text:
    GILBERTO LOPEZ v. COMMISSIONER OF CORRECTION
    (AC 33530)
    Gruendel, Beach and Borden, Js.
    Argued February 20
    officially released April 16, 2013

      Elizabeth Knight Adams, special public defender, for the appellant (petitioner).

      Linda Currie-Zeffiro, assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Gerard P. Eisenman, former senior assistant state’s attorney, for the appellee (respondent).
   Opinion

GRUENDEL, J.

The petitioner, Gilberto Lopez, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. He claims that the court improperly concluded that he had not established that his trial counsel rendered ineffective assistance. We affirm the judgment of the habeas court.

This case arises from the petitioner’s encounter with a minor child in 2003. As recounted by our Supreme Court in the petitioner’s direct appeal, “[o]n or about June 3, 2003, the victim, an eight year old girl, rode around the block for about ten minutes in the [petitioner’s] car, starting in front of her home. No one other than the [petitioner] and the victim was present in the car at the time. After she entered the car on the front passenger side, she moved closer to where the [petitioner] was sitting because she wanted to drive. She then positioned herself so that she was standing in front of the [petitioner] with her hands on the wheel while the [petitioner] was sitting on the driver’s seat operating the pedals. She was wearing blue shorts, a blue shirt and underwear at the time. While she was standing in front of the [petitioner], the victim felt the [petitioner’s] ‘private’ touch her ‘behind.’ She also recalled that the [petitioner] put his ‘private’ inside her underwear while she was standing and that, when she sat down, she felt it ‘in the same place [as] before.’ She did not, however, see the [petitioner’s] ‘private,’ he did not touch any other part of her body, and his ‘private’ did not move while it was touching her. When she returned from the ride, she and the [petitioner] said goodbye, and she exited the car on the front passenger side. Upon leaving the car, she saw that the zipper on the [petitioner’s] pants was down.

“After the [petitioner] dropped the victim off at her house, she went upstairs to the bathroom, put her clothes in the hamper, which contained other dirty clothes, and took a shower. She noticed at the time that her shorts felt wet. Although her mother and a Mend were inside the house when she returned, the victim did not tell them what had happened because she thought that her mother would yell at her for going on the ride. When her mother asked her if anything had happened, she said ‘no.’ The victim wanted to tell her mother about what had happened and felt bad that she had not done so. She became quiet after the incident, which was not in her nature. A few days later, however, she told her mother, her older brother and his girlfriend about the incident, and the family informed the police.

“Following an investigation, the [petitioner] was arrested and charged with attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-70 and 53a-49, one count of risk of injury to a child in violation of § 53-21 (a) (2), and a second count of risk of injury to a child in violation of § 53-21 (a) (1). The [petitioner] pleaded not guilty and elected to be tried by a jury. ... On August 15, 2005, the jury found the [petitioner] not guilty of attempt to commit sexual assault in the first degree but guilty of two counts of risk of injury to a child.” State v. Gilberto L., 292 Conn. 226, 230-32, 972 A.2d 205 (2009).

In October, 2005, the petitioner, through his trial counsel, Mario DeMarco, filed a petition for a new trial pursuant to General Statutes § 52-270 and Practice Book § 42-55. That petition was predicated on the victim’s recantation of her allegations following the conclusion of trial. The petitioner also filed a motion for a judgment of acquittal. The trial court conducted a hearing on those motions over the course of two days.

The petitioner appeared for sentencing on January 19, 2006. At the outset of that proceeding, the court expressly denied the aforementioned motions. With respect to the petition for a new trial, the court stated that “[a] motion for a new trial concerns itself with error that must have occurred during the trial. The hearing is to determine whether the court in the course of the trial committed error thus depriving the [petitioner] of a fair trial. It thus is limited to trial error appearing on the record. This is not the claim of the [petitioner]. The [petitioner] offers newly discovered evidence that he says entitles him to a new trial. Newly discovered evidence is properly presented in a petition for a new trial .... However, a petition for a new trial is treated as a civil case. Beyond that a petition for a new trial cannot be heard until after sentencing in the criminal trial which has not yet taken place in this case.” The court then denied the motion for a judgment of acquittal and sentenced the petitioner to a total effective sentence of twelve years incarceration, execution suspended after eight years, and ten years probation. The petitioner thereafter unsuccessfully appealed his judgment of conviction directly before our Supreme Court. State v. Gilberto L., supra, 292 Conn. 226.

This habeas action followed. The petitioner’s January 26, 2011 amended petition for a writ of habeas corpus contained three counts. Count one alleged ineffective assistance of trial counsel, count two alleged ineffective assistance of appellate counsel and count three alleged actual innocence. Following a trial, the habeas court denied the petition. The court subsequently granted certification to appeal from that judgment, and this appeal followed.

On appeal, the petitioner challenges only the propriety of the court’s determination that DeMarco did not render ineffective assistance of counsel. Specifically, he argues that DeMarco’s failure to pursue a renewed petition for a new trial following sentencing or to advise him of his rights with respect thereto constituted deficient performance. We disagree.

“A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. . . . This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. ... In Strickland v. Washington, [466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], the United States Supreme Court adopted a two-part standard for evaluating claims of ineffective assistance of counsel during criminal proceedings: the defendant must show: (1) that counsel’s representation fell below an objective standard of reasonableness . . . and (2) that defense counsel’s deficient performance prejudiced the defense. . . . The first part requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. ... In determining whether such a showing has been made, judicial scrutiny of counsel’s performance must be highly deferential. . . . The reviewing court must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. . . . The second part requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. . . . The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Citations omitted; internal quotation marks omitted.) Calabrese v. Commissioner of Correction, 88 Conn. App. 144, 150-51, 868 A.2d 787, cert. denied, 273 Conn. 936, 875 A.2d 543 (2005).

“A petition for a new trial is collateral to the action in which a new trial is sought. ... In an action on a petition for [a] new trial, a petitioner is not a criminal defendant but, rather, is a civil petitioner. ... A proceeding on a petition for [a] new trial, therefore, is not a criminal action. Rather, it is a distinct proceeding that is commenced by the service of civil process and is prosecuted as a civil action.” (Citations omitted; emphasis in original.) Small v. State, 101 Conn. App. 213, 217, 920 A.2d 1024 (2007), appeal dismissed, 290 Conn. 128, 962 A.2d 80, cert. denied, 558 U.S. 842, 130 S. Ct. 102, 175 L. Ed. 2d 68 (2009). This court has held that a petitioner is neither constitutionally nor statutorily entitled to court-appointed counsel in a proceeding on a petition for a new trial. Id., 218-19; see also Kennedy v. Putman, 97 Conn. App. 815, 816 n.3, 905 A.2d 1280 (2006) (“[t]he general rule is that court-appointed counsel is not available in civil proceedings”). The petitioner has presented this court with no authority indicating that the constitutional requirement of effective assistance of counsel required DeMarco to continue his representation after the conclusion of the criminal trial by commencing such a civil proceeding on his behalf. He nevertheless asserts that, on the unique facts of this case—in which DeMarco had filed a premature petition for a new trial prior to his sentencing—DeMarco was required, at a minimum, to advise him of his rights with respect thereto.

Even if we assume the correctness of that proposition, the petitioner has not satisfied his burden in demonstrating that DeMarco’s performance was deficient. The record is devoid of any evidence as to whether DeMarco discussed commencing a petition for a new trial proceeding with the petitioner and what, if any, advice he provided. Although the petitioner testified at the habeas trial, he offered no testimony as to whether DeMarco discussed the possibility of pursuing such a civil proceeding or the substance of such discussions. In addition, the petitioner did not call DeMarco as a witness at his habeas trial, rendering the record silent as to whether DeMarco and the petitioner discussed (1) filing a renewed petition for a new trial, (2) the petitioner’s rights with respect thereto and (3) the advisability of such a proceeding. As a result, this court can only speculate as to whether DeMarco failed to “follow through” on the prospect of filing a petition for a new trial or to “specifically instruct the petitioner of his rights,” as the petitioner alleges in his appellate brief. It is well established that a petitioner in a habeas proceeding “cannot rely on mere conjecture or speculation to satisfy either the performance or prejudice prong but must instead offer demonstrable evidence in support of his claim.” (Internal quotation marks omitted.) Cox v. Commissioner of Correction, 127 Conn. App. 309, 314, 14 A.3d 421, cert. denied, 301 Conn. 902, 17 A.3d 1043 (2011); see also Crawford v. Commissioner of Correction, 285 Conn. 585, 599, 940 A.2d 789 (2008) (petitioner’s burden not met by speculation but by demonstrable realities); Narumanchi v. DeStefano, 89 Conn. App. 807, 815, 875 A.2d 71 (2005) (“^peculation and conjecture have no place in appellate review”).

In its memorandum of decision, the habeas court noted the dearth of evidence on this issue, specifically finding that “the parties have failed to introduce . . . any evidence of what became of the petition for a new trial .... [T]he petitioner’s testimony failed to address what advice he received from DeMarco regarding a petition for a new trial. Neither side called DeMarco as a witness. Accordingly, the petitioner’s claim must fail for lack of proof.” We agree, and thus conclude that the court properly denied the amended petition for a writ of habeas corpus.

The judgment is affirmed.

In this opinion the other judges concurred.

       The petitioner withdrew his ineffective assistance of appellate counsel claim at the habeas trial.

       Although the petitioner also alleges that DeMarco “violated rule 1.3 [of the Rules of Professional Conduct] when he incorrectly filed a petition for [a] new trial, but failed to correct that endeavor,” he did not raise that claim in his amended petition or during the habeas proceeding. “We do not entertain claims not raised before the habeas court but raised for the first time on appeal.” Bertotti v. Commissioner of Correction, 136 Conn. App. 398, 404, 44 A.3d 892, cert, denied, 307 Conn. 901, 53 A.3d 217 (2012). Accordingly, we confine our review to the question of whether DeMarco rendered ineffective assistance of counsel.


source: Caselaw Access Project

author: BEAR, J.

license: Public Domain

text:
    IN RE LEEANNA B.

    (AC 35071)
    Lavine, Beach and Bear, Js.

      Argued March 4
    officially released April 3, 2013

      Pamela S. Bacharach, for the appellant (respondent mother).

      Jacqueline B., pro se, the appellee (intervenor paternal grandmother).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79a-12, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

       April 3, 2013, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes

   Opinion

BEAR, J.

The respondent mother of Leeanna B. (mother) appeals from the judgment of the Superior Court juvenile division (juvenile division) ordering her to provide the intervenor paternal grandmother of Leeanna (paternal grandmother) with visitation privileges in response to the paternal grandmother’s motion for contempt. We vacate the judgment of the juvenile division and direct the Superior Court family division (family division) to dismiss the motion for contempt.

The procedural history of this case is somewhat complicated but will be condensed for our purposes. Leeanna was placed by the department of children and families (department) with her paternal grandmother, a relative foster care provider, shortly following her birth, and she remained in her care for approximately seventeen months. On March 18, 2010, the juvenile division revoked its prior disposition of commitment of Leeanna to the care, custody and control of the petitioner, the commissioner of children and families, and ordered that guardianship of her be restored to her mother and her respondent father, that physical custody be granted to her mother under an order of protective supervision, and that specific visitation be granted to her paternal grandmother. On August 17,2010, the juvenile division allowed the order of protective supervision to expire, and it closed the juvenile case, noting, however, that existing custody orders would remain in effect.

While matters were proceeding in the juvenile division, the mother of Leeanna also brought an action for custody and support in the family division against the father of Leeanna (custody case). Following the closing of the child protection case by the juvenile division, the paternal grandmother, on August 20, 2010, filed a motion to intervene in the custody case in the family division, seeking to continue her visitation with Leeanna. On September 20, 2010, the family division denied -without prejudice her motion to intervene. The paternal grandmother did not appeal from that judgment. The family division subsequently rendered judgment in the custody case on July 19, 2011, granting, inter alia, sole custody of Leeanna to her mother.

On April 26, 2012, the paternal grandmother again filed a motion to intervene in the custody case in the family division, and, on May 14, 2012, she filed a motion for contempt, alleging that the mother of Leeanna had failed to provide her, since August of 2010, -with visitation as had been ordered by the juvenile division. On July 27, 2012, the family division denied the paternal grandmother’s motion to intervene without prejudice. On July 30, 2012, however, the family division, sua sponte, reconsidered its denial of the motion for contempt and referred that motion to the juvenile division because that division originally had ordered that visitation be provided to the paternal grandmother.

After conducting a hearing on the motion for contempt, the juvenile division found that the mother was not in contempt because she reasonably believed that the orders of visitation had expired in August of 2010 when the juvenile case was closed. The juvenile division, however, also concluded that its visitation orders still were in effect and that it was in the best interest of Leeanna to have visitation with her paternal grandmother. Because there had been a cessation of visitation, the juvenile division ordered a graduated schedule of visitation to the paternal grandmother in order to prepare Leeanna for the renewal of regular visitation. This appeal followed.

The mother claims in relevant part that the paternal grandmother lacked standing to bring a motion for contempt in the custody case in the family division and that the family division improperly referred the motion to the juvenile division. We agree with both contentions.

“When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of an issue . . . .” (Internal quotation marks omitted.) Smith v. Snyder, 267 Conn. 456, 460, 839 A.2d 589 (2004). “If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause.” (Internal quotation marks omitted.) In re Christina M., 280 Conn. 474, 480, 908 A.2d 1073 (2006). “[A] court lacks discretion to consider the merits of a case [or claim] over which it is without jurisdiction .... The objection of want of jurisdiction may be made at any time . . . [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention. . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings.” (Internal quotation marks omitted.) Warner v. Bicknell, 126 Conn. App. 588, 596, 12 A.3d 1042 (2011).

Here, the paternal grandmother filed two motions to intervene in the custody case in the family division. Both of those motions were denied without prejudice. She did not appeal from either judgment. The paternal grandmother also filed a motion for contempt in the custody case in the family division, but she was not a party to that action, the court twice having denied her intervenor status. Because she was not a party to that action, she had no standing to file amotion for contempt in that action, and the family division should have dismissed her motion.

The judgment of the Superior Court juvenile division is vacated and the case is remanded to that court with direction to transfer the motion for contempt back to the Superior Court family division, and that court is directed to dismiss the motion.

In this opinion the other judges concurred.

       The paternal grandmother did not appeal from the judgment denying the motion to intervene, nor does it appear that she filed a petition for visitation pursuant to General Statutes § 46b-59.
      General Statutes (Sup. 2012) § 46b-59, as recently amended by Public Acts 2012, No. 12-137, § 1, provides: “(a) As used in this section:
      “(1) ‘Grandparent’ means a grandparent or great-grandparent related to a minor child by (A) blood, (B) marriage, or (C) adoption of the minor child by a child of the grandparent; and
      (2) ‘Real and significant harm’ means that the minor child is neglected, as defined in section 46b-120, or uncared for, as defined in said section.
      “(b) Any person may submit a verified petition to the Superior Court for the right of visitation with any minor child. Such petition shall include specific and good-faith allegations that (1) a parent-like relationship exists between the person and the minor child, and (2) denial of visitation would cause real and significant harm. Subject to subsection (e) of this section, the court shall grant the right of visitation with any minor child to any person if the court finds after hearing and by clear and convincing evidence that a parent-like relationship exists between the person and the minor child and denial of visitation would cause real and significant harm.”
      “(c) In determining whether a parent-like relationship exists between the person and the minor child, the Superior Court may consider, but shall not be limited to, the following factors:
      “(1) The existence and length of a relationship between the person and the minor child prior to the submission of a petition pursuant to this section;
      “(2) The length of time that the relationship between the person and the minor child has been disrupted;
      “(3) The specific parent-like activities of the person seeking visitation toward the minor child;

        “(4) Any evidence that the person seeking visitation has unreasonably undermined the authority and discretion of the custodial parent;
      “(5) The significant absence of a parent from the life of a minor child;
      “(6) The death of one of the minor child’s parents;
      “(7) The physical separation of the parents of the minor child;
      “(8) The fitness of the person seeking visitation; and
      “(9) The fitness of the custodial parent.
      “(d) In determining whether a parent-like relationship exists between a grandparent seeking visitation pursuant to this section and a minor child, the Superior Court may consider, in addition to the factors enumerated in subsection (c) of this section, the history of regular contact and proof of a close and substantial relationship between the grandparent and the minor child.
      “(e) If the Superior Court grants the right of visitation pursuant to subsection (c) of this section, the court shall set forth the terms and conditions of visitation including, but not limited to, the schedule of visitation, including the dates or days, time and place or places in which the visitation can occur, whether overnight visitation will be allowed and any other terms and conditions that the court determines are in the best interest of the minor child, provided such conditions shall not be contingent upon any order of financial support by the court. In determining the best interest of the minor child, the court shall consider the wishes of the minor child if such minor child is of sufficient age and capable of forming an intelligent opinion. In determining the terms and conditions of visitation, the court may consider (1) the effect that such visitation will have on the relationship between the parents or guardians of the minor child and the minor child, and (2) the effect on the minor child of any domestic violence that has occurred between or among parents, grandparents, persons seeking visitation and the minor child.
      “(f) Visitation rights granted in accordance with this section shall not be deemed to have created parental rights in the person or persons to whom such visitation rights are granted, nor shall such visitation rights be a ground for preventing the relocation of the custodial parent. The grant of such visitation rights shall not prevent any court of competent jurisdiction from thereafter acting upon the custody of such child, the parental rights with respect to such child or the adoption of such child and any such court may include in its decree an order terminating such visitation rights.
      “(g) Upon motion, the court may order the payment of fees for another party, the attorney for the minor child, the guardian ad litem, or any expert by any party in accordance with such party’s financial ability.”

       Instead, however, the family division transferred the motion to the juvenile division because prior visitation orders had been issued there. Those prior orders, however, were superseded by the orders of the family division after the juvenile case was closed. Accordingly, the family division should not have transferred the motion, but should have dismissed it for lack of jurisdiction.


author: PER CURIAM.

text:
    IN RE KAMAL R.

    (AC 35080)
    DiPentima, C. J., and Bear and Flynn, Js.

      Argued March 6
    officially released April 3, 2013

      Thomas F. Mitola, for the appellant (respondent father).

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

      Natasha White, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79a-12, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

       April 3, 2013, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

PER CURIAM.

The respondent father appeals from the judgment of the trial court terminating his parental rights with respect to his son, Kamal R. On appeal, the sole issue is whether the court properly found that the department of children and families (department), had made reasonable efforts to reunite the respondent with Kamal. We conclude that the court’s finding was proper and, therefore, we affirm the judgment of the trial court.

The court’s memorandum of decision reveals the following facts and procedural history. Kamal was bom in December, 2009. In February, 2010, the petitioner, the commissioner of children and families, invoked a ninety-six hour hold on Kamal, followed by an order of temporary custody. In July, 2010, the court adjudicated Kamal neglected, and he was committed to the custody of the petitioner. In August, 2010, the department’s permanency plan for Kamal changed from reunification with his parents to termination of their parental rights and adoption. The respondent eventually was served with the termination of parental rights petition, and he appeared at the plea date of January 17, 2012. Although his attorney was present, the respondent failed to attend the trial in May, 2012; he was defaulted, and the trial proceeded in his absence. At the conclusion of the trial, the court granted the petition and terminated the parental rights of the respondent and Kamal’s mother. This appeal followed.

In its memorandum of decision, the court noted that the respondent had an “extensive history with substance abuse.” In March, 2010, after testing positive for maryuana and cocaine, the respondent failed to show up at an intensive outpatient treatment center where he had been referred. At that time, the department paid an outstanding $1000 electric bill on behalf of the respondent so that he would not lose his eligibility for Section 8 housing. That same month, he hit Kamal’s mother in the head with a chair and a beer bottle and pushed her down the stairs. This led to his conviction for assault in the second degree. While incarcerated, he participated in programs and services for substance abuse, relapse prevention, anger management and domestic violence. He had monthly visits with Kamal while incarcerated. The respondent left the halfway house in March, 2012, and has had no contact with Kamal since February, 2012. The respondent also failed to keep the department apprised of his whereabouts and did not attend or participate in the trial.

“In order to terminate a parent’s parental rights under [General Statutes] § 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 © (3). . . . In re Melody L., 290 Conn. 131, 148-49, 962 A.2d 81 (2009).” (Internal quotation marks omitted.) In re Jason M., 140 Conn. App. 708, 719, 59 A.3d 902 (2013).

“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. . . .

“Our standard of review on appeal from a termination of parental rights is limited to whether the challenged findings are 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. . . . [G]reat weight is given to the judgment of the trial court because of [the trial court’s] opportunity to observe the parties and the evidence. . . . [An appellate court does] 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.” (Internal quotation marks omitted.) In re Jah’za G., 141 Conn. App. 15, 30, 60 A.3d 392 (2013); see In re Zowie N., 135 Conn. App. 470, 499-500, 41 A.3d 1056, cert. denied, 305 Conn. 916, 46 A.3d 170 (2012).

On appeal, the respondent challenges the court’s finding that the department made reasonable efforts to reunify him with Kamal. Specifically, he argues that while he was incarcerated, and then at the halfway house, he participated in the services that were available and that the department did not offer him any additional services. He further contends that employees of the department failed to contact the service providers to determine if those programs were sufficient for his needs. Last, he claims that he only had minimal contact with employees of the department. In his brief, the respondent summarized the situation as follows: “In essence, the [respondent] was a lost figure in this matter and the department never made any efforts to determine the appropriateness of reunification with the [respondent] or give [the respondent] any direction as to what he needed to do relative to reunify with his minor child.”

“[Section 17a-112] imposes on the department the duty, inter alia, to make reasonable efforts to reunite the child . . . with the parents. The word reasonable is the linchpin on which the department’s efforts in a particular set of circumstances are to be adjudged, using the clear and convincing standard of proof. Neither the word reasonable nor the word efforts is, however, defined by our legislature or by the federal act from which the requirement was drawn. . . . [.R]ea-sonable efforts means doing everything reasonable, not everything possible. . . . The trial court’s determination of this issue will not be overturned on appeal unless, in light of all of the evidence in the record, it is clearly erroneous.” (Emphasis added; internal quotation marks omitted.) In re Paul O., 141 Conn. App. 477, 482, 62 A.3d 637 (2013); In re Christopher L., 135 Conn. App. 232, 242, 41 A.3d 664 (2012).

The record supports the court’s underlying findings and its ultimate determination that the department made reasonable efforts to reunify the respondent with Kamal. Specifically, the court noted the respondent’s history with substance abuse and his failure to attend a program to which the department had referred him. The department paid an outstanding electric bill in the amount of $1000 so that the respondent would not lose his housing. While the respondent faults the department for not being more involved in his programs while he was incarcerated, we note that while he was in the custody of the department of correction, the department was unable to offer him services. See In re Anvahnay S., 128 Conn. App. 186, 193, 16 A.3d 1244 (2011); In re Jermaine S., 86 Conn. App. 819, 838-39, 863 A.2d 720, cert. denied, 273 Conn. 938, 875 A.2d 43 (2005); see also In re Roshawn R., 51 Conn. App. 44, 53, 720 A.2d 1112 (1998). We also note that the respondent was provided with the court-ordered specific steps necessary for reunification. Last, the respondent, following his release from the halfway house, has not had any visits with Kamal and failed to apprise the department of his whereabouts. The department surely cannot be faulted for failing to make reasonable efforts when the respondent essentially has vanished from Kamal’s life. See In re Anvahnay S., supra, 194-95; see also In re Natalia G., 54 Conn. App. 800, 807, 737 A.2d 506 (1999). We conclude, therefore, that the court’s finding that the department made reasonable efforts to reunify the respondent with Kamal was not clearly erroneous. Accordingly, the court did not err in terminating his parental rights.

The judgment is affirmed.

       The petitioner, the commissioner of children and families, instituted this termination proceeding against both the mother and the father of the child, naming both as respondents. Only the father has filed this appeal, and, therefore, we refer in this opinion to the father as the respondent.

       See General Statutes § 17a-101g (e) and (f).

       See Practice Book § 35a-8.

       On February 14,2013, the attorney for Kamal filed a statement in support of the petitioner’s brief. See Practice Book § 67-13.

       The respondent did participate in similar services provided by the department of correction.


author: BEACH, J.

text:
    SANTINA DI TERESI ET AL. v. STAMFORD HEALTH SYSTEM, INC., ET AL.
    (AC 33052)
    Beach, Bear and SchaUer, Js.

      Argued November 15, 2012
    officially released April 23, 2013

      Richard Lewis, with whom were Christine D. Salmon and, on the brief, Stephen A. Finn, for the appellant (plaintiff Virginia Di Teresi).

      Eric J. Stockman, with whom, on the brief, was VimalaB. Ruszkowski, for the appellees (named defendant et al.).
   Opinion

BEACH, J.

The issues presented in this appeal arise from the allegedly inadequate response of the defendant hospital to a report of a sexual crime committed against one of its vulnerable patients. The questions we must resolve all pertain to whether the hospital can be held hable to a patient’s daughter, her primary caregiver, for emotional trauma that she suffered in the aftermath of the assault and which she attributes, in part, to the hospital’s handling of the incident. The trial court rendered summary judgment in favor of the hospital on all of the causes of action asserted by the patient’s daughter. She now appeals. We affirm the judgment of the trial court.

The facts, as determined from the pleadings and materials submitted in relation to the motion for summary judgment, are as follows. On March 23, 2004, the named plaintiff, Santina Di Teresi (Santina), a mostly noncommunicative ninety-two year old woman suffering from dementia, advanced Alzheimer’s disease, Parkinson’s disease, and other ailments, was victimized by a hospital employee at the defendant Stamford Hospital (hospital), where she was being treated as a “total care patient.” The assault, perpetrated by a certified nurse’s assistant, Robert Mayes, occurred at approximately 10 a.m. The assault was interrupted when a nurse, Latrina Futrell-Annosier, happened into Santina’s hospital room and discovered the untoward event. Futrell-Annosier, shocked, retreated from Santina’s room after a few seconds and went to get help. Left alone for a period of time, Mayes washed Santina’s linens and disposed of her hospital gown, thus eliminating the possibility of collecting physical evidence from these items. Mayes was escorted from the hospital at about 11 or 11:30 a.m.

Santina’s daughter, Virginia Di Teresi (Virginia), arrived at the hospital at about 2 or 2:30 p.m., as was her routine. By this time, Santina had been transferred to a different room, closer to the nurses’ station. Virginia was closely involved in her mother’s care, visited her frequently and held a power of attorney for her. For the next three hours, Virginia sat with her mother. Unaware that the assault had occurred, Virginia nonetheless noticed that her mother was “disturbed, agitated and restless.” At about 5 or 5:30 p.m., three hospital employees came to see Virginia in her mother’s hospital room, removed her to an office and related to her the details of what Mayes reportedly had done. At approximately the same time, hospital employees informed Santina’s primary care physician, Santi Neuberger, of the assault. Upon learning of the incident, Virginia was extremely distraught. She attributed her distress not only to the fact that the incident had occurred, but also to the manner in which it was handled by the hospital and belatedly communicated to her. Virginia stated that her grief was compounded by the fact that she had been deprived of the ability to comfort her mother and ensure that she was adequately cared for in the aftermath of the assault.

During the hours between the incident and Virginia’s being apprised of it, news of the incident made its way up the hospital’s chain of command. Representatives from the hospital’s risk management committee, human resources department and security staff met and discussed the appropriate response to the alleged assault, including, specifically, when to contact the Stamford police. The hospital contacted outside legal counsel, who advised the hospital to obtain a statement from Mayes, to report the incident to the police and to conduct a rape examination of Santina.

Following the advice of its attorneys, the hospital called Mayes at approximately 3 p.m. and asked him to return to the hospital. He arrived at about 4 p.m. and met with the hospital’s head of security and an employee from human resources, who confronted him with the nurse’s accusations. Mayes denied the allegations, stating that he had worked at the hospital for nine years and would never do such a thing. The Stamford police department was contacted at approximately 4:30 p.m. The hospital administered a rape kit examination of Santina at approximately 9 p.m.

Although the basic factual contours of what occurred on March 23, 2004, are not in dispute, the parties interpret the hospital’s actions in the hours following the assault quite differently. From Virginia’s perspective, the hospital deliberated for an unacceptably long time before addressing the alleged assault because, according to Virginia, its “primary concern was the negative impact this assault would have on its reputation and its potential liability.” While the hospital considered only its reputation, Virginia alleged, Santina was not adequately cared for because none of the nurses who treated her that day were apprised of the assault and her primary care physician was not contacted until late in the afternoon. Virginia asserts that the hospital’s response to the incident constituted a cover-up.

The hospital counters that this characterization of its response to the assault is unfair. It claims that investigating an assault of this nature presented “an entirely novel situation.” As such, the hospital, in its view, acted deliberately in investigating the claim, in part to ensure that the rights of Mayes and Futrell-Annosier were respected.

On March 22, 2006, Virginia and Santina commenced this action against the hospital, Stamford Health System, Inc., and Mayes, asserting nineteen causes of action, six on behalf of Virginia and thirteen on behalf of Santina. The hospital moved for summary judgment on twelve of the counts. The trial court, Hon. Kevin Tierney, judge trial referee, granted the hospital’s motion in its entirety. This appeal followed; it challenges only the court’s decision rendering summary judgment as to Virginia’s counts. Those counts sound in negligent infliction of emotional distress, intentional infliction of emotional distress, recklessness, violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and breach of fiduciary duty. We discuss each count in turn.

“The standard of review of a trial court’s decision granting summary judgment is well established. Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. 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.” (Citations omitted; internal quotation marks omitted.) LaFlamme v. Dallessio, 261 Conn. 247, 260, 802 A.2d 63 (2002).

I

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

Virginia first claims that the court erred by granting the hospital’s motion for summary judgment on her claim alleging negligent infliction of emotional distress. Specifically, Virginia takes issue with the court’s determination that her emotional injuries were not a foreseeable consequence of the delay in reporting to her the alleged sexual assault of her mother, and additionally contends that the court misconstrued her claim as a bystander emotional distress claim. We disagree ■with the court’s analysis, but nonetheless conclude, because of public policy concerns, that the hospital did not owe a duty to Virginia to report the incident to her more promptly than it did.

The determination of whether a duty exists to a plaintiff “is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual.” 2 D. Pope, Connecticut Actions and Remedies, Tort Law (1993) § 25:05.

“Our Supreme Court has stated that the test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant’s position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant’s responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case.” (Internal quotation marks omitted.) Hollister v. Thomas, 110 Conn. App. 692, 699, 955 A.2d 1212, cert. denied, 289 Conn. 956, 961 A.2d 419 (2008). In claims of negligent infliction of emotional distress, the narrower inquiry as to foreseeability is whether “the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm.” (Internal quotation marks omitted.) Maloney v. Conroy, 208 Conn. 392, 398, 545 A.2d 1059 (1988). “This condition differs from the standard foreseeability of the risk of harm requirement for negligence liability ... in that it focuses more precisely upon the nature of the harm to be anticipated as a prerequisite to recovery . . . .’’Id.

Foreseeability alone is not enough to establish a legal duty. “Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed. ... A further inquiry must be made, for we recognize that duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection. . . . While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world.” (Internal quotation marks omitted.) Lodge v. Arett Sales Corp., 246 Conn. 563, 576, 717 A.2d 215 (1998). “[T]he issue of foreseeability cannot be neatly compartmentalized and considered wholly separate from the policy issues that are central to our legal determination of duty.” Id. “[IJmposing liability for consequential damages often creates significant risks of affecting conduct in ways that are undesirable as a matter of policy. Before imposing such liability, it is incumbent upon us to consider those risks.” (Internal quotation marks omitted.) Id., 579.

Even if we assume that it is foreseeable that a delay in reporting an incident of this nature to a close family member may cause emotional distress of a magnitude that might cause illness or . bodily harm; cf. Maloney v. Conroy, supra, 208 Conn. 401 (“it takes no great prescience to realize that friends or relatives of a seriously injured accident victim will probably be affected emotionally in some degree”); public policy concerns militate against imposing a duty under the facts of this case. In determining whether the hospital owed a duty to report an incident of this nature to Virginia more promptly than it did, we must consider whether imposing liability creates unduly burdensome collateral risks. See Lodge v. Arett Sales Corp., supra, 246 Conn. 576. Because we conclude that recognition of a duty to report more promptly than occurred in this case would incentivize potentially detrimental behavior, we hold that liability ought not be imposed on the hospital.

Virginia’s claim of negligent infliction of emotional distress implicates several aspects of our negligence jurisprudence which advise a cautious approach to the imposition of liability. Our decision is informed by three lines of precedent: the first involves the limited duty owed by health care providers to third parties; the second deals with negligent infliction of emotional distress claims arising from medical malpractice; and the third addresses the consequences of imposing liability for a failure to report or a delay in reporting.

We thus begin our analysis mindful of the Supreme Court’s admonition that we should exercise “restraint when presented with opportunities to extend the duty of health care providers to persons who are not their patients.” Jarmie v. Troncale, 306 Conn. 578, 592, 50 A.3d 802 (2012); see id., 589 (physician owes no duty to third party victim to inform patient of compromised ability to drive because of patient’s impaired medical condition); see also id., 593 (cataloguing cases where Supreme Court has declined to find that health care providers owed duty of care to third parties).

Next, although the trial court improperly characterized Virginia’s claim as a bystander emotional distress claim in the context of observed medical malpractice, a cause of action not recognized in Connecticut; see Maloney v. Conroy, supra, 208 Conn. 392; the concerns that led our Supreme Court to reject the bystander cause of action lend support to our decision today. In Maloney, the Supreme Court held that a person who is present while a family member receives deficient medical care may not recover under a bystander theory of negligent infliction of emotional distress. Id., 397. The plaintiff in Maloney alleged that her mother’s death was caused by her doctors’ negligence, and that the plaintiffs emotional distress was compounded by the doctors’ failure to investigate symptoms that the plaintiff brought to their attention as evidence of her mother’s declining condition. Id., 394. Essentially, the plaintiff asked the court to recognize a cause of action for situations in which the plaintiff was present and cognizant that medical malpractice was being committed with respect to a close family member. Id., 397.

The Supreme Court held that such claims were not cognizable. Justice Shea, writing for the court, recounted the skepticism that has traditionally attended stand-alone claims of emotional distress: “Because the etiology of emotional disturbance is usually not as readily apparent as that of a broken bone following an automobile accident, courts have been concerned, apart from the problem of permitting bystander recovery, that recognition of a cause of action for such an injury when not related to any physical trauma may inundate judicial resources with a flood of relatively trivial claims . . . and that liability may be imposed for highly remote consequences of a negligent act.” Id., 397-98.

The emotional distress cause of action urged by the plaintiff in Maloney presented a particularly “troublesome question of causation”—namely, that it would be difficult to distinguish whether the plaintiffs distress was the result of natural grief over her mother’s death, which may have occurred even in the absence of malpractice, or, as the plaintiff alleged, “from the effects upon her feelings of her belief that the suffering and death of her mother were attributable to the defendants’ wrongful conduct.” Id., 399. Similarly here, it would be very difficult to parse whether Virginia’s emotional distress was caused by the fact of her mother’s having been victimized in this way, which could have been caused without any negligence on the hospital’s part, or whether her anguish was caused by the hospital’s allegedly deficient response. Indeed, when asked during her deposition what the basis was for her emotional distress, Virginia stated: “It’s hard to answer that. There’s just so many issues involved. . . . [T]here are many issues involved pertaining to this case that are causing me great, great emotional and mental stress and harm besides the assault itself . . . .” This understandable difficulty in isolating causation is another reason that we decline to hold that the hospital had a duty to Virginia to report more promptly what had happened to her mother.

Our public policy analysis is also informed by concerns raised in other duty to report cases. In Hollister, for example, a firefighter sued a homeowner and contractors who delayed in calling the fire department after a fire started dining a condominium renovation project. Hollister v. Thomas, supra, 110 Conn. App. 695-96. The homeowner was reluctant to summon emergency services because she had not obtained the requisite permits for the project and because there was an illegal structure in her condominium. Id., 696. As a consequence of the delay, the blaze had reached an advanced state by the time firefighters arrived. Id. Rushing to the scene, the plaintiff-firefighter sustained a serious, and likely permanent, knee injury. Id. The firefighter sued, alleging that the homeowner owed him a duty of care to promptly report the fire. Id., 699. The trial court granted the defendant-homeowner’s motion to strike on the ground that she did not owe the plaintiff a duty of care and this court affirmed. Id., 696, 704. Among other reasons for declining to impose a duty of more prompt reporting, we noted that, “[a]s a matter of public policy ... a finding of liability in response to a delay in reporting an emergency could deter an individual from reporting an emergency at all if that person thought that too much time had passed.” Id., 703-704.

Similar concerns are germane here. Although Virginia may have wanted to have been informed immediately of the alleged assault, the hospital had a countervailing obligation to investigate Futrell-Annosier’s allegations and to devise a plan for dealing with its accused employee, Mayes. Health care providers may be reluctant to report such incidents at all if a delay of only a few hours could be a basis for liability to the victim’s family members. Moreover, imposing liability when such an incident is reported within hours of its occurrence incentivizes rash reporting. A false or incomplete report of an incident of this nature would undoubtedly have caused Virginia entirely unwarranted emotional distress as well.

A related concern is that imposing liability when only a few hours have passed between the incident and the reporting could lead hospitals, in an attempt to “shield themselves from liability,” to “report all potential claims rather than [exercise] the requisite amount of discretion to determine the validity of such claims.” Ward v. Greene, 267 Conn. 539, 560, 839 A.2d 1259 (2004). And, overreporting for fear of legal action can distract hospital employees from their primary responsibility of treating patients. See Maloney v. Conroy, supra, 208 Conn. 403 (“[t]he focus of the concern of medical care practitioners should be upon the patient and any diversion of attention or resources to accommodate the sensitivities of others is bound to detract from that devoted to patients”)- For these public policy reasons, we conclude that the hospital did not have a duty to report the sexual assault of Santina to her daughter Virginia more promptly than it did.

II

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Virginia next claims that the court erred by granting the defendant’s motion for summary judgment on her count claiming intentional infliction of emotional distress. Virginia’s claim of intentional infliction of emotional distress alleged a concealment of the sexual assault, which consisted of a delay in informing Santi-na’s primary care physician, Virginia, and the Stamford police of the assault. Virginia further alleged that the hospital “knew or should have known that severe emotional distress was likely to result from [this] conduct.” In granting the hospital’s summary judgment motion, the court held that the hospital’s conduct in responding to the assault was not extreme and outrageous.

“In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiffs distress; and (4) that the emotional distress sustained by the plaintiff was severe. . . . Whether a defendant’s conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine. . . . Only where reasonable minds disagree does it become an issue for the jury.” (Citation omitted; internal quotation marks omitted.) Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn. App. 835, 846, 888 A.2d 104 (2006); see also Hartmann v. Gulf View Estates Homeowners Assn., Inc., 88 Conn. App. 290, 295, 869 A.2d 275 (2005) (“[I]n assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint ... set forth behaviors that a reasonable fact finder could find to be extreme or outrageous.”).

The threshold inquiry in an intentional infliction of emotional distress action is, therefore, whether the alleged behavior is sufficiently extreme and outrageous. This high bar for distasteful behavior has been described as requiring “conduct ... so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous!” (Internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 443, 815 A.2d 199 (2003).

We agree with the court that the conduct at issue cannot be fairly characterized as extreme and outrageous. Even if the delay in informing Virginia was motivated in part by public relations or pecuniary concerns, there is no evidence that the hospital intended to inflict emotional distress on her. Moreover, as we previously explained, the hospital took a relatively short time to investigate unique, in its experience, allegations of sexual assault by an employee. After substantiating the allegations, consulting with outside legal counsel and interviewing the accused, Virginia was informed of what reportedly had transpired. This occurred approximately seven hours after the incident had occurred. A delay of this nature does not constitute behavior that is outside “all possible bounds of decency.” Cf. 1 D. Pope, Connecticut Actions and Remedies, Tort Law (1993) § 6:03 (“[i]f the defendant’s act is merely negligent, even negligence of an aggravated sort, the correct action is negligent infliction of mental distress”).

Our conclusion is supported by Carrol v. Allstate Ins. Co., supra, 262 Conn. 443. In Carrol, the plaintiff filed a claim for fire damage pursuant to a homeowner’s insurance policy with the defendant after a container, inadvertently filled with gasoline instead of kerosene, combusted in the plaintiffs basement. Id., 436-36. The defendant refused to reimburse the plaintiff for a portion of his losses because its investigators had concluded that the cause of the fire was arson. Id., 436-37. The plaintiff brought an action, alleging, inter alia, breach of the insurance contract and intentional infliction of emotional distress. To support his claim of intentional infliction of emotional distress, the plaintiff had presented evidence at trial that the defendant’s investigation had not been thorough, and that investigators had deliberately ignored critical evidence demonstrating that the fire was not the result of arson. Id., 439-41. The plaintiff additionally testified that one of the defendant’s investigators may have been dismissive of the plaintiffs claim because he was African-American. Id., 441.

The jury awarded punitive damages to the plaintiff on his claim of intentional infliction of emotional distress, but the Supreme Court reversed on the ground that there was insufficient evidence that the defendant’s conduct was extreme and outrageous. Id., 444. The court concluded that “[t]he plaintiff produced evidence that the defendant did not conduct a thorough or reasoned investigation and may have decided too quickly that the fire had been set deliberately. As distressing as this insurance investigation may have been to the plaintiff, however, it simply was not so atrocious as to trigger liability for intentional infliction of emotional distress.” (Emphasis in original.) Id.

Similarly, the allegations in this case, interpreted in the light most favorable to Virginia, are not so “atrocious” as to rise to the level of conduct that makes out a claim for intentional infliction of emotional distress. As in Carrol, Virginia alleged here that an investigation was conducted in such a way as to protect the hospital’s interests, both reputational and financial. Those interests allegedly outweighed the hospital’s obligation promptly to inform Virginia of what had happened to her mother. Even if the delay was caused by a temporary desire to “cover up” the incident, however, and not by the legitimate need to investigate very serious allegations, the fact remains that Virginia was informed of the assault within hours after it happened. Given the relatively short period of time that elapsed before the hospital reported the incident to Virginia, the court properly rendered summary judgment in favor of the hospital on her intentional infliction of emotional distress count.

Ill

COMMON-LAW RECKLESSNESS

Virginia next claims that the court erred by rendering summary judgment in favor of the hospital on her cause of action alleging recklessness. In her complaint, Virginia incorporated the allegations of all of her other causes of action—including the actions previously discussed here, negligent and intentional infliction of emotional distress—and additionally alleged that the “hospital’s conduct . . . was deliberate and/or reckless and demonstrated a reckless disregard for the rights of Virginia Di Teresi.” The court concluded that the “failure to inform Virginia ... is not an extreme departure from ordinary care.” We agree.

“In order to establish that the defendants’ conduct was wanton, reckless, wilful, intentional and malicious, the plaintiff must prove, on the part of the defendants, the existence of a state of consciousness with reference to the consequences of one’s acts .... [Such conduct] is more than negligence, more than gross negligence. . . . [I]n order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them. ... It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action. ... [In sum, such] conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.” (Internal quotation marks omitted.) Elliott v. Waterbury, 245 Conn. 385, 415, 715 A.2d 27 (1998). “It is at least clear . . . that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention . . . .” (Internal quotation marks omitted.) Dubay v. Irish, 207 Conn. 518, 533, 542 A.2d 711 (1988).

For many of the reasons already discussed, we do not characterize the hospital’s response to the assault as “an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.” (Internal quotation marks omitted.) Elliott v. Waterbury, supra, 245 Conn. 415. Virginia’s recklessness cause of action is essentially a recapitulation of her allegations of negligence. Because of the “wide difference between negligence and a reckless disregard of the rights or safety of others . . . [m]erely using the term recklessness to describe conduct previously alleged as negligence is insufficient as a matter of law.” (Citation omitted; internal quotation marks omitted.) Angiolillo v. Buckmiller, 102 Conn. App. 697, 705, 927 A.2d 312 (2007); see also Dumond v. Denehy, 145 Conn. 88, 91, 139 A.2d 58 (1958) (“[a] specific allegation setting out the conduct that is claimed to be reckless or wanton must be made”).

IV

CUTPA

Virginia next claims that the court improperly granted the hospital’s motion for summary judgment as to her CUTPA claim. The court rendered summary judgment as to the CUTPA claim on two grounds: (1) that Virginia was not in a business relationship with the hospital and (2) that she did not sustain an ascertainable loss. This court having already concluded that the hospital did not owe a legal duty to Virginia to report the sexual assault to her more promptly, her CUTPA claim must also fail. Therefore, we need not address whether Virginia’s relationship with the hospital provides standing to sue under CUTPA, or whether her purely emotional injuries constitute an “ascertainable loss.”

We begin our analysis of Virginia’s CUTPA action by noting that, “[although physicians and other health care providers are subject to CUTPA, only the entrepreneurial or commercial aspects of the profession are covered”; Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 34, 699 A.2d 964 (1997); that is, “[m]edical malpractice claims recast as CUTPA claims cannot form the basis for a CUTPA violation.” Id., 38. We interpret Virginia’s CUTPA claim, generously, to be that the hospital made a commercial decision to withhold information regarding the assault from her because of concerns that negative publicity would ensue if the assault was made public. We do note that if the hospital’s delay reflected a commercial decision, as Virginia alleged, it maintained such a strategic direction only for a few hours before communicating the allegations to her. Assuming, for the sake of argument, that any delay in reporting was motivated by the hospital’s public relations concerns, our decision that the hospital owed no duty to report the allegations to Virginia more promptly forecloses recovery under CUTPA.

“[A]s a general matter, the existence of a duty is not a prerequisite to a finding of a CUTPA violation. When a plaintiff alleges that a defendant’s passive conduct violates CUTPA, however, common sense dictates that a court should inquire whether the defendant was under any obligation to do what it refrained from doing.” (Emphasis in original.) Downes-Patterson Corp. v. First National Supermarkets, Inc., 64 Conn. App. 417, 427, 780 A.2d 967 (no CUTPA violation for failure to sign release of restrictive covenant where defendant was not required to relinquish such interest), cert. granted on other grounds, 258 Conn. 917, 782 A.2d 1242 (2001) (appeal dismissed June 25, 2002).

The hospital was under no duty to report the incident to Virginia sooner than it did; thus, “common sense dictates”; id.; that its failure to do so cannot be the basis of a CUTPA violation. Moreover, the purpose of CUTPA is to protect the public from unfair trade practices, and “whether a practice is unfair depends upon the finding of a violation of an identifiable public policy.” Daddona v. Liberty Mobile Home Sales, Inc., 209 Conn. 243, 257, 550 A.2d 1061 (1988). As we have explained, public policy concerns do not support imposing a duty to report an incident of this nature before a hospital has had some reasonable period of time to investigate the allegations. Therefore, summary judgment was properly rendered as to Virginia’s CUTPA count.

V

BREACH OF FIDUCIARY DUTY

Virginia finally claims that the court improperly rendered summary judgment in favor of the hospital as to her cause of action alleging breach of fiduciary duty. In her complaint, Virginia alleged that the hospital owed a fiduciary duty directly to her. The precise nature of the duty purportedly owed to Virginia was described more thoroughly in her brief: “[t]he [h]ospital had a duty to deal honestly and in good faith with Virginia, the only person authorized to make decisions concerning Santina’s medical care and treatment, and to not place its own interests above hers.” Virginia’s assertion of a fiduciary relationship with the hospital does not, however, derive only from her status as her mother’s attorney in fact. She additionally urges that “her decision to engage the [h]ospital’s services and to place her trust and confidence in the [h]ospitai placed her in a direct relationship with the [h]ospital.” Thus, Virginia’s claim seems to be that the hospital’s fiduciary duty to her was breached when the hospital allegedly let its self-interest dictate its response to her mother’s , victimization—that is, the delay in informing Virginia of the assault was motivated by the hospital’s desire to avoid liability and negative publicity. The court found that the hospital did not have a fiduciary relationship with Santina; therefore, it concluded that the power of attorney exercised by Virginia could not establish a fiduciary relationship with the hospital.

“[A] fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other.” (Internal quotation marks omitted.) Sherwood v. Danbury Hospital, 278 Conn. 163, 195, 896 A.2d 777 (2006). The universe of fiduciary relationships is not static. “Rather than attempt to define a fiduciary relationship in precise detail and in such a manner to exclude new situations, we have instead chosen to leave the bars down for situations in which there is a justifiable trust confided on one side and a resulting superiority and influence on the other.” (Internal quotation marks omitted.) Dunham v. Dunham, 204 Conn. 303, 320, 528 A.2d 1123 (1987), overruled in part on other grounds by Santopietro v. New Haven, 239 Conn. 207, 213 n.8, 682 A.2d 106 (1996). “[Although we have not expressly limited the application of . . . traditional principles of fiduciary duty to cases involving only fraud, self-dealing or conflict of interest, the cases in which we have invoked them have involved such deviations.” (Emphasis in original; internal quotation marks omitted.) Sherwood v. Danbury Hospital, supra, 196.

The court concluded that the hospital was not acting as a fiduciary in its relationship with Santina because of a dearth of Connecticut cases finding such a legal relationship. A fortiori, the court found that a fiduciary relationship could not have existed between the hospital and Virginia. The court cited Sherwood v. Danbury Hospital, supra, 278 Conn. 163, for the proposition that a hospital generally does not function in a fiduciary capacity with its patients. But Sherwood did not negate, as a matter of law, the possibility that such a fiduciary relationship can exist in other circumstances. Instead, the Supreme Court concluded that the plaintiff-patient’s nonemployee treating physician, and not the hospital, owed the patient a duty of care to inform the plaintiff of the risks of contracting HIV from a blood transfusion performed at a hospital during a surgical procedure. Id., 192; see id., 185-86 (“it is solely the responsibility of the nonemployee treating physician, and not the duty of the hospital, to inform the patient of the risks and benefits of, and alternatives to, a proposed medical procedure”). “[I]t is not the hospital but the patient’s physician who, by virtue of his or her relationship with the patient and knowledge of the patient’s medical condition and history, can best advise the patient . . . .” Id., 187. In these circumstances, the court noted that the plaintiff “provided scant reason to conclude that a hospital owes a patient the duty of a fiduciary.” Id., 196. The court went on to say that, even assuming there was a fiduciary relationship between the hospital and the patient, the plaintiff “failed to demonstrate why the duty encompassed the responsibility of informing the plaintiff of the risks associated with a blood transfusion.” Id.

The facts of Sherwood are markedly different from the facts here. Santina checked into the hospital not for a discrete procedure to be performed by a nonemployee physician, but for comprehensive care. Moreover, Virginia’s claim of breach of fiduciary duty does not arise from a failure to disclose the risks associated with a particular medical procedure, but from the hospital’s alleged failure to adequately respond to Santina’s sexual assault. We do not raise these issues in an attempt to decide whether a fiduciary duty did in fact exist between the hospital and Santina. Virginia’s assertion of a fiduciary relationship, however, cannot be rejected on the ground that the hospital could not, as a matter of law, have been acting as a fiduciary in its relationship with Santina.

Assuming, arguendo, that a fiduciary relationship did exist between the hospital and Virginia, we nonetheless find no issue of genuine fact as to whether the hospital’s conduct, vis-a-vis Virginia, constituted “fraud, self-dealing or conflict of interest . . . .” Id. To be sure, “the possible concealment of a fiduciary’s own wrongdoing egregious enough to give rise to a legal claim seems particularly the type of behavior that the law requires the fiduciary to explain.” Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409, 422 (2d Cir. 1999) (applying Connecticut fiduciary law). Moreover, as the United States Court of Appeals for the Second Circuit has observed, “[a] fiduciary obtains an obvious benefit if the person to whom it owes a fiduciary duty delays bringing a cause of action against the fiduciary beyond the expiration of the statute of limitations [because] [t]he claim against the fiduciary is forever barred.” Id. Here, however, any delay motivated by the hospital’s purported self-interest did not compromise Virginia’s ability to prosecute an action against the hospital. Thus, it is difficult to surmise what benefit accrued to the hospital by a period of delay of a few hours, during one business day. For this alternative reason, summary judgment was properly rendered as to Virginia’s breach of fiduciary duty count.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant Stamford Health System, Inc., is the parent corporation of Stamford Hospital. We refer to these entities collectively as the hospital. Robert Mayes was also named as a defendant, but he is not a party to this appeal.

       The “total care patient” status is used by the hospital to designate patients who are unable to care for themselves. Santina had been admitted to the hospital on March 9, 2004.

       Mayes was ultimately convicted of two counts of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (B) and (C), and one count of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (A).

       Virginia later sought psychiatric treatment, and was diagnosed with post-traumatic stress disorder.

       There is some dispute over whether the Stamford police department was first contacted at about 4 or 8:45 p.m. The police report indicates that the hospital contacted the police department at about 4 p.m., though the deposition of a police officer called into question the accuracy of this aspect of the report. The court found, and we agree, that the exact time that the hospital contacted law enforcement is not a material fact for summary judgment purposes.

       In this regard, Virginia notes that when the hospital’s head of security, Tim Burgunder, and an employee from human resources met with Mayes at about 4 p.m., Burgunder allegedly told Mayes that if he explained what happened, the incident could be handled internally. According to Virginia, Burgunder’s offer demonstrates the hospital’s desire to conceal the assault.

       The hospital asserts that there had not been a reported sexual assault at Stamford Hospital since at least 1972, and perhaps never.

       Santina died on January 27,2008. The co-executors other estate, namely, Virginia and Emmanuel J. Di Teresi, have been substituted as plaintiffs for Santina in this action.

       We emphasize that our review of the court’s rendering of summary judgment as to Virginia’s causes of action reflects the unique concerns presented by those claims against the hospital and expresses no opinion as to the propriety of the disposition of any of Santina’s causes of action.

       Five of the six counts asserted by Virginia are at issue in this appeal; the sixth was stricken on a motion to strike. See footnote 14 of this opinion.

       Many of the allegations under this count recited facts pertaining to the hospital’s alleged failures adequately to care for Santina after her assault, promptly to notify the Stamford police and to preserve evidence of the crime. The allegations that relate directly to Virginia’s emotional distress were that the hospital withheld information concerning the sexual assault from her, and that the hospital knew or should have known that the withholding of such information, together with the hospital’s allegedly negligent treatment of Santina, created an unreasonable risk of causing Virginia emotional harm.

       The hospital concedes that it had a duty to Santina to inform her physician, the police and her attorney in fact of an assault of the sort that occurred here. The hospital disputes that it had a duty to inform Virginia, in her personal capacity, of the alleged assault any sooner than it did.

       Although our Supreme Court has sometimes utilized a four factor framework for evaluating whether public policy concerns support the existence of a legal duty; see, e.g., Jarmie v. Troncale, 306 Conn. 678, 603, 50 A.3d 802 (2012); we need not undertake such an analysis here because of our reliance on cases addressing the costs and benefits of imposing a legal duty in similar factual scenarios.

       We note that, among the claims asserted against the hospital by the estate of Santina, is a medical malpractice claim, alleging, among other things, that the hospital failed to adequately monitor Mayes and promptly to provide Santina with medical treatment following the assault. Additionally, Virginia asserted a bystander negligent infliction of emotional distress claim against the hospital based on her presence during her mother’s rape examination. The trial court, Tobin, J., granted the hospital’s motion to strike this claim. This ruling is not being challenged in this appeal.

       To the extent that the hospital’s delay in informing Virginia is indicative of a larger pattern of inattentiveness to Santina in the aftermath of the assault, such actions may be relevant to Santina’s claims against the hospital. Cf. Maloney v. Conroy, supra, 208 Conn. 403 (daughter’s unsuccessful attempts to bring to doctors’ attention her mother’s declining condition may have been relevant to determination of whether there had been malpractice, but “[i]t is . . . the consequences to the patient, and not to other persons, of deviations from the appropriate standard of medical care that should be the central concern of medical practitioners”).

       Licensed medical professionals have an obligation to report the suspected abuse or neglect of a person with an intellectual disability within seventy-two hours. See General Statutes § 46a-llb (a). Similarly, licensed medical professionals and other employees of nursing home facilities have an obligation to report the suspected abuse, neglect, exploitation or abandonment of elderly persons within seventy-two hours. See General Statutes § 17b-451 (a).

       The court also found that the count in Virginia’s complaint alleging intentional infliction of emotional distress was “in effect a bystander emotional distress claim in a medical malpractice case,” which is not recognized by Connecticut law. As discussed previously, we disagree with this characterization of Virginia’s claims, but for the reasons set forth, nonetheless hold that summary judgment was proper.

       Virginia’s recklessness count also incorporates her intentional infliction of emotional distress claim, but, as we discussed previously, the alleged delay here did not rise to the level of conduct that makes out such a claim.

       Although our Supreme Court has not definitively addressed this issue, other states have recognized that a fiduciary relationship can exist between a hospital and a patient. See B. Furrow, “Patient Safety and the Fiduciary Hospital,” 1 Drexel L. Rev. 439, 459-63 (2009); see also Wohlgemuth v.
        Meyer, 139 Cal. App. 2d 326, 331, 293 P.2d 816 (1966) (“The doctor-patient relationship is a fiduciary one and it is incumbent on the doctor to reveal all pertinent information to his patient. The same is true of the hospital-patient relationship.”).

       Virginia also argues that the hospital breached a fiduciary duty to her, in her capacity as her mother’s attorney in fact, to fulfill her responsibilities as the primary decision maker for her mother’s health care. Those claims, however, are indistinguishable from Santina’s action for breach of fiduciary duty; indeed, this count also alleged that the hospital withheld information from Virginia. Thus, Virginia’s breach of fiduciary duty action related to her role as her mother’s attorney in fact essentially appropriates claims related to the postassault treatment of Santina and therefore can only be asserted by her.