author: MIHALAKOS, J.

text:
    VINCENT J. GRIFFIN v. COMMISSIONER OF CORRECTION
    (AC 33429)
    Kobinson, Alvord and Mihalakos, Js.

      Argued May 30 —
    officially released August 7, 2012

      Wayne A. Francis, special public defender, for the appellant (petitioner).

      James M. Ralls, senior assistant state’s attorney, with whom, on the brief, were Maureen Platt, state’s attorney, and Amy Sedensky, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

MIHALAKOS, J.

The petitioner, Vincent J. Griffin, appeals following the habeas court’s granting of his petition for certification to appeal from its judgment denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court improperly rejected his claims of ineffective assistance of trial counsel. Specifically, he asserts that his trial counsel, attorney Leonard Caine, rendered ineffective assistance because he: (1) failed to object to inadmissible hearsay testimony offered by two of the state’s witnesses; (2) entered the victim’s written statement to police into evidence; and (3) failed to request a jury instruction that the state must prove beyond a reasonable doubt that the victim’s conduct would not have justified a reasonable belief that she had consented to sexual contact with the petitioner. For the reasons set forth herein, we affirm the judgment of the habeas court.

The following facts and procedural history are relevant to our disposition of the petitioner’s claims. After a jury trial, the petitioner was convicted of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1). The petitioner was sentenced to a total effective term of twenty years incarceration, execution suspended after fourteen years, followed by twenty years of probation. See State v. Griffin, 97 Conn. App. 169, 172-73, 903 A.2d 253, cert. denied, 280 Conn. 925, 908 A.2d 1088 (2006).

The petitioner’s conviction was the subject of a direct appeal before this court. See id., 169. In affirming the petitioner’s conviction, this court concluded that the jury reasonably could have found the following facts regarding the assault. On October 5,2002, the petitioner entered the victim’s house without her knowledge after following her home from events associated with then-high school reunion. Id., 170-71. Once inside the house, “[the victim] went into the kitchen and offered the [petitioner] a glass of water. The [petitioner] grabbed her with both hands and started kissing her. She was able to push him away and walked quickly into the living room toward the front door, but he followed her and began to kiss her again. He pulled her onto the living room couch and continued to kiss her. The [petitioner] lifted [the victim’s] skirt and removed her undergarments, and [the victim] could feel him begin to perform cunnilingus on her. She was able to push him off and fell to the floor, where she pulled her undergarments back on. [The victim] started to walk toward the front door again, and the [petitioner] grabbed her and pulled her into the bedroom, where he threw her on the bed, kissed her and again removed her -undergarments. [The victim] was able to wrest herself away and pull up her undergarments, and she ran down the hallway to open the front door. The [petitioner] pulled [the victim] back onto the couch, and he removed her undergarments yet again. She continued to plead with him to stop and told him to go home to his wife, to which he answered, ‘I don’t give an F’n crap about my wife.’ The [petitioner] exposed his penis and attempted to insert it into her vagina, but, because her vagina was too dry, he spit on his hand, rubbed the spit on his penis and successfully inserted it. The [petitioner] laid back on the couch after ejaculating inside her, and [the victim] collected her undergarments and ran into the bathroom. She could feel his semen coming out of her and cleaned herself. When she emerged, the [petitioner] was dressed and standing by the front door. When asked if he could call her, she told him he never could. After he left, she locked the door.” Id., 171-72. The victim went to a hospital to have a rape test performed on Monday, October 7, 2002; she told some friends of the incident during the week and formally reported the incident to the police the following Monday. Id., 172.

During his criminal trial, the petitioner admitted that he and the victim engaged in consensual sexual contact, but he maintained that there was no sexual intercourse. Id., 172-73. As this court noted on direct appeal, the petitioner testified at trial that the victim “invited him into her house for a drink, and, while they were in the kitchen, she leaned into him and they embraced and kissed.” Id., 186. He further asserted that “she was on top of him and was rubbing her body against his,” and “that they attempted to engage in sexual intercourse, but because his penis was too soft, she stimulated him manually until he ejaculated.” Id.

On November 8, 2006, the petitioner filed his petition for a writ of habeas corpus, which he amended on December 23, 2009, and again on March 25, 2010. The petitioner’s second amended petition alleges that he did not receive effective assistance of trial counsel in violation of the fifth, sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. The habeas trial was held on May 12, 2010. During that proceeding, the court heard testimony from Caine regarding his representation of the petitioner. On April 11, 2011, the habeas court issued a memorandum of decision denying the petitioner’s petition, finding that the petitioner failed to prove that he was denied the effective assistance of trial counsel under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The habeas court granted the petitioner’s petition for certification to appeal. This appeal followed on May 4, 2011. Additional facts and procedural history will be introduced as necessary.

We first set forth the standard of review and legal principles applicable to the petitioner’s appeal. “Although a habeas court’s findings of fact are reviewed under the clearly erroneous standard of review . . . [w]hether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. ... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.” (Citation omitted; internal quotation marks omitted.) Ham v. Commissioner of Correction, 301 Conn. 697, 706, 23 A.3d 682 (2011).

A claim of ineffective assistance of counsel as enunciated in Strickland v. Washington, supra, 466 U.S. 668, “consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong . . . the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.” (Internal quotation marks omitted.) Boyd v. Commissioner of Correction, 130 Conn. App. 291, 294-96, 21 A.3d 969, cert. denied, 302 Conn. 926, 28 A.3d 337 (2011). Our Supreme Court has stated that “the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances,” and that “[j]udicial scrutiny of counsel’s performance must be highly deferential.” (Internal quotation marks omitted.) Ham v. Commissioner of Correction, supra, 301 Conn. 706.

“To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Boyd v. Commissioner of Correction, supra, 130 Conn. App. 295. A petitioner’s claim will “succeed only if both prongs are satisfied. . . . Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unworkable.” (Citation omitted; internal quotation marks omitted.) Id. “A court can find against a petitioner, with respect to a claim of ineffective assistance of counsel, on either the performance prong or the prejudice prong, whichever is easier.” Ham v. Commissioner of Correction, supra, 301 Conn. 704.

I

The petitioner’s first two claims relate to allegedly deficient trial strategy employed by Caine. Specifically, he asserts that Caine improperly (1) failed to object to hearsay testimony provided by Officer Rebecca Wisnie and Detective Anthony Rickevicius; and (2) submitted the victim’s out-of-court, written statement to Rickevic-ius into evidence.

The following additional facts are relevant to these claims. During the state’s case-in-chief at the petitioner’s criminal trial, the state called Wisnie and Rickevic-ius and questioned them about what the victim told them regarding the sexual assault. Among other testimony, Wisnie stated that the victim told her that the petitioner “forced her underpants off and forced her to have intercourse, sexual intercourse with him,” and that “he ejaculated by masturbation.” Likewise, Rickevicius testified, inter alia, that the victim “said she was sexually assaulted by [the petitioner],” and that there was vaginal penetration by the petitioner’s penis. Rickevic-ius further stated that the victim told him that the petitioner ejaculated into her, and that she could feel his semen coming out of her vagina. Although neither party disputes that this testimony constituted inadmissible hearsay, Caine never objected to the testimony on hearsay grounds. In fact, on cross-examination, Caine also elicited details from Wisnie and Rickevicius regarding what the victim told them about the assault.

During his cross-examination of Rickevicius, Caine also introduced into evidence a written statement given to Rickevicius by the victim. In the statement, the victim indicated, inter alia, that the petitioner “attempted to do oral sex on [her] and [she] pushed him off.” She also stated that the petitioner “tried to get his penis in [her] but couldn’t,” and that he “masturbated over [her] until he ejaculated on the couch.”

The petitioner contends that Caine’s decisions not to obj ect to the hearsay testimony and to admit the victim’s statement served no other purpose than to “bolster” the state’s case at trial, which he claims “prejudiced [him] tremendously.” At the habeas trial, Caine testified that he could not recall the testimony of Wisnie or Rickevicius, or exactly why he did not object to it, but that he does not object to every objectionable question because he does not want the jury to view him as an obstructionist. He further indicated that his trial strategy was to highlight the inconsistencies between the victim’s testimony and her statements to the police, to undermine her credibility and to raise reasonable doubt as to the petitioner’s guilt. Specifically, with respect to his decision to introduce the victim’s written statement to Rickevicius, Caine explained: “There [were] such inconsistencies in there that I wanted a jury, and this is the trial strategy, to at least have something in there other than what they heard in the courtroom to look at, and the theory here was, there were so many inconsistencies that the jury would not believe what she said and therefore couldn’t convict [the petitioner].”

The habeas court found that “[t]here were numerous inconsistencies between the victim’s testimony and her statements to the police,” including that “she did not tell either Wisnie or Rickevicius that the petitioner dragged her down the hallway and attempted to assault her in the bedroom.” Furthermore, the victim’s written statement to Rickevicius indicated that the petitioner “attempted to do oral sex on [her],” “tried to get his penis in [her] but couldn’t,” and “masturbated over [her] until he ejaculated on the couch” — but “did not clearly indicate that the petitioner actually performed cunnilingus on her or that he actually had vaginal intercourse with her.”

The habeas court concluded that Caine did not render ineffective assistance, finding that his use of the victim’s statement and his decision not to object to the testimony of Wisnie and Rickevicius supported his trial strategy of “emphasizing the inconsistencies between her testimony and her statements to the police and medical staff, and by demonstrating that there was reasonable doubt as to whether the petitioner and the victim actually engaged in sexual intercourse.” The court also held that the petitioner had hot proven any resulting prejudice from Caine’s challenged conduct because “it is more likely than not that the state would have met its burden of proof even without” the victim’s written statement and the hearsay testimony.

Based on our review of the record, we agree with the habeas court that Caine did not render ineffective assistance. “[T]here is a strong presumption that the trial strategy employed by a criminal defendant’s counsel is reasonable and is a result of the exercise of professional judgment . . . .” (Internal quotation marks omitted.) Servello v. Commissioner of Correction, 95 Conn. App. 753, 761, 899 A.2d 636, cert. denied, 280 Conn. 904, 907 A.2d 91 (2006). The petitioner cannot overcome this strong presumption of reasonableness here. Caine’s decision not to object to the officers’ testimony allowed the jury to hear the inconsistencies between the victim’s testimony in court and her prior statements to the officers, in furtherance of Caine’s focus on undermining the victim’s credibility and raising reasonable doubt regarding the petitioner’s guilt. “[T]he decision of a trial lawyer not to make an objection is a matter of trial tactics, not evidence of incompetency.” (Internal quotation marks omitted.) Id. Similarly, Caine’s decision to admit the victim’s written statement into evidence also highlighted the differences between the victim’s testimony at trial and her prior recounting of the incident to Rickevicius. Because we conclude that Caine’s performance fell in the acceptable range of competence for criminal defense counsel, we reject the petitioner’s first two claims of ineffective assistance. See Boyd v. Commissioner of Correction, supra, 130 Conn. App. 295.

II

The petitioner next claims that Caine rendered ineffective assistance because he failed to request a jury instruction that the state must prove beyond a reasonable doubt that the victim’s conduct would not have justified a reasonable belief that she had consented. We are not persuaded.

The following additional facts are relevant to this claim. At the petitioner’s criminal trial, Caine requested the following jury instruction on consent: “The actual consent of the victim to sexual intercourse will negate the element of compulsion by threat of force. The consent required, however, must be actual and real, and not just mere surface acquiescence induced by fear or shock. In order for consent to sexual intercourse to negate the element of compulsion, the intercourse must be engaged in by the other person with no compulsion, no threat, no fear. In other words, it must be a truly voluntary and willing act of sexual intercourse. Consent may be express or it may be implied from all the circumstances then and there existing. Whether or not [the victim] consented to the sexual intercourse is a question of fact which you must determine from all the circumstances which have been proven to you.”

The petitioner asserts that Caine should have requested a consent instruction pursuant to State v. Smith, 210 Conn. 132, 554 A.2d 713 (1989) QlSmith instruction”), that “the state must prove beyond a reasonable doubt that the conduct of the complainant would not have justified a reasonable belief that the victim had consented,” and he contends that Caine’s failure to do so constituted ineffective assistance. The petitioner further argues that he was prejudiced by Caine’s performance because “[t]he jury was not instructed as to the appropriate standard in weighing the evidence relating to consent. This omission may have reasonably confused or misled the jury as to how to weigh the evidence, and, therefore, the petitioner was denied his right to a fair trial.”

At the habeas trial, Caine testified that he chose not to request a Smith instruction because, after reviewing Connecticut model criminal jury instructions relevant to sexual assault cases, he believed that “the evidence didn’t justify that instruction.” The habeas court agreed with Caine. Specifically, the court noted that at trial, “there was never any suggestion made to the jury that the petitioner reasonably interpreted ambiguous conduct by the victim to indicate her consent. Rather, the theory of defense was that the victim had fabricated her testimony about being forced by the petitioner to engage in sexual acts and that she had actually initiated the acts, which notably did not include sexual intercourse. . . . The reasonableness of the petitioner’s belief that the victim had consented was simply not an issue in the case.” The court further stated that even if Caine had requested a Smith instruction, “it is not likely that the trial court would have given the instruction” because of the lack of evidence justifying the charge, and, further, because it is questionable whether such a consent instruction would be mandatory.

The habeas court also found that the petitioner failed to demonstrate prejudice resulting from Caine’s failure to request the Smith instruction because there was no reasonable probability that the result of the proceeding would have been different if the instruction had been given. The court rejected the petitioner’s argument that the victim purportedly said she felt compelled to engage in intercourse only because of the petitioner’s physical size, noting the victim’s testimony that “she told the petitioner to stop and go home on several occasions and that she tried to push him away . . . [and] that he grabbed her and dragged her down the hallway into the bedroom and that after she was able to get away from him and run to the front door, he grabbed her again with even more force and pushed her down onto the couch, where he sexually assaulted her.”

We agree that Caine’s failure to request a Smith instruction did not constitute ineffective assistance of counsel. In Smith, our Supreme Court stated: “[W]hether a complainant has consented to intercourse depends upon her manifestations of such consent as reasonably construed. If the conduct of the complainant under all the circumstances should reasonably be viewed as indicating consent to the act of intercourse, a defendant should not be found guilty because of some undisclosed mental reservation on the part of the complainant. Reasonable conduct ought not to be deemed criminal. It is likely that juries in considering the defense of consent in sexual assault cases, though visualizing the issue in terms of actual consent by the complainant, have reached their verdicts on the basis of inferences that a reasonable person would draw from the conduct of the complainant and the defendant under the surrounding circumstances. It is doubtful that jurors would ever convict a defendant who had in their view acted in reasonable reliance upon words or conduct of the complainant indicating consent, even though there had been some concealed reluctance on her part. If a defendant were concerned about such a possibility, however, he would be entitled, once the issue is raised, to request a jury instruction that the state must prove beyond a reasonable doubt that the conduct of the complainant would not have justified a reasonable belief that she had consented.” State v. Smith, supra, 210 Conn. 140-41.

Our Supreme Court has indicated that a Smith instruction may be appropriate where there is a “suggestion made to the jury that it should acquit the defendant because he reasonably interpreted ambiguous conduct by the complainant to indicate her consent.” State v. Jeffrey, 220 Conn. 698, 719, 601 A.2d 993 (1991), cert. denied, 505 U.S. 1224, 112 S. Ct. 3041, 120 L. Ed. 2d 909 (1992); see also State v. Kulmac, 230 Conn. 43, 76, 644 A.2d 887 (1994) (“The defendant’s reliance on Smith ... is misplaced. In Smith, the defendant claimed that the victim’s conduct was ambiguous as to whether she consented to the intercourse. In this case, the defendant made no such claim.”). Even where a defendant raises the defense of the victim’s ambiguous conduct, however, this court has stated that neither Smith nor Jeffrey indicates “that such a charge would be mandatory if properly requested . . . .” State v. Cotton, 77 Conn. App. 749, 758, 825 A.2d 189, cert. denied, 265 Conn. 911, 831 A.2d 251 (2003).

Here, the petitioner never argued that he interpreted ambiguous conduct by the victim as her consent to sexual intercourse. Rather, he testified that he and the victim engaged in consensual sexual contact, including kissing and masturbation, and that they attempted to engage in consensual sexual intercourse but were unable to do so. The victim, in turn, testified that she did not say or do anything that would have led the petitioner to believe that she wanted to have sex with him, but the petitioner forced himself on her and had intercourse with her against her will. This situation is not the ambiguous circumstance contemplated by Smith and Jeffrey, and a Smith instruction was not warranted here. See State v. Jeffrey, supra, 220 Conn. 718-19; see also State v. Kulmac, supra, 230 Conn. 76. Moreover, requesting a Smith instruction here may have undercut the petitioner’s theory of the case at trial by injecting the notion of the victim’s ambiguity toward sexual intercourse into his otherwise straightforward defense that the victim plainly had consented to, and even initiated, sexual contact. Because Caine’s failure to request a Smith instruction was “reasonable considering all the circumstances” of the evidence and arguments presented at trial, his performance was not deficient. (Internal quotation marks omitted.) Ham v. Commissioner of Correction, supra, 301 Conn. 706. We therefore reject the petitioner’s third ineffective assistance claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse, we decline to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

       As discussed in further detail herein, the habeas court found against the petitioner on both the performance prong and the prejudice prong on each of his ineffective assistance claims.

       The habeas trial occurred approximately six years after the petitioner’s criminal trial.

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse [defined in pertinent part in General Statutes § 53a-65 (2) as Vaginal intercourse ... or cunnilingus’] by the use of force against such other person ... or by the threat of use of force against such other person . . . which reasonably causes such person to fear physical injury to such person . . . .”

       Because we have determined that the petitioner has not met his burden on the “performance prong,” we need not analyze whether the petitioner was prejudiced by Caine’s alleged deficiencies. See, e.g., Ham v. Commissioner of Correction, supra, 301 Conn. 704. Even if we assume that Caine’s performance was constitutionally deficient, however, we agree with the habeas court that the petitioner suffered no prejudice as a result of Caine’s allegedly deficient performance. The record demonstrates that the state presented testimony from the victim, the nurse who assisted in administering the rape test on the victim, forensic laboratory employees and two constancy of accusation witnesses. The jury also received forensic evidence regarding the presence of the petitioner’s DNA in the sperm rich fractions of the victim’s vaginal swabs and a stain on her couch cushion. In the face of this additional evidence beyond the victim’s written statement and the testimony of Wisnie and Rickevicius, it cannot be said that there is a “reasonable probability that . . . the result of the proceeding would have been different”; (internal quotation marks omitted) Boyd v. Commissioner of Correction, supra, 130 Conn. App. 295; if Caine had not introduced the victim’s statement into evidence or if he had objected to the hearsay testimony. Furthermore, to the extent that the petitioner argues that he was prejudiced by the officers’ “substantive evidence” that was offered to “[corroborate] the testimony of other witnesses,” we do not agree. As noted previously, the officers’ testimony did not unequivocally corroborate the other testimony offered at trial; rather, it contained numerous inconsistencies highlighted by Caine. The trial court instructed the jury that evidence of the victim’s inconsistent out-of-court statements should be considered not as substantive evidence of the truth of the statements, but rather “as evidence of conduct inconsistent with the testimony on the [witness] stand” to be used in evaluating the credibility of the victim’s testimony. We are also unconvinced by the petitioner’s argument that he was prejudiced by the “emotional impact” of the officers’ testimony about the victim’s appearance when she spoke to them regarding the assault. “Demeanor” evidence is not hearsay, and Caine could not have successfully objected to this testimony on hearsay grounds. See State v. Burney, 288 Conn. 548, 560-61, 954 A.2d 793 (2008).

       The trial court instructed similarly: “If you find that the victim consented to the act of sexual intercourse, you cannot find that the act was compelled by the use of force or the threat of use of . . . force. Such consent must have been actual, and not simply acquiescence brought about by force, or by fear, or by shock. In order for consent to sexual intercourse to negate the element of compulsion, the intercourse must be engaged in by the other person with no compulsion, no threat, no fear, and no force. The act must have been truly voluntary on the part of the complainant. You may find that the consent was expressed or you may find that it’s implied from the circumstances that you find existed. Whether there was consent is a question of fact for you to determine.” This court rejected the petitioner’s challenge to this jury instruction on direct appeal, stating that the trial court “instructed the jury appropriately as to consent. . . .” State v. Griffin, supra, 97 Conn. App. 187.

       Because we have concluded that Caine’s failure to request a Smith instruction did not constitute deficient performance, we need not analyze the petitioner’s claims of prejudice. See, e.g., Ham v. Commissioner of Correction, supra, 301 Conn. 704. We agree with the habeas court, however, that there is not a reasonable probability that the petitioner would have been acquitted had Caine requested a. Smith instruction, and, thus, that the petitioner was not prejudiced by Caine’s failure to request the desired charge. A Smith instruction is not mandatory, and there is no guarantee that the trial court would have given such an instruction even if Caine had requested it. See State v. Cotton, supra, 77 Conn. App. 758. Furthermore, the trial court instructed the jury, inter alia, (1) that “[t]he state must prove beyond a reasonable doubt that the [petitioner] compelled the complainant to engage in sexual intercourse by the use of force ... or by the threat of the use of force against her,” and (2) that express or implied consent by the victim would negate the element of compulsion. Under these instructions as given, in order to find the petitioner guilty, the jury must have been convinced beyond a reasonable doubt that the victim did not consent to sexual intercourse. Having found the petitioner guilty, there is no reasonable probability that the jury would view the same evidence of the victim’s conduct as justifying a reasonable belief that she had consented to intercourse — and, thus, there is no reasonable probability that the outcome at trial would have been different had the jury received a Smith instruction.

       Indeed, at the habeas trial, Caine agreed with the statement by counsel for the respondent, the commissioner of correction, that if the jury believed the petitioner’s version of events, “there was no ambiguity as to whether or not the victim was consenting . . . .”

       The mere fact that the petitioner raised a consent defense at trial is insufficient to require a Smith instruction. “[0]ur Supreme Court has not held that such an instruction is constitutionally mandated whenever the defense of consent is raised in sexual assault cases.” State v. Blango, 103 Conn. App. 100, 118, 927 A.2d 964, cert. denied, 284 Conn. 919, 933 A.2d 721 (2007).


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    RITA LITVACK v. MARIANNE ARTUSIO ET AL.
    (AC 33305)
    Gruendel, Beach and Peters, Js.

      Argued April 16 —
    officially released August 7, 2012

      Kenneth A. Votre, for the appellant (plaintiff).

      Edward Maum Sheehy, with whom, on the brief, was Jennifer E. Wheelock, for the appellees (defendants).
   Opinion

PETERS, J.

“Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] 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.” (Internal quotation marks omitted.) Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 411, 35 A.3d 188 (2012). The principal issue in this appeal is whether the trial court properly held that the plaintiff, suing in her individual capacity, lacked standing to pursue a malpractice action against attorneys who had represented her father before his death. We affirm the judgment of the court dismissing the plaintiffs action for lack of subject matter jurisdiction due to lack of standing.

On April 30, 2007, the plaintiff, Rita Litvack, filed a ten count complaint against the defendants, Marianne Artusio and Touro College, alleging legal malpractice, breach of contract, breach of the duty of good faith and fair dealing, reckless misrepresentation and negligent misrepresentation. The defendants denied their liability and then filed a motion for summary judgment in which they challenged the plaintiffs standing to pursue her claims. Concluding that the plaintiff lacked the requisite standing, the court dismissed her action for lack of subject matter jurisdiction. Thereafter, the court denied the plaintiffs motions for reconsideration and for leave to amend her complaint. The plaintiff appeals from these adverse rulings. We affirm the judgment of the court.

The relevant facts and procedural history are undisputed. On March 31, 2000, Artusio, an attorney and professor at Touro College, acting in her capacity as director of clinical programs for the law school, filed a damages action in the United States District Court for the District of Connecticut on behalf of Max Kaplan, alleging that Kaplan’s daughter, Myma Lehrer, was guilty of theft and conversion (Kaplan action). In November, 2002, after Kaplan’s death, the District Court granted Lehrer’s motion to dismiss the complaint. Subsequently, the plaintiff, Kaplan’s other daughter, obtained letters testamentary from the Surrogate Court for the state of New York as executrix of her father’s estate. In January, 2003, the plaintiff filed a motion to open and to substitute herself as named plaintiff in the Kaplan action, but the District Court denied that motion with prejudice. The United States Court of Appeals for the Second Circuit affirmed the denial of the plaintiff s motion on April 5, 2006.

In the present action against the defendants, Artusio and Touro College, the plaintiff alleged that the defendants were guilty of malpractice because their failure to file a timely motion to substitute the plaintiff for Kaplan as named plaintiff in the Kaplan action caused that action to be dismissed with prejudice. Although, at various junctures, the complaint identifies the plaintiff as the beneficiary and the legal representative of the Kaplan estate, it nowhere states that the plaintiff brought the present action in that capacity. Furthermore, the summons that the plaintiff served on the defendants identifies her simply as “Rita Litvack.”

The defendants moved for summary judgment on two grounds. They argued that the plaintiff lacked standing (1) to maintain the action as a representative of the Kaplan estate because she filed the present action as an individual, rather than as executrix of the Kaplan estate and (2) to sue the defendants as an individual, either as a third party beneficiary of the legal services contract between them and Kaplan or as an intended beneficiary of that contract.

Treating the defendants’ motion as a motion to dismiss, in accordance with Bellman v. West Hartford, 96 Conn. App. 387, 392-93, 891 A.2d 82 (2006), the court held that the defendants properly characterized the plaintiffs complaint as having been brought in her individual capacity, not as executrix of the Kaplan estate. It further held that, suing as an individual, the plaintiff did not have standing to pursue any of the claims stated in the complaint. Accordingly, it dismissed the plaintiffs action for lack of subject matter jurisdiction due to lack of standing. Thereafter, the court denied the plaintiffs motions for reargument and for leave to amend her complaint. The plaintiff has appealed.

The plaintiff claims that the court improperly (1) dismissed her action against the defendants and (2) denied her motion for leave to amend her complaint. We are not persuaded by either of these claims of error.

I

The plaintiff claims that the court improperly dismissed her action against the defendants because, in her view, she has sufficiently alleged a legal interest in the action, both as executrix of Kaplan’s estate and in her individual capacity as an intended and foreseeable beneficiary of the legal services contract between Kaplan and the defendants. We are not persuaded.

The standard of review for determining whether a court properly dismissed an action for lack of subject matter jurisdiction 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 . . . corut 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 manner 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). “The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss. ” (Internal quotation marks omitted.) Assn. Resources, Inc. v. Wall, 298 Conn. 145, 164, 2 A.3d 873 (2010); see Practice Book § 10-31 (a) (l).

A

The plaintiff claims that the court improperly concluded that she lacked standing to prosecute the present action in her capacity as executrix of the Kaplan estate. We disagree.

“[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.” (Internal quotation marks omitted.) State v. McElveen, 261 Conn. 198, 210, 802 A.2d 74 (2002). “[T]he identities of the parties are determined by their description in the summons.” Hultman v. Blumenthal, 67 Conn. App. 613, 620, 787 A.2d 666, cert. denied, 259 Conn. 929, 793 A.2d 253 (2002).

In the present case, because the summons identified the plaintiff only as “Rita Litvack” and not as executrix of the Kaplan estate, the court properly held that the plaintiff lacked standing to sue in a representative capacity. In addition, the specific allegations in the various counts of the plaintiffs complaint demonstrate that the plaintiff was seeking compensation for alleged misconduct by the defendants that had caused her to suffer personal injury. For example, the plaintiff contends that she was personally damaged (1) by the defendants’ tortious misconduct in permitting “the dismissal of the [Kaplan action], which would have determined her substantive rights to the funds removed from [Kaplan’s] bank accounts”; (2) as third party beneficiary of Kaplan’s contract with the defendants, by “the defendants’ breach of the contract”; and by the loss of the “opportunity to have a determination on the merits [in the Kaplan action], which would have determined her interest in certain funds misappropriated from . . . Kaplan . . . .”

In sum, both the summons and the allegations of the plaintiffs complaint demonstrate the propriety of the court’s conclusion that the plaintiff sought recovery for alleged injuries that she suffered in her individual capacity, rather than injuries to the Kaplan estate. The plaintiff has cited no authority for her contention that, because she identified herself in her pleadings as Kaplan’s daughter and executrix of the Kaplan estate, she automatically had asserted her standing as her deceased father’s legal representative, and we know of none.

B

The plaintiff claims, alternatively, that the court improperly concluded that she lacked standing to maintain the present action in her capacity as an individual. The plaintiff maintains that she has standing to pursue her claims against the defendants both as an intended third party beneficiary and as a foreseeable beneficiary of the legal services contract between the defendants and Kaplan. We are not persuaded.

The law regarding the creation of third party rights in legal services contracts is well settled. “As a general rule, attorneys are not liable to persons other than their clients for the negligent rendering of services.” Krawczyk v. Stingle, 208 Conn. 239, 244, 543 A.2d 733 (1988). To determine when attorneys should be held liable to parties with whom they are not in privity “courts have looked principally to whether the primary or direct purpose of the transaction was to benefit the third party.” Id., 245. “[A] third party seeking to enforce a contract must allege and prove that the contracting parties intended that the promisor should assume a direct obligation to the third party.” Stowe v. Smith, 184 Conn. 194, 196, 441 A.2d 81 (1981).

We agree with the court that, in this case, the plaintiffs pleadings fail to allege facts sufficient to establish that, when entering into the legal services contract with Kaplan, the defendants undertook to become obligated to the plaintiff as a third party beneficiary. The plaintiff alleges, and the defendants do not deny, that they rendered legal services “for the benefit of . . . Kaplan.” The retainer in which the defendants’ contracted to perform legal services for Kaplan did not refer to the plaintiff, either directly or by necessary implication. The plaintiffs contention that Artusio and Kaplan had agreed orally that the plaintiff should benefit from the legal services to be provided to Kaplan is unsupported by anything other than the plaintiffs bald representation to that effect. Even more to the point, the plaintiffs representation does not demonstrate that the defendants agreed to assume liability to the plaintiff. See Grigerik v. Sharpe, 247 Conn. 293, 313, 721 A.2d 526 (1998) (“[t]he intent to confer a benefit is irrelevant to the determination of whether [the plaintiff] was a third party beneficiary” [internal quotation marks omitted]); see also Golek v. Saint Mary’s Hospital, Inc., 133 Conn. App. 182, 200-201, 34 A.2d 452 (2012).

The plaintiffs alternate claim, that she was a foreseeable beneficiary of the legal services contract, is similarly unpersuasive. See Gazo v. Stamford, 255 Conn. 245, 267, 765 A.2d 505 (2001). Although the intended beneficiary of a will may have a cause of action for the improper preparation of a testamentary document; see Stowe v. Smith, supra, 184 Conn. 198-99; the plaintiff has cited no authority for imposing such liability on attorneys who entered into a retainer for ordinary legal services. Furthermore, at the time when the defendants agreed to represent Kaplan in the Kaplan action, the plaintiff was not a foreseeable beneficiary of the services they agreed to perform. To the extent that the defendants owed a duty to take reasonable steps to ensure that the Kaplan action was not dismissed after Kaplan’s death, that duty was owed to the plaintiff as executrix of the Kaplan estate, not to the plaintiff as an individual.

Under the circumstances of this case, we conclude that the plaintiff failed to allege facts to establish that she has any personal legal interest in the contract between Kaplan and the defendants. Suing in her individual capacity, rather than as executrix of the Kaplan estate, the plaintiff has failed to establish a basis for her claim that she was either a third party beneficiary or a foreseeable beneficiary of that contractual undertaking.

Ill

Finally, the plaintiff claims that the court improperly denied her motion for leave to amend her complaint, which she filed subsequent to the court’s judgment dismissing her action for lack of standing. In her motion, the plaintiff relied on General Statutes § 52-123 as authority for the court to recognize that she had brought the present action as an executrix of her father’s estate. The plaintiff maintains that, under the circumstances of this case, § 52-123 required the court to grant her motion to amend the complaint. We are not persuaded.

“A trial court’s ruling on a motion of a party to amend its complaint will be disturbed only on the showing of a clear abuse of discretion.” (Internal quotation marks omitted.) Bosco v. Regan, 102 Conn. App. 686, 691, 927 A.2d 325, cert. denied, 284 Conn. 914, 931 A.2d 931 (2007). “[Section] 52-123 replaces the common law rule that deprived courts of subject matter jurisdiction whenever there was a misnomer or misdescription in an original writ, summons or complaint. . . . [T]he effect given to such a misdescription usually depends upon the question whether it is interpreted as merely a misnomer or defect in description, or whether it is deemed a substitution or entire change of party; in the former case an amendment will be allowed, in the latter it will not be allowed.” (Citation omitted; internal quotation marks omitted.) Andover Ltd. Partnership I v. Board of Tax Review, 232 Conn. 392, 396-97, 655 A.2d 759 (1995).

We agree with the trial court that the plaintiffs cause of action does not fall within the provisions of § 52-123, as the allegations of her complaint “conflate the legal capacity of the plaintiff as executrix and her individual capacity.” Furthermore, the plaintiffs motion to amend was filed after the court had already ruled in favor of the defendants, granting their motion to dismiss the action. We know of no case, and the plaintiff has cited none, in which a court has been faulted for denying a belated motion to amend after expiration of the thirty day grace period for amendment prescribed by General Statutes § 52-128 and after the court’s dismissal of the complaint for lack of jurisdiction. Under these circumstances, we are not persuaded that the court’s ruling was an abuse of its discretion. See, e.g., Shuster v. Buckley, 5 Conn. App. 473, 479, 500 A.2d 240 (1985).

In sum, we conclude that the court properly granted the defendants’ motion to dismiss because the facts alleged in the plaintiffs complaint were insufficient to confer standing on the plaintiff to pursue her claim that the defendants’ legal services contract with Kaplan made them accountable to her. Although, in parts of her complaint, the plaintiff identified herself as Kaplan’s daughter and as executrix of the Kaplan estate, the court properly concluded that she had brought her action solely in her individual capacity. Furthermore, the plaintiff did not plead facts sufficient to establish her claims for relief. Finally, we conclude that the court did not abuse its discretion in denying the plaintiffs postjudgment motion to amend her complaint.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff alleged that Touro College was vicariously liable for the acts and omissions of Artusio, its agent and employee.

       The defendants also alleged that the plaintiffs claims were barred by the applicable statutes of limitation and by the plaintiffs own negligence.

       The court properly treated the defendants’ motion for summary judgment as a motion to dismiss, and we review it as such. See Cadle Co. v. D’Addario, 268 Conn. 441, 445 n.5, 844 A.2d 836 (2004) (motion for summary judgment challenging standing treated as motion to dismiss); St. George v. Gordon, 264 Conn. 538, 544-45, 825 A.2d 90 (2003) (lack of standing can be raised in motion to dismiss).

       We decline to review the plaintiffs additional claim, that the trial court improperly denied her motion for reargument, because it was not adequately briefed. Carmichael v. Stonkus, 133 Conn. App. 302, 307, 34 A.3d 1026, cert. denied, 304 Conn. 911, 39 A.3d 1121 (2012).

       Practice Book § 10-31 (a) provides in relevant part: “The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter . . .

       The plaintiff maintains that, as executrix of the Kaplan estate, she contacted Artusio to continue the Kaplan action and, therefore, became a third party beneficiary to the legal services contract. That argument is unavailing. Any contract between the plaintiff and Artusio that was negotiated by the plaintiff in her role as executrix of the Kaplan estate is irrelevant to the plaintiffs standing to maintain the present action in her individual capacity.

       The plaintiff maintains that, as an intended beneficiary of the legal services contract, she also may recover damages in tort based on the defendants’ failure to substitute her as the named plaintiff in the Kaplan action. As the trial court did not discuss this claim, and the plaintiff did not file a motion for articulation of the court’s decision, we decline to address it. Cadlerock Properties Joint Venture, L.P. v. Commissioner of Environmental Protection, 253 Conn. 661, 674-75, 757 A.2d 1 (2000), cert. denied, 531 U.S. 1148, 121 S. Ct. 1089, 148 L. Ed. 2d 963 (2001).

       Indeed, after the defendants filed the complaint in the Kaplan action, Lehrer filed a third party complaint against the plaintiff, alleging that the plaintiff had “asserted undue influence, domination, and control over . . . Kaplan and his assets. ” The fact that the plaintiff was a third party defendant in the Kaplan action and, therefore, an adverse party in that action, is inconsistent with her present claim that she was a foreseeable beneficiary of the Kaplan estate.

       General Statutes § 52-123 provides: “No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court.”

       We agree with the defendants that the omission of “executrix” on the summons was not solely a circumstantial error.


author: FOTI, J.

text:
    IN RE JASON B.

    (AC 34226)
    DiPentima, C. J., and Beach and Foti, Js.

      Argued May 30 —
    officially released July 26, 2012

      Alison P. Gaston, with whom, on the brief, was Erich H. Gaston, for the appellant (respondent mother).

      Benjamin Zivyon, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (petitioner).

      Kelly Babbitt, for the minor child.

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

       July 26, 2012, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

FOTI, J.

The respondent mother appeals from the judgment of the trial court rendered in favor of the petitioner, the commissioner of children and families, terminating her parental rights as to her minor child, Jason B. On appeal, the respondent claims that the trial court improperly (1) drew an adverse inference against her, without first providing notice, on the basis of her failure to testify and (2) made certain factual findings. We affirm the judgment of the trial court.

The following undisputed facts and procedural history are relevant to our review of the present case. In 1994, when the respondent was sixteen, she gave birth to her first child. The respondent’s relationship with that child’s father ended after an incident of domestic violence. In 1997, the respondent gave birth to a second child. In 1999, the respondent married a second man. In 2000, the respondent gave birth to a third child. In 2004, after the deterioration of her marriage, the respondent began a relationship with a third man and again became pregnant. Approximately six and one-half months later, the respondent was injured during a domestic dispute and gave birth to a stillborn child.

In 2006, the respondent was sentenced to six months of imprisonment for criminal activities related to her use of crack cocaine. After the respondent was released from imprisonment, she received inpatient psychiatric treatment for bipolar disorder at Connecticut Valley Hospital. In 2007, the respondent received inpatient treatment for bipolar disorder at Natchaug Hospital and for drug addiction at the Stonington Institute. In 2008, the respondent participated in the Quine-baug Valley Extended Day Treatment Program but subsequently was discharged for noncompliance. In 2007, the respondent had become involved with a fourth man and, by the end of 2008, had given birth to Jason.

From May, 2009, to October, 2009, the respondent attended a substance abuse clinic and was under the care of Stephen Eldredge, a therapist. In March, 2010, the respondent relapsed. After returning to Eldredge’s care for approximately five weeks, the respondent was referred to a higher level of care. On April 1, 2010, the petitioner filed a motion with the trial court seeking temporary custody of Jason. That motion was granted by the court, Graziani, J Jason subsequently was removed from the care of the respondent.

On April 15, 2010, the respondent entered the New Life Program, an inpatient substance abuse program located in Putnam. On April 28, 2010, following a nolo contendere plea from the respondent, the court adjudicated Jason to be neglected and committed him to the petitioner’s care, custody and guardianship. The same day, Jason was returned to the care of the respondent by the petitioner in order to participate in the New Life Program. On July 6, 2010, the respondent was discharged from the program for breach of her behavioral contract, and Jason was again removed from the respondent’s care by the petitioner.

In August, 2010, the department of children and families (department) referred the respondent to the Nat-chaug Hospital Pathways Program. The respondent entered that program and was successfully discharged in September. The respondent’s discharge summary from this program noted that her bipolar disorder was considered to be in full remission and that her addiction to cocaine was considered to be in early full remission.

The respondent failed to attend appointments at the Day Kimball Mental Health Center scheduled in September, 2010. On November 15, 2010, Kathy Flynn, an employee of Day Kimball Mental Health Center, stated that the respondent was at a high risk of relapse and recommended that she return to a higher level of care. An employee of the department discussed this recommendation with the respondent and recommended that she return to Natchaug Hospital. The respondent refused, however, to participate. On the same day, the respondent rescinded her releases of medical records. On December 1,2010, the respondent refused to answer the door for a home visit despite acknowledging to the social worker that she was home. On December 3,2010, the respondent failed to attend an appointment for a scheduled hair toxicology screen. Finally, the respondent did not attend scheduled visitations with Jason between November, 2010, and January, 2011.

On February 15, 2011, the petitioner moved to terminate the respondent’s parental rights as to Jason. Following a trial, the court issued a memorandum of decision concluding that the petitioner had proved the following by clear and convincing evidence: (1) the department had made reasonable efforts to reunify Jason with the respondent, (2) the respondent had failed to achieve sufficient personal rehabilitation and (3) it was in Jason’s best interest to terminate the respondent’s parental rights. This appeal followed. Additional facts will be set forth below as necessary.

I

The respondent’s first claim is that the court improperly drew an adverse inference against her, without first providing notice, based on her failure to testify. We disagree.

The following additional facts are necessary for the resolution of this claim. The court’s memorandum of decision predicated its discussion of the evidence by stating that “[t]he credible evidence admitted at trial supports the following facts by clear and convincing evidence . . . .” (Emphasis added.) In the following paragraph, the court stated: “Since [the respondent] did not testify, there was no evidence presented to contradict the representations made in the [s]ocial [s]tudy . . . the [a]ddendum to the [s]ocial [sjtudy ... or any of the exhibits offered by the [petitioner. The court accordingly places great weight upon those representations and accepts them as stated.” (Citations omitted.) The court also noted that the respondent “elected not to testify” and stated that “no adverse inference need be drawn.” The court, at the respondent’s request, issued an articulation clarifying whether its original memorandum of decision made an adverse inference against the respondent due to her failure to testify. In this articulation, the court stated that it “did not presume the evidence to be proven or presumed truthful or given ‘particular’ weight because the respondent did not testify. The court did accept the social studies ‘as stated,’ that is, uncontradicted, since no evidence was offered by the respondent to contradict them through the testimony of others or the offer of contradictory documentary evidence.”

We begin our analysis of the respondent’s claim by noting that the question of whether the court drew an adverse inference in the present case requires us to interpret the court’s memorandum of decision. “The construction of a judgment is a question of law for the court, such that our review of the defendant’s claim is plenary. As a general rule, judgments are to be construed in the same fashion as other written instruments. . ... The determinative factor is the intention of the court as gathered from all parts of the judgment. . . . The interpretation of a judgment may involve the circumstances surrounding the making of the judgment. . . . Effect must be given to that which is clearly implied as well as to that which is expressed. . . . The judgment should admit of a consistent construction as a whole.” (Internal quotation marks omitted.) Lehan v. Lehan, 118 Conn. App. 685, 689, 985 A.2d 378 (2010).

The respondent is correct in her assertion that a court must inform a respondent if it intends to draw an adverse inference from his or her decision not to testify. See Practice Book § 35a-7A (“[i]f a party requests that the judicial authority draw an adverse inference from a parent’s or guardian’s failure to testify or the judicial authority intends to draw an adverse inference, either at the start of any trial or after the close of the petitioner’s case-in-chief, the judicial authority shall notify the parents or guardian that an adverse inference may be drawn from their failure to testify”). This court has stated previously, however, that “[s]uch notice is required only if a court is inclined to draw an adverse inference.” In re Lukas K., 120 Conn. App. 465, 475 n.4, 992 A.2d 1142 (2010), aff'd, 300 Conn. 463, 14 A.3d 990 (2011). In the present case, the court stated explicitly at trial that it would draw no adverse inference from the respondent’s decision not to testify. As this point is wholly undisputed, our analysis of the respondent’s claim is limited to the question of whether such an inference was, nonetheless, drawn by the court in reaching its decision.

The respondent claims that the court’s statement that “[s]ince [the respondent] did not testify, there was no evidence presented to contradict the representations made in the [s]ocial [s]tudy” indicates that the court drew an adverse inference based on her failure to testify. Although we agree that, when read in isolation, this statement may appear to be ambiguous, when read as a whole, the court’s memorandum of decision clearly indicated that no adverse inference was drawn. Specifically, the court’s memorandum of decision states that the respondent “elected not to testify and no adverse inference need be drawn.” Moreover, in its articulation, the court noted that it did “not presume the evidence to be proven or presumed truthful . . . because the respondent did not testify.” When read in light of these statements, it is clear that the evidence submitted by the petitioner was given “great weight” because it was found by the court to be both credible and wholly uncontested by the respondent. Such a conclusion represents an adverse finding by the court rather than an adverse inference. See Black’s Law Dictionary (9th Ed. 2009) (an adverse inference is “[a] detrimental conclusion drawn by a fact-finder from a party’s failure to produce evidence that is within the party’s control”). We conclude that, reading the court’s statements as a whole, an adverse inference was not imposed on the respondent because she elected not to testify at trial.

II

The respondent also claims that the court erred in making certain factual findings. Specifically, the respondent claims that the court erred in finding that: (1) the department made reasonable efforts to reunify the respondent with her child, (2) that the respondent failed to achieve sufficient personal rehabilitation and (3) termination of the respondent’s parental rights was in the best interests of the child. We disagree.

We begin by setting forth relevant legal principles and the applicable standard of review. “The legal framework for deciding termination petitions is well established. [A] hearing on a petition to terminate parental rights consists of two phases: the adjudicatory phase and the dispositional phase. During the adjudicatory phase, the trial court must determine whether one or more of the . . . grounds for termination of parental rights set forth in [General Statutes] § 17a-112 [(j) (3)] exists by clear and convincing evidence. ... If the trial court determines that a statutory ground for termination exists, then it proceeds to the dispositional phase. During the dispositional phase, the trial court must determine whether termination is in the best interests of the child. . . . The best interest determination also must be supported by clear and convincing evidence. . . .

“It is axiomatic that a trial court’s factual findings are accorded great deference. ... On appeal, our function is to determine whether the trial court’s conclusion was factually supported and legally correct. ... In doing so, however, [g]reat weight is given to the judgment of the trial court because of [the court’s] opportunity to observe the parties and the evidence. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. . . . [Rather] every reasonable presumption is made in favor of the trial court’s ruling. . . . Proof of one ground is sufficient to terminate parental rights.” (Citation omitted; internal quotation marks omitted.) In re Zowie N., 135 Conn. App. 470, 499-500, 41 A.3d 1056, cert. denied, 305 Conn. 916, 46 A.3d 170 (2012).

A

The respondent claims that the court’s conclusion that the department made reasonable efforts to reunify her with her child was clearly erroneous. Specifically, the respondent argues that the department should have referred her to additional substance abuse programs and provided her with additional mental heath treatment. The petitioner responds by arguing that the evidence contained within the record does not indicate that additional services would have been beneficial and that, even if the record contained such evidence, it would not render the court’s finding of reasonable efforts clearly erroneous. We agree with the petitioner.

“In order to terminate parental rights under § 17a-112 (j), the department is required to prove, by clear and convincing evidence, that it has made reasonable efforts ... to reunify the child with the parent, unless the court finds . . . that the parent is unable or unwilling to benefit from reunification. . . . [Section 17a-112 (j)] imposes on the department the duty, inter alia, to make reasonable efforts to reunite the child or children with the parents. The word reasonable is the linchpin on which the department’s efforts in a particular set of circumstances are to be adjudged, using the clear and convincing standard of proof. . . . [Reasonable efforts means doing everything reasonable, not everything possible. . . . The trial court’s determination of this issue will not be overturned on appeal unless, in light of all of the evidence in the record, it is clearly erroneous.” (Citation omitted; internal quotation marks omitted.) In re Melody L., 290 Conn. 131, 144-45, 962 A.2d 81 (2009).

Here, the respondent received treatment from Connecticut Valley Hospital, Quinebaug Valley Extended Day Treatment Program, Stephen Eldredge, the New Life Program, the Pathways Program and Day Kimball Mental Health Center since 2007. The petitioner moved to terminate the respondent’s parental rights only after she had rescinded the releases of her medical records, failed to participate in scheduled drug screenings, refused to allow home visits and declined the department’s invitation to return to inpatient treatment. Moreover, as noted by the court in its memorandum of decision, “[the respondent’s] visits with Jason [had] steeply declined.” Given the presence of these facts in the record, we conclude that the court’s finding that the department made reasonable efforts to reunite the respondent with her child was not clearly erroneous.

B

The respondent claims that the court’s finding that she has failed to achieve sufficient personal rehabilitation is clearly erroneous. In support of this claim, the respondent argues that the court’s reliance on evidence of a relapse into substance abuse does not, by itself, support the court’s finding that she has failed to achieve rehabilitation. The petitioner responds by arguing that the record contains evidence indicating that the respondent had relapsed and continued to “struggle in all the areas of concern that had led to removal” and that, therefore, the court’s finding that she had failed to achieve personal rehabilitation was not clearly erroneous. We agree with the petitioner.

The following additional facts are relevant to our resolution of the respondent’s claim. On September 12, 2011, the respondent was referred to the Quinebaug Day Treatment Program at Natchaug Hospital. The discharge summary from this stay, dated October 3, 2011, contains the following information: “Patient is [a thirty-four year old] Caucasian woman disabled, collecting disability [and] referred for treatment by [p]ublic [d]efender. Patient said, T had suicidal attempt [three] weeks ago. I was drinking alcohol, taking some pills and using crack. I did not want to live anymore because of my reputation, relationship and financial problems.’ ” The summary continues, “[l]egal [matters] pending for [twelve] counts of burglary and larceny.” The summary further indicates that toxicology tests had been completed and the results were “positive for cocaine and cannabis.” In an articulation dated January 10, 2012, the court noted that it gave “particular attention” to this document.

“Personal rehabilitation as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as a parent. . . . [Section 17a-112] requires the trial court to analyze the [parents’] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time. . . . [The statute] requires the court to find, by clear and convincing evidence, that the level of rehabilitation [that the parents have] achieved, if any, falls short of that which would reasonably encourage a belief that at some future date [they] can assume a responsible position in [their] child’s life. . . . [I]n assessing rehabilitation, the critical issue is not whether the parent has improved her ability to manage her own life, but rather whether she has gained the ability to care for the particular needs of the child at issue. ... As part of the analysis, the trial court must obtain a historical perspective of the respondent’s child caring and parenting abilities, which includes prior adjudications of neglect, substance abuse and criminal activity.” (Internal quotation marks omitted.) In re Christopher L., 135 Conn. App. 232, 245, 41 A.3d 664 (2012).

In the present case, the court noted explicitly that the respondent had tested positive for cocaine use only a few months before trial and had engaged in criminal activity. Moreover, as noted previously, the evidence contained in the record indicates that the respondent had declined inpatient treatment and had ceased cooperating with the department in relation to home visits, medical records and scheduled drug testing. In light of these facts, we conclude that the court’s finding that the respondent had failed to achieve a level of rehabilitation that would encourage the belief that, within a reasonable time, considering the child’s age and needs, she could assume a responsible position in the life of her child, was not clearly erroneous.

C

The respondent’s final argument is that the court discounted certain evidence that Jason had bonded with her, and, therefore, its finding that termination of her parental rights was in the best interest of the child was clearly erroneous. The petitioner responds by arguing that the court properly considered the child’s bond with his foster parents and his need for permanency and therefore properly reached the conclusion that it did. We agree with the petitioner.

“In the dispositional phase of a termination of parental rights hearing, the trial court must determine whether it is established by clear and convincing evidence that the continuation of the [respondent’s] parental rights is not in the best interests of the child. In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in [General Statutes § 17a-112 (k)].” (Internal quotation marks omitted.) In re Albert M., 124 Conn. App. 561, 566, 6 A.3d 815, cert. denied, 299 Conn. 920, 10 A.3d 1050 (2010). “The seven factors serve simply as guidelines for the court and are not statutory prerequisites that need to be proven before termination can be ordered. . . . There is no requirement that each factor be proven by clear and convincing evidence.” (Internal quotation marks omitted.) In re Alison M., 127 Conn. App. 197, 211, 15 A.3d 194 (2011).

Here, the court made the following explicit findings of fact in relation to the factors enumerated in § 17a-112 (k): (1) the respondent was provided with “timely and appropriate services”; (2) the department made “reasonable efforts to reunite the family”; (3) the respondent had “violated a number of court orders pertinent to the specific steps”; (4) Jason “had a bond with [the respondent] until she stopped her regular visits” but has “fully integrated” with his foster family; (5) Jason was three years of age; (6) the respondent had failed to make “realistic and sustained efforts to conform her conduct to even minimally acceptable parental standards” regarding her addiction to illegal substances; and (7) the respondent was not prevented from maintaining a relationship with Jason by financial circumstances or by unreasonable conduct by third parties. In light of these factual findings, the court concluded that termination of the respondent’s parental rights was in the best interests of the child.

The respondent contends that the court erroneously concluded in its discussion of the fourth factor that she no longer has a bond with Jason. In support of this argument, the respondent cites a report authored by Mary H. Cheyne, a clinical psychologist, on November 28, 2010. This report states that, during visitation, Jason “ran to [the respondent] when he identified her” and that the respondent “was veiy appropriate and bonded with her son and he was obviously attached to her.” Jennifer Torres, the social worker assigned to the respondent and her family, testified at trial, however, that the bond between the respondent and her son broke down after the report cited by the respondent. Specifically, Torres testified at trial that “[the respondent] did not call, did not show up for visits from about November [2010] to January of 2011” and that while “visits were consistent, Jason had a bond with [the respondent] but because of the time, you know, not showing up to visits, not seeing Jason for three months at a time, Jason doesn’t really know who [the respondent] is and thinks she’s a stranger and doesn’t have that bond that they had initially.” Given this decline in the respondent’s visits with Jason and the court’s explicit conclusion that Jason had bonded well with his new foster family, we conclude that the trial court did not err in finding that the fourth factor enumerated in § 17a-112 (k) favored the petitioner. Accordingly, we conclude that the trial corut’s finding that termination of the respondent’s parental rights was in the best interest of the child was not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court also terminated the parental rights of the respondent father, but he has not appealed. We therefore refer in this opinion to the respondent mother as the respondent.

       In its memorandum of decision, the court noted that “[the respondent] has a criminal record dating back to 2003. The criminal charges are those commonly associated with substance abuse: threatening, reckless endangerment, disorderly conduct, multiple counts of larceny, burglary and probation violations.”

       The court issued specific steps for reunification to the petitioner pursuant to General Statutes § 46b-129. The following steps are relevant to the present appeal: (1) “[t]ake part in counseling”; (2) “[a]ccept in-home support services”; (3) “[s]ubmit to a substance abuse evaluation and follow the recommendations about treatment, including inpatient treatment if necessary, aftercare and relapse prevention”; (4) “[s]ubmit to random drug testing”; (5) “[do] [n]ot use illegal drugs or abuse alcohol or medicine”; (6) “[c]ooperate with service providers”; (J) “[c]ooperate with court ordered evaluations or testing”; and (8) “[s]ign releases allowing [the department of children and families] to communicate with service providers . . .

       The department of children and families social worker assigned to the respondent and her family, Jennifer Torres, offered the following testimony at trial describing the New Life Program: “It’s a mother-child program for mothers who are enduring substance abuse issues and ... are in the path of recovery and . . . want to have their child. The child is able to be in the program as long as the child is committed and the mom can be in the program for up to ayear and be successfully discharged into the community.”

       The respondent claims that the court’s articulation is inconsistent with its original memorandum of decision and that, as a result, this court must remand the matter for a new trial. Although we agree that such an inconsistency would require a new trial; see Lusa v. Grunberg, 101 Conn. App. 739, 743, 923 A.2d 795 (2007) (“An articulation is not an opportunity for a trial court to substitute a new decision nor to change the reasoning or basis of a prior decision. ... If, on appeal, this court cannot reconcile an articulation with the original decision, a remand for a new trial is the appropriate remedy.” [Citation omitted; internal quotation marks omitted.]); our conclusion that the court’s original decision did not rest on an adverse inference forecloses the possibility that such an inconsistency exists.

       The respondent also claims that the court improperly shifted the burden of proof by crediting the evidence submitted by the petitioner simply because no evidence was presented by the respondent to the contrary. We disagree. The court’s memorandum of decision specifically predicated its discussion of the evidence by stating that “[t]he credible evidence admitted at trial supports the following facts by clear and convincing evidence . . . .” (Emphasis added.) This statement indicates that the court gave weight to the evidence submitted by the petitioner, not because the respondent failed to contradict it, but because the court found it to be credible. Consequently, we conclude that this argument is without merit.

       Having reached this conclusion, we need not reach the respondent’s claim that the court improperly concluded that she was unable or unwilling to benefit from reunification efforts. See In re Anvahnay S., 128 Conn. App. 186, 191, 16 A.3d 1244 (2011) (“because we conclude that the court properly found, on the basis of clear and convincing evidence, that the department had made reasonable efforts to reunify the respondent and [the child], we do not reach his claim that the court improperly concluded that he was unable or unwilling to benefit from reunification efforts”).

       The respondent also argues that the court could not have concluded that she failed to achieve rehabilitation because the department failed to refer her to services in response to a report from Mary H. Cheyne, a clinical psychologist, dated November 28, 2010. Specifically, the respondent notes that the report recommended that the respondent complete a substance abuse program and seek additional treatment for bipolar disorder. Having reviewed the record, we find no merit to this argument. The respondent has been enrolled in community based programs and has been admitted to hospitals on multiple occasions to address these same issues since 2006. Moreover, in November, 2010, the same month Cheyne issued her report, the respondent declined the department’s referral for additional inpatient treatment at Natchaug Hospital.

       The respondent cites various Superior Court cases that conclude that the department failed to prove the absence of rehabilitation by clear and convincing evidence despite the parent’s ongoing substance abuse problems. E.g., In re JaheimP., Superior Court, judicial district of New London, Docket No. K-09-CP010433A, 2007 Conn. Super. LEXIS 2822 (October 3, 2007). The respondent argues that such cases support the conclusion that “ [her] struggle with drug use standing alone does not support termination of her parental rights on lack of rehabilitation grounds.” While the respondent’s relapse may well have been weighed differently by the trial court, this court’s review of the respondent’s claim is limited to whether the court’s conclusion that she failed to achieve rehabilitation was clearly erroneous. See In re Zowie N., supra, 135 Conn. App. 499-506. Moreover, as noted previously, the record contains additional evidence that supports the trial court’s conclusion that the respondent failed to achieve rehabilitation.

       General Statutes § 17a-112 (k) provides: “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) whether the D epartment of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended; (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (4) the feelings and emotional ties of the child with respect to the child’s parents, any guardian of such child’s person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (5) the age of the child; (6) the efforts the parent has made to acljust such parent’s circumstances, conduct, or conditions to make it in the best interest of the child to return such child home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions, and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.”