author: PETERS, J.

text:
    STATE OF CONNECTICUT v. GREGORY CYRUS
    (AC 28889)
    Flynn, C. J., and Beach and Peters, Js.
    Argued September 11
    officially released December 9, 2008

      Vincent J. Dooley, senior assistant state’s attorney, with whom, on the brief, was Patricia M. Froehlich, state’s attorney, for the appellant (state).

      Ernest Green, Jr., assistant public defender, with whom, on the brief, were Mark Shapera, assistant public defender, and Mark C. Hauslaib, special public defender, for the appellee (defendant).
   Opinion

PETERS, J.

Pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), a police officer has the authority, under the fourth amendment to the United States constitution, to stop the operator of a car if the officer has a reasonable and articulable suspicion that the operator has engaged in illegal conduct. In furtherance of this constitutional principle, our Supreme Court has held that a police officer has the right to conduct a Terry stop even if the reason for the stop is only that the officer observed an infraction under our traffic laws. State v. Dukes, 209 Conn. 98, 122, 547 A.2d 10 (1988). In this case, the state sought to justify a Terry stop by alleging an automobile operator’s violation of General Statutes § 14-99f (c), which prohibits the attachment of objects to a car so as “to interfere with the operator’s unobstructed view of the highway or to distract the attention of the operator.” The state appeals from the judgment of the trial court dismissing the charges against the defendant because, in the court’s view, the state did not establish that he had violated the statute. We affirm the judgment of the trial court.

On March 10, 2006, the state filed a three count information charging the defendant, Gregory Cyrus, with operating a motor vehicle in Danielson on that day while under the influence of intoxicating liquor in violation of General Statutes § 14-227a, operating a motor vehicle without carrying an operator’s license in violation of General Statutes § 14-213 and operating a motor vehicle with an obstructed view in violation of § 14-99f (c). The defendant pleaded not guilty and filed a motion to suppress evidence allegedly seized illegally by the police at the time of his arrest. After an evidentiary hearing, the court granted the defendant’s suppression motion. In response to the state’s motion for reconsideration, the court issued a supplemental finding in support of its ruling. The court then dismissed the charges against the defendant but granted the state’s request for permission to appeal from the ruling on the motion to suppress.

“[0]ur standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [When] the legal conclusions of the court axe challenged, [our review is plenary, and] we must determine whether they are legally and logically correct and whether they find support in the facts set out in the court’s [ruling] . . . .” (Internal quotation marks omitted.) State v. Jones, 281 Conn. 613, 654, 916 A.2d 17, cert. denied, 552 U.S. 868, 128 S. Ct. 164, 169 L. Ed. 2d 112 (2007).

In this case, the state challenges both the court’s findings of fact and its conclusions of law. As a matter of fact, the state claims that the court improperly found that the arresting officer stopped the defendant’s car merely because the officer observed something hanging from the defendant’s rearview mirror. As a matter of law, the state has maintained, at least in its principal brief, that the court improperly concluded that § 14-99f (c) requires the state to establish that such a hanging object in fact obstructed the operator’s vision or distracted the operator’s attention. We disagree with both claims.

I

In its initial memorandum of decision, the court made the following findings of fact in support of its determination that Trooper David Mattioli of the state police did not have a reasonable and articulable basis for stopping the defendant for operating a motor vehicle while under the influence of alcohol. Although Mattioli heard two anonymous tips about a motor vehicle being operated erratically that identified the make of the car and its license plate number, Mattioli’s own observation of a car with a license plate that fit this description did not disclose anything improper about its operation. The court found that this information was not sufficiently reliable to justify stopping the defendant’s car. On appeal, the state does not contest the validity of this finding by the court.

In response to the state’s motion to reconsider, the court addressed the state’s alternate contention that Mattioli had a second justifiable basis for stopping the defendant’s car because, noticing a chain or crucifix hanging from the car’s rearview mirror, Mattioli properly determined that the defendant was violating § 14-99f (c). The court found credible Mattioli’s testimony that he observed “a chain hanging approximately eight to ten inches, hanging from the rearview mirror” of the defendant’s car. The court heard conflicting evidence, however, about whether Mattioli had stopped the defendant’s car because he observed this object in motion. At the initial hearing, Mattioli testified that he stopped the car because he saw “a chain or crucifix . . . hanging from the rearview mirror which moved back and forth . . . .” At a subsequent hearing, however, in response to the prosecutor’s question whether “sometimes in your judgment there are things hanging from rearview mirrors that do obstruct the view of the driver. Is that correct?” Mattioli replied that “if it is not a busy night and I’m in a proactive mode, I try to stop as many cars as I can. If they have something hanging from the mirror, I will stop them, yes.” Viewing Mattioli’s testimony in its entirety, the court found that “Mattioli’s stop of the defendant was not based on a violation of the statute but was based solely on the fact that there was something hanging from the defendant’s mirror.” Because, in the court’s view, the statute required a showing that the object in question was in fact “obstructing the view of the driver or distracting the driver,” the court dismissed the charges against the defendant.

The state’s appeal purports to challenge, as clearly erroneous, the court’s factual finding that Mattioli’s stop of the defendant was based not on a violation of the statute, but on the simple fact that he observed something hanging from the defendant’s mirror. The state accurately reproduces the testimony that it presented to the court, but advances no reasoned analysis to support its contention that the court improperly found more credible Mattioli’s testimony about his routine practice than his testimony about what he observed when he stopped this defendant’s car. Because this claim was inadequately briefed on appeal, we deem it abandoned. See State v. Clark, 255 Conn. 268, 281 n.30, 764 A.2d 1251 (2001).

To the extent that it is relevant, any possible ambiguity in the record cannot readily be resolved in the state’s favor. We note that, at the suppression hearing, the state expressly asked the court to make a supplemental finding that Mattioli’s testimony was credible insofar as he testified that, prior to the investigatory stop, he had observed a chain hanging from the rearview mirror of the defendant’s vehicle, and the court so found. We further note, however, that the state did not ask for a supplemental finding, and the court made none, that Mattioli credibly testified that he had seen anything attached to the rearview mirror “which moved back and forth” in a distracting or obstructive manner. We cannot fill this gap in the record. Accordingly, we have no basis for faulting the court’s factual finding that Mattioli stopped the defendant’s car in accordance with his routine practice of stopping cars whenever he observed something attached to their rearview mirrors.

II

The state’s principal argument for reversal is that, as a matter of law, the trial court construed § 14-99f (c) too narrowly. Our standard of review for issues of statutory interpretation is well settled. “Issues of statutory construction raise questions of law, over which we exercise plenary review. . . . The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. . . . When construing a statute, [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. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Citations omitted; internal quotation marks omitted.) Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 401-402, 920 A.2d 1000 (2007).

The state’s argument on this issue is not advanced by its shifting view of the proper interpretation of § 14-99f (c). In its principal brief, the state took the position that the statute does not require any proof that the view of the operator actually be obstructed or that his attention actually be distracted. It relied on cases in other jurisdictions that have held that even relatively small objects hanging from a rearview mirror justify the minimal intrusion engendered by a motor vehicle stop. In its reply brief, however, the state concedes that our statute does not proscribe “all items hanging from a rearview mirror” but instead requires a showing that the item or object be hung in such a manner as to “interfere” with the unobstructed view of the highway or to “distract the operator.” (Emphasis in original.) In its reply brief, the state effectively agrees with the defendant that, on its face, § 14-99f (c) does not make the hanging of an object from a rearview mirror a per se infraction. Indeed, the defendant’s construction of the statute is compelled by the principle that criminal statutes are not to be read more broadly than their language plainly requires and that ambiguities in criminal statutes ordinarily are to be resolved in favor of the defendant. State v. Peeler, 271 Conn. 338, 434-35, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d 110 (2005).

In light of the state’s concession that § 14-99f (c) requires proof of interference with an operator’s unobstructed view or the operator’s distraction, the state is left with the difficult task of showing that the court improperly found that the state failed to meet its burden of proof. It urges this court to conclude that, even if Mattioli improperly stopped the defendant’s car simply because he observed a chain or crucifix hanging from the defendant’s rearview mirror, “[i]f the facts are sufficient to lead an officer to reasonably believe there was a violation, that will suffice, even if the officer is not certain about exactly what it takes to constitute a violation.”

Accepting this argument would stand the state’s burden of proof in a criminal case on its head. We read a trial court record to sustain the court’s judgment, not to overturn it. Matza v. Matza, 226 Conn. 166, 187, 627 A.2d 414 (1993). The state’s argument assumes that which the state was required to prove, namely, that there was credible evidence that the chain or crucifix that Mattioli observed was in fact interfering with the defendant’s vision or distracting his attention. In effect, this argument merely restates the state’s disagreement with the court’s contrary finding of fact. Again, we are not persuaded.

As the trier of fact, the court had the authority to find, on the credible record before it, that the state did not establish that Mattioli stopped the defendant’s car for any reason other than his mistaken, albeit good faith, belief that § 14-99f (c) makes it an infraction for a car to be driven with any object hanging from a rearview mirror. Although our legislature might have enacted such a statute, the state now concedes that it has not done so. On the record before us, therefore, the state has failed to establish that the trial court improperly dismissed the charges against the defendant. We leave for another day, on another record, the question of how much of a distraction or impairment of an operator’s vision the state must establish to prove a violation of § 14-99f (c).

The judgment is affirmed.

In this opinion the other judges concurred.

       Although the information referred to General Statutes § 14-99, the parties acknowledge that Trooper Mattioli stopped the defendant for violating General Statutes § 14-99f (c), which provides: “No article, device, sticker or ornament shall be attached or affixed to or hung on or in any motor vehicle in such a manner or location as to interfere with the operator’s unobstructed view of the highway or to distract the attention of the operator.”

       Although the court referred to §14-99 in its supplemental finding, as did the state in its information, it is clear that the statute at issue in this case is §14-99f (c).

       The state repeated its concession at oral argument in this court.

       For decisions in other states that similarly have declined to give an expansive construction to statutes prohibiting the placement on rearview mirrors of objects that obstruct an operator’s vision, see People v. White, 107 Cal. App. 4th 636, 132 Cal. Rptr. 2d 371 (2003), and Commonwealth v. Brazeau, 64 Mass. App. 65, 831 N.E.2d 372 (2005).

       Specifically, we need not and do not decide in this case whether a violation of § 14-99f (c) can be established merely by evidence that an object attached to a car’s rearview mirror was moving back and forth.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    GENEVIEVE A. FONTANELLA v. HOUSING AUTHORITY OF THE TOWN OF STAFFORD
    (AC 29211)
    Gruendel, Robinson and Pellegrino, Js.
    Argued October 22
    officially released December 9, 2008

      Donald J. McCarthy, Jr., for the appellant (plaintiff).

      Francis D. Paola, for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Genevieve A. Fontanella, appeals from the trial court’s rendering of summary judgment in favor of the defendant, the housing authority of the town of Stafford. On appeal, the plaintiff claims that there exists a genuine issue of material fact, which precludes summary judgment. We reverse the judgment of the trial court.

We base ora decision on the following procedural history. The plaintiffs complaint alleged that on December 13,2003, she was walking down an outdoor stairway owned and operated by the defendant when she slipped and fell on ice and snow. The plaintiff claims that as a result of the fall, she suffered fractures of her proximal humerus and other physical and emotional injuries.

On January 12, 2004, the plaintiffs attorney mailed a letter to the executive director of the defendant, John S. Hurchala, Jr., notifying the defendant of the plaintiffs intention to pursue a personal injury claim. The plaintiff thereafter filed a negligence action, seeking recovery for the injuries that resulted from the alleged fall.

As the case progressed, the defendant filed a motion for summary judgment pursuant to Practice Book § 17-49, asserting that there existed no genuine issue of material fact and that it was entitled to judgment as a matter of law. The defendant argued that the plaintiff failed to meet the statutory notice requirement set forth in General Statutes § 8-67, which is a prerequisite to bringing suit. That statute requires that a person injured on property owned or controlled by a municipality’s housing authority must serve written notice of an intention to bring an action upon either the chairman or secretary of the authority. The court found that the plaintiff did not meet this notice requirement and rendered summary judgment in favor of the defendant. This appeal followed.

On appeal, the plaintiff claims that the notice requirement of § 8-67 was satisfied by the letter addressed to the defendant’s executive director, Hurchala, and that at the very least, there is a genuine issue of material fact relating to whether the notice requirement was satisfied. We conclude that a dispositive genuine issue of material fact does exist and, therefore, reverse the judgment of the trial court.

Summary judgment is appropriate “if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Practice Book § 17-49. “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . Our review of the trial court’s decision to grant the defendant’s motion for summary judgment is plenary.” (Internal quotation marks omitted.) Stearns & Wheeler, LLC v. Kowalsky Bros., Inc., 289 Conn. 1, 7, 955 A.2d 538 (2008).

The material fact at issue in this case is the identity of the defendant’s secretary. General Statutes § 8-41 (a) provides that a housing authority “may employ a secretary, who shall be executive director . . . .” Annexed to the defendant’s motion for summary judgment is an affidavit from Laura L. Pandera, indicating that she “was the secretary of the Housing Authority of the Town of Stafford, CT” at the relevant time. The record also indicates, however, that Hurchaia was the executive director at the relevant time. Because § 8-41 (a) indicates that the secretary and executive director shall be the same individual, the conflicting accounts result in a genuine issue of material fact regarding the identity of the statutory secretary. As a result, summary judgment was inappropriate in the present case.

The judgment is reversed and the case remanded for further proceedings.

       General Statutes § 8-67 provides: “Any person injured in person or property within boundaries of property owned or controEed by an authority, for which injury such authority is or may be hable, may bring an action within two years after the cause of action therefor arose to recover damages from such authority, provided written notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained has been filed with the chairman or the secretary of the authority within six months after the cause of action therefor arose.” (Emphasis added.)
      We note that although the notice requirement of § 8-67 is a prerequisite to bringing suit, it is not a condition precedent. Rather, it is in the nature of a special defense that must be raised by the defendant. White v. Edmonds, 38 Conn. App. 175, 182-85, 659 A.2d 748 (1995).

       In concluding that there exists a genuine issue of material fact, we do not reach the other claims made by the plaintiff. These include: (1) that the defendant had actual notice of the plaintiffs intention to initiate suit, (2) that the defendant’s executive director had the authority to accept the notice on behalf of the defendant, (3) that the purpose of the notice provision was satisfied and (4) that the plaintiff reEed on the executive director’s representation that notice should be served on him.


author: BISHOP, J.

text:
    ANNA-MARIE GIBLEN v. ZOHER GHOGAWALA
    (AC 28997)
    Bishop, Beach and Borden, Js.

      Argued October 21
    officially released December 9, 2008

      Geoffrey S. Brandner, with whom, on the brief, was John Lino Ponzini, for the appellant (plaintiff).

      Richard A. O’Connor, for the appellee (defendant).
   Opinion

BISHOP, J.

The plaintiff, Anna-Marie Giblen, appeals from the summary judgment rendered by the trial court in favor of the defendant, Zoher Ghogawala. The plaintiff claims on appeal that the court improperly denied her motion to modify the scheduling order following the preclusion of the testimony of her expert witness, which preclusion formed the basis for the court’s subsequent rendering of summary judgment. We agree and, accordingly, reverse the judgment of the trial court.

The following facts and procedural history are relevant to the disposition of the plaintiffs appeal. The plaintiff filed this medical malpractice action on June 1, 2004, alleging that the defendant deviated from the standard of care during a February 15, 2002 surgery that he performed to alleviate her complaints of thigh, back and hip pain. Following the surgery, the plaintiff continued to seek treatment from the defendant but, because her pain eventually returned and persisted, she sought a second opinion. On October 4, 2003, the plaintiff underwent another surgery performed by a different surgeon and made nearly a full recoveiy. The plaintiff sought damages for the period of time between her two surgeries, alleging that during this time, she was in pain as a result of the defendant’s alleged negligence. She further alleged that her second surgery was necessitated by the defendant’s negligence in her initial surgery.

On October 25, 2005, the court entered a scheduling order establishing various discovery deadlines and a trial date of July 10, 2007. Pursuant to the scheduling order, the plaintiff was ordered to disclose her expert witnesses by June 2, 2006. On June 12, 2006, the defendant filed a motion to preclude the plaintiff from introducing expert testimony on the grounds that she had not disclosed her expert in accordance with the scheduling order and that this failure was prejudicial to him. The plaintiff did not file an objection, or any other response, to this motion. Thereafter, on August 7, 2006, the court granted the motion to preclude on the basis of the plaintiffs failure to comply with the scheduling order.

On November 21, 2006, the plaintiff filed a motion to modify the scheduling order. At the same time, the plaintiff disclosed her expert witness, the physician who had performed the second surgery. In the motion to modify, the plaintiff claimed that the late disclosure of her expert was caused by factors beyond her control in that her expert resides and practices medicine in Peru. The defendant objected to the motion to modify, citing the plaintiffs failure to indicate a good faith reason for lateness of the disclosure and the fact that the plaintiff did not indicate a willingness to make her expert available for deposition in the United States. On December 18, 2006, the court denied the motion to modify on the basis of the plaintiffs failure to comply with the scheduling order and the previous preclusion of her expert.

On January 4, 2007, the plaintiff filed a motion to reargue her motion to modify the scheduling order. In her motion, the plaintiff indicated that it had not been possible to disclose her expert earlier because her expert was located in Peru and “was involved in a personal injrny which interfered with his communications with the plaintiff and plaintiffs counsel.” The plaintiff further averred that she had traveled to Peru to obtain the specific medical language and opinion of her expert that was necessary to satisfy the rules of practice. The plaintiff offered to transport her expert to the New York area, at her expense, for deposition and suggested that modifying the scheduling order would not interfere with the July, 2007 trial date. The defendant filed an objection, and, on January 12, 2007, the plaintiff filed a reply to the defendant’s objection, suggesting that the trial date would not be affected by a modification of the scheduling order because the defendant had disclosed his expert and the plaintiff was ready to take the deposition of the defendant’s expert at any time. On January 23, 2007, the court denied the plaintiffs motion to reargue.

The defendant subsequently filed a motion for summary judgment premised on the preclusion order and the consequent inability of the plaintiff to establish a prima facie case of medical malpractice without expert testimony. On June 25, 2007, the court rendered summary judgment in favor of the defendant and this appeal followed.

Our Supreme Court has articulated the standard for imposing and reviewing sanctions for violation of discovery orders. The court held that “for a trial court’s order of sanctions for violation of a discovery order to withstand scrutiny, three requirements must be met. First, the order to be complied with must be reasonably clear. . . . Second, the record must establish that the order was in fact violated. . . . Third, the sanction imposed must be proportional to the violation.” Millbrook Owners Assn., Inc. v. Hamilton Standard, 257 Conn. 1, 17-18, 776 A.2d 1115 (2001).

Here, the plaintiff does not claim that the orders were unclear or that she did not violate the discovery orders. Rather, the plaintiff argues that the sanctions ordered by the court were not proportional to the violation. We must, therefore, consider whether the court abused its discretion in ordering sanctions that were not proportional to the violation. See id., 18.

“[Discretion imports something more than leeway in decision-making. ... It means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. ... In addition, the court’s discretion should be exercised mindful of the policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court. . . . The design of the rules of practice is both to facilitate business and to advance justice; they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice. . . . Rules are a means to justice, and not an end in themselves .... Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure. . . . Therefore, although dismissal of an action is not an abuse of discretion where a party shows a deliberate, contumacious or unwarranted disregard for the court’s authority . . . the court should be reluctant to employ the sanction of dismissal except as a last resort. . . . [T]he sanction of dismissal should be imposed only as a last resort, and where it would be the only reasonable remedy available to vindicate the legitimate interests of the other party and the court.” (Citations omitted; internal quotation marks omitted.) Id., 16-17.

“In determining the proportionality of a sanction to a violation, we have in the past considered the severity of the sanction imposed and the materiality of the evidence sought . . . whether the violation was inadvertent or wilful . . . and whether the absence of the sanction would result in prejudice to the party seeking the sanction.” (Citations omitted.) Forster v. Gianopoulos, 105 Conn. App. 702, 711, 939 A.2d 1242 (2008).

As noted, a plaintiff must adduce expert testimony in support of a complaint sounding in medical malpractice in order to establish a prima facie case. Because of the materiality of such evidence, serious attention and consideration must be given to its proper disclosure or preclusion. Although the plaintiffs disclosure violated the scheduling order, the plaintiffs explanation that she was having difficulties communicating with her expert because he was in Peru and had suffered a personal iryury prevent us from concluding that she acted in bad faith, particularly in the absence of such a finding by the trial court.

Additionally, when the plaintiff disclosed her expert, there were still more than seven months remaining before the commencement of jury selection and trial. The record reveals that the defendant disclosed his expert witness on October 30, 2006, before the plaintiff disclosed her expert and moved to modify the scheduling order. Thus, the defendant could not reasonably claim that the plaintiffs late disclosure prejudiced his ability to prepare for trial. Although we have previously upheld sanctions when expert disclosures were delayed and interfered with the orderly progress of trial, in this case, there was no claim by the defendant and no finding by the court that the late disclosure of the plaintiffs expert would interfere with the trial date. We therefore conclude that the preclusion of the plaintiffs expert was disproportionate to her violation of the scheduling order and that the court, therefore, improperly rendered summary judgment in favor of the defendant.

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

In this opinion the other judges concurred.

       “To prevail in a medical malpractice action, the plaintiff must prove (1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury. Generally, expert testimony is required to establish both the standard of care to which the defendant is held and the breach of that standard.” (Internal quotation marks omitted.) Vitone v. Waterbury Hospital, 88 Conn. App. 347, 351-52 n.4, 869 A.2d 672 (2005).


author: LAVINE, J.

text:
    IN RE JUSTICE V.

    (AC 29268)
    DiPentima, Gruendel and Lavine, Js.

      Argued September 22
    officially released December 9, 2008

      David J. Reich, for the appellant (respondent).

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

      Amy L. A. Klein, 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

LAVINE, J.

General Statutes § 46b-129 (j) provides in relevant part: “Upon finding . . . that any child . . . is . . . neglected . . . the court may commit such child ... to the Commissioner of Children and Families. . . . The court shall order specific steps that the parent must take to facilitate the return of the child ... to the custody of such parent.” (Emphasis added.) The main issue in this appeal is whether the court’s failure to order specific steps to facilitate reunification following a finding of neglect precludes the granting of a petition for the termination of parental rights on the ground of abandonment. We conclude, under the circumstances of this case, that the court’s failure to order specific steps does not preclude the termination of parental rights for abandonment.

The respondent mother appeals from the judgment of the trial court terminating her parental rights with respect to her minor child, claiming that the judgment should be reversed because (1) the court failed to order specific steps to facilitate reunification, (2) the court’s findings that (a) the respondent abandoned the child and (b) it was in the child’s best interest to terminate the respondent’s parental rights were clearly erroneous, and (3) there was insufficient evidence to support the permanency plan submitted by the petitioner, the commissioner of children and families. We affirm the judgment of the trial court.

The record discloses the following procedural history. The child was bom in 2002. In the spring of 2006, the respondent filed a petition in the Court of Probate for the district of New Milford-Bridgewater to transfer guardianship (transfer petition) of the child to the child’s maternal grandmother. On June 1, 2006, at the conclusion of the hearing on the transfer petition, the Probate Court sua sponte issued a decree temporarily transferring custody of the child to the petitioner. A hearing on the order of temporary custody was held in the Superior Court on June 9, 2006, but the respondent failed to appear. Due to the respondent’s default, the order of temporary custody was sustained.

On June 6,2006, the petitioner filed a neglect petition for the child. As the result of threats that the respondent made to employees of the department of children and families (department), on November 14, 2006, the court entered a protective order prohibiting the respondent from having contact with the child, except as arranged by the department.

The trial on the neglect petition took place on January 16, 2007, and the respondent again was defaulted for failure to appear. On that date, the child was adjudicated neglected and again committed to the custody of the petitioner. The respondent sought to open the adjudication, but her request was denied. The respondent then filed a motion to revoke the child’s commitment and to have the child’s custody transferred to the child’s maternal grandmother. On February 28, 2007, the petitioner submitted a permanency plan calling for the transfer of guardianship to the child’s paternal grandmother. On April 20, 2007, the respondent’s motion to transfer custody was denied, and a petition to terminate the respondent’s parental rights was filed pursuant to General Statutes § 17a-112 (j).* ** The termination petition was consolidated with the respondent’s objection to the permanency plan, and both were tried on July 16 and 17 and August 31, 2007. The court issued its memorandum of decision on September 26, 2007, terminating the respondent’s parental rights solely on the ground of abandonment and approving the permanency plan for the child. The respondent appealed. Additional facts will be included in subsequent parts of this opinion.

I

The respondent first claims that, at the time the child was adjudged neglected, the court improperly failed to order specific steps pursuant to § 46b-129 (j). The respondent failed to bring this omission to the attention of the court and claims, on appeal, that the judgment terminating her parental rights should be reversed because the court’s failure to order specific steps was plain error that resulted in manifest injustice. Although we agree that the court failed to follow the dictates of the applicable statute and order specific steps, we conclude that no injustice occurred because the respondent’s parental rights were terminated on the ground of abandonment, not failure to achieve sufficient personal rehabilitation. See General Statutes § 17a-112 (j).

The following procedural history and facts are related to the respondent’s claim. At the time the petitioner filed the neglect petition on June 6, 2006, she also filed form JD-JM-106, Rev. 5-99, entitled “Specific Steps.” In its memorandum of decision on the termination of parental rights petition, the court found that the specific steps form had never been signed or otherwise ordered by the court and delivered to the respondent. Although the petition for termination of the respondent’s parental rights originally alleged abandonment and failure to achieve a sufficient degree of personal rehabilitation; see footnote 4; the petitioner withdrew the ground of failure to achieve sufficient personal rehabilitation prior to trial. In its memorandum of decision on the termination petition, the court made a great number of factual findings, two of which are significant with respect to the respondent’s claim, namely, that the respondent would not have benefited from reunification efforts and that the respondent was not seeking to be reunified with the child but to have custody of the child transferred to the child’s maternal grandmother.

Our analysis begins with the applicable standard of review. Practice Book § 60-5 “provides in relevant part that [t]he court may reverse or modify the decision of the trial court if it determines . . . that the decision is . . . erroneous in law. . . . The plain error doctrine is not ... a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy.” (Internal quotation marks omitted.) State v. LaBrec, 270 Conn. 548, 559, 854 A.2d 1 (2004).

In this instance, we are called on to construe § 46b-129 (j) as it pertains to the termination of the respondent’s parental rights under § 17a-112 (j) (3) (A). Statutory construction is a question of law to which the plenary standard of review applies. See In re William D., 97 Conn. App. 600, 606, 905 A.2d 696 (2006), aff'd, 284 Conn. 305, 933 A.2d 1147 (2007). “[0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.” (Internal quotation marks omitted.) State v. Strich, 99 Conn. App. 611, 633, 915 A.2d 891, cert. denied, 282 Conn. 907, 920 A.2d 310, cert. denied, 552 U.S. 901, 128 S. Ct. 225, 169 L. Ed. 2d 171 (2007). Neither side claims that the relevant portion of § 46b-129 (j) is ambiguous. See General Statutes §§ 1-1 (a) and l-2z.

Section 46b-129 concerns, among other things, the commitment of a child to the custody of the petitioner and neglect petitions and informs the court that “[u]pon finding and adjudging that any child ... is uncared-for, neglected or dependent, [it] may commit such child ... to the [petitioner].” General Statutes § 46b-129 Q). It also contains an “explicit statutory requirement that a parent be given ‘specific steps’ to accomplish to facilitate the return of the child”; In re Shyliesh H., 56 Conn. App. 167, 179, 743 A.2d 165 (1999); to the custody of the parent. “Personal rehabilitation, therefore, is to be determined, in part, by compliance with those specific steps, which give the parent fair warning of what is required”; id.; to be reunited with the child.

“Parents have a constitutionally protected right to raise and care for their own children.” In re Juvenile Appeal (83-DE), 190 Conn. 310, 318, 460 A.2d 1277 (1983). “Where the legislature has chosen specific means to effectuate a fundamental right, failure to follow the mandatory provisions of the statute is plain error.” (Internal quotation marks omitted.) State v. Hicks, 97 Conn. App. 266, 271, 903 A.2d 685, cert. denied, 280 Conn. 930, 909 A.2d 958 (2006). “A trial court commits plain error when it fails to apply a clearly relevant statute to the case before it.” (Internal quotation marks omitted.) State v. Guckian, 27 Conn. App. 225, 246, 605 A.2d 874 (1992), aff'd, 226 Conn. 191, 627 A.2d 407 (1993). “It is plain error for a trial court to fail to apply an applicable statute, even in the absence of the statute having been brought to its attention by the parties.” Genovese v. Gallo Wine Merchants, Inc., 226 Conn. 475, 480 n.6, 628 A.2d 946 (1993). Here, the court failed to order specific steps. We conclude that although the court failed to comply with the statute, that failure did not result in manifest injustice. The fact that the respondent was defaulted for failure to appear does not change our conclusion. The court must comply with statutory requirements, even if a parent does not appear to contest the neglect petition. That conclusion, however, does not mark the end of our analysis.

“[Pjlain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. ... A defendant cannot prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.” (Internal quotation marks omitted.) State v. Jackson, 73 Conn. App. 338, 386, 808 A.2d 388, cert. denied, 262 Conn. 929, 814 A.2d 381 (2002). The respondent has failed to demonstrate how the court’s failure to order specific steps was so harmful that it resulted in manifest injustice.

The court’s memorandum of decision reflects the court’s understanding of the relevant law, noting that before parental rights can be terminated, the petitioner must prove by clear and convincing evidence that the department “made reasonable efforts to locate the parent and to reunify the child with the parent . . . .” General Statutes § 17a-112 (j) (1). “[The] court need not make that finding, however, if the evidence establishes that the parent is unable or unwilling to benefit from reunification efforts . . . .” In re Shaiesha O., 93 Conn. App. 42, 47, 887 A.2d 415 (2006). The court may find either that the department made reasonable efforts or that the respondent would not have benefited from such efforts. In re Amelia W., 62 Conn. App. 500, 504—505, 772 A.2d 619 (2001). In this case, the court found that specific steps had not been ordered to reunify the respondent with the child but that the respondent would not have benefited from efforts to reunify her with the child.

The facts found by the court and the evidence in the record support the court’s conclusion that the respondent would not have benefited from departmental services. Following the transfer of custody, the court found that the respondent exhibited threatening and inappropriate behavior toward department employees. On July 19, 2006, the respondent spoke with social worker Bryan Karibian and directed “a series of accusations laced with invectives and profanity” at the department in general and Karibian specifically. The respondent stated: “I have never slapped my fucking child. She needs to be hit. ... You know, I don’t hit [my child] but she needs a good fucking slap.” The court found that the respondent provided some insight to the genesis of her hostility toward the department, stating that “you have ruined [the child]. . . . She is fucking ruined. I was in the system. I was sent to juvy because my father beat the fuck out of me. But because my parents have money, I wasn’t taken into your system.” The respondent also threatened “to do something criminal” to the department employee who had prepared the guardianship study for the transfer petition. The respondent concluded, stating, “I don’t want to see my daughter because if I do, I will fucking take her and bring her to my mom’s.” She advised Karibian that she would send a picture of her middle finger if anyone asked her to work with department employees.

In March, 2007, Kerri Dejager, a department social worker assigned to the case, sent the respondent a letter introducing herself but only met the respondent in court on April 25, 2007. On that date, Dejager attempted to speak to the respondent and to give her a business card. The respondent refused to speak with Dejager or to take the business card.

We conclude that the court’s failure to order specific steps did not result in manifest injustice for a number of reasons. First, given the requirement of § 17a-112 (j) (3) (B), a failure to order specific steps would preclude termination for a failure to achieve sufficient personal rehabilitation, but, as noted, the court did not terminate the respondent’s parental rights on that ground. See In re Shyliesh H., supra, 56 Conn. App. 179. Second, the court terminated the respondent’s parental rights on the ground of abandonment, having found repeatedly that the respondent also failed to visit the child or to inquire as to her welfare from the date of the hearing in the Probate Court, June 1, 2006, until the trial on the termination petition in August, 2007. The respondent failed to keep the department or the court informed of her whereabouts. Third, the court also found that had the department provided the respondent with services, she would not have benefited from them, as she was hostile toward the department and its employees. Fourth, the respondent was not seeking to be reunified with the child but to have the child’s guardianship transferred to the child’s maternal grandmother. Finally, the respondent concedes, on the basis of case law, that parental rights may be terminated in the absence of specific steps having been ordered. See In re Michael M., 29 Conn. App. 112, 126, 614 A.2d 832 (1992); In re Shavoughn K., 13 Conn. App. 91, 99-100, 534 A.2d 1243 (1987), cert. denied, 207 Conn. 805, 540 A.2d 374 (1988).

In her brief to this court, the respondent argues that had she known what was necessary to be reunified with the child, as ordered by the court, she would have followed the specific steps. She claims that she lost the fundamental right to rear her child because the court failed to order specific steps to ensure cooperation between the respondent and the department. She also contends that because there was no evidence that she ever violated a court order, the court could not find that she would not have benefited from court-ordered steps.

The respondent’s argument fails for several reasons. First, the Probate Court, at the time it issued the order of temporary custody, ordered that visitation between the child and the respondent was to be determined by the department. The trial court found that from the time the order of temporary custody issued until the time the protective order was issued, department employees sought to facilitate visitation by reaching out to the respondent. The respondent, however, rebuffed the entreaties of the employees in a hostile and threatening manner. Second, the November, 2006 order of protection required the respondent to communicate and to visit with the child as facilitated by the department. The court further found that the respondent failed to take advantage of that court order.

Moreover, the respondent failed to address the element of manifest injustice. The respondent’s parental rights were terminated on the ground of abandonment because she failed to visit with or to inquire about her child for more than one year. The respondent has failed to demonstrate how the court’s judgment resulted in an error so harmful that a failure to reverse the judgment would result in manifest injustice and destroy the public’s confidence in our judicial system.

II

The respondent claims that the court’s findings that (1) she had abandoned the child and (2) it was in the best interest of the child to terminate her parental rights are clearly erroneous. We disagree.

“A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. ... In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights [under § 17a-112 (j)] exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child.” (Internal quotation marks omitted.) In re Ryan R., 102 Conn. App. 608, 617-18, 926 A.2d 690, cert. denied, 284 Conn. 923, 924, 933 A.2d 724 (2007).

We review a challenge to the court’s factual findings in a termination of parental rights case by the clearly erroneous standard. In re Selena O., 104 Conn. App. 635, 644, 934 A.2d 860 (2007). “The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous. . . . On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. . . . Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling.” (Internal quotation marks omitted.) In re Brittany J., 100 Conn. App. 329, 334, 917 A.2d 1024 (2007).

“Clear and convincing proof is a demanding standard denoting] a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution. . . . [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.” (Internal quotation marks omitted.) In re Trevon G., 109 Conn. App. 782, 789-90, 952 A.2d 1280 (2008).

A

The respondent claims that the court’s finding that she had abandoned the child was clearly erroneous. Our review of the court’s memorandum of decision and the record leads us to a contrary conclusion.

“A parent abandons a child if the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child .... General Statutes § 17a-112 (j) (3) (A). Abandonment focuses on the parent’s conduct. . . . Abandonment occurs where a parent fails to visit a child, does not display love or affection for the child, does not personally interact with the child, and demonstrates no concern for the child’s welfare. . . . Section 17a-112 [(j) (3) (A)] does not contemplate a sporadic showing of the indicia of interest, concern or responsibility for the welfare of a child. A parent must maintain a reasonable degree of interest in the welfare of his or her child. Maintain implies a continuing, reasonable degree of concern.” (Internal quotation marks omitted.) In re Ilyssa G., 105 Conn. App. 41, 46-47, 936 A.2d 674 (2007), cert. denied, 285 Conn. 918, 943 A.2d 475 (2008).

In its memorandum of decision, the court made the following findings of fact by clear and convincing evidence. At the time of trial, the respondent was twenty-three years old. She had spent most of her life in Bristol and left high school when she became pregnant with the child. The respondent subsequently obtained a graduate equivalency degree and has held several jobs. The father and the respondent were in a relationship for several years but never married. The end of their relationship was marked by domestic violence. The respondent had been the child’s primary custodian because the father is legally blind and has never been a placement resource for the child. The father is employed, however, and provides some financial support for the child.

The court found that the respondent sought to transfer guardianship of the child so that the respondent could attend school in New York. The Probate Court ordered the department to prepare a guardianship study, but the respondent refused to cooperate with department employees. On the day of the hearing on the transfer petition, the respondent behaved erratically and inappropriately while she was in the court. She allegedly slapped the child’s face and grabbed her arm abruptly. The Probate Court issued an order of temporary custody to the petitioner and ordered that visitation between the respondent and the child be directed by the department.

Between June 1 and August 31, 2006, the respondent did not ask department employees to arrange for her to visit the child, nor did she inquire as to the child’s well-being. On August 31,2006, the respondent attended a case status conference but refused to talk to the social worker assigned to the case. The respondent, however, was upset by the prospect of the child’s being placed with the child’s paternal grandmother and shouted that she would kill the department social worker if the child were placed with the paternal grandmother.

Another case status conference was held on November 2, 2006. The respondent asked the assigned social worker why the child could not be placed with the maternal grandmother. The respondent did not want the child to be placed with the paternal grandmother because she did not have an automobile and did not speak English. The social worker explained to the respondent that she, the respondent, was viewed as a threat to kidnap the child and that the maternal grandmother expressed no concern about the respondent’s threats or behavior. For those reasons, the social worker explained, the department would not recommend placing the child with the maternal grandmother. The respondent stated: “I will break down her door with a gun and kidnap my daughter.” The social worker informed the respondent that she had made another threat and that the social worker was going to report it. Moreover, the social worker stated to the respondent: “This is what I mean when I say you are a threat.” The respondent answered: “You didn’t record it. You have no proof I said this.”

Subsequently, on November 6, 2006, the petitioner filed a motion for an order requesting that the court prohibit the respondent from going to the child’s residence and that the respondent be ordered to refrain from contacting the child, except through visitation supervised by the department. The respondent failed to appear when the motion for an order was heard on November 14, 2006. The court granted the motion and issued the following order: “[The respondent] is to have no contact with the child . . . except that which is arranged by [the department]. [The respondent is] not to go within 100 yards of the child or go to the home where the child resides. This extends to phone calls, e-mails, [third] party or personal contacts with anyone in that residence.”

The court found that, throughout the proceedings, neither the department nor the court continuously knew the respondent’s whereabouts. The respondent’s attendance at hearings was inconsistent. On December 12, 2006, out of concern that the respondent had transportation difficulties, the court ordered the department to provide transportation for the respondent, if requested. The order was issued again on January 16, 2007. The respondent never contacted the department to ask for transportation assistance.

Following the adjudication of neglect on January 16, 2007, the respondent consistently attended all court hearings, except for one instance when she could not attend for medical reasons. The court also found that the respondent consistently maintained that she wanted the child to be placed with the maternal grandmother. Of primary importance, however, is the court’s finding that the respondent never sought to have the child returned to her care or custody. Between November, 2006, and July 16, 2007, the respondent made no effort to contact department employees to ask to visit with the child or to inquire about her well-being. The respondent never made an effort to see the child until the termination of parental rights petition was tried.

With respect to the child, the court found that she was five and one-half years old and had been in the petitioner’s custody for fifteen and one-half months at the time of trial. The petitioner had placed the child with the paternal grandmother in Hartford, where she had resided for almost one year. The child shares the home with two of her half brothers. Although the paternal grandmother speaks only Spanish, the boys are bilingual, and the child understands basic instructions from her grandmother. The department provides support services to the paternal grandmother.

The court found that the child’s adjustment since leaving the respondent’s care was influenced by prior events. When she was first placed in foster care, the child experienced nightmares. The foster mother reported that the child was especially fearful of the respondent’s boyfriend, Wally, who allegedly locked the child out of the house and car and struck her. The respondent allegedly laughed when Wally locked the child outside when it was cold and dark. The child also told her foster mother that she had watched the respondent and Wally engage in sexual intercourse and demonstrated what her mother did with Wally. During the child’s most recent visit with her maternal grandmother, the child asked if Wally was still with the respondent. The child is receiving therapeutic services through the department to deal with her concerns.

Despite the child’s troubling experiences, the court found that the child is described as highly intelligent, sweet, precocious and mature. She sees her father daily, does well in school and interacts well with other children. She has developed a strong bond with her half brothers and paternal grandmother. In April, 2007, the child told her social worker that she wanted to live with her paternal grandmother forever.

With respect to the petitioner’s allegation that the respondent had abandoned the child, the court noted that § 17a-112 (j) (3) (A) provides that a “child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child . . . .” The court found by clear and convincing evidence that the respondent’s conduct constituted abandonment. After the child was removed from her custody, the respondent made no effort to have any contact with the child. She did not visit the child, did not display love or affection for the child or send cards, letters, notes or gifts to the child. The respondent explained that she did not send cards, notes or letters to the child because the child cannot read and the paternal grandmother cannot read English. She did not send the child gifts because she should not have to give gifts to show love. The court found that there were a number of people who could have and would have passed the respondent’s greetings along to the child, but the respondent did not avail herself of those individuals.

The court did not credit the respondent’s testimony that she was waiting for the department to arrange visitation pursuant to the protective order. The court found the testimony to be a self-serving inteipretation of the language of the protective order. The respondent made it difficult for employees of the department to communicate with her. Moreover, the respondent made no effort to see or inquire about the child from June 1, 2006, until the time the protective order was entered, and the respondent’s subsequent conduct was consistent with her prior behavior. Finally, the court found that the respondent was represented by counsel at all times and that she never sought to modify or vacate the order of protection.

Although the respondent showed some interest in the child by consistently seeking to have the child placed with the maternal grandmother, had negative feelings toward the father and did not want the child to live in Hartford, the court found that that interest was not sufficient to defeat the overwhelming nature of abandonment otherwise demonstrated by the respondent’s behavior.

On the basis of our review of the court’s memorandum of decision and the record, including the exhibits and trial transcript, we conclude that the court’s finding that the respondent had abandoned the child was not clearly erroneous. For more than one year, the respondent failed to approach employees of the department to initiate visits with the child, as ordered by the Probate Court, or to inquire about her welfare. For those reasons, we conclude that there was clear and convincing evidence that the respondent failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child.

B

The respondent also claims that the court’s finding that it was in the best interest of the child to terminate the respondent’s parental rights was clearly erroneous. We are not persuaded.

“[Once] the court finds that the petitioner has proven by clear and convincing evidence that one of the statutory grounds for termination of parental rights exists, it must then determine whether termination is in the best interests of the child. . . . The best interests of the child include the child’s interests in sustained growth, development, well-being and continuity and stability of its environment. ... In the dispositional phase of a termination of parental rights hearing, the trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent’s parental rights is not in the best interest of the child. In arriving at this decision, the court is mandated to consider and make written findings delineated in [§ 17a-112 (k)].” (Internal quotation marks omitted.) In re Trevon G., supra, 109 Conn. App. 794-95.

After finding that the respondent had abandoned the child, the court made the seven findings required by § 17a-112 (k). The court found that at all relevant times, department employees were available and willing to provide services to the respondent, but the respondent eschewed them. Department employees made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980.

As required, the court also found that the child has significant bonds with her paternal grandmother, her half brothers and her father. Her father and his family love her. The child’s feelings toward the respondent are not clear, and it is not known how much she thinks about the respondent. In April, 2007, the paternal grandmother reported that it had been months since the child mentioned the respondent. When the child learned from her maternal grandmother that Wally was no longer with the respondent, she asked if this meant that she could go home. The child reported to her social worker that she wants to live with her paternal grandmother “forever and ever and ever.” Although the child still remembers her mother,* she is safe, secure and happy in her paternal grandmother’s home. Because the respondent was not seeking to be reunified with the child, the child’s remaining emotional ties to the respondent are not sufficient to defeat a claim for termination. The respondent failed to adjust her circumstances and to address her behavioral issues, the court found, and, therefore, it was not in the child’s best interest to reunite her with the respondent.

The court also found that no third party has prevented a meaningful relationship from developing or being maintained between the respondent and the child. Although the respondent blames the department for the present circumstances, the court found that the respondent’s view was not reasonable, as she is responsible for having abandoned the child and refusing to cooperate with the department. In response to the respondent’s argument that the protective order prevented her from seeing the child, the court found that the respondent ignored her behavior that necessitated the protective order.

The court concluded that it was in the child’s best interest to terminate the respondent’s parental rights. On the basis of our review of the entire record, we conclude that the court’s finding with regard to the best interest of the child is not clearly erroneous. There is clear and convincing evidence that the child suffered adversely when she was in the respondent’s custody, the respondent was unwilling to accept services from the department and the child is thriving in her paternal grandmother’s home where she lives with her half brothers, sees her father on a daily basis and is doing well in school.

Ill

The respondent’s final claim is that the court improperly approved the permanency plan for the child because the petitioner presented insufficient evidence to support the plan, specifically, that the paternal grandmother did not testify that she wants permanent guardianship of the child and that she can protect her. We disagree with this claim.

General Statutes § 46b-129 (k) provides in relevant part: “(1) Nine months after placement of the child . . . in the care and custody of the commissioner pursuant to . . . removal of a child . . . the commissioner shall file a motion for review of a permanency plan. . . . Any party seeking to oppose the commissioner’s permanency plan shall file a motion in opposition not later than thirty days after the filing of the commissioner’s motion for review . . . which motion shall include the reason therefor. . . . The court shall hold evidentiary hearings in connection with any contested motion for review of the permanency plan. The commissioner shall have the burden of proving that the proposed permanency plan is in the best interests of the child .... (2) . . . [T]he court shall approve a permanency plan that is in the best interests of the child . . . and safety shall be of paramount concern in formulating such plan. ...”

“At the hearing on the motion for review of permanency plan, the judicial authority shall determine whether efforts to reunify the child with the parent have been made, whether such efforts are still appropriate, and whether the commissioner has made reasonable efforts to achieve the permanency plan for the child. The judicial authority shall also determine whether the proposed goal of the permanency plan is in the best interest of the child by a fair preponderance of the evidence, taking into consideration the child’s need for permanency. The child’s health and safety shall be of paramount concern in formulating such plan.” (Emphasis added.) Practice Book § 35a-14 (d).

The court reviewed the permanency plan at the time of the termination trial. In its memorandum of decision, the court approved the plan to transfer custody and guardianship of the child to the paternal grandmother, finding that the petitioner had made reasonable efforts to achieve the permanency plan. The role of an appellate court with regard to a sufficiency of the evidence claim is well established. “An appeal based on the sufficiency of evidence to support a factual finding carries a legal and practical restriction to review. The function of an appellate court is to review, and not to retry, the proceedings of the trial court. . . . Further, we are authorized to reverse or modify the decision of the trial court only if we determine that the factual findings are clearly erroneous in view of the evidence and the pleadings in the whole record, or that its decision is otherwise erroneous in law.” (Internal quotation marks omitted.) In re Halle T., 96 Conn. App. 815, 834, 902 A.2d 670, cert. denied, 280 Conn. 924, 908 A.2d 1087 (2006).

Following the finding of neglect, on February 15, 2007, the respondent filed a motion to transfer custody and guardianship of the child to her maternal grandmother, claiming that the transfer would be in the child’s best interest. The petitioner objected to the motion, citing the Probate Court’s determination that the maternal grandmother was not an appropriate placement given the respondent’s behavior and a report concerning the child and the maternal grandmother. On July 21, 2006, the child objected to a visit with her maternal grandmother, who, she stated, “hit” her a lot. The child’s foster mother had to carry the child to the car to facilitate the visit.

On February 28, 2007, the petitioner filed a motion to review the permanency plan to terminate the respondent’s parental rights and to transfer guardianship of the child to her paternal grandmother. The plan called for the termination of the respondent’s parental rights and the transfer óf guardianship to the child’s paternal grandmother. The petitioner sought to terminate the respondent’s parental rights because the respondent refused to cooperate with department employees, some of whom she had threatened, and failed to visit the child or to inquire about her well-being. The petitioner also was concerned about the child’s safety with the maternal grandmother. The child’s father was not a placement option, but he has cooperated with members of the department and is consistently involved in the child’s care. The child’s paternal grandmother was a placement resource for the child, and the child’s father had no objection to that placement. According to the April 17,2007 social study that was before the court, the child’s paternal grandmother has stated a willingness to be the child’s guardian. The respondent, therefore, cannot prevail on her claim that there was insufficient evidence before the court that the child’s paternal grandmother was willing to become the child’s guardian. Moreover, there is evidence in the record that the paternal grandmother has provided the child with permanency in a healthful and safe environment. See Practice Book § 35a-14 (d). In the words of the child herself, she wants to live with her paternal grandmother “forever and ever and ever.”

The judgment is affirmed.

In this opinion the other judges concurred.

       The attorney for the minor child filed a statement in accordance with Practice Book § 67-13, adopting the position of the petitioner, and joined in the petitioner’s brief.

       This court may take judicial notice of the Probate Court file. See Schiavone v. Snyder, 73 Conn. App. 712, 717, 812 A.2d 26 (2002).

       In its order and decree, the Probate Court made the following additional findings of fact that are relevant to this appeal. When the respondent appeared for the hearing on the transfer petition, she behaved in a rude and inappropriate manner toward the court staff and had inappropriate interaction with the child. A local police officer was summoned, but the respondent continued to act in an inappropriate maimer.
      The Probate Court asked the department of children and families (department) to prepare a report with respect to the transfer petition. The report indicated that the respondent failed to appear for two scheduled visits with a social worker. It also stated that the respondent did not understand why the department was involved and that it was inconvenient for her to meet with the social worker because she was busy at her job. The respondent refused to sign a release permitting the department to obtain the child’s medical records because she believed that the matter had nothing to do with the child’s health. Moreover, according to the respondent, the transfer of guardianship was to be temporary until she was able to get her life in order. The department report recommended that it was in the child’s best interest that temporary guardianship be granted to the maternal grandmother.
      The child’s attorney, Beth Gradowski, also filed a report expressing her opinion that the respondent and the child appeared to have a good bond. She also opined that if the respondent needed time to get her life in order, granting the maternal grandmother guardianship was in the best interest of the child. The child spends some weekends with her maternal grandmother and is comfortable there. Gradowski also opined that it was important for the respondent and child to have regularly scheduled visits.
      The child’s father had no objection to the temporary guardianship, but he wanted to be able to visit with the child. The respondent, however, did not want the father to visit with the child.
      The court explained the role of guardian to the respondent, who was unwilling to accept the condition of supervised visits for the parents with the guardian. At the conclusion of the hearing, the respondent persisted in her inappropriate behavior and stated that she was “going to blow up the [department] . . . with phone calls.”
      On the basis of the evidence presented, the Probate Court found that both the respondent and the father have problems that render them unfit to be the child’s guardians. The court expressed concern about placing the child with immediate family members and found that there were no other relatives suitable at the time to be the child’s guardian. The Probate Court decreed the child to be homeless and in need of immediate intervention by the department and ordered the respondent and father removed as guardians. The department employees were ordered to place the child in foster care and to determine visitation for the child with the respondent and father. The Probate Court “waived” all future decisions regarding the child to the Superior Court.

       The petitioner initially alleged two grounds as the basis for terminating the respondent’s parental rights: abandonment and failure to achieve a sufficient degree of personal rehabilitation. General Statutes § 17a-112 Q) provides in relevant part: “The Superior Court . . . may grant a petition ... if it finds by clear and convincing evidence that ... (3) (A) the child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child; (B) the child (i) has been found by the Superior Court ... to have been neglected or uncared for in a prior proceeding . . . 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 . . . .”

       We note that none of the several counsel involved in this matter brought the court’s failure to order specific steps to the court’s attention when the child was found to be neglected. In instances where not only a parent’s rights are at stake, but also the stability and permanency in a child’s life, counsel who are aware that the court has not adhered to a statutory requirement are advised to bring the matter to the trial court’s attention at a time when the oversight can be remedied.
      As to raising the claim for the first time on appeal, “[o]ur Supreme Court has made it clear that we will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial. . . . This same principle requires parties to raise an objection, if possible, when there is still an opportunity for the trial court to correct the proposed error.” (Citation omitted; internal quotation marks omitted.) Powers v. Farricelli, 43 Conn. App. 475, 478, 683 A.2d 740, cert. denied, 239 Conn. 954, 688 A.2d 326 (1996).

       The court found that the respondent’s hostility toward the department remains somewhat of a mystery, aside from her allusion to her adolescent experience. The court noted that the petitioner did not seek the order of temporary custody on June 1, 2006. The Probate Court issued the order sua sponte. The trial court noted that the department report endorsed the respondent’s petition to transfer guardianship to the maternal grandmother. Although the respondent was involved with the department in 2004 as the result of allegations of domestic violence between the respondent and the father, there is no indication that the interaction with the department in 2004 resulted in any detriment to the respondent.

       At trial, the respondent offered evidence that between November, 2006, and March, 2007, her automobile was inoperable. The court accepted that testimony but noted that the court’s transportation order addressed that concern had the respondent been willing to ask for transportation assistance.

       The half brothers are children of the father from another relationship.

       The court noted that it properly may consider a respondent’s failure to seek modification of a protective order in determining a statutory ground for termination of parental rights. In re Alexander C., 67 Conn. App. 417, 427, 787 A.2d 608 (2001), aff'd, 262 Conn. 308, 813 A.2d 87 (2003).

       The court noted concern for the child’s relationship with her maternal grandmother if the respondent’s parental rights were terminated and found that the maternal grandmother’s affection and commitment to the child were manifest. The court found that the bond between the maternal grandmother and child was good for the child. The court noted the petitioner’s mandate to continue to assess the child’s situation and to make accommodations for the relationship, as it is in the child’s best interest.

       “Our courts consistently have held that even when there is a finding of a bond between parent and a child, it still may be in the child’s best interest to terminate parental rights.” In re Rachel J., 97 Conn. App. 748, 761, 905 A.2d 1271, cert. denied, 280 Conn. 941, 912 A.2d 476 (2006).

       The court noted that the guardian ad litem and counsel for the child were in support of the termination of the respondent’s parental rights.

       In her reply brief, the respondent raised for the first time a claim that the petitioner failed to present expert testimony that it was in the best interest of the child to terminate the respondent’s parental rights. This court does not review claims raised for the first time in a reply brief because the petitioner is not afforded an opportunity to respond to such claims. See In re Darien S., 82 Conn. App. 169, 185 n.17, 842 A.2d 1177, cert. denied, 269 Conn. 904, 852 A.2d 733 (2004).


text:
    MARCOS DOUROS v. COMMISSIONER OF CORRECTION
    (AC 28717)
    Bishop, Harper and Beach, Js.
    Submitted on briefs September 12
    officially released December 9, 2008

      Emmet P. Hibson, Jr., special public defender, filed a brief for the appellant (petitioner).

      Michael L. Regan, state’s attorney, James M. Ralls, senior assistant state’s attorney, and Michael Kennedy, assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Marcos Douros, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The petitioner claims that the court abused its discretion in denying certification to appeal and improperly rejected his claim that his trial counsel provided ineffective assistance. We dismiss the petitioner’s appeal.

Following an incident at the petitioner’s residence in April, 2002, he was arrested and charged with criminal possession of a weapon and breach of the peace in the second degree. The petitioner filed a motion to suppress rifles and ammunition seized from his bedroom as the fruit of an illegal search by the police. Following a hearing on the motion to suppress, the court denied the motion. At the hearing, the court heard conflicting testimony concerning the search. The court found that the petitioner’s mother, Felia Douros, had the authority to consent to the search and that she had, in fact, consented. Following the court’s ruling, which the court determined to be dispositive of the case, the petitioner entered a conditional plea of nolo contendere to the charge of criminal possession of a weapon. The court accepted the plea and sentenced the petitioner to serve a three year term of incarceration. Thereafter, the petitioner appealed to this court, which affirmed the judgment of conviction. State v. Douros, 90 Conn. App. 548, 878 A.2d 399, cert. denied, 276 Conn. 914, 888 A.2d 85 (2005).

In an amended petition for a writ of habeas corpus, the petitioner claimed that his trial counsel, Adam A. Laben, rendered ineffective assistance in his investigation and handling of the motion to suppress. At the hearing on the petition, the petitioner argued that Laben was deficient in that he did not investigate or present the testimony of the petitioner’s sister, Vaso Williams, who was present at his residence at or about the time that the police conducted the search. At the hearing, the court heard testimony from Williams, the petitioner’s mother, the petitioner and Laben. Laben testified that the petitioner unambiguously forbade him from contacting either the petitioner’s brother or sister. Laben testified that he repeatedly told the petitioner that it was important, in terms of the motion to suppress, that he speak to the siblings, who were present at the residence at the time in question. Laben testified, however, that the petitioner expressed his strong beliefs that his siblings were to blame for his legal problems, that they would hurt his case and that they were not to be contacted by Laben. The petitioner denied that he told Laben any of these things.

In its ruling denying the petition for a writ of habeas corpus, the court found that Laben had testified credibly. Crediting as true Laben’s version of the facts, the court concluded that the petitioner had not proven his allegation of deficient representation. The court also concluded that even if Laben had presented Williams’ testimony at the hearing on the motion to suppress, there was “little likelihood” that such evidence would have changed the trial court’s ruling on the motion. The court subsequently denied the petition for certification to appeal, and this appeal followed.

“A petitioner whose petition for certification to appeal has been denied can seek appellate review of the denial by satisfying the two-pronged test enunciated in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994), which requires the petitioner to show that the denial constituted an abuse of discretion and then to prove that the decision should be reversed on its merits. ... To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. ... In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous . . . .” (Citation omitted; internal quotation marks omitted.) Faraday v. Commissioner of Correction, 107 Conn. App. 769, 772-73, 946 A.2d 891 (2008). In basic terms, a petitioner seeking to prevail on a habeas claim of ineffective assistance of counsel bears the burden of demonstrating that his counsel's performance fell below an objective standard of reasonableness and that counsel’s deficient performance prejudiced the defense. See Cabral v. Commissioner of Correction, 108 Conn. App. 1, 6-7, 946 A.2d 1278, cert. denied, 288 Conn. 915, 954 A.2d 183 (2008).

Here, the petitioner based his claim on the allegation that Laben chose not to investigate or to present the testimony of Williams. The court found that Laben credibly testified that he did not contact, interview or present Williams’ testimony because the petitioner forbade him from speaking with her. On the basis of this factual determination, the court rejected the petitioner’s claim that Laben provided inadequate representation. On appeal, the petitioner does not argue, that the court’s factual findings were clearly erroneous. Instead, the petitioner devotes much of his analysis to arguing that on the basis of his version of the facts, the court reached the wrong result.

“The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous. . . . Thus, [t]his court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” (Internal quotation marks omitted.) Id., 8.

The court’s findings of fact are not clearly erroneous; the findings are amply supported by Laben’s testimony and the court’s favorable assessment of that testimony. Contrary to the petitioner’s view of the matter, the court found that Laben followed the petitioner’s directive with regard to any evidence that could have come from the petitioner’s siblings. To the limited degree that the petitioner proposes that Laben acted unreasonably by conducting the defense in accordance with this clear directive, the petitioner does not cite any relevant authority in support of that proposition.

The petitioner has failed to demonstrate that the issues raised are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions raised merit encouragement to proceed further. Accordingly, the petitioner has not demonstrated that the court abused its discretion in denying his petition for certification to appeal.

The appeal is dismissed.

       The state entered a nolle prosequi on the breach of the peace charge.

       In his amended petition, the petitioner asserted additional grounds in support of his claim of ineffective representation. In its decision, the court observed that these other grounds “appear to have been abandoned” and did not make any findings in their regard. The petitioner did not challenge the correctness of this determination at trial and does not do so before this court.