author: BEACH, J.

text:
    IN RE JAZMINE B.

    (AC 30390)
    Bishop, Beach and Schaller, Js.
    Argued February 2
    officially released May 25, 2010

      Michael S. Taylor, with whom were Brendon P. Levesque and Robert W. Shaver II, for the appellant (respondent father).

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

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

   Opinion

BEACH, J.

The respondent father appeals from the judgment of the trial court terminating his parental rights with respect to his minor daughter, Jazmine B. On appeal, the respondent claims that the court (1) erroneously found that he had failed to achieve a sufficient degree of personal rehabilitation within the meaning of General Statutes § 17a-112 (j) (3) (B) and (2) improperly terminated his parental rights because § 17a-112 (j) (3) (B) is unconstitutionally vague as applied to him. We affirm the judgment of the trial court.

The following facts and procedural history are relevant. Jazmine was bom on March 27, 2001. When she was three days old, Jazmine was placed into the custody of the petitioner, the commissioner of children and families, pursuant to an ex parte order of temporary custody, on the basis of her mother’s eviction from her residence, history of domestic violence and physical neglect of her other children. At the time of Jazmine’s birth, the identity of her biological father was unknown.

Following the order of temporary custody, Jazmine was placed in the home of Ana C., a licensed foster parent with the department of children and families (department). Jazmine was returned to her mother’s care under an order of protective supervision on October 29, 2001. Due to her mother’s failure to comply with court-ordered specific steps to bring about reunification with Jazmine and the mother’s lack of a permanent residence, Jazmine was subsequently returned to the care of the petitioner in April, 2002, and was placed into her previous foster home. At the time of trial, Jaz-mine had been living in the same foster home for seven years.

In 2001, the respondent’s paternity was confirmed by the results of a court-ordered genetic test. His whereabouts then became unknown. The respondent was arrested and charged with threatening on September 12, 2001, and convicted of that charge on December 14, 2001. He was sentenced to time served.

The respondent has an extensive criminal history. In addition to numerous traffic violations, he has been convicted of manslaughter, threatening, assault, failure to appear and risk of injury to a child. He was first referred to services in July, 2001, when agents of the department referred the respondent to parenting classes. He did not attend those parenting classes until April 8, 2003, and he subsequently completed the program on June 19, 2003. On July 14,2003, the respondent filed a motion to revoke the commitment. The court ordered the respondent to participate in a psychological examination with Julia Ramos Grenier, a licensed psychologist. She expressed concern over the respondent’s prior conviction of risk of injury to a child and opined that the respondent would not be able to resume a responsible position in Jazmine’s life and that it therefore was in Jazmine’s best interest to stay with her foster family.

On May 13, 2004, the court held a hearing regarding how to proceed with respect to the respondent’s parental rights. Despite Grenier’s recommendation that Jaz-mine not be reunified with the respondent, the court ordered specific steps toward reunification for the respondent. Recognizing his completion of these specific steps, the department, in its September 2, 2004 study in support of a permanency plan and to maintain commitment, noted that “it is appropriate to make reasonable efforts to reunify the child with [the respondent].” In July, 2004, the court found that visits between the respondent and Jazmine were going well and stated that the plan was to reunify the two by December, 2004. By October, 2004, all parties agreed to increase the length of visits. The petitioner sought to increase visits to two full daytime visits and then overnight visits.

Overnight visits began on November 22, 2004. Part of the first visit was supervised by Tracy Long, a clinician with the department. Long stayed through Jaz-mine’s bath time. Her testimony was not entirely clear, but Long recorded in her notes that “[i]nitially, [the respondent] was uncomfortable with [Jazmine] taking off her underwear and wanted her to take a bath with them on.” Jazmine refused to leave her underwear on, and Long told the respondent that it would be permissible for her to remove her underwear, as the clinician was there. The remainder of the overnight visit went well.

A second overnight visit occurred on November 29, 2004. Long was present during the beginning of this visit but wrote in her notes that she “did not stay to witness [the respondent] give [Jazmine] her evening bath [because she] did not have any reservations in allowing [the respondent] to conduct the bath without this clinician being present.” When Jazmine returned to her foster home the following day, she disclosed to her foster mother and to a friend that the respondent had “put his . . . finger in my toti.”

On December 2, 2004, Jazmine was examined by a pediatric nurse practitioner and a forensic medical examiner trained in child abuse matters, Judy Kantz. Jazmine repeated her allegation to Kantz. Jazmine had a normal vaginal examination, but Kantz also reported that she did not find the medical examination to be inconsistent with Jazmine’s allegation, nor did she see signs of coaching, which she was trained to detect. A forensic interview also was conducted, but it was not completed because Jazmine became upset.

As a result of Jazmine’s allegation and her changed demeanor toward the respondent, visits with the respondent were suspended. The petitioner filed a motion to cease visits on December 21, 2004. The respondent then filed a second motion to revoke the commitment on January 27, 2005. Those motions were consolidated with the petitioner’s motion to maintain the commitment, which had been filed on October 8, 2004. A trial on the consolidated motions was held on January 28, February 4 and April 28, 2005. On June 2, 2005, the court issued its decision denying the respondent’s motion to revoke the commitment, ordering that the respondent’s visits be supervised rather than suspended and ordering that the commitment be maintained.

On September 20, 2005, the petitioner filed a petition for the termination of the respondent’s and the mother’s parental rights. The petitioner alleged two grounds for termination of the respondent’s parental rights. First, the petitioner alleged that the respondent, by reason of his act or acts of commission or omission, had denied Jazmine the care, guidance or control necessary for her educational, moral or emotional well-being, pursuant to § 17a-112 (j) (3) (C), as aresult of Jazmine’s allegation that he had sexually abused her. Second, the petitioner alleged that the respondent had failed to achieve sufficient rehabilitation pursuant to § 17a-112 (j) (3) (B) (ii). The court determined that the petitioner had failed to meet its burden of proof on the ground of omission or commission, pursuant to § 17a-112 (j) (3) (C), but had met its burden of proof as to the ground that the respondent had failed to achieve sufficient rehabilitation, pursuant to § 17a-112 (j) (3) (B) (ii). In a written decision filed August 29, 2008, the court, Kahn, J., terminated the respondent’s parental rights. This appeal from the termination of the respondent’s parental rights followed.

I

The respondent first claims that the court’s finding that he failed to achieve the degree of personal rehabilitation required under § 17a-112 (j) (3) (B) (ii) was clearly erroneous. Because the record supports the court’s finding, this claim fails.

We first turn to the standard of review that governs this claim. “A trial court’s finding that a parent has failed to achieve sufficient rehabilitation will not be overturned unless it is clearly erroneous. ... A finding is clearly erroneous when either there is no evidence in the record to support it, or the reviewing court is left with the definite and firm conviction that a mistake has been made. . . .

“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. . . .

“In order to terminate a parent’s parental rights under § 17a-112, the petitioner is required to prove, by clear and convincing evidence, that: (1) the department has made reasonable efforts to reunify the family; General Statutes § 17a-112 (j) (1); (2) termination is in the best interest of the child; General Statutes § 17a-112 (j) (2); and (3) there exists any one of the seven grounds for termination delineated in § 17a-112 (j) (3).” (Citation omitted; internal quotation marks omitted.) In re Melody L., 290 Conn. 131, 148-49, 962 A.2d 81 (2009).

“Personal rehabilitation . . . refers to the restoration of a parent to his or her former constructive and useful role as a parent [and] requires the trial court to analyze the [parent’s] 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 does not require [a parent] to prove precisely when she will be able to assume a responsible position in her child’s life. Nor does it require her to prove that she will be able to assume full responsibility for her child, unaided by available support systems. It requires the court to find, by clear and convincing evidence, that the level of rehabilitation she has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date she can assume a responsible position in her child’s life.” (Internal quotation marks omitted.) In re Trevon G., 109 Conn. App. 782, 789, 952 A.2d 1280 (2008).

The respondent argues that the only basis for the court’s finding that he failed to obtain sufficient rehabilitation was his refusal to participate in either sexual offender treatment or individual therapy. He contends that this finding is insufficient because (1) the evaluation on which the court and the petitioner relied did not expressly refer him to those services, (2) sexual offender treatment was inappropriate because the allegation of sexual abuse was unsubstantiated by the court and the department, and he denied any wrongdoing, (3) the department failed to refer him for individual therapy and (4) he substantially complied with all of the department’s recommendations. We are not persuaded.

In its memorandum of decision, the court determined from the evidence introduced at trial, that the petitioner did not establish by clear and convincing evidence that the respondent sexually molested Jazmine. It did find, however, that “[w]hile [the respondent] ultimately completed parenting classes, his repeated failure to engage in individual therapy and/or sexual offender treatment to enable him to reunify with [Jazmine] gives the court little confidence that he will be in a position to address the emotional and physical needs of his child.” The court concluded that the respondent’s “need for these services [was] particularly critical given [his] limited contact with Jazmine throughout her life and his lack of experience in caring for any of his children, much less a child as young as Jazmine.” The court therefore concluded that the respondent had not achieved rehabilitation to a level that would encourage a belief that he could assume a responsible position in Jazmine’s life.

The court’s finding that the respondent had not sufficiently achieved rehabilitation is supported by the record before us. At trial, a court-ordered evaluation dated April 17, 2006, and performed by William F. Hob-son, an expert in the treatment and risk assessment of sex offenders and sexual abusers was introduced into evidence. The purpose of the evaluation was to answer questions provided by the court as well as to provide an overall risk assessment of the likelihood that the respondent would sexually offend again. Hobson stated in his evaluation that it was difficult to assess the respondent’s risk of reoffending due to the significant discrepancies between the information contained in the documents offered by the court and the version of the same events provided by the respondent. On the basis of the information provided by the respondent as well as the information contained in the court documents, Hobson recommended in his report that the respondent not be allowed unsupervised conduct with Jazmine because of “both the unresolved allegations of sexual abuse but also his admitted poor judgment and failure to comply with [the department’s] rules governing their contact during their first overnight visit with his daughter.” Hobson further stated that the respondent “appears to demonstrate a pattern of making poor decisions while deflecting responsibility for his actions” and that his behavior suggested a tendency to attempt to deceive authorities and to act impulsively to meet his own emotional needs. With regard to counseling, Hobson recommended that both Jazmine and the respondent participate in therapy, both individually and then together, prior to any visitation taking place. He also suggested that if the respondent had sexually abused Jazmine, he should participate in specialized treatment.

Hobson also testified at trial. He stated that his concern about the respondent’s poor judgment and failure to comply with the department’s rules was based on the respondent’s decision to pick up Jazmine’s mother and bring her to his apartment, an action which was not authorized by the department. Hobson also described the discussion with the respondent regarding his past criminal behavior and characterized the respondent’s articulation of those events as “deflecting responsibility.” He further expressed a concern that the respondent could model this negative behavior for Jaz-mine, which behavior would not be helpful to her.

Also introduced into evidence was the report of the psychological evaluation ordered by the court and performed by Bruce Freedman, a clinical psychologist. That report stated that the respondent “showed a pattern of personality and behavior problems, with a lifetime of failed, unstable relationships, aggressive and other types of behavior problems, and arrests for some of these.” The report also noted that the respondent, “based upon his own accounts . . . had shown a number of instances of impulsive, aggressive behavior, some toward adults, other outbursts directed at children.” The report enumerated many times that the respondent “showed poor qualifications to care for a young child,” which conclusion was based not only on his conviction of risk of injury to a child and Jazmine’s allegation of sexual abuse, but also on the behavior and personality problems stated previously. On the basis of these problems, as well as the fact that the respondent insisted that he was not guilty of sexual abuse as to either allegation, the report concluded that “it would be impossible to provide even a modest guarantee of the safety and well-being of any child placed with him in the foreseeable future.” In answer to the question of what kind of counseling or other services were recommended, the report stated that “[s]imply put, [the respondent] did not feel he had any psychological problems, so that counseling or other services would not be likely to be productive.”

Freedman also testified at trial. He stated his conclusions as follows: “I believe that [the respondent] has psychological problems, which he is strongly inclined to deny. I believe that he has a history of serious behavior problems, impulsive, sometimes dangerous behavior. I believe that his record with four of his five children is best described as abandonment. I believe that, from everything I understand, that he did not show good parenting skills even during his unsupervised visit; that aside from being accused of touching his daughter, sexually, by her, he, during this [initial visit] by a man she was just getting familiar with, he felt the need to bathe her; that there were so many things that were inappropriate in his handling of children and his own adjustment in life that I did not think he was suitable as a caregiver.”

It was not clearly erroneous for the court to find that the department was justified in referring the respondent to sexual offender treatment. Hobson clearly suggested that the respondent should attend therapy both with and without Jazmine to address the behavior he exhibited that had made her uncomfortable, regardless of whether he had actually sexually abused her. In addition, Freedman expressly reported that the respondent’s denial of both allegations of sexual abuse caused serious concerns about the safety and well-being of a child in the respondent’s care. Both Hobson and Freeman enumerated several personality characteristics and behavior problems of the respondent that they believed rendered him an inadequate parent. The court had ample evidence from which it could have concluded that the department properly referred the respondent to sexual offender treatment.

The court also was presented with sufficient evidence from which it could conclude that the department referred the respondent to individual therapy. The court heard testimony from Cynthia Sevilla, a social worker with the department. In response to the court’s question about whether there was any service or step that the department recommended but in which the respondent had refused to participate, Sevilla stated that she suggested that he attend individual counseling for himself. In response to this recommendation, the respondent stated that he did not believe that he needed individual counseling. Sevilla further stated that she was prepared to recommend places where he could attend individual counseling. Thus, the court had sufficient evidence before it to conclude that the department had begun the process of referring the respondent to individual counseling, which the respondent preemptively refused.

The respondent finally argues that because he substantially complied with the specific steps set forth by the court, it was improper for the court to determine that he had failed to achieve a sufficient degree of personal rehabilitation. The court considered the respondent’s compliance with some of the department’s recommendations and stated that “[i]n light of the facts of this case, completion of parenting classes alone does not establish rehabilitation.” See In re Coby C., 107 Conn. App. 395, 406, 945 A.2d 529 (2008) (rejecting claim that substantial compliance with specific steps bars court from terminating parental rights). We conclude that on the basis of the evidence before it, the court properly found that the petitioner had established, by clear and convincing evidence, that the respondent had failed to achieve sufficient personal rehabilitation as would encourage the belief that within a reasonable time and considering the age and needs of the child, he could assume a responsible position in her life.

II

The respondent also contends that § 17a-112 (j) (3) (B) is unconstitutionally vague as applied to him because it fails to put a parent on notice that if he disagrees with a referral for sexual offender treatment and individual therapy, and consequently refuses to attend such treatment, that his parental rights could be terminated. We disagree and conclude that the statute and our case law provided more than sufficient guidance to the respondent.

“The void for vagueness doctrine is a procedural due process concept that originally was derived from the guarantees of due process contained in the fifth and fourteenth amendments to the United States constitution. . . . The doctrine requires statutes (1) to provide fair notice of the conduct they address and (2) to establish minimum guidelines to govern law enforcement. . . . [T]he minimum guidelines prong is applicable only where a statute is challenged as being unconstitutional on its face . . . .” (Citations omitted; internal quotation marks omitted.) In re Shane P., 58 Conn. App. 244, 253, 754 A.2d 169 (2000). Because the respondent did not make a facial challenge to the statute, we concentrate on the first requirement.

The respondent acknowledges that his claim was not raised at trial but maintains that it should be reviewed under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Our Supreme Court held in Golding that a party can prevail on a claim of constitutional error not preserved at trial only if all of the following four conditions are met: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id. We review the respondent’s claim because the record is adequate and his claim is of a constitutional magnitude. We conclude that the respondent’s claim fails to satisfy the third prong of Golding.

“Legislative enactments carry with them a strong presumption of constitutionality, and a party challenging the constitutionality of a validly enacted statute bears the weighty burden of proving unconstitutionality beyond a reasonable doubt. ... In analyzing the constitutionality of a statute, the court will read the statute narrowly in order to save its constitutionality, rather than broadly in order to destroy it.” (Citation omitted; internal quotation marks omitted.) In re Shyliesh H., 56 Conn. App. 167, 178, 743 A.2d 165 (1999). “A statute is not unconstitutional merely because a person must inquire farther as to the precise reach of its prohibitions, nor is it necessary that a statute list the exact conduct prohibited. . . . The constitution requires no more than a reasonable degree of certainty.” (Citations omitted.) Packer v. Board of Education, 246 Conn. 89, 101, 717 A.2d 117 (1998).

The respondent argues that he was not put on notice because neither the specific steps nor the department specifically informed him that a failure to attend sexual offender treatment would cause the court to terminate his parental rights. This argument is not convincing. Our Supreme Court has stated that “[i]n determining whether a parent has achieved sufficient personal rehabilitation, a court may consider whether the parent has corrected the factors that led to the initial commitment, regardless of whether those factors were included in specific expectations ordered by the court or imposed by the department. . . . Accordingly, successful completion of expressly articulated expectations is not sufficient to defeat a department claim that the parent has not achieved sufficient rehabilitation.” (Internal quotation marks omitted.) In re Melody L., supra, 290 Conn. 150-51.

The respondent received ample guidance so that he could appraise what was necessary to avoid a finding of failure to achieve sufficient personal rehabilitation. “Rehabilitate means to restore [a handicapped or delinquent person] to a useful and constructive place in society through social rehabilitation. . . . Likewise, [fjailure to rehabilitate is defined as the failure of a parent to achieve expectations following the adjudication and disposition of the prior neglect petition.” (Citations omitted; internal quotation marks omitted.) In re G.S., 117 Conn. App. 710, 722, 980 A.2d 935, cert. denied, 294 Conn. 919, 984 A.2d 67 (2009).

The department specifically referred the respondent to sexual offender treatment, and he refused to attend any counseling that did not include Jazmine as a direct participant. The referral was sufficient to put the respondent on notice that a failure to attend could result in the termination of his parental rights. Accordingly, we conclude that § 17a-112 (j) (3) (B) is not void for vagueness as applied to the respondent. The respondent has failed to meet the third Golding requirement that a clear constitutional violation exists, and his claim therefore must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       The respondent mother has not appealed from the trial court’s judgment terminating her parental rights. We refer in this opinion to the respondent father as the respondent.

       The court’s memorandum of decision spells the child’s name as “Jazmine,” but the various pleadings and exhibits admitted into evidence during the trial include variations of the child’s name such as “Jasmin,” “Jazmín” and “Jasmine.”

       See General Statutes § 46b-129 (j).

       The respondent was originally charged on September 2,1995, with sexual assault in the fourth degree and risk of ipjury to a child. The charges arose from an incident in which an eleven year old victim, the grandchild of the woman with whom the respondent was residing, accused the respondent of sexually molesting her while she was in his care. When asked about the allegation, the respondent claimed that he only “grabbed her between her legs and flipped her over on the couch a few times but he didn’t mean to be touching her sexually or anything except playfully.” The respondent subsequently pleaded guilty to the charge of risk of injury to a child.

       Jazmine used the word “toti” to refer to her vagina.

       Shortly after the alleged incident, Jazmine began referring to the respondent as a “bad boy” and a “monster.” She indicated that she did not want to visit with him again and became very upset when she was taken to the department’s office, which is located across the street from the respondent’s residence.

       The Waterbury police department declined to pursue charges against the respondent because Jazmine was unable to participate in the forensic interview, and the respondent passed a polygraph test in which he was asked a number of questions about the claim of sexual molestation by Jazmine. The department also found insufficient evidence to substantiate Jazmine’s allegation and subsequently closed its investigation.

       General Statutes § 17a-112 (j) (3) (C) provides for the termination of parental rights of a child when “the child has been denied, by reason of an act or acts of parental commission or omission including, but not limited to, sexual molestation or exploitation, severe physical abuse or a pattern of abuse, the care, guidance or control necessary for the child’s physical, educational, moral or emotional well-being, except that nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights . . . .”

       General Statutes § 17a-112 (j) (3) (B) (ii) provides for the termination of parental rights of a child when the child “is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .”

       The court stated: “While [the respondent] ultimately completed parenting classes, his repeated failure to engage in individual therapy and/or sexual offender treatment to enable him to reunify with [Jazmine] gives the court little confidence that he will be in a position to address the emotional and physical needs of his child. . . . [E]ven assuming no sexual misconduct occurred, [the respondent] should engage in therapy to be able to understand and address whatever he has done that caused [Jazmine] to feel uncomfortable or [what] he might inadvertently do to cause such uncomfortable feelings. Further, [the respondent’s] prior plea and conviction for risk of iryury to a minor involving an incident of alleged sexual misconduct [of] an eleven year old child (even if later retracted, as claimed by [the respondent]) supports a finding that [the respondent] might benefit from sexual offender treatment.” (Internal quotation marks omitted.)

       The respondent stated in oral argument that he was not making a facial challenge to § 17a-112 (j) (3) (B).


source: Caselaw Access Project

author: DiPENTIMA, C. J.

license: Public Domain

text:
    IN RE DIAMOND J.

    (AC 31426)
    DiPentima, C. J., and Beach and Kobinson, Js.
    Argued April 9
    officially released May 25, 2010

      Gladys I. Nieves, for the appellant (respondent mother).

      Stephen G. Vitelli, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

      Gloria L. Harris, 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.

   Opinion

DiPENTIMA, C. J.

The respondent mother of the minor child, Diamond J., appeals from the judgment of the trial court granting the motion of the petitioner, the commissioner of children and families, to open and to modify a disposition of protective supervision. The court modified the judgment by terminating protective supervision and ordering that the child be committed to the petitioner. On appeal, the respondent claims that the court improperly found that it was in the child’s best interest to be removed from the respondent’s care. We affirm the judgment of the trial court.

The record reveals the following factual, and procedural history. Diamond was bom in August, 2007. On September 30, 2008, the petitioner filed a neglect petition, alleging that Diamond was being denied proper care and attention, physically, educationally, emotionally or morally, and was permitted to live under conditions, circumstances or associations injurious to her well-being. The petitioner further alleged that the family had a history of living in deplorable and overcrowded conditions, a history of transience and staying in overcrowded motels, and that Diamond had significant developmental delays, low weight and medical needs. A social study, dated October 24, 2008, stated that Diamond was “diagnosed with profound developmental and global delays, [h]ypoxic [i]schemic and [ejncepha-lopathy [s]eizure, a pediatric metabolic disorder, which causes seizures and epilepsy and [microcephaly.” Her low weight placed her “way below the fifth percentile.” The social study recommended that Diamond be adjudicated as neglected and placed under an order of protective supervision for a period of six months.

On December 16, 2008, the respondent entered a plea of nolo contendere to the neglect petition. The court ordered protective supervision effective December 16, 2008, to June 16, 2009, directing Diamond to reside with the respondent. The court further ordered certain specific steps for the respondent, including complying with the directives of the department of children and families (department), keeping appointments set up by the department, learning appropriate caretaking techniques for a special needs child, cooperating with Diamond’s various medical providers, including a nutritionist, securing and maintaining adequate housing and consistently and timely addressing all of Diamond’s physical and medical needs.

On May 15, 2009, pursuant to General Statutes § 46b-121 and Practice Book §§ 34a-l and 35a-16, the petitioner filed a motion to open and to modify the disposition from protective supervision to commitment. The motion, accompanied by a May 12, 2009 social study, alleged that Diamond’s medical needs were not being addressed adequately in the respondent’s home, that Diamond had continued to lose weight while in the respondent’s care as a result of inadequate feeding and that Diamond’s seizure activity had increased in recent months.

On July 27, 2009, the court held a hearing on the petitioner’s motion. Michael Cowan, a social worker employed by the department, testified. He stated that while the main concern with respect to Diamond was her weight loss, there were additional concerns pertaining to deplorable home conditions and a chaotic living environment. With respect to the home conditions, Cowan testified that during his visits, conditions had worsened from January, 2009, through the end of June, 2009. As an example, he stated that a strong penetrating odor of rotten food and garbage permeated the residence. He also had observed partially eaten food and a large amount of clutter in Diamond’s room. Cowan further reported that Diamond developed scabies in June, 2009, and that this prevented her from receiving medical services for a period of three weeks. Cowan further indicated that a four year old child, known as Justin, would periodically stay in the residence. Justin displayed inappropriate behaviors, and a subsequent investigation by the department revealed that he was a victim of physical neglect and sexual abuse by his mother and her boyfriend. Cowan expressed concern that the respondent permitted Justin to stay in the same residence and to sleep in the same room as Diamond for a period of time after he acted inappropriately. Last, Cowan testified that there were other issues regarding the respondent’s “poor judgment.” He stated that she failed to keep a food log to record Diamond’s caloric intake, she transported her on a city bus against medical advice to refrain from doing so and she allowed the maternal grandmother to have too great a role in decision making as to Diamond.

During cross-examination, Cowan acknowledged that the respondent had reported Justin’s behaviors to him, that Diamond recently had gained weight following a change in medication and that the home conditions had improved significantly the week prior to the hearing. The court then heard testimony from the respondent.

Immediately following the conclusion of the testimony and argument of counsel, the court issued an oral decision granting the petitioner’s motion. The court summarized the testimony and the three primary issues before it, namely, Diamond’s weight, the conditions of the home and Justin’s presence in the home. It then stated: “So, the court looks at all these factors in coming to the following conclusion: the court finds that the [petitioner] has met [her] burden with regard to [her] motion to modify the disposition in this case from [protective services] to commitment, finds that it is in the child’s best interest to be committed to the care and custody of the [petitioner]. The court will issue that order. . . . The court is going to make the findings that continuation in the home will be contrary to the child’s welfare. The court’s also going to find that reasonable efforts were made to prevent removal, and the court notes that as a part of that finding it should be noted that there have been a number of services in the home with regard—pursuant to referrals by the department for services in the home to assist [the respondent] over the past number of months. Nonetheless, based on all the evidence that’s come out at the hearing, the court finds that removal is in the child’s best interest . . . .” This appeal followed.

Practice Book § 35a-16 provides in relevant part: “Motions to modify dispositions are dispositional in nature based on the prior adjudication, and the judicial authority shall determine whether a modification is in the best interests of the child or youth upon a fair preponderance of the evidence. . . .” Additionally, we are mindful of our limited standard of review. “To determine whether a custodial placement is in the best interest of the child, the court uses its broad discretion to choose a place that will foster the child’s interest in sustained growth, development, well-being, and in the continuity and stability of its environment. . . . We have stated that when making the determination of what is in the best interest of the child, [t]he authority to exercise the judicial discretion under the circumstances revealed by the finding is not conferred upon this court, but upon the trial court, and . . . we are not privileged to usurp that authority or to substitute ourselves for the trial court. ... A mere difference of opinion or judgment cannot justify our intervention. Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference. ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.” (Emphasis in original; internal quotation marks omitted.) In re Patricia C., 93 Conn. App. 25, 32-33, 887 A.2d 929, cert. denied, 277 Conn. 931, 896 A.2d 101 (2006). Further, we note that “[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. . . . [0]n review by this court every reasonable presumption is made in favor of the trial court’s ruling.” (Emphasis in original; internal quotation marks omitted.) Id., 36.

In the present case, the court’s oral decision consisted of approximately four pages of transcript. The first three pages contain a description and summary of the testimony presented during the hearing relating to Diamond’s weight issues, the conditions of the home and the judgment of the respondent in permitting Justin to remain in the home after having exhibited abnormal behavior. The court then stated that it considered all of these factors in reaching its conclusion that the petitioner had met her burden in regard to the motion to modify the disposition from protective supervision to commitment.

The respondent failed to provide this court with a signed transcript of the court’s oral decision. See Practice Book § 64-1 (a). “When the record does not contain either a memorandum of decision or a transcribed copy of an oral decision signed by the trial court stating the reasons for its decision, this court frequently has declined to review the claims on appeal because the appellant has failed to provide the court with an adequate record for review. ... If there is an unsigned transcript on file in connection with an appeal, the claims of error raised by the plaintiff may be reviewed if this court determines that the transcript adequately reveals the basis of the trial court’s decision.” (Citation omitted; internal quotation marks omitted.) Solano v. Calegari, 108 Conn. App. 731, 734 n.4, 949 A.2d 1257, cert. denied, 289 Conn. 943, 959 A.2d 1010 (2008). We conclude that the transcript does not adequately reveal the basis for the court’s decision to grant the petitioner’s motion to modify. The court’s review of the evidence does not reveal its findings with respect to the factors the court considered in reaching its conclusion.

The respondent’s failure to seek a signed transcript or subsequently to request an articulation pursuant to Practice Book § 66-5 deprived the court of the opportunity to identify clearly the bases for its determination that commitment was in the best interest of Diamond. “[A]n articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification. . . . An articulation may be necessary where the trial court fails completely to state any basis for its decision ... or where the basis, although stated, is unclear. . . . The purpose of an articulation is to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal. . . . [W]e will, in the absence of a motion for articulation, assume that the trial court acted properly.” (Citation omitted; internal quotation marks omitted.) In re G.S., 117 Conn. App. 710, 720, 980 A.2d 935, cert. denied, 294 Conn. 919, 984 A.2d 67 (2009).

We conclude that the unsigned transcript fails to reveal adequately the bases for the court’s decision to grant the petitioner’s motion to modify the disposition from protective supervision to commitment. As the appellant, the respondent bore the burden of providing this court with an adequate record to review the claims presented on appeal. Practice Book § 61-10; see also In re Emerald C., 108 Conn. App. 839, 855 n.11, 949 A.2d 1266, cert. denied, 289 Conn. 923, 958 A.2d 150, 151 (2008). We therefore decline to review the claims raised on appeal due to an inadequate record.

The judgment is affirmed.

In this opinion the other judges concurred.

       The record reveals that the whereabouts of the father of Diamond are unknown. Because he is not a party to this appeal, we refer in this opinion to the respondent mother as the respondent.

       See General Statutes § 46b-129 (j) and Practice Book § 33a-6.

       The May 12, 2009 social study stated that Diamond’s weight had decreased from seventeen pounds, four ounces in November, 2008, to fifteen pounds, four ounces on May 4, 2009.

       For example, the court stated: “[C]learly, the issue of the child’s weight continues to be an issue. She’s been gaining weight, there’s evidence as to that, there’s no question there’s evidence as to that. And the specific reason why there was weight loss and why there may be some weight gain now, I don’t think that’s clear, but the issue concerning weight being a matter of concern for her is still present. That’s still on the table. So, that’s one thing the court had to consider.”
      Similarly, with respect to the matter of the condition of the home, the court stated: “Cowan testified with regard to the conditions based upon some of his visits that took place over the past couple of months. He’s testified that upon some more recent visits to the property, the home had in fact appeared to be a lot cleaner, things were getting better. In fact, I think the term that was used was [that] there was some significant improvement in terms of how the place started to look, but there’s no question that the home had been in a state at a point when . . . Cowan went to conduct the home visit that it raised significant concern for the department.”

       General Statutes § 46b-129 (j) provides in relevant part: “Upon finding and adjudging that any child or youth is uncared-for, neglected or dependent, the court may commit such child or youth to the Commissioner of Children and Families. Such commitment shall remain in effect until further order of the court, except that such commitment may be revoked or parental rights terminated at any time by the court, or the court may vest such child’s or youth’s care and personal custody in any private or public agency that is permitted by law to care for neglected, uncared-for or dependent children or youths or with any person or persons found to be suitable and worthy of such responsibility by the court. . . . The commissioner may place any child or youth so committed to the commissioner in a suitable foster home or in the home of a person related by blood to such child or youth or in a licensed child-caring institution or in the care and custody of any accredited, licensed or approved child-caring agency . . . .”

       Practice Book § 64-1 (a) provides in relevant part: “If oral, the decision shall be recorded by a court reporter and, if there is an appeal, the trial court shall create a memorandum of decision for use in the appeal by ordering a transcript of the portion of the proceedings in which it stated its oral decision. The transcript of the decision shall be signed by the trial judge and filed in the trial court clerk’s office. . . .”

       “An articulation may be necessary where the trial court fails completely to state any basis for its decision ... or where the basis, although stated, is unclear. ... It is the responsibility of the appellant to provide an adequate record for review as provided in [Practice Book §] 61-10.” (Internal quotation marks omitted.) Burns v. Quinnipiac University, 120 Conn. App. 311, 319, 991 A.2d 666 (2010); see also In re Goby C., 107 Conn. App. 396, 408 n.9, 945 A.2d 529 (2008).


author: FLYNN, C. J.

text:
    DENNIS MARROQUIN v. F. MONARCA MASONRY ET AL.
    (AC 30692)
    Flynn, C. J., and Robinson and Sullivan, Js.

      Argued October 26, 2009
    officially released June 1, 2010

      David A. Kelly, for the appellant (defendant MRI Construction, Inc.).

      Timothy G. Zych, for the appellees (named defendant et al.).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

FLYNN, C. J.

This workers’ compensation appeal arises out of a dispute between two employers, F. Monarca Masonry (Monarca) and MRI Construction, Inc. (MRI), both defendants in this case, as to which of them is responsible for surgical and indemnity benefits arising from two surgical procedures that the nonap-pearing plaintiff, Dennis Marroquin, (claimant) underwent after experiencing severe pain on September 20, 2004. MRI appeals from the decision of the workers’ compensation review board (board) affirming the findings and conclusion of the workers’ compensation commissioner (commissioner), in which the commissioner found that the claimant’s surgeries on October 15, 2004, and June 10, 2005, were related to an earlier injury he suffered on June 21, 2001, while he was employed by MRI and were not related to an alleged new injury sustained on September 20, 2004, while he was employed by Monarca. In accordance with these findings, the commissioner ordered MRI to reimburse Monarca $51,535 for medical and indemnity benefits that it had paid on behalf of the claimant. On appeal, MRI claims that the board improperly affirmed the decision of the commissioner: (1) ordering MRI to reimburse Monarca for moneys that it had paid to, or on behalf of, the claimant when the commissioner was without statutory authority or subject matter jurisdiction to make such an order and (2) that no second injury had occurred to the claimant on September 20, 2004. We affirm the decision of the board.

The following facts are not in dispute. On June 21, 2001, the claimant suffered an inguinal hernia in his left groin while employed by MRI. He underwent surgery to repair the hernia, wherein surgical mesh was used to reinforce the injured area. This injury was work related, and the claim was administered by Eastern Casualty Insurance Company (Eastern), MRI’s workers’ compensation insurance carrier. On September 20, 2004, the claimant, while working for Monarca, was standing on scaffolding as he turned his body in an awkward manner while attempting to retrieve some cinder blocks, each weighing approximately thirty-seven pounds, from overhead. When attempting to get the third block, the claimant felt a pop in his groin and experienced sharp pain. Upon investigation of the groin area, the claimant found a large bulge, which he showed to his supervisor who told him to seek immediate medical attention. The claimant went to St. Vincent’s Immediate Health Care Clinic and then to St. Vincent’s Hospital, where he was admitted and treated nonsurgically. His diagnosis was acute diverticulitis and a possible hernia in the left groin. The claimant was discharged from the hospital three days later and was referred to the surgical clinic for further treatment.

On October 15, 2004, Vincent P. Donnelly, a surgeon at St. Vincent’s Medical Center, performed a surgical exploration of the left inguinal area where he discovered marked inflammation and hard scar tissue. He also discovered that‘the mesh that had been used in the 2001 hernia surgery had migrated out of the inguinal region. Dr. Donnelly, however, did not find a recurrent or a new hernia. After thoroughly exploring the groin area and removing as much of the mesh as he could during this procedure, he ended the surgery, and the claimant was discharged from the hospital later that day. Dr. Donnelly opined that, although the claimant said he first felt the bulge after lifting the cinder block on September 20, 2004, he likely had had the bulge for some time prior to that date.

On October 18, 2004, the claimant returned to St. Vincent’s Hospital with an infected wound, which was treated, and antibiotics were prescribed for him. The claimant continued to go to St. Vincent’s Surgical Clinic for treatment of pain and for drainage of his infected wound through December, 2004. Dr. Donnelly suggested further surgery to remove the remaining mesh, and, on June 10, 2005, Dr. Donnelly performed a second surgery to remove the remaining mesh, which was infected, and to repair a perforation of the colon, apparently caused by the mesh. Dr. Donnelly testified, and the commissioner found, that “the mesh plug from the first injury caused the fistula from the colon into the mesh in the groin, which caused the chronic infection, and the presence of the diverticulosis was incidental.” As a result of the claimant’s surgeries, Monarca and its insurer, Travelers Indemnity Company, paid $51,535 in medical and indemnity benefits associated with the claimant’s workers’ compensation claim.

On January 9, 2006, Monarca filed a request for an informal hearing before the commissioner seeking reimbursement from MRI for moneys it had expended on behalf of the claimant; a preformal hearing request and a formal hearing request followed on January 9, 2006, and July 9, 2007, respectively. The issue, as set forth by the commissioner in her November 26, 2007 finding and award, was “[w]hether Eastern ... is obligated to reimburse . . . Travelers for medical and indemnity benefits arising from the October 15, 2004 and June 10, 2005 surgeries under General Statutes § 31-299b.”

In her written decision, the commissioner found that “the claimant did not sustain a new inguinal hernia as a result of the September 20, 2004 lifting incident” and that the cause of the bulge or mass found in the claimant’s groin was due to the mesh put in place during the claimant’s prior hernia surgery on June 21, 2001. Specifically, she explained that “the mesh plug from the 2001 surgery caused the fistula from the colon into the mesh in the groin which caused the chronic infection, and that the presence of the diverticulosis was incidental. Thus . . . the mesh plug from the 2001 hernia surgery caused the fistula from the colon into the mesh in the groin which caused the infection and the subsequent need for the October 15, 2004 surgery.” She concluded that this also caused the need for the additional surgeiy on June 10, 2005. The commissioner did not find persuasive Dr. Donnelly’s opinion that the claimant’s infection arose out of the September 20,2004 lifting incident. Rather, she found that the infection, the fistula and the mass, which resulted in the need for the surgeries performed by Dr. Donnelly, were caused by the mesh put in place during the 2001 surgery and, thus, that the claim for benefits was the responsibility of MRI and its insurer, Eastern. The commissioner then ordered MRI and Eastern to reimburse to Monarca and its insurer, Travelers Indemnity Company, the sum of $51,535, which they had paid on the claimant’s behalf. MRI thereafter filed a motion to correct the finding and award, which the commissioner denied.

MRI appealed to the board from the commissioner’s denial of the motion to correct and from her finding and award. On December 19, 2008, the board affirmed the decisions of the commissioner. This appeal followed.

I

MRI claims that “there exists no subject matter jurisdiction or statutory authority under General Statutes § 31-299b, or any other provision of the Connecticut Workers’ Compensation Act [act], General Statutes § 31-275 et seq., permitting a [c]ommissioner to order one employer/carrier to reimburse another employer/ carrier for benefits that the later employer/carrier has already accepted as compensable and paid to the [claimant in connection with a recurrent injury.” We conclude that the commissioner had both subject matter jurisdiction over the case and the authority to order MRI to reimburse Monarca for moneys it expended on the claimant’s behalf.

“Jurisdiction of the subject-matter is the power . . . to hear and determine cases of the general class to which the proceedings in question belong. ... A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy. . . . This concept, however, is not limited to courts. Administrative agencies . . . are tribunals of limited jurisdiction and their jurisdiction is dependent entirely upon the validity of the statutes vesting them with power .... As our Supreme Court has explained, certain jurisdictional facts are essential to establish the statutory jurisdiction of tribunals of limited authority. The existence of these facts is fundamental to the power to entertain and adjudicate a proceeding on the merits. In short, such facts condition the power to act.” (Citation omitted; internal quotation marks omitted.) Dept. of Public Safety v. Freedom of Information Commission, 103 Conn. App. 571, 576-77, 930 A.2d 739, cert. denied, 284 Conn. 930, 934 A.2d 245 (2007). Furthermore, once subject matter jurisdiction is questioned, the jurisdictional question generally must be resolved before the substantive issues of the appeal are addressed. See Conboy v. State, 292 Conn. 642, 652-53, 974 A.2d 669 (2009). “[A] determination regarding [an agency’s] subject matter jurisdiction is a question of law . . . .” (Internal quotation marks omitted.) Dept. of Public Safety v. Freedom of Information Commission, supra, 576.

In the present case, MRI contends that the commissioner did not have subject matter jurisdiction to order MRI to reimburse Monarca. MRI does not argue that the commissioner could not hear the case, only that she could not enter the order that she entered. We conclude that such a claim relates to the authority of the commissioner, not to the jurisdiction of the commissioner, and we further conclude that the commissioner had subject matter jurisdiction over the case.

“The primary statutory provision establishing the subject matter jurisdiction of the commissioner is General Statutes ... § 31-278. [That statute] provides in relevant part that each commissioner shall have all powers necessary to enable [such commissioner] to perform the duties imposed ... by the provisions of [the act], . . . [Each commissioner\ shall have jurisdiction of all claims and questions arising . . . under [the act] . . . .” (Citation omitted; internal quotation marks omitted.) Del Toro v. Stamford, 270 Conn. 532, 540-41, 853 A.2d 95 (2004).

General Statutes § 31-278 clearly provides that each commissioner has jurisdiction of all claims and questions arising under the act. A question as to whether the claimant suffered from a new injury, a recurrent injury or something else, along with a question of which employer(s) would be responsible for compensation and in what proportion are claims and questions arising under the act. Pursuant to § 31-299b, “[i]f an employee suffers an injury or disease for which compensation is found by the commissioner to be payable according to the provisions of this chapter, the employer who last employed the claimant prior to the filing of the claim, or the employer’s insurer, shall be initially hable for the payment of such compensation. The commissioner shall, within a reasonable period of time after issuing an award, on the basis of the record of the hearing, determine whether prior employers, or their insurers, are liable for a portion of such compensation and the extent of their liability. If prior employers are found to be so hable, the commissioner shah order such employers or their insurers to reimburse the initially hable employer or insurer according to the proportion of their liability. . . .”

In the present case, the commissioner was called on to determine whether the claimant’s September 20,2004 incident and subsequent surgeries were related to a new injury or to the claimant’s previous injury. She also was called on to assess the proportional liability of the claimant’s employers, current and former, for the September 20, 2004 incident and subsequent surgeries. Under the wording of § 31-299b, the commissioner has the jurisdiction to “determine whether prior employers, or their insurers, are liable for a portion of [the claimant’s] compensation and the extent of their liability. . . .” General Statutes § 31-299b. On the basis of this clear language, we conclude that the commissioner had subject matter jurisdiction over this case. The issue of whether the commissioner had the authority to order reimbursement on the facts of this case, however, is a little more complicated.

MRI argues that pursuant to our Supreme Court’s construction of § 31-299b in Hatt v. Burlington Coat Factory, 263 Conn. 279, 313, 819 A.2d 260 (2003), the commissioner only has the authority to order reimbursement for claims “involving occupational disease and repetitive trauma . . . [and] . . . the [commissioner made no finding that this claim involved an occupational disease or [a] repetitive trauma.” We are not persuaded.

At the outset, we set forth the applicable standard of review. Because this claim presents an issue of statutory interpretation, our review is plenary. See Esposito v. Simkins Industries, Inc., 286 Conn. 319, 326, 943 A.2d 456 (2008). Claims “that present pure questions of law . . . invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . We have determined, therefore, that the traditional deference accorded to an agency’s interpretation of a statutory term is unwarranted when the construction of a statute . . . has not previously been subjected to judicial scrutiny [or to] ... a governmental agency’s time-tested interpretation . . . .” (Internal quotation marks omitted.) Id.

Although § 31-299b previously has been subjected to judicial scrutiny in Halt, neither this court nor our Supreme Court ever has considered whether that interpretation applies in the context of a claimant suffering a recurrent injury while employed by a subsequent employer. “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent 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 [the] case, including the question of whether the language actually does apply.” (Internal quotation marks omitted.) Id., 327.

Relying on our Supreme Court’s interpretation of § 31-299b in Hatt, MRI argues that the commissioner only has the authority to order reimbursement in cases of repetitive trauma and occupational disease. We conclude that Hatt does not control under the facts of this case. In Hatt, the claimant had suffered two distinct injuries to her left foot while working for the same employer; the employer, however, had changed insurance carriers during the time between the claimant’s first and second injuries. Hatt v. Burlington Coat Factory, supra, 263 Conn. 285. One of the questions before the Supreme Court was whether, in the case of two distinct injuries, both of which occurred while the claimant was working for the same employer, there could be apportionment between the two insurers whose coverage did not overlap when both injuries involved the same foot. Id., 280-83. The court held that apportionment was not appropriate when there was a second distinct injury and that the second employer or insurer retained sole liability for the second injury. Id., 308. The second insurer had argued that apportionment was possible either under the common law or under § 31-299b. Id., 282-83. Our Supreme Court evaluated the interplay between § 31-299b and General Statutes § 31-349. In § 31-349, the legislature, in part, closed the second injury fund to new claims and required the

insurer at the time of the second injury to retain sole liability for a claimant’s new injury. See id., 308. “[I]n § 31-299b, the legislature explicitly provided for an apportionment scheme in the single injury and multiple employer or insurer scenario.” Id., 311. Accordingly, the Supreme Court held that apportionment was not available to a second employer or insurer when a second distinct injury occurs. See id., 312.

In reviewing Hatt, we agree with MRI that the court used very strong language in stating that “§ 31-299b is applicable only to single instances of occupational disease or repetitive trauma . . . .” Id., 317. The case, however, concerned a second insurer that was seeking apportionment when the claimant had two separate and distinct injuries to the same body part, and the board had held the second insurer solely liable. Id., 287. The case did not concern a single injury that had resultant complications of sorts years later. Therefore, although Hatt is useful to our analysis, it is not completely on point, and we conclude that the court’s statement that the apportionment permissible pursuant to § 31-299b “is applicable only to single instances of occupational disease or repetitive trauma”; id., 317; is not controlling under the markedly different facts of the present case.

Rather than the case the Supreme Court was presented with in Hatt, namely, successive insurers for the same employer and a claimant with two separate and distinct injuries, each of which was suffered during a different insurer’s policy coverage, we are presented with multiple insurers and a claimant with a single injury. We do find highly significant the Supreme Court’s statement in Hatt that in enacting § 31-299b, “the legislature explicitly provided for an apportionment scheme in the single injury and multiple employer or insurer scenario”; id., 311; and we conclude that under § 31-299b, the commissioner had the authority to apportion liability to the responsible employer-insurer in this “single injury and multiple employer or insurer scenario.” Id.

Section 31-299b provides in relevant part: “If an employee suffers an injury or disease for which compensation is found by the commissioner to be payable according to the provisions of this chapter, the employer who last employed the claimant prior to the filing of the claim, or the employer’s insurer, shall be initially liable for the payment of such compensation. The commissioner shall, within a reasonable period of time after issuing an award, on the basis of the record of the hearing, determine whether prior employers, or their insurers, are liable for a portion of such compensation and the extent of their liability. If prior employers are found to be so hable, the commissioner shall order such employers or their insurers to reimburse the initially hable employer or insurer according to the proportion of their liability. . . .”

In this case, the commissioner found that the claimant’s June 21, 2001 injury was the cause of the September 20, 2004 incident and related need for surgeries, and that there was not a new injury involved. In accordance with § 31-299b, Monarca, as “the employer who last employed the claimant prior to the filing of the claim, or the employer’s insurer”; General Statutes § 31-299b; initially was hable for the payment of such compensation. It then sought, again in accordance with § 31-299b, for the commissioner to “determine whether prior employers, or their insurers, [were] hable for a portion of such compensation and the extent of their liability. . . .” General Statutes § 31-299b. Until the commissioner made her factual findings, neither employer-insurer knew who the commissioner ultimately would find responsible for the claimant’s compensation or whether this was a second injury, a recurrence of the first injury or something else. Once the commissioner made her findings and concluded that the claimant had not suffered a new injury but had suffered complications from the first injury, the commissioner had the authority, pursuant to § 31-299b, to order the former employer-insurer to reimburse the present employer-insurer.

II

MRI also claims that the board improperly affirmed the decision of the commissioner concluding that no second injury had occurred to the claimant on September 20, 2004. Specifically, MRI argues that the decision of the board, affirming the commissioner’s decisions, must be reversed because “(1) it is incorrect in law; (2) it includes facts found without evidence; and (3) it fails to include evidentiary facts that were uncontra-dicted.” We are not persuaded.

In reviewing MRI’s claim, we employ the following standard of review. “A party aggrieved by a commissioner’s decision to grant or deny an award may appeal to the board pursuant to General Statutes § 31-301. The board is obliged to hear the appeal on the record and not retry the facts. . . . [T]he power and duty of determining the facts rests on the commissioner, the trier of facts. . . . The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . Our scope of review of the actions of the board is similarly limited. . . . The role of this court is to determine whether the . . . [board’s] decision results from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Internal quotation marks omitted.) McFarland v. Dept. of Developmental Services, 115 Conn. App. 306, 310-11, 971 A.2d 853, cert. denied, 293 Conn. 919, 979 A.2d 490 (2009).

MRI claims that the board improperly upheld the decision of the commissioner, which it claims was incorrect in law in that “it contravenes General Statutes § 31-349 and this court’s holding in Epps v. Beiersdorf, Inc., 41 Conn. App. 430, [675 A.2d 1377 (1996)].” MRI argues that “the employer/insurer at the time of the second injury retains sole liability for a claimant’s second injury and may not seek apportionment as against a previous employer.” MRI further argues that the medical evidence was uncontradicted that “the claimant suffered an ‘aggravation’ of his June 21, 2001 injury, which under Epps v. Beiersdorf, Inc., [supra, 430], required the [commissioner to conclude that the claimant suffered a second ‘injury’ and, therefore, [Monarca-Travelers] remained solely hable for the claimant’s injury as the employer/insurer at the time of the second injury.” We are not persuaded.

In Epps, this court reversed the decision of the board upholding the commissioner’s decision that the claimant’s workplace exposure to chemicals was not an aggravating factor or substantial causal factor that worsened his preexisting respiratory condition. Epps v. Beiersdorf, Inc., supra, 41 Conn. App. 431. The claimant in Epps had respiratory problems that were aggravated by his exposure to workplace chemicals, although the problems were not caused by this exposure. Id., 432. The commissioner concluded that the claimant had not proven that his condition was caused by his workplace exposure to chemicals, and this decision was upheld by the board.

In reversing the board’s decision on appeal, we explained that “the record contain[ed] no evidence on which the commissioner could have reasonably relied in determining that the [claimant’s] exposure to chemicals while employed as a compounder did not aggravate his preexisting respiratory condition.” Id., 434. Furthermore, “[o]ur review of the record revealfed] uncontra-dicted medical testimony indicating that the [claimant’s] constant workplace exposure to chemicals aggravated his respiratory condition.” Id., 435.

The commissioner in the Epps case had interpreted the medical testimony to support the conclusion that the plaintiffs exposure only irritated, but did not aggravate, his preexisting respiratory problems. Id., 433-34. We explained that “[t]his interpretation, however, overlooked] a fundamental tenet of workers’ compensation law, namely that an employer takes the employee in the state of health in which it finds the employee.” Id., 435. We also placed much emphasis on the uncontra-dicted medical testimony that “used the word ‘aggravating’ and not ‘irritating’ ” in explaining the interplay between the claimant’s workplace exposure to chemicals and recurrent respiratory problems. Id.

MRI argues that the present case is similar to Epps in that the uncontradicted medical testimony was that the claimant’s earlier injury was “ ‘aggravated’ by the September 20, 2004 lifting incident . . . [and that therefore] the only legally appropriate conclusion that the [commissioner could [have] reach[ed] was that the ‘aggravation’ suffered by the [claimant constituted a second ‘injury’ and, therefore, that [Monarca-Travelers] remained solely liable for the benefits paid subsequent to the September 20, 2004 lifting incident pursuant to § 31-349.”

Monarca argues that the testimony and reports clearly show that the claimant did not sustain a new injury on September 20, 2004, and that Dr. Donnelly’s use of the word “aggravated” was speculative. Monarca argues that Dr. Donnelly specifically stated that he merely was assuming that the lifting incident on September 20, 2004, was related to the claimant’s need for surgery and that Dr. Donnelly also admitted that he could not explain how the lifting incident was related to the infection that arose in the claimant but that he assumed that they must have been related. Monarca argues that this clearly demonstrates that Dr. Donnelly merely was speculating that the lifting incident and the need for surgery were related and that the commissioner properly discounted this testimony because it was not based on a reasonable medical probability and that the board properly upheld the commissioner’s decision. We agree.

The relevant testimony by Dr. Donnelly was as follows:

“[The Witness]: Perhaps the explanation for [the claimant’s] sudden pain [in his groin on September 20, 2004] would be that that was the moment that the leak started to occur from the colon into the mesh and into the groin, giving him an acute inflammatory reaction there. That’s supposition; I don’t have any way to explain it.
“Q. Well, the commissioner’s standard is reasonable medical probability, and they would like you to be more than 50 percent sure of any opinion you are giving. Is it your opinion that it was 50 percent or more?
“A. My feeling is ... if he did not have the mesh placed in his groin and get a fistula from the colon to the mesh that he might have had trouble with his diverticulum when he got to be sixty or seventy years of age, but he probably would not have it at that time.
“Q. And this reaching and straining and pulling activity he did that brought this—possibly brought this condition more to prominence at the time?
“A. I would say possibly. I would say probably, because he did not have the pain before that, and the pain and the mass occurred basically at the same time and were related to that fistula.
“Q. So is it fair to state that . . . this reaching and straining and lifting the cinder block . . . would have hastened the onset of him discovering this condition? Or how would you characterize it?
“A. I would think that, yeah.
“Q. Did it aggravate his condition, this lifting and stretching?
“A. Yes.”

Immediately thereafter, on cross-examination, the following colloquy occurred:

“Q. Aggravated how, doctor?
“A. Well, he did not have the pain and . . . swelling before he lifted those things . . . and he had them after. He had the pain and swelling afterward. So, I would assume that the lifting in some way is related to the mass and the subsequent demonstration of fistula.
“Q. Was that confirmed on operation of the mass, that there was not aggravation by that lifting, or was it just the pain increase?
“A. There was a lot of inflammation around the mesh and the groin at the first operation we did. From his history, I would assume that started ten days before, and it brought him to the emergency room.
“Q. But the condition you found on operation, was that caused by the lifting incident, the scar tissue and the mass around the mesh and the condition of the mesh to the colon?
“A. I think scar tissue around the mass—the mesh has probably been there for quite a while. The infection or inflammation of that probably was the inciting factor that caused the acute pain and maybe increased the swelling because infection is one of the cardinal symptoms of infection is swelling.
“Q. So, you believe that an infection arose as a result of the September 20 incident?
“A. Yes. I cannot really explain how, but, yes, I think it must have.
“Q. You could say that within reasonable medical probability?
“A. Yes.”

In her findings and award, the commissioner specifically stated that she did not “find Dr. Donnelly’s testimony persuasive in that he believed that an infection arose as a result of the September 20, 2004 incident.” She then, “on the [basis of the] totality of the evidence submitted,” specially found that “the insertion of the mesh plug from the 2001 surgery led to the fistula, colon infection, and inguinal mass, and subsequent need for hospitalization and surgeries.” The board affirmed the commissioner’s decision, concluding that the record did not demonstrate a new injury. Specifically, the board explained: “We appreciate that several issues in this matter were not completely resolved by the evidence presented. For instance, Dr. Donnelly could not explain what may have accounted for the ‘popping’ sensation experienced by the claimant at the time of the September 20, 2004 [incident]. Nor could the doctor explain the claimant’s insistence that he did not notice [that] he had a bulge in his groin until after the lifting incident . . . rather, the doctor theorized that the claimant had probably had the bulge for some time and simply did not realize it. In fact, Dr. Donnelly persisted in that explanation, even when pressed by counsel. Finally, the doctor’s testimony regarding the genesis of the claimant’s infection was vague and inconclusive, and we affirm the commissioner’s decision to disregard the doctor’s testimony on this point. However, the fact that these issues were not resolved to [MRI’s] satisfaction does not significantly detract from the overall tenor of Dr. Donnelly’s testimony or the thrust of the operative reports in terms of supporting the commissioner’s determination regarding the relationship between the lifting incident of September 20,2004, and the claimant’s surgeries in October, 2004, and June, 2005.”

MRI makes much of the fact that Dr. Donnelly used the word aggravate or aggravation to support its claim that the September 20, 2004 lifting incident caused a new injury. We agree, however, with the statement set forth in Orlando v. Reliable Construction Services, No. 4791 CRB-8-04-3 (April 6, 2005), that “it is not a mere increase in pain or symptoms that triggers a finding of a new injury or aggravation within the meaning of the [act]. Some finding that subsequent work exposures have contributed to a claimant’s condition must also be present.”

In the present case, we simply cannot agree that the mere use of the word “aggravate” under these circumstances demonstrated a causal relationship between the need for the two surgeries and the lifting incident. “Whether an expert’s testimony is expressed in terms of a reasonable probability that an event has occurred does not depend [on] the semantics of the expert or his use of any particular term or phrase, but rather, is determined by looking at the entire substance of the expert’s testimony.” Struckman v. Burns, 205 Conn. 542, 555, 534 A.2d 888 (1987). The record here simply does not demonstrate that the lifting incident contributed to the claimant’s need for surgery in 2004 and 2005. We agree with the commissioner and the board that the record as a whole supports the conclusion that the claimant’s need for the 2004 and 2005 surgeries was caused by the insertion of the mesh plug in the 2001 surgery, which, after migrating out of the inguinal region, led to the fistula, colon infection and inguinal mass.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       Eastern Casualty Insurance Company, the workers’ compensation liability insurer for MRI, and Travelers Indemnity Company, the workers’ compensation insurer for Monarca, also are parties to this action. For convenience, we refer to each employer and its insurer by the employer’s name unless otherwise necessary.

       In the workers’ compensation forum, MRI did not challenge either the commissioner’s subject matter jurisdiction or her authority to order reimbursement. It has raised both issues for the first time on appeal. We address the question of subject matter jurisdiction because if the tribunal from which an appeal has been taken improperly asserted jurisdiction, we are barred from hearing the merits of the appeal. See Connecticut Bank & Trust Co. v. Commission on Human Rights & Opportunities, 202 Conn. 150, 520 A.2d 186 (1987). We address the issue of the commissioner’s authority in order to put to rest any related question about the commissioner’s power under the circumstances of this case.

       General Statutes § 31-278 provides in relevant part: “Each commissioner shall, for the purposes of this chapter, have power to summon and examine under oath such witnesses, and may direct the production of, and examine or cause to be produced or examined, such books, records, vouchers, memoranda, documents, letters, contracts or other papers in relation to any matter at issue as he may find proper, and shall have the same powers in reference thereto as are vested in magistrates taking depositions and shall have the power to order depositions pursuant to section 52-148. He shall have power to certify to official acts and shall have all powers necessary to enable him to perform the duties imposed upon him by the provisions of this chapter. Each commissioner shall hear all claims and questions arising under this chapter in the district to which the commissioner is assigned and all such claims shall be filed in the district in which the claim arises ....’’