrative remedies, “a collateral attack may be justified in exceptional cases in which a previously unchallenged condition was so far outside what could have been regarded as a valid exercise of zoning power that there could not have been any justified reliance on it, or in which the continued maintenance of a previously unchallenged condition would violate some strong public policy . . . (Internal quotation marks omitted.) Id., 762. We determined that the plaintiffs had failed to make such a showing and that therefore, the trial court properly held that it lacked subject matter jurisdiction. Id., 762-63.

In the present case, the plaintiffs failed to appeal the commission’s decision granting the defendants a wetlands permit in 2006 although, as abutting landowners, they were aggrieved by the decision pursuant to § 22a-43 (a). The defendants argue that the plaintiffs’ present action challenging the permit is “nothing more than a thinly veiled collateral attack on the [December] 2006 approval.” In finding that it lacked subject matter jurisdiction, the court agreed with the defendants and concluded that the plaintiffs simply were seeking to render the 2006 permit decision ineffective by instituting a separate civil action. Although the plaintiffs argue, instead, that they are appealing the extension of the defendants’ wetlands permit as opposed to the commission’s original permit approval in 2006, they also contend that because injunctive relief from the commission’s decision is necessary to prevent immediate and irreparable harm to them, exhaustion does not apply to the case at hand. Specifically, the plaintiffs assert that construction on the defendants’ property, pursuant to the permit, would “cause irreparable harm in a regulated wetland area affecting water runoff and drainage to [the plaintiffs’] abutting property.” These claims visibly attack the substance of the wetlands permit, which, as the court pointed out, the plaintiffs could have done in 2006 by appealing the approval pursuant to both §§ 22a-43 (a) and 8-8 (b).

By application of the relevant statutes, the plaintiffs should have filed their appeal with the Superior Court no later than December 30,2006, fifteen days after publication of the commission’s decision. Based upon our review of the pleadings, transcripts, and the record, we agree that the present action constitutes nothing more than an attempt by the plaintiffs to attack collaterally the substance of the defendants’ 2006 permit. See DiLieto v. County Obstetrics & Gynecology Group, P.C., 266 Conn. 79, 104, 828 A.2d 31 (2003) (“[T]he interpretation of pleadings is always a question of law for the court .... Our review of the trial court’s interpretation of the pleadings therefore is plenary. We note that [t]he modem trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically. . . . [T]he complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties.” [Citations omitted; emphasis in original; internal quotation marks omitted.]).

Much like this court held in Caltabiano, the plaintiffs’ claim of irreparable harm should have been raised in a direct appeal from the commission’s permit approval in 2006. Because the plaintiffs failed to appeal the 2006 permit approval to the Superior Court within fifteen days of publication, as provided for by statute, the plaintiffs failed to exhaust their administrative remedies. The plaintiffs may not now commence an action that should have been filed in 2006 by claiming that they are attacking the permit extension—an argument we address in the second part of this opinion—and not the original approval of the wetlands permit. The court thus properly concluded that the plaintiffs’ failure to exhaust their available remedies deprived it of subject matter jurisdiction to address the validity of the defendants’ wetlands permit.

II

The plaintiffs next claim that the court erroneously concluded that the wetlands permit properly was extended by operation of law. Specifically, they argue that: (1) the court’s reliance on § 22a-42a (g) was misplaced and that notice of the permit extension was required before the extension was granted; and (2) the expiration date of the permit was not tolled because of the defendants’ appeal from the denial of their two requested variances. After considering all of the plaintiffs’ arguments related to this claim, we conclude it has no merit.

The following additional facts are relevant to the resolution of the plaintiffs’ second claim. While the defendants’ appeal from the denial of the requested variances was pending in the Superior Court, the defendants’ counsel wrote to the commission on November 21, 2008, alerting it to the fact that the defendants were in the process of appealing a variance denial and that, pursuant to Fromer v. Two Hundred Post Associates, 32 Conn. App. 799, 631 A.2d 347 (1993), the defendants were requesting an extension of the wetlands permit. After the petition filed by Megan Bochanis and John Bochanis for certification to appeal to this court from the Superior Court’s judgment sustaining the defendants’ zoning appeal was denied on October 14, 2009, the defendants’ counsel wrote to the commission again requesting that, pursuant to Fromer, it extend the defendants’ permit until October 14, 2011. On November 16, 2009, the commission sent the defendants’ counsel a letter confirming that “[b]ased upon past practice on similar permit expiration issues,” the permit would be extended until October 14, 2011.

A

The plaintiffs claim that the corut’s reliance on § 22a-42a (g) was misplaced because subsection (g) did not exist in 2006, when the permit initially was approved by the commission. Instead, the plaintiffs assert, the court should have applied § 22a-42a (d) (1) and (2). The plaintiffs also contend that regardless of which statute applies, notice of the commission’s action was required before the permit extension was approved. We disagree.

On July 2, 2009, the General Assembly enacted No. 01-181 of the Public Acts, adding subsection (g) to § 22a-42a, which provided: “Notwithstanding the provisions of subdivision (2) of subsection (d) of this section, any permit issued under this section during the period from July 1, 2006, to July 1, 2009, inclusive, shall expire not less than six years after the date of such approval. Any such permit shall be renewed upon request of the permit holder unless the agency finds that there has been a substantial change in circumstances that requires a new permit application or an enforcement action has been undertaken with regard to the regulated activity for which the permit was issued, provided no such permit shall be valid for more than eleven years.”

Because we must examine the language of § 22a-42a (g), we note at the outset that: “The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. . . . When construing a statute, [ojur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . [General Statutes] § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance 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 .... A statute is ambiguous if, when read in context, it is susceptible to more than one reasonable interpretation.” (Internal quotation marks omitted.) Hartford/Windsor Healthcare Properties, LLC v. Hartford, 298 Conn. 191, 197-98, 3 A.3d 56 (2010).

The original permit, which was issued in December, 2006, falls directly within the time frame specified in subsection (g) of § 22a-42a, which extended, by operation of law, the permit expiration date to “not less than six years after the date of such approval.” The fact that subsection (g) did not exist at the time of the original permit approval in 2006 is irrelevant as the statute clearly states that permits issued “from July 1, 2006, to July 1, 2009” would be extended. Such language is unambiguous and is not susceptible to more than one reasonable interpretation.

Although the plaintiffs assert, instead, that § 22a-42a (d) (1) and (2) is applicable to the present dispute, the plain language of subsections (d) and (g) negates the plaintiffs’ argument. Subsection (d) (1) states that it applies to the “granting, denying or limiting” of a permit and does not refer to permit extensions in any capacity. On the other hand, subsection (g) explicitly states that permits falling within the specified time frame will be extended “[notwithstanding the provisions of subdivision (2) of subsection (d) of this section . . . Based on our plain reading of § 22a-42a, subsection (g) clearly applies to permit extensions by extending permits, within the specified time period, by operation of law. If the General Assembly had intended to encompass subsection (d) (1) and (2) into the provisions of subsection (g), it would have explicitly done so. As a general rule, “if the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent.” (Internal quotation marks omitted.) State v. Denby, 236 Conn. 477, 481, 668 A.2d 682 (1995). Reading § 22a-42a differently would not give effect to the apparent intent of the legislature based upon a plain reading of the statute.

The plaintiffs also claim that notice of the commission’s action was required before the permit was extended. This argument must also fail as there is nothing in the statute to indicate that either actual or constructive notice is required before the permit is extended by operation of law. See Luce v. United Technologies Corp., 247 Conn. 126, 133, 717 A.2d 747 (1998) (“The process of statutory interpretation involves a reasoned search for the intention of the legislature. . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case .... In seeking to determine that meaning, 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. ... It is the duty of the court to interpret statutes as they are written . . . and not by construction read into statutes provisions which are not clearly stated.” [Citations omitted; internal quotation marks omitted.]).

B

The plaintiffs next claim that the court improperly concluded that the permit’s expiration date was tolled because of the defendants’ appeal from the denial of two requested variances. We disagree.

This court’s holdings in both Fromer v. Two Hundred Post Associates, supra, 32 Conn. App. 799, and Dean-Moss Family Ltd. Partnership v. Five Mile River Works, Inc., 130 Conn. App. 363, 23 A.3d 746 (2011) (Dean-Moss), are instructive as to this final claim of the plaintiffs. In Fromer, we held that a permit to conduct a regulated activity runs with the land and not the applicant. We also went on to conclude that where a valid permit was issued to conduct a regulated activity within a specified time period and an appeal from the granting of a permit was taken, the time period within which to conduct the regulated activity was tolled until all litigation had been completed. Fromer v. Two Hundred Post Associates, supra, 802. Importantly, in Dean-Moss, we held that the rationale in Fromer tolling a permit’s expiration in the context of administrative appeals also applied to actions seeking injunctive relief. In so finding, we recognized that the defendant’s actions in Dean-Moss opposing the granting of the plaintiffs coastal site plan applications and its subsequent actions challenging the validity of a related parking easement were the cause of the lapse of time that resulted in the expiration of those approvals. Dean-Moss, supra, 375.

Notwithstanding the fact that the permit in the present case was extended by operation of law pursuant to the plain meaning of § 22a-42a (g), the court properly concluded that the permit’s expiration date was also tolled pursuant to Fromer and Dean-Moss. The defendants’ wetlands permit became effective on December 15, 2006, and was originally set to expire on December 15,2008. The petition filed by Megan Bochanis and John Bochanis for certification to appeal to this court from the Superior Court’s judgment sustaining the defendants’ zoning appeal was not denied by this court until October 14, 2009. Much like this court reasoned in Fromer, if the defendants had begun construction during the pendency of their zoning appeal to the Superior Court, their actions might have been considered “reckless conduct” because the defendants’ permit—like the permit at issue in Fromer—was conditioned on obtaining the necessary zoning approvals, permits, or variances before any work could begin. Furthermore, if the defendants had disturbed the wetlands and then lost their zoning appeal, they would have had to restore the wetlands.

The plaintiffs argue that Fromer is distinguishable because the defendants’ wetlands permit, unlike the permit at issue in Fromer, clearly states that a court appeal will not automatically extend the permit. This language, the plaintiffs argue, is evidence that the commission and board “explicitly contemplated the fact that a court action may delay work in accordance with the wetlands permit.” Agreeing with the plaintiffs’ argument would require us to not only ignore the language of § 22a-42a (g) but also the holdings of both Fromer and Dean-Moss. This we cannot do.

The judgment is affirmed.

In this opinion the other judges concurred.

       We refer in this opinion to Frances Sweeney and Kevin Sweeney collectively as the defendants, and to them individually by name. We note that each Sweeney occupies the same legal position as the other as owners of the property involved.
      On March 28, 2012, the commission and the board filed a motion to dismiss. On March 29, 2012, the defendants filed a motion to dismiss in which they joined that prior motion. Accordingly, the court treated the defendants as being in the same legal position as the commission and the board for the purposes of adjudicating the motions to dismiss.

       Although the plaintiffs briefed the second issue as two separate issues, namely, that the court erroneously concluded that the permit was properly renewed and that the permit was extended based upon the defendants’ appeal from the denial of two requested variances, we address both issues together as they are related to the overriding issue of whether the defendants’ wetlands permit was properly extended.

       General Statutes § 22a-42a was amended by No. 09-181 of the Public Acts, which added subsection (g). Hereinafter, unless otherwise indicated, all references to § 22a-42a in this opinion are to the 2010 supplement to the statute.

       We note at the outset that the plaintiffs argue on appeal that they are contesting only the extension of the defendants’ wetlands permit and not, as the defendants claim, the substance of the permit as granted in 2006 and that therefore, the court did have subject matter jurisdiction. On the basis of our review we conclude that the plaintiffs are contesting both the validity of the defendants’ wetlands permit as well as the propriety of the permit extension as a distinct procedural matter. While we conclude that the court did not have subject matter jurisdiction to address the substance of the wetlands permit itself due to the plaintiffs’ failure to exhaust their administrative remedies, the court did have jurisdiction to address the plaintiffs’ claim concerning the permit extension as a separate matter. Therefore, to the extent that the plaintiffs were contesting the permit extension, we also review that claim on appeal.

       John McMillan and Lori McMillan also own land abutting the defendants’ property and were added as plaintiffs in the present action.

       General Statutes (Supp. 2010) § 22a-42a (c) (1) provides in relevant part: “The inland wetlands agency shall not hold a public hearing on such application unless the inland wetlands agency determines that the proposed activity may have a significant impact on wetlands or watercourses, a petition signed by at least twenty-five persons who are eighteen years of age or older and who reside in the municipality in which the regulated activity is proposed, requesting a hearing is filed with the agency not later than fourteen days after the date of receipt of such application, or the agency finds that a public hearing regarding such application would be in the public interest. An inland wetlands agency may issue a permit without a public hearing provided no petition provided for in this subsection is filed with the agency on or before the fourteenth day after the date of receipt of the application. . . .”

       The commission approved the permit with conditions and notice of such conditional approval was included in the Fairfield Citizen News. The commission had the authority to grant the permit only upon the defendants’ fulfillment of certain conditions pursuant to General Statutes (Supp. 2010) § 22a-42a (d) (1), which provides, in relevant part: “In granting a permit the inland wetlands agency, or its agent, may grant the application as filed or grant it upon other terms, conditions, limitations or modifications of the regulated activity which are designed to carry out the policy of sections 22a-36 to 22a-45, inclusive. . . .”
      Conditional approvals of wetlands permit applications have also been held permissible by this court as well as by our Supreme Court. See Finley v. Inland Wetlands Commission, 289 Conn. 12, 42, 949 A.2d 569 (2008) (listing cases from this court and our Supreme Court involving conditional approvals). We note that the conditional nature of the permit approval does not affect the plaintiffs’ exhaustion argument. See Canterbury v. Deojay, 114 Conn. App. 695, 712-14, 971 A.2d 70 (2009) (holding that because defendants had failed to appeal one of wetlands permit conditions within time limit delineated in General Statutes § 8.8 [b], they had failed to exhaust their administrative remedies, which rendered commission’s action final).

       Practice Book § 10-33 provides: “Any claim of lack of jurisdiction overthe subject matter cannot be waived; and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action.”

       A motion to dismiss is the appropriate vehicle for challenging a court’s lack of subject matter jurisdiction pursuant to Practice Book § 10-30 (a), which provides in relevant part: “A motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter . . . .”

       The plaintiffs argue that they also fall within a second exception to the exhaustion doctrine because the commission’s action extending the permit’s expiration date was void for lack of notice. See Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 101, 616 A.2d 793 (1992) (“[w]e have thus regarded a failure to provide the required published notice as a subject matter jurisdictional defect rendering the zoning action void”). Because we conclude, in the second part of this opinion, that notice of the permit extension was not required by statute, we need not address this argument with respect to the plaintiffs’ first claim.

       We use the current revision of General Statutes § 8-8 (b) for the purposes of simplicity and ease of reference in this opinion. General Statutes (Rev. to 2005) § 8-8 (b) provided in relevant part: “Except as provided in subsections (c), (d) and (r) of this section . . . any person aggrieved by any decision of a board . . . may take an appeal to the superior court for the judicial district in which the municipality is located. The appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes. . . .” We note that the fifteen day requirement is unchanged.

       General Statutes § 8-8 (o) provides in relevant part: “There shall be no right to further review except to the Appellate Court by certification for review, on the vote of two judges of the Appellate Court so to certify and under such other rules as the judges of the Appellate Court establish. ...”

       General Statutes (Supp. 2010) § 22a-42a (d) (1) provides in relevant part: “The applicant shall be notified of the agency’s decision by certified mail within fifteen days of the date of the decision . . . .”
      General Statutes (Supp. 2010) § 22a-42a (d) (2) provides in relevant part: “Any permit issued under this section for any other activity shall be valid for not less than two years and not more than five years. ...”

       General Statutes § 22a-42a (g) provides: “Notwithstanding the provisions of subdivision (2) of subsection (d) of this section, any permit issued under this section prior to July 1, 2011, that has not expired prior to May 9, 2011, shall expire not less than nine years after the date of such approval. Any such permit shall be renewed upon request of the permit holder unless the agency finds that there has been a substantial change in circumstances that requires a new permit application or an enforcement action has been undertaken with regard to the regulated activity for which the permit was issued, provided no such permit shall be valid for more than fourteen years.”

       Paragraph eleven of the standard conditions of approval for the defendants’ wetlands permit states: “If the activity authorized by the inland wetlands permit also involves activity or a project that requires zoning or subdivision approval, special permit, variance, or special exception, no work pursuant to the wetlands permit may begin until such approval is obtained.”

       General Statutes § 22a-44 (b) provides in relevant part: “The Superior Court, in an action brought by the commissioner, municipality, district or any person, shall have jurisdiction to restrain a continuing violation of said sections, to issue orders directing that the violation be corrected or removed and to assess civil penalties pursuant to this section. All costs, fees and expenses in connection with such action shall be assessed as damages against the violator together with reasonable attorney’s fees which may be allowed, all of which shall be awarded to the commissioner, municipality, district or person which brought such action. All penalties collected pursuant to this section shall be used solely by the Commissioner of Energy and Environmental Protection (1) to restore the affected wetlands or watercourses to their condition prior to the violation, wherever possible, (2) to restore other degraded wetlands or watercourses, (3) to inventory or index wetlands and watercourses of the state, or (4) to implement a comprehensive training program for inland wetlands agency members.”


source: Caselaw Access Project

author: DiPENTIMA, C. J.

license: Public Domain

text:
    RICHARD RUSSELL v. MITCHELL PROPERTIES, INC.
    (AC 35220)
    DiPentima, C. J., and Keller and Dupont, Js.
    Argued November 18, 2013
    officially released March 11, 2014

      Juri E. Taalman, with whom, on the brief, was David W. Bush, for the appellant (plaintiff).

      Mony B. P. Yin, for the appellee (defendant Mitchell Property Group, LLC).
   Opinion

DiPENTIMA, C. J.

The plaintiff, Richard Russell, appeals from the summary judgment rendered in favor of the defendant Mitchell Property Group, LLC. On appeal, the plaintiff claims that the trial court improperly concluded that his action was barred by the applicable statute of limitations, General Statutes § 52-584, and could not be saved by General Statutes § 52-593. We disagree and, accordingly, affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history. On March 24, 2011, the plaintiff attempted to commence a negligence action against Mitchell Properties, Inc., arising from injuries allegedly caused by defective curbing in a parking lot. The plaintiff had difficulty locating Mitchell Properties, Inc., and was unable to make service of process. Indeed, Mitchell Properties, Inc., never appeared. Later, on May 16,2011, admitting that he named the wrong corporation, the plaintiff filed a motion to cite in the defendant, which the court granted. On June 10, 2011, after the statute of limitations period had run, the plaintiff served the defendant with a two count amended complaint. The defendant appeared, and after filing its answer and special defenses, moved for summary judgment claiming that the plaintiffs action was barred by the statute of limitations. The plaintiff filed an objection to the motion for summary judgment, arguing that § 52-593 applied to save his action from being barred by the statute of limitations.

At the hearing on the motion, the plaintiff argued that the granting of his motion to cite in the defendant, within which he had made a judicial admission that he had sued the wrong party, terminated his action against Mitchell Properties, Inc., for purposes of § 52-593. The defendant countered that § 52-593 was inapplicable because the plaintiffs action against Mitchell Properties, Inc., had not been terminated. At the end of the hearing, the defendant argued in the alternative, for the first time, that the action against Mitchell Properties, Inc., had never commenced. The court granted the defendant’s motion for summary judgment, concluding that § 52-593 was inapplicable because the plaintiffs action against Mitchell Properties, Inc., had not been terminated. This appeal followed.

“Practice Book § [17-49] requires that 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. A material fact is a fact that will make a difference in the result of the case. . . . The facts at issue are those alleged in the pleadings. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. . . . The party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. See Practice Book §§ [17-44 and 17-45]. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts. . . . Our review of the trial court’s decision to grant a motion for summary judgment is plenary. . . . Summary judgment may be granted where the claim is barred by the statute of limitations.” (Citation omitted; internal quotation marks omitted.) Mollica v. Toohey, 134 Conn. App. 607, 610-11, 39 A.3d 1202 (2012).

On appeal, the parties renew the arguments they made before the trial court. Thus, we consider whether § 52-593 was applicable to save the plaintiffs action from being barred by the statute of limitations. The court concluded § 52-593 did not apply because the plaintiffs action against Mitchell Properties, Inc., had not been terminated. The court explained: “This court agrees with the majority of trial court decisions on this issue, and finds that a plaintiff who wishes to bring an action pursuant to ... § 52-593 may not do so until after the suit against the misidentified defendant has been withdrawn or otherwise terminated.” Rather than follow the court’s tack, we steer an alternate course, focusing on the more elementary question of whether the plaintiff had in fact commenced an action against Mitchell Properties, Inc.

We begin with the language of § 52-593, which provides in relevant part: “When a plaintiff in any civil action has failed to obtain judgment by reason of failure to name the right person as defendant therein, the plaintiff may bring a new action and the statute of limitations shall not be a bar thereto if service of process in the new action is made within one year after the termination of the original action. . . .” By its clear language, § 52-593 contemplates a scenario in which there are two separate actions: an original action brought against the wrong person, followed by a new action brought against the right person.

“This court has long held that an action is brought once the writ, summons and complaint have been served upon a defendant. . . . Hillman v. Greenwich, 217 Conn. 520, 527, 587 A.2d 99 (1991) (an action is commenced on the date of service of the writ upon the defendant . . .); Lacasse v. Burns, 214 Conn. 464, 475, 572 A.2d 357 (1990) (an action is not commenced until process is actually served upon the defendant) . . . Broderick v. Jackman, 167 Conn. 96, 99, 355 A.2d 234 (1974) (an action is commenced not when the writ is returned but when it is served upon the defendant) . . . .” (Citations omitted; footnotes omitted; internal quotation marks omitted.) Rana v. Ritacco, 236 Conn. 330, 337-38, 672 A.2d 946 (1996).

In this case, the plaintiff did not serve the writ of summons and complaint on Mitchell Properties, Inc. As a result, an “original action” never was brought against this entity. For this reason, § 52-593 was inapplicable. Our interpretation follows from the clear language of § 52-593, which requires a “termination of the original action.” A termination presumes a prior existence. Here, there was never an action in existence to terminate. We thus find § 52-593 inapplicable and that this action against the defendant was barred by the statute of limitations. Accordingly, the court properly granted the defendant’s motion for summary judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs original complaint named only a single defendant, Mitchell Properties, Inc. It, however, was not served process, did not appear before the trial court, and did not appear before this court. An additional defendant, Mitchell Property Group, LLC, later was cited in, and the plaintiff amended his complaint. We refer to Mitchell Property Group, LLC, as the defendant.

       General Statutes § 52-584 provides in relevant part: “No action to recover damages for injury to the person . . . caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered . . . .”

       General Statutes § 52-593 provides in relevant part: “When a plaintiff in any civil action has failed to obtain judgment by reason of failure to name the right person as defendant therein, the plaintiff may bring a new action and the statute of limitations shall not be a bar thereto if service of process in the new action is made within one year after the termination of the original action. . . .”

       We note that the plaintiff first attempted service on Mitchell Properties, Inc., seven days before the statute of limitations ran. The parties do not dispute that under § 52-584, the statute of limitations period ended on March 31, 2011.

       The plaintiff sets forth a total of eight issues in his statement of the issues. Seven of these issues are iterations of the same basic claim: Whether § 52-593 applies to save the plaintiffs action? The remaining issue is cast as a claim invoking another saving statute, General Statutes § 52-292. This issue has not been briefed adequately, and thus, we will not address it. See, e.g., Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 444, 35 A.3d 188 (2012).
      Moreover, the plaintiff claims, without citation to legal authority, that by making “affirmative allegations” in his amended reply to the defendant’s first special defense concerning the statute of limitations, the defendant was obligated to respond, and not having done so, the plaintiffs allegations must be admitted. We do not address this claim because it was raised for the first time in the plaintiffs reply brief. See, e.g., State v. Richardson, 291 Conn. 426, 431, 969 A.2d 166 (2009).

       “Where the trial court reaches a correct decision but on [alternate] grounds, this court has repeatedly sustained the trial court’s action if proper grounds exist to support it. . . . [W]e . . . may affirm the court’s judgment on a dispositive alternate ground for which there is support in the trial court record.” (Citation omitted; internal quotation marks omitted.) Hoskins v. Titan Value Equities Group, Inc., 252 Conn. 789, 794, 749 A.2d 1144 (2000). We do so here.

       In yet another effort to avoid the statute of limitations, the plaintiff additionally claims that his untimely amended complaint relates back to the original, timely filed complaint against Mitchell Properties, Inc. The plaintiff raises this claim without any mention of relevant authority. We thus do not address this claim, because we conclude that the plaintiff has failed to brief adequately the issue. “We are not obligated to consider issues that are not adequately briefed. . . . Whe[n] an issue is merely mentioned, but not briefed beyond a bare assertion of the claim, it is deemed to have been waived. ... In addition, mere conclusory assertions regarding a claim, with no mention of relevant authority and minimal or no citations from the record, will not suffice.” (Internal quotation marks omitted.) Kervick v. Silver Hill Hospital, 309 Conn. 688, 719, 72 A.3d 1044 (2013).


author: PER CURIAM.

text:
    FRED ANDERSON v. COMMISSIONER OF CORRECTION
    (AC 34969)
    DiPentima, C. X, and Alvord and Flynn, Js.
    Argued January 13—
    officially released March 11, 2014

      Kenneth Paul Fox, assigned counsel, for the appellant (petitioner).

      Lawrence J. Tytla, supervisory assistant state’s attorney, with whom, on the brief, was Michael L. Regan, state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Fred Anderson, appeals following a grant of certification to appeal by the habeas court from the judgment of the habeas court dismissing his third amended petition for a writ of habeas corpus. On appeal, the petitioner asserts that the court improperly dismissed count three of his third amended petition on the grounds that it failed to state a claim upon which relief can be granted and that it was barred by the doctrine of res judicata. We disagree and affirm the judgment of the habeas court.

The following facts and procedural history are relevant to this appeal. The petitioner was convicted, after a jury trial, of unlawful restraint in the first degree in violation of General Statutes § 53a-95, assault in the first degree with intent to disfigure another person seriously and permanently in violation of General Statutes § 53a-59 (a) (2), and interfering with an officer in violation of General Statutes § 53a-167a. He was sentenced to a total effective term of sixteen years imprisonment. The petitioner appealed from his conviction, which we affirmed in State v. Anderson, 74 Conn. App. 633, 813 A.2d 1039, cert. denied, 263 Conn. 901, 819 A.2d 837 (2003). Our Supreme Court denied certification to appeal. State v. Anderson, 263 Conn. 901, 819 A.2d 837 (2003).

After his direct appeal, the petitioner brought his first petition for a writ of habeas corpus alleging prosecu-torial impropriety and ineffective assistance of both trial and appellate counsel. Following a trial, the habeas court, Hon. Anthony V. DeMayo, judge trial referee, (first habeas court), denied the petition on March 17, 2005. We affirmed the judgment of the first habeas court and our Supreme Court denied certification to appeal. Anderson v. Commissioner of Correction, 95 Conn. App. 901, 895 A.2d 872, cert. denied, 278 Conn. 921, 901 A.2d 43 (2006). Thereafter, the petitioner filed a second petition for a writ of habeas corpus alleging ineffective assistance of habeas, trial, and appellate counsel. Following a trial, the habeas court, Nazarro, J. (second habeas court), denied the petition in a written memorandum of decision on May 5, 2010. The attorney appointed to appeal the second habeas court’s ruling filed an appeal with this court. The matter was withdrawn from the Appellate Court on March 7, 2011.

On February 9, 2010, the petitioner filed his third amended petition for a writ of habeas corpus, which is the subject of the present appeal, alleging prosecutorial impropriety and ineffective assistance of his trial, appellate, and first and second habeas counsel. Prior to the scheduled trial date of March 9, 2012, the respondent, the Commissioner of Correction, filed a motion to dismiss the habeas petition along with a memorandum of law in support thereof. The habeas court, Cobb, J. (third habeas court), heard oral argument on the motion to dismiss and subsequently granted the respondent’s motion to dismiss in a written memorandum of decision on June 5, 2012. The third habeas court also granted the petitioner’s petition for certification to appeal and his application for appointment of counsel on appeal of the third amended petition. This appeal followed.

Prior to analyzing the petitioner’s claims, we first set out our standard of review for a challenge to the dismissal of a petition for a writ of habeas corpus. “The conclusions reached by the [habeas] court in its decision to dismiss [a] habeas petition are matters of law, subject to plenary review. . . . [When] the legal conclusions of the court are challenged, [the reviewing court] must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record. ... To the extent that factual findings are challenged, this court cannot disturb the underlying facts found by the habeas court unless they axe clearly erroneous . . . .” (Citation omitted; internal quotation marks omitted.) Carter v. Commissioner of Correction, 133 Conn. App. 387, 392, 35 A.3d 1088, cert. denied, 307 Conn. 901, 53 A.3d 217 (2012).

I

We first address the petitioner’s claim that the third habeas court improperly determined that count three of his petition failed to state a claim upon which relief may be granted. In count three of his third amended petition, the petitioner asserted that he was entitled to relief based upon the “cumulative effect of all issues of prosecutorial misconduct and judicial misconducts . . . .” Now before us, the petitioner acknowledges that cumulative error claims have been rejected consistently in Connecticut by both our Supreme and Appellate Courts, but asserts that the treatment of this issue by Connecticut courts “has been stubbornly misguided.” He asks us on appeal “to determine whether our . . . Supreme Court has properly barred Connecticut petitioners from seeking relief based upon cumulative error.” We decline that invitation, and affirm the judgment of the third habeas court.

“[I]t is axiomatic that this court, as an intermediate body, is bound by Supreme Court precedent and [is] unable to modify it ... . [W]e are not at liberty to overrule or discard the decisions of our Supreme Court but are bound by them. . . . [I]t is not within our province to reevaluate or replace those decisions.” (Internal quotation marks omitted.) Cannizzaro v. Marinyak, 139 Conn. App. 722, 734, 57 A.3d 830 (2012), cert. granted on other grounds, 308 Conn. 902, 60 A.3d 286 (2013); see also Stuart v. Stuart, 297 Conn. 26, 46-46, 996 A.2d 259 (2010) (“it is manifest to our hierarchical judicial system that [the Supreme Court] has the final say on matters of Connecticut law and that the Appellate Court . . . [is] bound by [its] precedent”). When faced with the assertion that the claims of error, none of which individually constituted error, should be aggregated to form a separate basis for a claim of a constitutional violation of a right to a fair trial, our Supreme Court has repeatedly “decline[d] to create a new constitutional claim in which the totality of alleged constitutional error is greater than the sum of its parts.” State v. Tillman, 220 Conn. 487, 505, 600 A.2d 738 (1991), cert. denied, 505 U.S. 1207, 112 S. Ct. 3000, 120 L. Ed. 2d 876 (1992); see also State v. Colon, 272 Conn. 106, 218, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005); State v. Robinson, 227 Conn. 711, 747, 631 A.2d 288 (1993). Likewise, this court consistently has rejected requests to adopt the cumulative error approach. See, e.g., States v. Billie, 123 Conn. App. 690, 706, 2 A.3d 1034 (2010); Anderson v. Commissioner of Correction, 114 Conn. App. 778, 795-96, 971 A.2d 766, cert. denied, 293 Conn. 915, 979 A.2d 488 (2009). Thus, we affirm the third habeas court’s conclusion that there is no basis in our law to consider the petitioner’s claim of cumulative error because such claims have consistently been rejected by both this court and our Supreme Court.

II

The petitioner also claims that the third habeas court “erred, as a matter of law, in holding that claim three [was] barred by the doctrine of res judicata, as the [first] habeas court . . . did not find that the petitioner’s criminal trial was entirely free of prosecutorial impropriety and judicial error, and a different ground is asserted [in his third amended habeas petition] than those litigated in the prior habeas case.” We are not persuaded.

“The doctrine of res judicata provides that a former judgment serves as an absolute bar to a subsequent action involving any claims relating to such cause of action which were actually made or which might have been made. . . . The doctrine . . . applies to criminal as well as civil proceedings and to state habeas corpus proceedings. . . . However, [u]nique policy considerations must be taken into account in applying the doctrine of res judicata to a constitutional claim raised by a habeas petitioner. . . . Specifically, in the habeas context, in the interest of ensuring that no one is deprived of liberty in violation of his or her constitutional rights . . . the application of the doctrine of res judicata ... [is limited] to claims that actually have been raised and litigated in an earlier proceeding. . . . [A] second petition alleging the same ground as a previously denied petition will elude dismissal if it alleges grounds not actually litigated in the earlier petition and if it alleges new facts or proffers new evidence not reasonably available at the time of the earlier petition.” (Citation omitted; internal quotation marks omitted.) Campbell v. Commissioner of Correction, 121 Conn. App. 576, 579, 997 A.2d 543 (2010).

As we already have established in part I of this opinion, count three of the third amended petition fails to state a claim upon which relief can be granted. Even if we were to consider the claims of prosecutorial impropriety stated in count three, the petitioner already has made the same claims before the first habeas court. Our review of the record causes us to conclude that the petitioner’s claims in his third amended habeas petition are simply an attempt to recast and reformulate the same facts from his first habeas petition. Accordingly, the third habeas court properly concluded that the petitioner’s claims of prosecutorial impropriety, even viewed individually instead of cumulatively, are barred by res judicata.

The judgment is affirmed.

       The petitioner has not appealed the third habeas court’s judgment as to counts one, two, and four through seven of his third amended petition for habeas relief.

       Under the cumulative error approach followed by the United States Court of Appeals for the Second Circuit, “[e]ven were each and every one of the [alleged due process violations] to pass constitutional muster, their cumulative effect may violate constitutional due process.” Gaines v. Kelly, 202 F.3d 598, 607 (2d Cir. 2000).

       Although the first habeas court did state that it was “puzzled by [an] unfortunate reference to Hannibal Lector,” the court ruled that the petitioner “ha[d] not shown that these remarks in the aggregate created actual prejudice nor that the petitioner’s trial was fundamentally unfair.”


author: GRUENDEL, J.

text:
    JOHN MICHAEL DEVONE v. BRITTANY FINLEY
    (AC 35460)
    DiPentima, C. X, and Gruendel and Norcott, Js.

      Argued January 8—
    officially released March 11, 2014

      Josephine Smalls Miller filed a brief for the appellant (plaintiff).

      Anne Louise Blanchard, with whom was Maria Var-one, for the appellee (defendant).
   Opinion

GRUENDEL, J.

This case involves a custody dispute between the plaintiff, John Michael Devone, and the defendant, Brittany Finley. The plaintiff appeals from the judgment of the trial court dismissing his custody application for lack of subject matter jurisdiction. He claims that the court improperly afforded full faith and credit to the judgment of the Georgia Superior Court regarding an individual’s custody rights to a child bom out of wedlock. We affirm the judgment of the trial court.

The following factual and procedural history, as set forth in the trial court’s memorandum of decision, is relevant to this appeal. “The plaintiff . . . filed a custody complaint for sole legal custody and primary residence of the minor child. His complaint contends that it is in the best interest of the minor child for Connecticut to hear this case. The complaint alleges that the minor child has lived in Connecticut for the past sixteen months. The minor child was bom out of wedlock in Georgia, where he has resided continuously until on or about January 26, 2012. During that time, the child resided primarily with [the defendant] who shared significant parenting time with the [plaintiff], who also resided in Georgia until late 2011.

“In August 2012, the minor child was living in Georgia with the [defendant]. The [plaintiff], who was living in Connecticut, requested from the [defendant] and was granted parenting time with the minor child for a three-week visit to Connecticut to visit with the [plaintiff] and [his] parents. At that time, the [plaintiff] anticipated securing a job and returning to Georgia to reside. When the three weeks passed and the [plaintiffs] expectation of a job in Georgia fell through, the [plaintiff] claimed he did not have the money to make the trip back to Georgia so the parties agreed that the [plaintiff] could return the minor child to Georgia at Thanksgiving. The [plaintiff] did not return the child at Thanksgiving. The [defendant] gathered the funds in January, 2013, to fly to Connecticut to retrieve her son.

“The [plaintiff] refused to return the son to the [defendant]. The [defendant], who had been verbally promised assistance on several occasions from the Bridgeport police before traveling to Bridgeport, was unable to get their help in securing her son’s return because she had no formal court orders concerning custody. She had only the Georgia law which establishes her as the sole custodian. The [defendant] returned home to Georgia and contacted the Marietta Police Department [which], after investigating her claims and attempting to negotiate the child’s return with the child’s paternal relatives, secured on January [23], 2013, a warrant (No. 13-W-767 signed by Magistrate Court of Cobb County) for the felony charge of interstate interference with custody (Marietta police case no. 0113001159). On February 7, 2013, the [plaintiff] surrendered himself in Connecticut on the warrant and posted a bond (F02B-CR13-0270463). A February 21, 2013 Connecticut hearing was scheduled on what appears to be his extradition.

“On or about February 2, 2013, a custody complaint was left at the maternal grandmother’s home bearing a hearing date of February 11, 2013. The hearing did not proceed on February 11,2013, due to a court closing . . . .” On February 20, 2013, the defendant filed a motion to dismiss the plaintiffs custody complaint, claiming that Connecticut lacks custody jurisdiction.

On February 26, 2013, the defendant obtained an emergency temporary custody order from the Georgia Superior Court, in which that court concluded that the defendant “shall have immediate custody of the minor child.” In receipt of such custody order, the plaintiff filed a motion for an emergency hearing in Connecticut and an objection to the defendant’s motion to dismiss. The trial court held a hearing on February 28, 2013.

The trial court thereafter dismissed the plaintiffs custody application, stating in relevant part: “This court should give full faith and credit to the Georgia law where the parties and the minor child lived at the time of the child’s birth and where the [defendant] and son have always resided. The [defendant] has sole right to the custody of the parties’ son under Georgia law. Unless the [plaintiff] legitimizes the child as provided by law, a judgment separate and distinct in Georgia from simply acknowledging paternity, then the [plaintiff] has no standing with reference to the child. Under Georgia law, as the only recognized parent, the [defendant’s] status is akin to a judicial determination that she is the sole custodian. As such, the [plaintiff] unlawfully withheld the child from the [defendant] when he refused to return the child to [her] custody in Georgia.” Accordingly, the court dismissed the matter for lack of subject matter jurisdiction and this appeal followed.

“A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the [plaintiff] cannot as a matter of law and fact state a cause of action that should be heard by the court .... [It] tests, inter alia, whether, on the face of the record, the court is without jurisdiction.” (Internal quotation marks omitted.) In re Iliana M., 134 Conn. App. 382, 387-88, 38 A.3d 130 (2012). “The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss. Practice Book § [10-30 (a)].” (Internal quotation marks omitted.) McWeeny v. Hartford, 287 Conn. 56, 63, 946 A.2d 862 (2008).

Our standard of review is well established. “[W]here legal conclusions of the [trial] court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision .... Thus, our review of the trial court’s ultimate legal conclusion and resulting grant of the motion to dismiss will be de novo.” (Citation omitted; internal quotation marks omitted.) Borden v. Planning & Zoning Commission, 58 Conn. App. 399, 405, 755 A.2d 224, cert. denied, 254 Conn. 921, 759 A.2d 1023 (2000).

In the present case, the plaintiff claims that the court improperly began its determination on the custody petition by affording full faith and credit to the substantive law in Georgia. The plaintiff argues that the proper inquiry, pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, General Statutes § 46b-115 et seq., is first to determine where the minor child lived or had recently lived in order to determine the home state of the child and the subsequent jurisdictional law the court should apply. This claim is unavailing.

“It is axiomatic that a party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim.” (Internal quotation marks omitted.) Connecticut Podiatric Medical Assn. v. Health Net of Connecticut, Inc., 302 Conn. 464, 469, 28 A.3d 958 (2011). “In order for a plaintiff to have standing, it must be a proper party to request adjudication of the issues. . . . One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.” (Citations omitted; internal quotation marks omitted.) Ganim v. Smith & Wesson Corp., 258 Conn. 313, 347, 780 A.2d 98 (2001).

The full faith and credit clause of the United States constitution provides in relevant part that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. . . .” U.S. Const., art. IV, § 1. That constitutional mandate “requires a state court to accord to the judgment of another state the same credit, validity and effect as the state that rendered the judgment would give it.” (Internal quotation marks omitted.) Nastro v. D’Onofrio, 76 Conn. App. 814, 814, 822 A.2d 286 (2003). “[T]he burden of proving a lack of jurisdiction rests heavily upon . . . the party attacking the judgment . . . regardless of whether the judgment at issue was rendered after a full trial on the merits or after an ex parte proceeding.” (Internal quotation marks omitted.) Business Alliance Capital Corp. v. Fuselier, 88 Conn. App. 731, 737, 871 A.2d 1051 (2005).

On our review of the record before us, we conclude that the trial court lacked jurisdiction in the present case. The Georgia Superior Court, in accordance with the law prescribed by its state, issued a temporary custody order giving the defendant immediate custody of the minor child. That court found that the plaintiff failed to legitimize the child and thus concluded that the defendant is the only party entitled to custody of the child. The full faith and credit clause requires our courts to recognize and enforce the judgment of the Georgia Superior Court. In so doing, the trial court held that the plaintiff, who has no recognized custody rights over the minor child, lacked standing to bring a custody application in this state. “If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause. . . . 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 . . . .” (Internal quotation marks omitted.) In re Christina M., 280 Conn. 474, 480, 908 A.2d 1073 (2006). The trial court, therefore, properly dismissed the custody application for lack of jurisdiction.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs counsel failed to appear for oral argument before this court.

       The plaintiff also asserts that the court committed error by (1) finding that it lacked jurisdiction to make custody orders, (2) dismissing the plaintiffs child custody complaint, (3) declining jurisdiction based upon alleged unjustifiable conduct by the plaintiff, (4) finding that Georgia was the home state of the minor child, and (5) finding that a criminal arrest warrant was tantamount to a child custody proceeding under General Statutes § 46b-115p. Because we conclude that the plaintiff lacked standing to bring the action, we do not discuss those claims.

       The trial court dismissed the plaintiffs custody application the same day the Georgia Superior Court awarded the defendant sole legal and physical custody of the child. The plaintiff filed an application to appeal the judgment of the Georgia Superior Court, and the defendant filed a motion to dismiss that application. The Georgia Court of Appeals ultimately dismissed the plaintiffs application as untimely and for lack of jurisdiction.

       According to Georgia law, the father of a child bom out of wedlock must file a petition to legitimize in order to render his relationship with the child legitimate. See Georgia Code Aim. § 19-7-22 (2013). Otherwise, “the mother may exercise all parental power over the child.” Georgia Code Ann. § 19-7-25 (2008).


text:
    IN RE PAUL M., JR.

    (AC 35856)
    DiPentima, C. J., and Alvord and Bear, Js.

      Argued January 7—
    officially released February 26, 2014

      Michael D. Day, assigned counsel, for the appellant (respondent father).

      Susan T. Pearlman, assistant attorney general, with whom were Benjamin Zivyon, assistant attorney general, and, on the brief, George Jepsen, attorney general, for the appellee (petitioner).

      Peter K. Manko, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79a-12, 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.

       February 26, 2014, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

DiPENTIMA, C. J.

The respondent father appeals from the granting of the motion to cease reunification efforts filed by the petitioner, the Commissioner of Children and Families. The respondent’s sole claim on appeal is that the court’s finding that he had abandoned his minor child, Paul M., Jr., was clearly erroneous. We disagree, and, accordingly, affirm the judgment of the trial court.

On June 10, 2013, the petitioner filed a motion to cease reunification efforts pursuant to General Statutes § 17a-lllb (b). In the motion, the petitioner alleged that the respondent “had subjected [Paul M., Jr.] to the aggrieved circumstances of abandonment as defined in subsection (j) of [General Statutes] § 17a-112. The [respondent] abandoned the child at the home of an acquaintance on or about January 8, 2013, and reportedly fled the jurisdiction to avoid prosecution regarding the violation of the conditions of his probation. [The respondent] was recently picked up on the outstanding warrant in Lake George, New York, and returned to Connecticut to face his outstanding charges. He did not return voluntarily, nor did he contact [the Department of Children and Families (department)] at any time to inquire as to the well-being of his child during his absence.”

On June 24, 2013, the court held a hearing on the petitioner’s motion and heard testimony from three witnesses. Patricia Belin, a probation officer in the Intensive Sex Offender Unit, testified that she had supervised the respondent for the past two years. The conditions of the respondent’s probation included no contact with minors under the age of sixteen other than Paul M., Jr. (child), who was bom in 2010, and that he refrain from consuming alcohol or using a computer to access pornographic websites, dating websites or any social networking on the Internet. Belin stated that she made a referral to the department on December 28, 2012, after receiving information from the New Haven and Meriden Police Departments that the respondent was violating his probation by being with his other son, a fifteen year old, and being under the influence of alcohol. Belin also learned that the respondent had attempted to walk home from Meriden to New Haven after 11 p.m. with the child and while under the influence of alcohol. Belin also indicated that she had received information that the respondent was using his computer in violation of his conditions of probation, and that police had been to his home for domestic issues. As a result of these events, Belin was pursuing the possibility of submitting a warrant for his arrest for violating his probation. Belin also attempted to visit the respondent at his home, when she learned that the respondent had fled with the child on January 4, 2013.

In an effort to locate the respondent, who has a history of mental health issues, and the child, Belin spoke with multiple family members. Additionally, a “Silver Alert” was issued, which resulted in further information to assist in locating the respondent. The respondent telephoned Belin and stated that he was aware of the arrest warrant and that he was not taking his medication for his mental health issues. On January 9, 2013, the respondent stated that the child was located in Ansonia, and members of the New Haven Police Department retrieved him after finding him in a malnourished, dehydrated and disoriented state. The child was placed in a foster home. The respondent refused requests from the police to turn himself in.

Belin testified that the respondent was taken into custody in Lake George, New York, on May 29, 2013. During the time period from January 9, 2013 to May 29, 2013, she received one communication from the respondent and he did not inquire about the well-being of the child.

Julie Dixon, a social worker employed by the department, also testified at the hearing and stated that she became involved with this child on January 28, 2013. She stated that the respondent telephoned her in March and told her that he was in violation of his probation and that he had not been taking his medication. According to Dixon, the respondent did not ask about the welfare of the child, and the child did not receive any cards, gifts, or financial support from the respondent. Following his arrest, the respondent called Dixon on June 3, 2013, and requested to visit with the child.

The respondent also testified at the evidentiary hearing and asserted that he was the sole legal guardian and custodian of the child. He claimed that the child’s maternal grandmother and a female friend had kept him apprised of the child’s well-being. He also disputed Dixon’s testimony and stated that he had asked Dixon about the child. The respondent informed the court that he had lacked the financial resources to send any type of card, letter or gift to the child during his absence from Connecticut.

At the conclusion of the hearing, the court found that the respondent had absconded from Connecticut during the time period of early January to late May, 2013, and that he failed to provide any information as to how he could be reached. The court further found that any sporadic showing of an indicia of interest in the child did not amount to a continuing or maintained degree of interest as required by §§ 17a-lllb (a) and 17a-112 (j) and case law. Ultimately, the court found, by clear and convincing evidence, that the respondent had not maintained a reasonable degree of responsibility as to the welfare of the child. Accordingly, it granted the petitioner’s motion to cease reunification efforts. This appeal followed.

I

As a threshold matter, we must decide, sua sponte, whether the granting of a motion to cease reunification constitutes a final judgment in order to determine whether we have jurisdiction to review the merits of the respondent’s appeal. See Putman v. Kennedy, 279 Conn. 162, 167-68 n.9, 900 A.2d 1256 (2006); Sullivan v. Brown, 116 Conn. App. 660, 661-62, 975 A.2d 1289, cert. denied, 294 Conn. 914, 983 A.2d 852 (2009). We conclude that the granting of such a motion constitutes a final judgment for purposes of an appeal because it satisfies the second prong of the test set forth in State v. Curdo, 191 Conn. 27, 31, 463 A.2d 566 (1983).

“The lack of a final judgment implicates the subject matter jurisdiction of an appellate court to hear an appeal. A determination regarding . . . subject matter jurisdiction is a question of law .... The jurisdiction of the appellate courts is restricted to appeals from judgments that are final. . . . The policy concerns underlying the final judgment rule are to discourage piecemeal appeals and to facilitate the speedy and orderly disposition of cases at the trial court level. . . . The appellate courts have a duty to dismiss, even on [their] own initiative, any appeal that [they lack] jurisdiction to hear.” (Citations omitted; internal quotation marks omitted.) DeCorso v. Calderaro, 118 Conn. App. 617, 624, 985 A.2d 349 (2009), cert. denied, 295 Conn. 919, 991 A.2d 564 (2010); see also State v. Fielding, 296 Conn. 26, 35-36, 994 A.2d 96 (2010).

Our Supreme Court has stated that “the courts may deem interlocutory orders or rulings to have the attributes of a final judgment if they fit within either of the two prongs of the test set forth in State v. Curcio, [supra, 191 Conn. 31]. . . . Under Curcio, the landmark case in the refinement of final judgment jurisprudence . . . interlocutory orders are immediately appealable if the order or ruling (1) terminates a separate and distinct proceeding or (2) so concludes the rights of the parties that further proceedings cannot affect them.” (Citations omitted; internal quotation marks omitted.) Abreu v. Leone, 291 Conn. 332, 338-39, 968 A.2d 385 (2009); see Brown & Brown, Inc. v. Blumenthal, 288 Conn. 646, 652-53, 954 A.2d 816 (2008); see also Madigan v. Madigan, 224 Conn. 749, 753, 620 A.2d 1276 (1993) (Curcio provides standard to evaluate judgments that he in grey area between those that are undoubtedly final and those that are clearly interlocutory).

We also are mindful that our Supreme Court has acknowledged the unique place that family court proceedings hold in our jurisprudence. “This court has a long history of concluding that, within the context of family matters, orders that would otherwise be considered interlocutory constitute appealable final judgments. . . . Taken as a whole, these cases demonstrate that, [o]n balance, we [have been] more persuaded by the rationale for allowing an immediate appeal of . . . temporary . . . order[s] [in family matters] than by the traditional reasons of judicial economy that might otherwise have precluded [their] review. . . . Although some of the cases allowed an appeal in order to ensure that the important rights surrounding the parent-child relationship are adequately protected . . . others allowed an immediate appeal because the contempt order required the aggrieved party to engage in some coercive action, such as paying money that could not be recovered on a subsequent appeal.” (Citations omitted; internal quotation marks omitted.) Khan v. Hillyer, 306 Conn. 205, 213-14, 49 A.3d 996 (2012).

We turn our inquiry to the applicable Curcio prong. “The second prong of the Curcio test focuses on the nature of the right involved. It requires the parties seeking to appeal to establish that the trial court’s order threatens the preservation of a right already secured to them and that right will be irretrievably lost and the [parties] irreparably harmed unless they may immediately appeal. . . . One must make at least a colorable claim that some recognized statutory or constitutional right is at risk. . . . Moreover, when a statute vests the trial court with discretion to determine if a particular [party] is to be accorded a certain status, the [party] may not invoke the rights that attend the status as a basis for claiming that the court’s decision not to confer that status deprives the [party] of protections to which [it] is entitled. . . . The right itself must exist independently of the order from which the appeal is taken.” (Citation omitted; internal quotation marks omitted.) Abreu v. Leone, supra, 291 Conn. 339-40; see also State v. Fielding, supra, 296 Conn. 37-38.

Section 17a-lllb (a) provides in relevant part: “The [petitioner] shall make reasonable efforts to reunify a parent with a child . . . .’’Asa general matter, this statute entitles the respondent and the child to reasonable reunification efforts made by the petitioner until such efforts are no longer required as set forth in § 17a-111b (a) (1) and (2). See, e.g., In re Jorden R., 293 Conn. 539, 554, 979 A.2d 469 (2009) (§ 17a-112 [j] begins with presumptive obligation that department make reasonable reunification efforts, it later excuses this obligation in cases when trial court finds that parent is unable or unwilling to benefit from such efforts); In re Albert M., 124 Conn. App. 561, 562, 6 A.3d 815 (to protect constitutional rights of parent to raise children, department required to make reasonable efforts to reunify child with parents prior to filing petition for termination of parental rights), cert. denied, 299 Conn. 920, 10 A.3d 1050 (2010). That statutory right to receive services from the state to facilitate reunification was ended as a result of the granting of the petitioner’s motion to cease reunification efforts pursuant to § 17a-lllb (b) (1) (A). The basis for ending reunification efforts by the petitioner was the court’s finding, after the evidentiary hearing, that the respondent had abandoned his son. Abandonment is a ground for termination of parental rights set forth in § 17a-112 (j) (3) (A). Thus, this ruling affects the respondent’s parenting rights and may have a significant impact on subsequent related proceedings. See In re Shamika F., 256 Conn. 383, 403, 773 A.2d 347 (2001); Madigan v. Madigan, supra, 224 Conn. 756-57. Thus, under the second Curdo prong, the court’s ruling constitutes an appealable final judgment. See Hartford Aciddent & Indemnity Co. v. Ace American Reinsurance Co., 279 Conn. 220, 226-27, 901 A.2d 1164 (2006); Rostad v. Hirsch, 128 Conn. App. 119, 122-23, 15 A.3d 1176 (2011).

II

The respondent’s sole claim on appeal is that the court’s finding of abandonment was clearly erroneous. His principal contention is that the period of 142 days he was away from his son is an insufficient time period to support a finding of abandonment. The petitioner counters that the relevant statutory scheme does not contain a minimum time period for abandonment and that the court’s findings were not clearly erroneous. We agree with the petitioner.

We begin by setting forth the relevant legal principles and our standard of review. “A parent abandons a child if the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child .... General Statutes § 17a-112 (j) (3) (A). Abandonment focuses on the parent’s conduct. . . . Abandonment occurs where a parent fails to visit a child, does not display love or affection for the child, does not personally interact with the child, and demonstrates no concern for the child’s welfare. . . . Section 17a-112 [(j) (3) (A)] does not contemplate a sporadic showing of the indicia of interest, concern or responsibility for the welfare of a child. A parent must maintain a reasonable degree of interest in the welfare of his or her child. Maintain implies a continuing, reasonable degree of concern.” (Internal quotation marks omitted.) In re Elyssa G., 106 Conn. App. 41, 46-47, 936 A.2d 674 (2007), cert. denied, 286 Conn. 918, 943 A.2d 475 (2008). We also have explained that “[t]he commonly understood general obligations of parenthood entail these minimum attributes: (1) express love and affection for the child; (2) express personal concern over the health, education and general well-being of the child; (3) the duty to supply the necessary food, clothing, and medical care; (4) the duty to provide an adequate domicile; and (6) the duty to furnish social and religious guidance. ... It is not lack of interest alone which is the criterion in determining abandonment. Abandonment . . . requires failure to maintain interest, concern or responsibility as to the welfare of the child. Attempts to achieve contact with a child, telephone calls, the sending of cards and gifts, and financial support are indicia of interest, concern or responsibility for the welfare of a child.” (Internal quotation marks omitted.) In re Drew R., 47 Conn. App. 124, 129, 702 A.2d 647 (1997); see also In re Juvenile Appeal (Docket No. 9489), 183 Conn. 11, 14, 438 A.2d 801 (1981); In re Migdalia M., 6 Conn. App. 194, 208-209, 504 A.2d 533 (1986).

The issue of parental abandonment presents a question of fact. See In re Shane P., 58 Conn. App. 244, 250, 754 A.2d 169 (2000); see also In re Drew R., supra, 47 Conn. App. 128; In re Rayna M., 13 Conn. App. 23, 36, 534 A.2d 897 (1987). “A finding is clearly erroneous 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. In applying the clearly erroneous standard to the findings of the trial court, we keep constantly in mind that our function is not to decide factual issues de novo. Our authority when reviewing the findings of a judge, is circumscribed by the deference we must give to decisions of the trier of fact, who is usually in a superior position to appraise and weigh the evidence. . . . The question for this court ... is not whether it would have made the findings the trial court did, but whether in view of the evidence and pleadings in the whole record it is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) In re Christopher B., 117 Conn. App. 773, 780-81, 980 A.2d 961 (2009); see also In re S.D., 115 Conn. App. 111, 116-17, 972 A.2d 258 (2009).

The trial court appropriately focused on the period of time between early January, 2013, and late May, 2013, when the respondent absconded from Connecticut to avoid arrest for violating his probation. The court found that the respondent did not inform his friend with whom he left the child where he was or how to reach him. Thus, there was no way for this friend to communicate with the respondent, who was the child’s sole legal guardian, to let him know of the child’s needs or to obtain authorization to act on the child’s behalf. The court further found that the respondent displayed only sporadic indicia of interest in the child and his needs that did not rise to the level of an appropriate degree of interest to avoid a finding of abandonment. Additionally, the court noted that the respondent never attempted to send a letter to the child to let him know that the respondent was “ok” and that he would contact the child when possible. We conclude these factors support the finding of abandonment.

We also reject the respondent’s argument that the time period of 142 days that he had fled the jurisdiction is insufficient to find abandonment. As correctly noted by the petitioner, § 17a-lllb (b) does not contain a minimum time frame pursuant to which abandonment occurs as a matter of law. The respondent has not provided this court with any statute or case setting forth a temporal requirement that must be met before a finding of abandonment can be made. Finally, as noted previously in this opinion, the court’s finding of abandonment was in accord with our precedent and not clearly erroneous. The respondent’s time period argument, therefore, must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 17a-lllb (b) provides in relevant part that “[t]he court shall hold an evidentiary hearing on the motion [to cease reunification efforts] not later than thirty days after the filing of the motion . . . .”

       Belin testified that she had observed the respondent with the child on numerous occasions and noticed that the respondent displayed a lot of frustration with parenting and that it was difficult for him to interact with the child. She also observed the child “wince” or “flinch” when the respondent would raise his voice.

       Belin testified that she was given access to the respondent’s home after he had fled and found numerous cell phones that had not been approved by the Office of Probation.

       “The Silver Alert system does for missing persons with dementia and other cognitive impairments what the Amber Alert system does for missing children—it helps speed up the process of finding them. Specifically, the Silver Alert system applies to any missing person age 18 years or older who has a mental impairment or is 65 years of age or older. Both Amber Alert and Silver Alert systems create an emergency notification system for law enforcement agencies to broadcast local, regional, or statewide public alerts via radio, television and electronic highway signs. The Silver Alert system mandates that law enforcement immediately begin searching for missing individuals who are ages 65 or older, or ages 18 and over if mentally impaired. Once the police receive a missing person’s report and a description of the missing person, the information is broadcast via radio, television, and electronic highway signs through the Emergency Alert System (EAS). The plan alerts the public as quickly as possible to the disappearance so everyone may assist in the search for the safe return of the individual.” State of Connecticut, State Department on Aging, “Connecticut Silver Alert System— An Elderly And Or Mental Impairment Locator System,” (last modified on December 5, 2011), available at http://www.ct.gov/agingservices/cwp/vie-w.asp?Q=442724&A=2513 (last visited February 26, 2014) (copy contained in the file of this case in the Appellate Court clerk’s office). The respondent had a history of mental illness.

       This court was not provided with a signed transcript of the court’s decision as required by Practice Book § 64-1. On January 2, 2014, we issued the following order: “As the record does not reflect that the trial court had the opportunity to review the prepared transcript of its oral ruling in this case, the trial court ... is sua sponte ordered to review and sign the June 24, 2013 transcript containing its decision in this case in accordance with [Practice Book] § 64-1.” The court signed the transcript on January 3, 2014.

       In accordance with Practice Book § 67-13, the attorney for the minor child filed a statement with the court and adopted the brief of the petitioner.

       We note that even if the parties had agreed on the existence of a final judgment, such an agreement would not confer jurisdiction on this court. “The appellate courts have a duty to dismiss, even on [their] own initiative, any appeal that [they lack] jurisdiction to hear. . . . Neither the parties nor the trial court, however, can confer jurisdiction upon [an appellate] court. . . . The right of appeal is accorded only if the conditions fixed by statute and the rules of court for taking and prosecuting the appeal are met.” (Internal quotation marks omitted.) Brown & Brown, Inc. v. Blummenthal, 288 Conn. 646, 664, 954 A.2d 816 (2008).

       General Statutes § 17a-lllb (a) provides: “The Commissioner of Children and Families shall make reasonable efforts to reunify a parent with a child unless the court (1) determines that such efforts are not required pursuant to subsection (b) of this section or subsection Q) of section 17a-112, or (2) has approved a permanency plan other than reunification pursuant to subsection (k) of section 46b-129.”

       Proof of only one of the several grounds set forth in § 17a-112 (j) (3) is required for termination of parental rights. In re Elvin G., 310 Conn. 485, 500, 78 A.3d 797 (2013).