author: SCHALLER, J.

text:
    FEDERAL DEPOSIT INSURANCE CORPORATION, RECEIVER OF CITYTRUST v. RICHARD E. FONTE ET AL.
    (AC 16555)
    Schaller, Hennessy and Daly, Js.

      Argued December 16, 1997
    officially released April 28, 1998

      Kerry M. Wisser, with whom, on the brief, was Nathan A. Schatz, for the appellant (defendant Richard Matza).

      Frederic S. Ury, with whom, on the brief, were Neal L. Moskow and Vincent M. Marino, for the appellee (substitute plaintiff).
   Opinion

SCHALLER, J.

The defendant Richard Matza appeals from the judgment of the trial court holding him liable on a promissory note. The note was secured by real estate located in Arizona that was disposed of in a trustee’s sale proceeding initiated by the plaintiff prior to the commencement of this action. The defendant claims on appeal that the trial court improperly determined (1) that the trustee’s sale proceeding of the Arizona property did not bar this subsequent action on the note, (2) the amount of the damages, and (3) that the amount of $35,000 paid by a co-obligor on the judgment rendered against that co-obligor in this action should have been credited against the judgment. We reverse the judgment of the trial court as to the failure to credit the amount paid by the co-obligor and affirm the judgment in all other respects.

The following relevant facts are not in dispute. By a promissory note dated November 7, 1986, the defendant, Richard E. Fonte, Paul West and William Riebe, all Connecticut residents, and Southwest Professional Properties, a Connecticut general partnership, jointly and severally agreed to pay to the order of Citytrust the principal sum of $350,000, together with interest. The promissory note was secured by a deed of trust pertaining to a parcel of real estate located in Pima County, Ar izona. A deed of trust is a form of mortgage under Arizona law that allows the mortgaged real estate to be sold by the trustee in a judicially unsupervised trustee’s sale or in a judicial foreclosure, at the option of the beneficiary of the trust deed. See Ariz. Rev. Stat. § 33-807. The trustee’s sale proceeding requires notice by publication and the mailing of notice to each person who has an interest in the trust property. See Ariz. Rev. Stat. §§ 33-808 and 33-809.

The promissory note in question fell into default as of March 1, 1990, when the borrowers failed to pay interest according to the terms of the note. Citytrust declared the note in default and accelerated the terms of the note. A trustee’s sale was scheduled for October 23, 1990, in Arizona, and notice was duly given. To induce Citytrust to forbear from proceeding with the trustee’s sale, the defendant and the other obligors under the note agreed with Citytrust that they would provide additional security. In return, Citytrust agreed to “continue the Trustee’s Sale for a period [of] not less than one hundred eighty [180] days” to allow the obligors further opportunity to sell the property. The additional security provided was a deed of trust encumbering a second parcel of real property located in Pima County, Arizona. Under the forbearance agreement, if the obligors failed to sell the original property on or before April 30,1991, Citytrust had the right to proceed with a trustee’s sale as to both deeded properties. Both properties were ultimately sold by trustee’s sale.

The trial court found that the sale of the second property “produced an amount of $20,029.91 which was credited against the principal then balance of $350,000.” That credit was applied on March 16, 1993. The trial court concluded that no evidence was introduced as to the actual sale price of the first property. The trial court found, however, that the amount of $108,786.09 was credited to the outstanding interest, although it made no specific finding that this amount represented the sale price of the first property. The trial court determined that the sale proceeds from the first property were credited on March 16, 1993.

On August 9, 1991, Citytrust was declared insolvent by the Connecticut commissioner of banking, and the Federal Deposit Insurance Coiporation (FDIC) was appointed receiver. The FDIC succeeded to all of City-trust’s right, title and interest in the assets at issue. The present action is pursued by the substitute plaintiff, National Loan Investors, L.P., assignee of the FDIC’s interest by virtue of an assignment of the promissory note and other appropriate documents in September, 1994. Both Fonte and Riebe received discharges in bankruptcy of the underlying debt in this action. The FDIC withdrew the action against them on June 24, 1993. On June 26, 1996, West settled the FDIC’s action against him. That settlement, in the form of a stipulated judgment, was presented to the trial court. The stipulation states that West “will immediately tender a payment ... of $35,000” to the plaintiff in partial satisfaction of the judgment against him in this action.

The present action was brought in two counts and process was served on the defendant on June 2, 1993. In the first count, the plaintiff sought to collect from the defendant the balance due under the promissory note dated November 7, 1986, in the original amount of $350,000. In the second count, the plaintiff alleged breach of the October 23, 1990 forbearance agreement, which obligated the defendant to sell the Arizona property on or before April 30, 1991, as an inducement for Citytrust’s forbearance. That default, the plaintiff claimed, entitled the plaintiff to proceed on the promissory note. As relief under both counts, the plaintiff claimed money damages, costs, attorney’s fees, and “such other relief in law and/or in equity as this court deems just and proper.” The plaintiff further gave notice that “the plaintiff intends to seek satisfaction of any deficiency judgment rendered in its favor by obtaining a wage execution pursuant to Connecticut Public Act No. 83-581.” The defendant filed numerous special defenses including lack of jurisdiction, waiver of the right to collect payment, estoppel, the fact that “any recovery by the plaintiff is subject to a setoff in the amount of the fair market value of the trust property on the date of the sale or the sale price at the trustee’s sale, whichever is higher,” failure to bring the action within the time permitted by law and full satisfaction of the defendant’s obligations.

The trial court found that both trust properties were sold at trustee’s sales. The sale of the second trust property resulted in a $20,029.91 credit against the principal balance of $350,000, leaving an unpaid principal balance of $329,970.09. The sale of the first trust property resulted in a credit of $108,786.09 against the outstanding interest. The amount of interest accrued at the time of judgment was found to be $115,362.97. Attorney’s fees in the amount of $19,957 were allowed. The total amount of the trial court’s judgment was $465,290.06.

The trial court first determined that according to the terms of the note itself and in accordance with choice of law theory, Connecticut law should be applied to the question of the validity and timeliness of the present action. The court then concluded that the action on the note was properly brought and that General Statutes § 49-1 did not bar the action. Specifically, the trial court stated: “No argument is advanced that in an Arizona type of foreclosure action the courts of the state of Arizona could have accomplished ‘an action in perso-nam’ as against a Connecticut resident through any type of service of process in this state. The defendant does not properly advance this proposition. Under Connecticut law, an Arizona in rem action, a foreclosure, would not bar further action against a person not personally served.” The trial court went on to state that even if the trustee’s sale proceeding was considered a foreclosure by sale for purposes of deficiency proceedings, § 49-1 would not be a bar under BayBank Connecticut, N.A. v. Thumlert, 222 Conn. 784, 787, 610 A.2d 658 (1992). The court determined that waiver and estoppel did not apply and that while the defendant was entitled to a setoff for the proceeds that were recovered in the trustee’s sales, the defendant produced no evidence concerning either the fair market value of the properties or any deprivation of his rights with respect to the trustee’s sales.

I

We first address the principal issue that is raised in this appeal, namely, whether the present action, which both parties contend is an independent suit on the promissory note rather than a deficiency proceeding, is barred by the provisions of § 49-1 because it was instituted some two and one-half months after the date of the trustee’s sales in Arizona.

It is undisputed that the only actions that could be interpreted as foreclosures in this case were the nonjudicial trustee’s sales conducted pursuant to Ariz. Rev. Stat. § 33-807 et seq. Those statutes allow the beneficiary of the trustee’s deed to choose between two alternate types of proceedings to recover the value of the security pledged to secure the indebtedness. The first type of proceeding, invoked in this case, is the trustee’s sale, which requires publication notice in addition to mail notice to interested parties. The second type, not invoked here, is a judicial foreclosure. In the trustee’s sale, no parties are served by means of usual process because no court proceeding is instituted. In the judicial type of foreclosure, the only method of service is by personal delivery or by delivery to the person’s house or usual place of abode. See Rule 4.1 of the Arizona Rules of Civil Procedure. In either proceeding, there is no provision for bringing in for deficiency purposes those individual obligors who may be personally hable under the note.

Section § 33-814 of the Arizona statutes provides for a separate action to be maintained by the creditor to recover any deficiency. Under the provisions of the deficiency statute, when read together with Arizona’s broad “long arm” service of process rule, there is no question that the defendant could have been served personally in Connecticut. A. Uberti & C. v. Leonardo, 181 Ariz. 565, 892 P.2d 1354 (en banc), cert. denied, 516 U.S. 906, 116 S. Ct. 273, 133 L. Ed. 2d 194 (1995) (personal jurisdiction over nonresident defendant allowed because defendant had “sufficient minimum contacts with Arizona” and exercise of jurisdiction over him was “fair and reasonable”).

In the present case, however, no deficiency proceeding was instituted in Arizona. Moreover, no action designated exclusively as a deficiency proceeding under General Statutes § 49-14* ** was instituted in Connecticut. It is clear, however, that because Connecticut’s deficiency proceeding is not a separate action, but rather a part of the foreclosure action, any proceeding in Connecticut to recover a deficiency would have to be brought as a separate action. We note that although both parties have designated the present action as a separate suit on the note, in actuality, the action could serve as a deficiency proceeding and even refers to a potential deficiency in the claims for relief. At the trial of this case, the trial court limited the plaintiffs recovery to the deficiency, just as it would in a deficiency proceeding under Connecticut law.

Because, for purposes of trial, the parties and the court treated the present action as a separate suit on the note, we will consider it as such. Moreover, for purposes of this discussion only, we will treat the Arizona trustee’s sales as “foreclosures” in substance, although they are not specifically designated as such in the Arizona statutes. The pertinent statutes differentiate between the alternate remedies as a trustee’s sale and a foreclosure respectively. Trustee’s sales are not designated as foreclosures in the strict sense of the word, and the term foreclosure is confined to the judicial proceeding permissible under the statutes. We note, however, that the Arizona courts occasionally refer to the sale proceeding as a type of foreclosure. See, e.g., Valley National Bank of Arizona v. Kohlhase, 182 Ariz. 436, 897 P.2d 738 (Ariz. App. 1995). If we were to construe the trustee’s sale proceeding as other than a foreclosure, it is evident that § 49-1 would not apply to bar a separate suit on the note. We believe, however, that even considering the trustee’s sale to be a variation of a judicial foreclosure for the purposes of argument, the result is the same in this case. Under either interpretation, § 49-1 does not bar the present action.

We reach that result because, contrary to the defendant’s assertions, the defendant was not amenable to personal service in Connecticut at the time the “foreclosure” was commenced. Section 33-807 of the Arizona statues, which governs the trustee’s sale procedure, provides for publication notice of the trustee’s sale and notice by mail to “interested parties.” See Ariz. Rev. Stat. §§ 33-808 and 33-809. That procedure consists solely of an auction sale and is not accompanied by any determination of personal liability on the part of the obligors on the underlying debt. No procedure for service of legal process on any parties is provided. Contrary to the defendant’s argument, the obligors would not reasonably anticipate being haled into court in the course of that proceeding. After the trustee’s sale or foreclosure, a separate action could be maintained to determine any deficiency. Ariz. Rev. Stat. § 33-814. For that to occur under Arizona law, a separate action would have to be instituted within ninety days after the sale or foreclosure. Id. At that point, but not before, the defendant could anticipate being haled into court.

It is not sufficient to bar the plaintiff from maintaining the present action simply because at some later time, after the trustee’s sale, the defendant could have been personally served if the plaintiff had brought a deficiency action in Arizona. Rather than proceed in Arizona with a deficiency action, the plaintiff elected to sue on the note in Connecticut prior to the expiration of the ninety day period for bringing a deficiency action in Arizona. The trial court correctly determined that § 49-1 does not bar the present action because the defendant is a “person . . . upon whom service of process to constitute an action in personam could not have been made within this state at the commencement of the foreclosure. . . ,” CTB Realty Ventures XXII, Inc. v. Markoski, 33 Conn. App. 388, 392, 636 A.2d 379, cert. granted, 228 Conn. 929, 640 A.2d 115 (1994) (appeal withdrawn July 18, 1994). As the trial court noted, in fact, the defendant did not make that claim at trial. See Practice Book § 60-5.*

II

The defendant next claims that the trial court improperly determined the amount of damages in that (1) it failed to find the fair market value of the properties sold by trustee’s sale and (2) it failed to find the sale price of the second parcel sold. It is undisputed that the trial court found, on the basis of the evidence produced, that one sale resulted in proceeds of $20,029.91, which were credited to the principal balance, and the other resulted in proceeds of $108,786.09, which were credited to the interest owing. No finding was made as to the market value of either property or the sales price of the second property.

Under Connecticut law, which both parties agree applies to this issue, it is well established that a mortgagor is entitled to a credit against the amount of the debt where mortgaged property is foreclosed to satisfy a debt. People’s Holding Co. v. Bray, 118 Conn. 568, 571, 173 A. 233 (1934). In calculating a deficiency judgment, a mortgagor is not entitled to a credit for the fair market value of the property sold, but rather is entitled to a credit for the amount of the sale proceeds. New England Savings Bank v. Lopez, 227 Conn. 270, 277, 630 A.2d 1010 (1993); see General Statutes § 49-28; Fairfield Plumbing & Heating Supply Corp. v. Kosa, 220 Conn. 643, 646 n.8, 600 A.2d 1 (1991). The deficiency is calculated by subtracting the sale proceeds from the debt. Cronin v. Gager-Crawford Co., 128 Conn. 688, 692, 25 A.2d 652 (1942). The defendant is not entitled to have the entire sale price applied to reduce the debt. Rather, in arriving at the sale proceeds to be applied, the court determines and allows for the expenses incurred in connection with the sale. See Federal Deposit Ins. Corp. v. Voll, 38 Conn. App. 198, 202-203, 660 A.2d 358, cert. denied, 235 Conn. 903, 665 A.2d 901 (1995).

In the present case, the plaintiff offered evidence of the amount of sales proceeds credited to the note. Since this action was not a deficiency proceeding, the plaintiff was not required to establish the fair market value of the properties. Concerning the evidence of the sales proceeds, the trial court’s finding is tested by the clearly erroneous standard. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). “[The clearly erroneous standard] involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” Id.

The trial court chose to credit the evidence that was offered by the plaintiff. That evidence was sufficient to allow the trial court to determine the amount of sales proceeds from the trustee’s sales. If the defendant chose not to challenge the plaintiffs evidence as to the sales proceeds of the properties, that was the defendant’s prerogative. The defendant, however, cannot now legitimately claim that the plaintiffs evidence was insufficient to provide a basis for the trial court’s findings.

III

The defendant finally claims that the judgment should have been reduced by the sum of $35,000 paid by West pursuant to the stipulated judgment. The plaintiff agrees with the defendant’s calculation. Accordingly, the amount of the judgment must be reduced by the sum of $35,000, resulting in a corrected amount of $430,290.06.

The judgment is reversed in part and the case remanded with direction to render judgment in favor of the plaintiff in the amount of $430,290.06. In all other respects the judgment is affirmed.

In this opinion the other judges concurred.

       The four original defendants in this action were Richard E. Fonte, Paul West, William Riebe and Richard Matza. The action against Fonte and Riebe was discharged through bankruptcy, and those defendants were dropped from the case shortly alter it commenced. The action against West was resolved prior to trial by a stipulated judgment on June 26, 1996. The action against Matza, the remaining defendant, was thereafter brought to trial and this appeal followed. We refer in this opinion to Matza as the defendant.

       This action was brought by the Federal Deposit Insurance Corporation as receiver of Citytrust. The substituted plaintiff is National Loan Investors, L.P.

       Section 33-807 of the Arizona Revised Statutes provides in relevant part: “A. By virtue of his position, a power of sale is conferred upon the trustee of a trust deed under which the trust property may be sold, in the manner provided in this chapter, after a breach or default in performance of the contract or contracts, for which the trust property is conveyed as security, or a breach or default of the trust deed. At the option of the beneficiary a trust deed may be foreclosed in the manner provided by law for the foreclosure of mortgages on real property in which event the provisions of chapter 6 [§ 33-701 et seq.] of this title govern the proceedings. The beneficiary or trustee shall constitute the proper and complete party plaintiff in any action to foreclose a deed of trust. The power of sale may be exercised by the trustee without express provision therefor in the trust deed.”

       General Statutes § 49-1 provides in relevant part: “The foreclosure of a mortgage is a bar to any further action upon the mortgage debt, note or obligation against the person or persons who are liable for the payment thereof who are made parties to the foreclosure and also against any person or persons upon whom service of process to constitute an action inpersonam could have been made within this state at the commencement of the foreclosure; but the foreclosure is not a bar to any further action upon the mortgage debt, note or obligation as to any person liable for the payment thereof upon whom service of process to constitute an action in personam could not have been made within this state at the commencement of the foreclosure. . . .”

       Section 33-814 of the Arizona Revised Statutes provides in relevant part: “A. Except as provided in subsections F and G of this section, within ninety days after the date of sale of trust property under a trust deed pursuant to § 33-807, an action may be maintained to recover a deficiency judgment against any person directly, indirectly or contingently liable on the contract for which the trust deed was given as security including any guarantor of or surety for the contract and any partner of a trustor or other obligor which is a partnership. In any such action against such a person, the deficiency judgment shall be for an amount equal to the sum of the total amount owed the beneficiary as of the date of the sale, as determined by the court less the fair market value of the trust property on the date of the sale as determined by the court or the sale price at the trustee’s sale, whichever is higher. A written application for determination of the fair market value of the real property may be filed by a judgment debtor with the court in the action for a deficiency judgment or in any other action on the contract which has been maintained. ...”

       Rule 4.2 (a) of the Arizona Rules of Civil Procedure authorizes long arm jurisdiction by stating that “[a] court of this state may exercise personal jurisdiction over parties, whether found within or outside the state, to the maximum extent permitted by the Constitution of this state and the Constitution of the United States. . . .”

       General Statutes § 49-14 (a) provides: “At any time within thirty days after the time limited for redemption has expired, any party to a mortgage foreclosure may file a motion seeking a deficiency judgment. Such motion shall be placed on the short calendar for an evidentiary hearing. Such hearing shall be held not less than fifteen days following the filing of the motion, except as the court may otherwise order. At such hearing the court shall hear the evidence, establish a valuation for the mortgaged property and shall render judgment for the plaintiff for the difference, if any, between such valuation and the plaintiffs claim. The plaintiff in any further action upon the debt, note or obligation, shall recover only the amount of such judgment.”

       “As shown in the legislative history . . . deficiency proceedings are not, and never have been, independent actions on the debt. Rather, they are part of the main foreclosure suit. ... A deficiency judgment proceeding is a part of the foreclosure action, but is distinct from, although dependent on, the common law, nonstatutory process of strict foreclosure. ... It is complementary to, the traditional and equitable common law action.” (Internal quotation marks omitted.) Ferrigno v. Cromwell Development Associates, 44 Conn. App. 439, 444, 689 A.2d 1150 (1997), aff'd, 244 Conn. 189, 708 A.2d 1371 (1998); see General Statutes § 49-14.

       See footnote 3.

       The defendant raises a number of arguments, including (1) under Arizona law, creditors must elect either to proceed with foreclosure or to sue on the note and (2) under Connecticut statutory or common law, creditors must elect either proceeding, but not both. Those arguments are unavailing because of our determination that the defendant was not amenable to personal service at the outset of the trustee’s sale procedure. The defendant also argues that if the present action is construed as a deficiency proceeding, it is untimely because it was not brought within thirty days. We need not reach this issue because we construe the action as a separate suit on the note. We note, however, that under our Supreme Court’s decision in BayBank

        Connecticut, N.A. v. Thumlert, supra, 222 Conn. 784, it is doubtful that the thirty day time limit would apply to the situation in this case.

       Practice Book (1998 Rev.) § 60-5 (formerly § 4061) provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. . . .”

       Arizona law provides that a deficiency action is governed by the law applicable to the underlying debt, i.e., the promissory note, not the law of the situs of the property. Cardon v. Cotton Lane Holdings, Inc., 173 Ariz. 203, 206, 841 P.2d 198 (1992). Here, the promissory note, signed by the defendant, provided that it is “governed and construed in accordance with the laws of the State of Connecticut.”

       At trial, the plaintiffs witness, William C. Smith, vice president of National Loan Investors, L.P., offered the following testimony regarding the amount of sales proceeds from the trustee’s sales during direct examination:

        “Q. And what is the status of the loan evidenced by this promissory note?
      “A. It’s unpaid. It’s in default.
      “Q. Do you have knowledge as to the balance owed on this note?
      “A. I do.
      “Q. What is the balance?
      “A. The balance is $445,333.06. That’s through today. . . .
      “Q. Mr. Smith, of that sum how much represents a principal balance on this note?
      “A. Principal balance is $329,970.09. . . .
      “Q. Of that total sum, how much of that represents interest?
      “A. The interest accrual is $115,362.97. . . .
      “Q. How did you calculate that interest, Mr. Smith?
      “A. The promissory note provided for a variable interest rate, varying the amount of the prime, and the note provided for 3 percent over prime. And I calculated the interest accrual utilizing the variable interest prime rate through today.
      “Q. You did that yourself?
      “A. Yes. . . .”
      The following is Smith’s testimony during cross-examination by the defendant:
      “Q. [0]n page two of the [customer loan history] card there is a principal reduction from $350,000 to $329,970.09. Is that correct?
      “A. Yes.
      “Q. And what does that represent?
      “A. That represents together with the next entry of the interest payment of $108,000, the application of the bid from the trustee’s sale, the credit.
      “Q. So, therefore, what that means to you is that the FDIC, which conducted a trustee’s sale on this property and bid on this property, gave the obligors credit for the amount that was bid on at that sale?
      “A. Yes. . . .
      “Q. [I]t appears to me that there was a credit given of $20,029.91. And that was the only credit. Isn’t that correct?
      “A. The second credit is on page three.
      “Q. But that doesn’t reduce the balance.
      “A. It reduces the interest accrual. The reference is in interest payment on the same day as the principal reduction. . . .
      “Q. [T]he trustee’s deed seems to indicate that the sale price that the FDIC paid for this property was $18,759?
      “A. That’s what it reads.

        “Q. Could you reconcile that,?
      “A. The FDIC credited the account for the fair market value of the property to 70 percent less the outstanding property taxes.
      “Q. Even though it bought it at $18,759?
      “A. Yes.
      “Q. And how do you know that the FDIC did that? Did what, you just said?
      “A. From a memo within the file that we produced to you. . . .
      “Q. So it’s your position that the $108,786.09 plus the $20,029.91 is a combination of what they paid for the property less and in addition to their assessment of the fair market value of the property, 70 percent of fair market value.
      “A. The appraised value of the property less taxes, times 70 percent.
      “Q. And appraised by whom?
      'A. Appraisers.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATEWIDE GRIEVANCE COMMITTEE v. ERNESTO CLARKE
    (AC 17394)
    Foti, Landau and Sullivan, Js.
    Argued March 23
    officially released April 28, 1998

      Ernesto Clarke, pro se, the appellant (defendant).

      Daniel B. Horwitch, statewide bar counsel, for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant, Ernesto Clarke, who was admitted as an attorney to the practice of law in Connecticut and the District of Columbia, was ordered disbarred on November 7, 1996, by the District of Columbia Court of Appeals. Thereafter, the plaintiff, the statewide grievance committee, applied to the Superior Court for reciprocal discipline pursuant to Practice Book § 28A, now Practice Book (1998 Rev.) § 2-39. The trial court scheduled a hearing for May 14, 1997, and ordered that the nonresident defendant be given notice of the application and the hearing date. The defendant filed an answer to the application for reciprocal discipline, along with exhibits. The defendant also requested a continuance of the hearing scheduled for May 14, 1997. The trial court continued the hearing to May 28, 1997, and, thereafter, to June 25, 1997. The defendant failed to attend the June 25,1997 hearing. The trial court found “that no defense as set forth in [the defendant’s] answer (entitled ‘opposition’) has been proven to the Practice Book § 28A (c) standard of clear and convincing evidence.” The trial court, therefore, granted the application for reciprocal discipline and ordered the defendant disbarred effective immediately. The defendant did not move to open the judgment, nor did he seek articulation of the trial court’s brief memorandum of decision. The defendant has also failed to furnish a transcript of the June 25, 1997 hearing before the trial court.

“[W]e cannot render a decision without first having specific findings of fact to determine the basis of the court’s ruling.” (Internal quotation marks omitted.) Gorneault v. Gorneault, 34 Conn. App. 923, 924, 642 A.2d 734, cert. denied, 231 Conn. 911, 648 A.2d 152 (1994). We have consistently stated that it is the responsibility of the appellant to provide an adequate record for review. See Practice Book § 4007, now Practice Book (1998 Rev.) § 61-10; Gelormino v. Blaustein, 31 Conn. App. 750, 751, 626 A.2d 1325 (1993); State v. Rios, 30 Conn. App. 712, 715, 622 A.2d 618 (1993). We see no reason to depart from that rule.

We therefore decline to review this matter.

The judgment is affirmed.


author: O’CONNELL, C. J.

text:
    HARRY R. SCHUH v. COMMISSIONER OF MOTOR VEHICLES
    (AC 17236)
    O’Connell, C. J., and Sullivan and Cretella, Js.
    Argued February 18
    officially released April 28, 1998

      Norman B. Teague, for the appellant (plaintiff).

      Alan N. Ponanski, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Opinion

O’CONNELL, C. J.

The plaintiff appeals from the trial court’s judgment sustaining the defendant commissioner’s suspension of the plaintiffs motor vehicle operator’s license for refusal to submit to a chemical alcohol test following his arrest for operating a motor vehicle while under the influence of liquor. General Statutes § 14-227b. The plaintiff claims that the trial court improperly concluded that there was substantial evidence in the record to support the finding of the administrative hearing officer that there was probable cause to arrest the plaintiff and that the hearing officer improperly took judicial notice of facts not in the record. We affirm the judgment of the trial court.

In its transcribed oral decision,* the trial court found as follows: “The sole basis of the plaintiffs appeal in this case is his contention that there was insufficient evidence in the record to support the hearing officer’s finding that the plaintiff had been operating a motor vehicle on a public highway. The only evidence before the hearing officer in this case on that issue was the written report of the police officer who arrested the plaintiff. The court has reviewed that report. In it, the police officer states that he was called to the scene where the plaintiffs vehicle had been discovered on a grassy slope off the shoulder of Route 1-91, which is, of course, an interstate public highway. The plaintiff was discovered in the driver’s seat seat-belted in. A witness at the scene informed the police officer that he had found the plaintiff in the vehicle in the same position with the vehicle’s engine on and the gear shift in the drive position. The plaintiff told the police officer at the scene that he had been en route from the town of Harwinton to Bradley Airport. The police report also states that in the police officer’s opinion, the plaintiffs vehicle ‘had apparently just drifted off the highway onto the shoulder and came to rest in a grassy gully and against a trap rock slope located approximately five to six feet from the roadway.’ On the basis of the evidence that I have just summarized, the hearing officer concluded that the plaintiff had been operating the vehicle on a public highway and on the basis of that determination, the hearing officer determined that the plaintiff had been operating the vehicle within the meaning of § 14-227b, and that was also part of his determination that the police had probable cause to arrest the plaintiff on the drunk driving charge.”

I

Pursuant to § 14-227b, the plaintiff requested and was granted an administrative hearing to contest the suspension of his license. General Statutes § 14-227b (f) provides in relevant part: “The hearing shall be limited to a determination of the following issues: (1) Did the police officer have probable cause to arrest the person for operating a motor vehicle while under the influence of intoxicating liquor or drug or both ... (2) was such person placed under arrest; (3) did such person refuse to submit to [a chemical alcohol] test or analysis . . . and (4) was such person operating the motor vehicle. ...” The hearing officer found that all four criteria had been met, resulting in suspension of the plaintiffs operator’s license for six months.

The plaintiff appealed to the trial court pursuant to the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq. Following the trial court’s dismissal of his case, the plaintiff appealed to this court.

The plaintiff focuses on the first of the § 14-227b (f) issues and argues that there was no probable cause to arrest him for violating General Statutes § 14-227a (a). Section 14-227a (a) provides in relevant part: “A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state . . . .” (Emphasis added.) The gravamen of the plaintiffs claim is that the evidence shows only that his vehicle was located five to six feet off the main travel portion of Interstate 91 and, therefore, the hearing officer improperly concluded that the plaintiff had operated a vehicle on a public highway. The plaintiff does not dispute that Interstate 91 is a public highway.

The fallacy in the plaintiffs argument is that the defendant was not required to present absolute proof that the plaintiff was operating on a public highway. Proof of operation is a question of fact. O’Rourke v. Commissioner of Motor Vehicles, 33 Conn. App. 501, 505, 636 A.2d 409, cert. denied, 229 Conn. 909, 642 A.2d 1205 (1994). “[A]n agency’s factual and discretionary determinations are to be accorded considerable weight by the courts. . . . The factual findings of the commissioner of motor vehicles must be affirmed by the trial court unless they are clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.” (Citation omitted; internal quotation marks omitted.) Id. Our review requires us to determine “whether there is substantial evidence in the administrative record to support the defendant’s findings of basic fact and whether the conclusion drawn from those facts is reasonable.” Id., 506-507. “Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred.” (Internal quotation marks omitted.) Costello v. Kozlowski, 47 Conn. App. 111, 115, 702 A.2d 1197 (1997).

From the evidence before him, the hearing officer reasonably could have inferred that the plaintiff had operated his vehicle on Interstate 91, a public highway, in order to have arrived five to six feet off the travel portion of Interstate 91, where he and his vehicle were found by the arresting state trooper.

II

The plaintiff also claims that the hearing officer acted arbitrarily and abused his discretion by taking judicial notice of facts not in the record. The trial court’s memorandum of decision did not address this issue. The plaintiff could have obtained the trial court’s ruling on this issue by filing a motion for articulation pursuant to Practice Book § 4051, now Practice Book (1998 Rev.) § 66-5. Wolk v. Wolk, 191 Conn. 328, 335 n.1, 464 A.2d 780 (1983).

It was the plaintiffs duty to provide this court with a record adequate for review. Practice Book § 4061, now Practice Book (1998 Rev.) § 60-5; Holmes v. Holmes, 32 Conn. App. 317, 319, 629 A.2d 1137, cert. denied, 228 Conn. 902, 634 A.2d 295 (1993). Under the circumstances of this case, the plaintiff has failed to furnish us with a record adequate to review his second claim. See Kirei v. Hadley, 47 Conn. App. 451, 458, 705 A.2d 205 (1998).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-227b provides in relevant part: “(a) Any person who operates a motor vehicle in this state shall be deemed to have given his consent to a chemical analysis of his blood, breath or urine ....
      “(b) If any such person, having been placed under arrest for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both . . . thereafter . . . refuses to submit to the designated test, the test shall not be given ....
      “(c) If the person arrested refuses to submit to such test or analysis . . . the police officer, acting on behalf of the Commissioner of Motor Vehicles, shall immediately revoke and take possession of the motor vehicle operator’s license. . . for a twenty-four-hour period and shall issue a temporary operator’s license ... to such person valid for the period commencing twenty-four hours after issuance and ending thirty days after the date such person received notice of his arrest by the police officer. The police officer shall prepare a written report of the incident and shall mail the report ... to the Department of Motor Vehicles within three business days. . . .
      “(d) Upon receipt of such report, the Commissioner of Motor Vehicles may suspend any license ... of such person effective as of a date certain, which date shall be not later than thirty days after the date such person received notice of his arrest by the police officer. Any person whose license or operating privilege has been suspended in accordance with this subsection shall automatically be entitled to a hearing before the commissioner to be held prior to the effective date of the suspension. ...”

       Practice Book § 4059, now Practice Book (1998 Rev.) § 64-1 (a), provides in relevant part: “If oral, the [trial court's] decision shall be recorded by a court reporter and, if there is an appeal, the trial judge shall order the decision transcribed and the transcript of the decision shall be signed by the trial judge and filed in the trial court clerk’s office.”

       Practice Book § 4061, now Practice Book (1998 Rev.) § 60-5, provides in relevant part: “It is the responsibility of the appellant to provide an adequate record for review . . . .”


author: DALY, J. LAVERY, J.,

text:
    DAVID FISHBEIN v. MICHAEL KOZLOWSKI, COMMISSIONER OF MOTOR VEHICLES
    (AC 16719)
    Lavery, Dupont and Daly, Js.

      Argued January 23
    officially released April 28, 1998

      Jeffrey D. Brownstein, with whom, on the brief, was Gregory A. Thompson, for the appellant (plaintiff).

      Robert L. Marconi, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Opinion

DALY, J.

The plaintiff, David Fishbein, appeals from the judgment of the trial court dismissing his appeal from the defendant’s order suspending his motor vehicle operator’s license for a period of ninety days following his arrest for operating a motor vehicle while under the influence of liquor or drugs in violation of General Statutes § 14-227a (a). The sole issue on appeal is whether the police had a reasonable and articulable suspicion to justify stopping the plaintiffs vehicle. We affirm the judgment of the trial court.

The facts are undisputed. On March 5, 1996, New Haven police officers Peter A. Beckwith and Paul Cavalier were assigned to conduct a surveillance of a house at 180 Poplar Street in New Haven. They were parked at the intersection of Exchange and Poplar Streets at approximately 2:15 a.m. The neighborhood and the 180 Poplar Street house were known to the police as places where illicit drug sales often occurred.

While they were parked, a blue sedan operated by the plaintiff entered Poplar Street, stopped and its lights and engine were turned off. The passenger, Debbie Can-delora, emerged from the vehicle and went to the front door at 180 Poplar Street. After the door was opened, Candelora had a brief conversation with an occupant of the house. When she returned to the vehicle, the engine was started and the lights turned on. The vehicle was then stopped by the police. Candelora denied any drug purchase and indicated that she was looking for her son. While the plaintiff was in the driver’s seat, alcohol was detected on his breath and, after failing the field sobriety test, he was arrested for operating a motor vehicle while under the influence of intoxicating liquor in violation of § 14-227a (a). The plaintiff subsequently failed the chemical blood alcohol tests, which resulted in the suspension of his motor vehicle operator’s license. This appeal followed.

“In reviewing the action of an administrative agency the trial court must accept the evidence presented to such agency uncoated by any judicial gloss. ‘Conclusions reached by an administrative body must be upheld by the court if they are supported by the evidence that was before the administrative body. Balch Pontiac-Buick, Inc. v. Commissioner of Motor Vehicles, 165 Conn. 559, 563, 345 A.2d 520 [1973]. The credibility of witnesses and the determination of issues of fact are matters within the province of the administrative agency. Jaffe v. State Department of Health, 135 Conn. 339, 343, 64 A.2d 330 [1949], It is not the function of the court to retry the case. The question is not whether the trial court would have reached the same conclusion but whether the record before the commission supports the action taken. Conley v. Board of Education, 143 Conn. 488, 492, 123 A.2d 747 [1956].’ Williams v. Liquor Control Commission, 175 Conn. 409, 414, 399 A.2d 834 (1978).” Hospital of St. Raphael v. Commission on Hospitals & Health Care, 182 Conn. 314, 318, 438 A.2d 103 (1980); see also 2 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 125a, p. 1219. “With regard to questions of fact, it is neither the function of the trial court nor of this court to retry the case or to substitute its judgment for that of the administrative agency. . . . Judicial review of conclusions of law reached administratively is also limited. The court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion. . . . Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986).” (Internal quotation marks omitted.) Connecticut Light & Power Co. v. Dept. of Public Utility Control, 219 Conn. 51, 57-58, 591 A. 2d 1231 (1991).

The defendant challenges his arrest on the ground that the police officer lacked reasonable and articulable suspicion to stop his vehicle. “ ‘[T]he principles of fundamental fairness that are the hallmark of due process permit a brief investigatory detention, even in the absence of probable cause, if the police have a reasonable and articulable suspicion that a person has committed or is about to commit a crime.’ State v. Lamme, 216 Conn. 172, 184, 579 A.2d 484 (1990); see Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). In determining the constitutional validity of an investigatory stop, both the United States Supreme Court and our Supreme Court require a balancing of the nature of the intrusion upon personal security against the importance of the government interest inducing that intrusion. United States v. Hensley, 469 U.S. 221, 105 S. Ct. 675, 83 L. Ed. 2d 604 (1985); State v. Mitchell, 204 Conn. 187, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987). Our Supreme Court has also recognized the pervasive societal interest in the apprehension and punishment of drunken drivers and has found that ‘balancing the circumscribed nature of a Terry stop intrusion against the serious risks of criminal behavior, especially in the context of the risks associated with driving while under the influence of intoxicating liquor . . . [brief detention] does not violate due process.’ State v. Lamme, supra [184],

“In justifying the intrusion, ‘the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.’ Terry v. Ohio, supra, [392 U.S.] 21; State v. Cofield, 220 Conn. 38, 44, 595 A.2d 1349 (1991); State v. Whitfield, 26 Conn. App. 103, 110, 599 A.2d 21 (1991). In evaluating the validity of such a stop, courts consider whether, in light of ‘the totality of the circumstances—the whole picture,’ the police officer had ‘a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981); State v. Mitchell, supra, [204 Conn.] 195. Review of atrial court’s determination of whether a reasonable and articulable suspicion exists ‘involves a two part analysis: (1) whether the underlying factual findings of the trial court are clearly erroneous; and (2) whether the conclusion that those facts gave rise to such a suspicion is legally correct.’ State v. Kyles, 221 Conn. 643, 660, 607 A.2d 355 (1992). ‘The trial court’s conclusions must stand unless they are legally and logically inconsistent with the facts.’ State v. Cofield, supra [44].” State v. Harrison, 30 Conn. App. 108, 111-13, 618 A.2d 1381 (1993), aff'd, 228 Conn. 758, 638 A.2d 601 (1994).

In this case, the police officers observed the plaintiff s vehicle at 2:15 a.m. on a street known for illicit drug sales. Candelora left the vehicle and went to the door of a residence reputed to be a place where drugs were sold. The door opened slightly and Candelora had a brief conversation with an occupant.

Under these circumstances, the officers had an objective basis to suspect that the plaintiff may have been involved in the purchase of narcotics. The facts of this case support the determination that a reasonable and articulable suspicion existed to justify the stop of the plaintiffs vehicle. We conclude that the trial court properly dismissed the plaintiffs appeal.

The judgment is affirmed.

In this opinion DUPONT, J., concurred.

LAVERY, J.,

dissenting. I respectfully dissent from the majority opinion, which affirms the trial court’s dismissal of the plaintiffs appeal, taken under the judicial review provisions of General Statutes § 4-183, from an administrative decision of the defendant commissioner of motor vehicles. I disagree with the majority’s decision that the police had a reasonable and articulable suspicion to justify their stopping the plaintiffs vehicle.

I agree with the majority that the facts are not in dispute. New Haven police officers Peter A. Beckwith and Paul Cavalier observed a blue sedan pull up to and park in front of 180 Poplar Street, at approximately 2:15 a.m. on the morning of March 5, 1996. The passenger, Debbie Candelora, exited the car and went to the front door at 180 Poplar Street. After Candelora knocked at the door, it was opened slightly and she talked to someone inside the house. Candelora then returned to the car. As the vehicle’s engine was started and its lights turned on, the police pulled up and stopped the car. Beckwith approached the car and spoke to Candelora, who denied that she had bought any drugs and said that she had asked the occupants of the house whether they had seen her son. Beckwith then questioned the plaintiff. I disagree with the majority’s conclusion that these facts support the determination that reasonable and articulable suspicion existed.

“Under the fourth amendment to the United States constitution, and under article first, § 7, and article first, § 9, of the Connecticut constitution, a police officer may briefly detain an individual for investigative purposes if the officer has a reasonable and articulable suspicion that the individual has committed or is about to commit a crime. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); State v. Oquendo, 223 Conn. 635, 654, 613 A.2d 1300 (1992); State v. Lamme, 216 Conn. 172, 184, 579 A.2d 484 (1990).” State v. Trine, 236 Conn. 216, 223, 673 A.2d 1098 (1996). “Reasonable and articulable suspicion is an objective standard that focuses not on the actual state of mind of the police officer, but on whether a reasonable person, having the information available to and known by the police, would have had that level of suspicion.” State v. Torres, 230 Conn. 372, 379, 645 A.2d 529 (1994). “Based upon [the] whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity. See, e.g., Brown v. Texas, [443 U.S. 47, 51, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979)]; United States v. Brignoni-Ponce, [422 U.S. 873, 884, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975)]. The idea that an assessment of the whole picture must yield a particularized suspicion contains two elements, each of which must be present before a stop is permissible. First, the assessment must be based upon all of the circumstances. . . . [Second, that assessment] must raise a suspicion that the particular individual being stopped is engaged in wrongdoing.” United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981). “The police officer’s decision . . . must be based on more than hunch or speculation.” State v. Cofield, 220 Conn. 38, 45, 595 A.2d 1349 (1991). “The specific facts that form the basis of the stop also limit the scope of the officer’s actions following the stop. . . . The results of the initial stop may arouse further suspicion or may dispel the questions in the officer’s mind. If the latter is the case, the stop may go no further and the detained individual must be free to go. If, on the contrary, the officer’s suspicions are confirmed or are further aroused, the stop may be prolonged and the scope enlarged as required by the circumstances.” (Citations omitted; internal quotation marks.) State v. Januszewski, 182 Conn. 142, 149, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981).

The majority relies on the facts that the plaintiff drove on a street known for illicit drug activity at 2:15 a.m., that Candelora knocked on the door of a house reputed to be the scene of drug sales and that the door was opened just slightly. That is all. There is no indication that the officers ever observed anything pass between Candelora and the person she was observed speaking to at the door. Nor is there any indication that either the plaintiff or Candelora did anything that was suspicious other than being at the wrong place at the wrong time. Further, this is not a case where the police received an anonymous tip or informant’s tip that the plaintiff or his passenger had been, were or were about to be engaged in criminal activity that would have justified the stop. See Adams v. Williams, 407 U.S. 143, 146, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972); State v. Marino, 17 Conn. App. 677, 555 A.2d 455, cert. denied, 211 Conn. 803, 559 A.2d 1138 (1989).

“The fact that appellant was in a neighborhood frequented by drug users, standing alone, is not a basis for concluding that appellant himself was engaged in criminal conduct.” Brown v. Texas, supra, 443 U.S. 52. “The inference that persons who talk to narcotics addicts are engaged in the criminal traffic in narcotics is simply not the sort of reasonable inference required to support an intrusion by the police upon an individual’s personal security.” Sibron v. New York, 392 U.S. 40, 62, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968). In this case, as in Sibron, the police officers were not acquainted with Candelora or the plaintiff, were completely ignorant regarding the content of the conversation between Can-delora and the person who opened the door, and failed to see anything pass between Candelora and that person. See id. I do not agree with the majority that because (1) it was 2:15 a.m., (2) the plaintiff was in a neighborhood and parked in front of a house known to the police as a place where drug transactions occurred, and (3) Candelora talked to an unidentified individual at the front door of that house, there was a proper basis for concluding that either the plaintiff or Candelora were engaged in criminal conduct or allowing the type of inference required to support an intrusion by the police on an individual’s personal security.

To satisfy the reasonable and articulable standard on these facts, in light of the totality of the circumstances presented here, there needed to be something more. There needed to be some overt act. In State v. Janus-zewski, supra, 182 Conn. 142, a case relied on by both parties, our Supreme Court concluded that reasonable and articulable suspicion existed where a state trooper observed “two persons in the front seat of an automobile parked in a commuter parking lot at a time when the owners of such vehicles are customarily at work”; id., 149; and observed the passenger “drop down from the front seat and crawl out of the door and under the motorcycle parked next to the automobile.” Id., 144-45. The facts here do not contain “plainly furtive conduct” on the part of the plaintiff or Candelora. Again, this case does not involve a police tip or any observed activity rising to the level of plainly furtive conduct. Without more than the time and location, I cannot agree with the majority.

Because there was no reasonable and articulable suspicion to warrant the stopping of the vehicle and the questioning of Candelora, there was also none to warrant questioning the plaintiff. Even assuming there was reasonable and articulable suspicion to question Cande-lora, her responses should have dispelled any question in Beckwith’s mind, and both Candelora and the plaintiff should have been free to go.

Therefore, I respectfully dissent from the majority opinion because reasonable and articulable suspicion did not exist under the facts in this case.

I would reverse the judgment and remand the case to the trial court with direction to sustain the plaintiffs appeal.

       General Statutes § 14-227a (a) provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense . . . if he operates a motor vehicle ... (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”

       The first test was administered at 3:07 a.m., with a result of 0.125, and the second test was administered at 3:44 a.m., with a result of 0.118.


text:
    AMES DEPARTMENT STORES, INC. v. COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES, EX REL. KENDALL LEWIS, ET AL.
    (AC 17195)
    Foti, Lavery and Heimessy, Js.
    Argued March 27
    officially released May 5, 1998

      Susan M. Wright, for the appellant (plaintiff).

      C. Joan Parker, assistant commission counsel, with whom were Pamela R. Hershinson and, on the brief, Philip A. Murphy, Jr., commission counsel, for the appellees (defendants).
   Opinion

PER CURIAM.

The plaintiff, Ames Department Stores, Inc. (Ames), appeals from the judgment of the trial court dismissing its appeal from a decision of the defendant commission on human rights and opportunities (commission). The commission found that the plaintiff discriminated against an employee, the defendant Kendall Lewis, on account of his race and ordered him reinstated with back pay. The plaintiff claims that the trial court improperly (1) found that the commission had satisfied certain jurisdictional prerequisites to certifying a complaint and (2) affirmed the decision of the hearing officer, which was clearly erroneous in view of the reliable, probative and substantial evidence on the whole record.

After our plenary review of the record, transcripts and briefs, and after considering the oral arguments and affording the plaintiffs claims the appropriate scope of review, we affirm the trial court’s judgment.

The trial court filed a complete and legally sound memorandum of decision incorporating the facts found and setting forth legal conclusions made in conformity with applicable law. Because the trial court’s decision completely articulates the issues involved and adequately explains the legal basis for its conclusions, it may be referred to for a detailed discussion of the facts and applicable law. See Koehm v. Kuhn, 18 Conn. App. 313, 315, 557 A.2d 933 (1989); see also Faith Center, Inc. v. Hartford, 192 Conn. 434, 436, 472 A.2d 16, cert. denied, 469 U.S. 1018, 105 S. Ct. 432, 83 L. Ed. 2d 359 (1984); Hinchliffe v. American Motors Corp., 192 Conn. 252, 253, 470 A.2d 1216 (1984).

Accordingly, the trial court’s memorandum of decision, reported in Ames Department Stores, Inc. v. Commission on Human Rights & Opportunities, 45 Conn. Sup. 276, 712 A.2d 453 (1997), should be referred to for a detailed discussion of the facts and legal conclusions in the case.

The judgment is affirmed.


author: LANDAU, J.

text:
    IN RE MARVIN M. ET AL.

    (AC 16942)
    Landau, Spear and Daly, Js.

      Argued November 7, 1997
    officially released May 5, 1998

      Anthony A. Wallace, with whom, on the brief, was Douglas G. Lilly, for the appellants (respondents).

      Stephen G. Vitelli, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (petitioner).

      Wiley B. Rutledge, for the minor children.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book (1998 Rev.) § 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

LANDAU, J.

The respondents appeal from the judgment of the trial court terminating their parental rights as to their children, Marvin and David. On appeal, the respondents claim that the trial court improperly (1) granted the motion by the petitioner, the department of children and families (department), to disclose the respondents’ medical records from substance abuse treatment facilities and psychiatric treatment facilities, and permitted subsequent testimony with regard to such records in violation of 42 U.S.C. § 290dd-2 and its applicable regulations, and in violation of General Statutes § 52-146 et seq., the fifth amendment to the United States constitution, article first, § 8, of the constitution of Connecticut and Practice Book (1998 Rev.) § 34-1, formerly § 1048.1, (2) found that the respondents had failed to achieve rehabilitation pursuant to General Statutes (Rev. to 1995) § 17a-112 (b) (2), (3) applied the “best interest of the child” standard of § 17a-112 (b), (4) found that there was clear and convincing evidence that parental rights should be terminated pursuant to § 17a-112 (b), and (5) reviewed the evidence under the “clear and convincing evidence” standard, rather than the “beyond a reasonable doubt” standard. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the disposition of this appeal. Marvin was bom in 1988, and David, who tested positive for cocaine at birth in a toxicology screen, was bom in 1989. The children were referred to the department after being hospitalized briefly on several occasions from exposure to lead in their home. The department filed the first petition of neglect with respect to the children on August 28, 1991, alleging that the respondents failed to protect them from lead exposure, failed to bring them to their medical appointments and refused supportive services from the department. The trial court ordered that the children be placed in the temporary custody of the department. One month later, revocation of commitment was granted to the respondent mother because the respondents had moved from the hazardous environment and had been receiving supportive services from the department.

On September 5, 1991, the respondents had another child, who was also bom with a positive toxicity to cocaine. On February 18,1992, that child died a “sudden and unexpected death in infancy associated with systemic cocaine exposure,” according to the chief medical examiner’s report. As a result, the department obtained an order of temporary custody for Marvin and David, and, on February 28, 1992, the department placed the children in foster care where they have remained.

On April 9, 1992, the respondents agreed to comply with the following court expectations: refraining from further substance abuse, participating in counseling for, inter alia, drug and alcohol treatment, following recommendations of drug evaluations, visiting the children as often as the department permits, keeping ail appointments with the department and apprising the department of their whereabouts. The respondents, however, tested positive for cocaine toxicity on several occasions, failed to comply with treatment programs, failed to comply with parenting training and failed to keep appointments with the department. On July 2, 1992, Marvin and David were adjudicated neglected because they were denied proper care and attention from the respondents.

In September, 1994, the respondent mother gave birth to another child, who also tested positive for cocaine at birth. The respondent father was arrested twice in 1995 on drug related charges. A rearrest warrant was issued against him for failure to appear in court. The respondent mother had an outstanding warrant issued against her because she failed to appear in court on a criminal charge of disorderly conduct. Both parents have tested positive for the presence of cocaine on several occasions and as recently as August, 1996.

On June 30, 1995, the department filed petitions to terminate the respondents’ par ental rights. The original petitions alleged all statutory grounds contained in § 17a-112 (b), however, on December 4, 1996, the department filed an amended petition withdrawing all of the statutory grounds except for failure to rehabilitate pursuant to § 17a-112 (b) (2). See footnote 1. On August 30,1996, the department filed motions for orders to disclose the medical records of alcohol and substance abuse treatment facilities and psychiatric and psychological treatment facilities, and to permit the testimony of the pertinent service providers from the facilities. On September 26, 1996, the respondents filed an objection to the department’s motion. On November 13, 1996, the trial court ordered the relevant facilities to disclose the medical records for an in camera review by the court. On November 27, 1996, the trial court issued findings following its in camera review of the records, which excepted intake records, discharge records, attendance records, drug screen test results and records indicating compliance and noncompliance with treatment programs from the statutory privilege.

The trial court heard testimony from seven witnesses at trial and received into evidence over thirty documents, including evaluations, social studies, police records and treatment plans. On December 18, 1996, the trial court terminated the respondents’ parental rights as to Marvin and David because “[s]ince the adjudication of neglect, the parents have 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 [children], that they could assume a responsible position in the [lives of the children] in violation of General Statutes [Rev. to 1995] § 17a-112 (b) (2).”

I

The respondents first claim that the trial court improperly granted the department’s motion to disclose the respondents’ medical records from substance abuse treatment facilities and psychiatric treatment facilities, and permitted subsequent testimony with regard to such records in violation of 42 U.S.C. § 290dd-2 and its applicable regulations, and § 52-146 et seq.

A

Section 290dd-2 (a) of title 42 of the United States Code provides that “[r]ecords of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any program or activity relating to substance abuse education, prevention, training, treatment, rehabilitation, or research, which is conducted, regulated, or directly or indirectly assisted by any department or agency of the United States shall ... be confidential and be disclosed only for the purposes and under the circumstances expressly authorized under subsection (b).” Our legislature has addressed the issue of confidentiality by protecting records, the disclosure of which “would constitute a violation of federal statutes concerning confidentiality of alcohol or drug patient records and any regulations pursuant thereto . . . .” General Statutes § 17a-688 (c) (formerly § 19a-126h).

The Congressional Conference Report states, concerning the predecessor to § 290dd-2, that “the strictest adherence to the provisions of this section is absolutely essential to the success of all drug abuse prevention programs. Every patient and former patient must be assured that his right to privacy will be protected. Without that assurance, fear of public disclosure of drug abuse or of records that will attach for life will discourage thousands from seeking the treatment they must have if this tragic national problem is to be overcome.” H.R. Rep. No. 775, 92d Cong., 2d Sess., 33, reprinted in 1972 U.S.C.C.A.N. 2072.

While nondisclosure is the general rule, exceptions do exist. Subsection (b) (2) (C) permits disclosure of such records without the consent of the patient “[i]f authorized by an appropriate order of a court of competent jurisdiction granted after application showing good cause therefor, including the need to avert a substantial risk of death or serious bodily harm. In assessing good cause the court shall weigh the public interest and the need for disclosure against the injury to the patient, to the physician-patient relationship, and to the treatment services. Upon the granting of such order, the court, in determining the extent to which any disclosure of all or any part of any record is necessary, shall impose appropriate safeguards against unauthorized disclosure.” 42 U.S.C. § 290dd-2 (b) (2) (C). The statute grants the secretary of health and human services wide latitude to make regulations that “carry out the purposes of this section. Such regulations may contain such definitions, and may provide for such safeguards and procedures, including procedures and criteria for the issuance and scope of orders under subsection (b) (2) (C) . . . .” 42 U.S.C. § 290dd-2 (g).

To determine which regulations apply, it is necessary, as a threshold matter, to determine whether the records contain “confidential communications.” Although this determination has never been made by this court, case law from other jurisdictions on the subject supports the view that courts must distinguish, as a threshold matter, between confidential and nonconfidential communications. See In re August, 1993 Regular Grand Jury, 854 F. Sup. 1380 (S.D. Ind. 1994); Jane H. v. Rothe, 488 N.W.2d 879 (N.D. 1992); In re B.S., 163 Vt. 445, 659 A.2d 1137 (1995); cf. Smalls v. Fallon, 1995 WL 5847 (S.D.N.Y. 1995) (concluding that 42 C.F.R. §§ 2.63 and 2.64 should be read together). In addition, several other cases impliedly support this view by analyzing § 2.64 without analyzing § 2.63. Such analyses suggest that records containing nonconfidential communications need satisfy only the “good cause” test set out in the statute and defined in § 2.64. See State v. Rollinson, 203 Conn. 641, 526 A.2d 1283 (1987) (analyzing 42 C.F.R. § 2.65, the equivalent of § 2.64, dealing with criminal investigations); People v. Silkworth, 142 Misc. 2d 752, 538 N.Y.S.2d 692 (N.Y. City Crim. Ct. 1989); Doe v. Daviess County Division of Children & Family Services, 669 N.E.2d 192 (Ind. App. 1996).

Section 2.63 (a) of title 42 of the Code of Federal Regulations provides: “A court order under these regulations may authorize disclosure of confidential communications made by a patient to a program in the course of diagnosis, treatment, or referral for treatment only if: (1) The disclosure is necessary to protect against an existing threat to life or of serious bodily injury . . . (2) The disclosure is necessary in connection with the investigation or prosecution of an extremely serious crime ... or (3) The disclosure is in connection with litigation or an administrative proceeding in which the patient offers testimony or other evidence pertaining to the content of the confidential communications.” (Emphasis added.)

Prior to an amendment in 1987, § 2.63 provided that an order requiring disclosure of confidential information “may not extend to communications by a patient to personnel of the program, but shall be limited to the facts or dates of enrollment, discharge, attendance, medication, and similar objective data . . . .” 42 C.F.R. § 2.63 (amended 1987). The subsequent amendment phrased the regulations in terms of when confidential communications can be disclosed. In re August, 1993 Regular Grand Jury, supra, 854 F. Sup. 1384.

“Distinguishing between confidential communications and other information . . . still has a significant effect: Ordinary, run-of-the-mill objective data (i.e. not confidential communications) is disclosable if the Government meets the ‘good cause’ test established in § 290dd-2 (b) (2) (C); confidential communications, on the other hand, are disclosed only if the ‘good cause’ test is met and one of the three express circumstances of disclosure outlined in § 2.63 (a) is also established.” (Emphasis in original.) Id.

Section 2.64 (d) of title 42 of the Code of Federal Regulations defines the “good cause” standard as set out in § 290dd-2 (b) (2) (C). To determine whether “good cause” exists, the court must find that: “(1) Other ways of obtaining the information are not available or would not be effective; and (2) The public interest and need for the disclosure outweigh the potential injury to the patient, the physician-patient relationship and the treatment services.” 42 C.F.R. § 2.64 (d).

In this case, the department sought disclosure of records that would show that the respondents had not stopped using drugs. Disclosure of communications made by the respondents to any substance abuse program was not necessary to prove that they had not stopped using drugs and, therefore, only the good cause standard of § 2.64 is applicable in this case. The trial court, Foley, J., ordered that in accordance with § 2.64, there was good cause to disclose the respondents’ records and further ordered that the records should be sent under seal to be reviewed by the court in camera. The trial court, Dyer, J., conducted the in camera review and, pursuant to § 2.64, released from statutory privilege only “intake records, discharge records, attendance records, results of drug screen tests, and records that indicated compliance/noncompliance with treatment programs suggested to facilitate their rehabilitation and reunification. The records selected by the undersigned related to treatment that each respondent received between the date of commitment and the date when the [termination] petitions were filed.”

The respondents make two claims of impropriety. First, they claim that there was another way of obtaining the information effectively, namely, through the testimony of the various social workers who received information from the respondents through their attempts to reunify the parents and children. See 42 C.F.R. § 2.64 (d) (1). Second, they claim that “no notice was given to the holder of the records, [pursuant to § 2.64 (b)] nor did they appear at the motion hearing, allowing them a chance to protect the privilege.”

Our Supreme Court has analyzed 42 U.S.C. § 290dd-3, the predecessor to 42 U.S.C. § 290dd-2, and the applicable regulations. State v. Rollinson, supra, 203 Conn. 641. The court held that “[t]he privilege which the defendant seeks to attach to his statements at the detoxification unit is a statutory privilege and not a constitutional one. Under the circumstances, the scope of our review of the ruling of the trial court is limited. . . . [W]e reverse such a decision ‘only where abuse of discretion is manifest or where an injustice appears to have been done.’ ” Id., 656. Applying this standard to the present case, we cannot say that the trial court abused its discretion in disclosing the respondents’ records.

The respondents argue that the records were improperly disclosed because various social workers could have testified to “statements” made to them “in their course of working with [the respondents] to solve their problems in an attempt at reunification of the parents and children.” As we have stated, however, only facts evidencing the respondents’ continued addiction to drugs were disclosed, not their statements. It is unlikely that these social workers would remember how often the respondents were tested for drug use, on what dates they tested positively and on what dates they left the substance abuse programs prematurely. The regulation provides that disclosure is proper if “[o]ther ways of obtaining the information are not available or would not be effective . . . .” (Emphasis added.) 42 C.F.R. § 2.64 (d) (1). Relying on substance abuse treatment providers to recall such detailed information about patients would not be effective. See In re August, 1993 Regular Grand Jury, supra, 854 F. Sup. 1386 (testimony not acceptable equivalent because detail and accuracy necessary); State Board of Medical Examiners v. Fenwick Hall, Inc., 308 S.C. 477, 480, 419 S.E.2d 222 (1992) (information from observers not acceptable equivalent to records). Therefore, the trial court did not abuse its discretion in ordering disclosure of a limited amount of information contained in the respondents’ records.

B

The respondents also argue that the trial court improperly disclosed their confidential records in violation of § 52-146 et seq. We first note that our legislature has expressly addressed the issue of confidentiality of records by protecting records whose disclosure “would constitute a violation of federal statutes concerning confidentiality of alcohol or drug patient records and any regulations pursuant thereto . . . .” General Statutes § 17a-688 (c). As we held previously, the trial court did not violate the federal statute or regulations. The respondents also argue, however, that a court-ordered psychological evaluation that was admitted into evidence should have remained confidential.

Section 52-146c, titled “Privileged communications between psychologist and patient,” provides in subsection (c) that the “[c]onsent of the person shall not be required for the disclosure of such person’s communications: (1) If a judge finds that any person after having been informed that the communications would not be privileged, has made the communications to a psychologist in the course of a psychological examination ordered by the court . . . .’’In the present case, the court ordered the psychological evaluation, which was performed by David Mantell, a clinical psychologist. Mantell’s report stated that the respondents were told in advance that the report would be admissible. Therefore, the trial court properly admitted Mantell’s report.

II

The respondents’ next three claims involve challenges to the factual findings of the trial court. They argue that the trial court improperly found that they had failed to achieve rehabilitation pursuant to § 17a-112 (b) (2), applied the “best interest of the child” standard of § 17a-l 12 (b), and found that there was clear and convincing evidence that parental rights should be terminated pursuant to § 17a-112. We disagree.

A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. In re Tabitha P., 39 Conn. App. 353, 360, 664 A.2d 1168 (1995). “In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights 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.” Id.

“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. . . . ‘Personal rehabilitation’ as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as a parent. . . . Our Supreme Court has held that General Statutes (Rev. to 1989) § 17-43a (b) (2) [the predecessor to § 17a-112] requires the trial court to analyze the respondent’s rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable ‘within a reasonable time.’ ... A determination by the trial court under [§ 17a-112 (b) (2)] that the evidence is clear and convincing that the parent has not rehabilitated herself will be disturbed only if that finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous.” (Citations omitted; internal quotation marks omitted.) In re Christina V., 38 Conn. App. 214, 220-21, 660 A.2d 863 (1995).

We cannot conclude that the trial court’s determination that the respondents have failed to achieve rehabilitation was clearly erroneous. The children have been exposed to hazardous environments and have been in foster care since 1992. The respondents have failed to overcome their substance abuse problems. The respondents visited the children approximately twice a month even though they were permitted weekly visitation. Further, their visits were sporadic, and the children were frequently disappointed when their parents did not show up. The father has been arrested for several drug-related crimes, and the mother failed to appear in court on a charge of disorderly conduct, causing a warrant to be issued for her arrest. After meeting with the respondents and the children, Mantell concluded that it was not likely that the respondents would be able to achieve rehabilitation within a reasonable time.

Additionally, the trial court, in the dispositional phase, made specific findings in accordance with General Statutes § 17a-112 (e) (formerly § 17a-112 [d]). The trial court made specific findings regarding the seven statutory factors necessary to assure that termination is in the best interest of the children. See In re Christina V., supra, 38 Conn. App. 222-23.

The trial court’s findings are summarized as follows. The court found that the department provided appropriate and timely services to the respondents. The department made reasonable efforts to reunite the parents and the children. The department set reasonable expectations that the parents did not meet. The children have strong emotional ties to their foster mother, but she is unable to continue in that capacity and the children need to be able to establish a consistent relationship with a nurturing family. The children were seven and eight years of age at the time of the disposition. The parents have “not made realistic and sustained efforts to conform their conduct to even minimally acceptable parental standards, [and] [g]iving them additional time would not likely bring their performance, as parents, within acceptable standards sufficient to make it in the best interests of the children to be reunited with them.” Economic factors did not prevent consistent visitation with the children at the foster mother’s home. Although the respondents argue that the department improperly restricted overnight visitation, the trial court found that “this was prudent and appropriate when the agency learned of the parents’ continued use of cocaine and their refusal to enter inpatient treatment.” The trial court properly applied the best interest standard and found that each of these seven statutory factors had been proven by clear and convincing evidence.

After a review of the record and the briefs, we cannot say that the trial court’s finding that there was clear and convincing evidence that the respondents had failed to achieve rehabilitation and that termination was in the best interest of the children was clearly erroneous.

III

The respondents finally argue that the standard of proof in a termination of parental rights proceeding should be “beyond a reasonable doubt,” rather than “clear and convincing evidence,” because the right to have children is a fundamental right. We are unpersuaded.

The United States Supreme Court has already settled this issue. See Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). “A majority of the States have concluded that a ‘clear and convincing evidence’ standard of proof strikes a fair balance between the rights of the natural parents and the State’s legitimate concerns. . . . We hold that such a standard adequately conveys to the factfinder the level of subjective certainty about his factual conclusions necessary to satisfy due process. We further hold that determination of the precise burden equal to or greater than that standard is a matter of state law properly left to state legislatures and state courts.” Id., 769-70. Our legislature has determined that “clear and convincing evidence” is the appropriate standard in a termination proceeding. See § 17a-112 (c) (formerly § 17a-112 [b]).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1995) § 17a-112 (b) provides in relevant part: “The superior court upon hearing and notice . . . may grant [a termination] petition if it finds, upon clear and convincing evidence, that the termination is in the best interest of the child and that . . . with respect to any nonconsenting parent, over an extended period of time, which . . . shall not be less than one year ... (2) the parent of a child who has been found by the superior court to have been neglected or uncared for in a prior proceeding 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 . . . .”

       See 42 C.F.R. §§ 2.1 through 2.67.

       The respondents also claim that the disclosure of their records violated the provisions of the fifth amendment to the United States constitution, article first, § 8, of the Connecticut constitution and Practice Book (1998 Rev.) § 34-1, formerly § 1048.1, by concluding that the release of the records constituted an “inherent admission into evidence,” violating their right to remain silent. “We are not required to review issues that have been improperly presented to this court through an inadequate brief.” Connecticut National Bank v. Giacomi, 242 Conn. 17, 44-45, 699 A.2d 101 (1997). “Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” (Internal quotation marks omitted.) Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 45, 668 A.2d 1346 (1996). The respondents have merely concluded that their rights were violated and have failed to provide us with any substantive discussion or citation of authorities. As a result, we decline to review this claim.

       Two additional exceptions, which are not applicable here, exist when there is a medical emergency or when disclosure is for the purpose of research, audits or evaluations. See 42 U.S.C. § 290dd-2 (b) (2) (A) and (B).

       “The Drug Abuse Office and Treatment Act of 1972, from which the record-confidentiality provisions of § 290dd-2 derive, had as its purpose ‘to bring about the most effective deployment of Federal resources against the devastating growth of drug abuse in the United States.’ H.R. Rep. No. 92-775, 92d Cong., 2d Sess. (1972), reprinted in 1972 U.S.C.C.A.N. 2045, 2045.” Ohta v. Muraski, 1993 WL 366525 *14 (D. Conn. 1993). “In 1992, the Alcohol, Drug Abuse and Mental Health Administration was reorganized, and the confidentiality provisions for drug [formerly 42 U.S.C. § 290ee-3] and alcohol [formerly 42 U.S.C. § 290dd-3] abuse programs were combined into the present Section 290dd-2. . . . [T]he thrust of this reorganization was solely administrative; the effort was 'an attempt to strengthen the federal effort to combat drug abuse, alcohol abuse and mental illness.’ S. Rep. No. 102-131,102d Cong., 2d Sess. 2-3 (1992), reprinted in 1992 U.S.C.C.A.N. 277,278-79; Ohta [v. Muraski, supra,] 1993 WL 366525, at *15.” Ellison v. Cocke County, 63 F.3d 467, 471 (6th Cir. 1995).

       The statute refers to “[r]ecords”; 42 U.S.C. § 290dd-2 (a); the “content of any record”; 42 U.S.C. § 290dd-2 (b) (1); and “the content of such record”; 42 U.S.C. § 290dd-2 (b) (2); and the regulations define “records” as “any information, whether recorded or not . . . .” 42 C.F.R. § 2.11. “Thus, Congress has expressly safeguarded not just records about substance abuse, but the contents of records about substance abuse.” (Emphasis in original.) Carr v. Allegheny Health, Education & Research Foundation, 933 F. Sup. 485, 488 (W.D. Pa. 1996). We acknowledge that “it [is] difficult to square the statutory term ‘record’ with a regulatory definition that includes information ‘whether recorded or not.’ 42 C.F.R. § 2.11. Information not recorded would seem to consist of mental processes. While such information undoubtedly may be acquired, stored, processed, and transmitted without taking tangible form, we doubt that such information can rightly be called a ‘record,’ and therefore be consistent with the term Congress itself uses in the statute. See also Black’s Law Dictionary (6th ed. 1990) at 1273 (all definitions refer ío íangible íhings).” Carrv. Allegheny Health, Education & Research Foundation, supra, 487 n.3. Because ihere is no claim by either party ihai the information sought are not “records” within the meaning of the statute, we will assume that they are.

       There appears to have been some confusion in the trial court as to whether 42 C.F.R. § 2.63 or § 2.64 applied to the present case. In the transcript, the trial court referenced the proper regulation, 42 C.F.R. § 2.64, but referred to language from § 2.63. In the court order, however, the court properly referenced § 2.64.

       This court has analyzed 42 U.S.C. § 290dd-3, the predecessor to 42 U.S.C. § 290dd-2. In re Romance M., 30 Conn. App. 839, 849, 622 A.2d 1047 (1993), appeal dismissed, 229 Conn. 345, 641 A.2d 378 (1994). In In re Romance M., this court permitted disclosure of a confidential communication because there was good cause and air exception from 42 C.F.R. § 2.63 applied. Id., 850-53. This court did not, however, conclude that records must be categorized as either confidential or nonconfidential communications. Id.

       This regulation also contained an exception for “[w]hen a patient in litigation offers testimony or other evidence pertaining to the content of his communications with a program . . . .” 42 C.F.R. § 2.63 (b) (amended 1987). This exception exists in the present § 2.63.

       Section 2.64 of title 42 of the Code of Federal Regulations provides in relevant part: “(c) Review of evidence: Conduct of hearing. Any . . . review of evidence, or hearing on the application must be held in the judge’s chambers or in some manner which ensures that patient identifying information is not disclosed to anyone other than a party to the proceeding, the patient, or the person holding the record ....
      “(e) Content of order. An order authorizing a disclosure must: (1) Limit disclosure to those parts of the patient’s record which are essential to fulfill the objective of the order; (2) Limit disclosure to those persons whose need for information is the basis for the order; and (3) Include such other measures as are necessary to limit disclosure for the protection of the patient, the physician-patient relationship and the treatment services . . . .” (Emphasis in original.)

       Section 2.64 of title 42 of the Code of Federal Regulations provides in relevant part: “(b) Notice. The patient and the person holding the records from whom disclosure is sought must be given: (1) Adequate notice in a manner which will not disclose patient identifying information to other persons: and (2) An opportunity to file a written response to the application, or to appear in person, for the limited purpose of providing evidence on the statutory and regulatory criteria for the issuance of the court order. ...” (Emphasis in original.)

       The respondents do not claim that they were not given proper notice, rather, they claim that the programs were not given proper notice. “Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action .... Ardmare Construction Co. v. Freedman, 191 Conn. 497, 501, 467 A.2d 674 (1983). . . . Tomlinson v. Board of Education, 226 Conn. 704, 717, 629 A.2d 333 (1993). Standing focuses on whether the party initiating the action is the proper party to request adjudication of the issues. Nye v. Marcus, 198 Conn. 138, 141, 502 A.2d 869 (1985). In general, a party does not have standing to raise rights belonging to another. Third Taxing District v. Lyons, 35 Conn. App. 795, 798, 647 A.2d 32, cert. denied, 231 Conn. 936, 650 A.2d 173 (1994). [T]he concept of standing is a practical and functional one designed to ensure that only those parties with a substantial and legitimate interest can appeal an order. Primerica v. Planning & Zoning Commission, 211 Conn. 85, 93, 558 A.2d 646 (1989).” (Internal quotation marks omitted.) Stamford Hospital v. Vega, 236 Conn. 646, 657, 674 A.2d 821 (1996). Therefore, we decline to review this claim because the respondents have no standing to assert the rights of the “holder” of the record.

       Peter Medina from the A.P.T. Foundation was the only witness from a substance abuse program to testify; however, Medina testified only to lay a foundation for the records. Counsel for all parties then agreed to admit all of the records because they were self-explanatory. Again, no communications made to Medina or the program were revealed by him.

       xhe respondents also argue that § 17a-112 was amended, which changed failure to achieve rehabilitation as a ground for termination by further requiring that the child be under the age of seven and that the parent’s parental rights as to another child were previously terminated. This argument lacks merit because § 17a-112 was not amended substantively. Failure to achieve rehabilitation was simply renumbered as § 17a-112 (c) (3) (B). The subsection referred to by the respondents requiring that the child be under the age of seven and that the parent’s rights were previously terminated is the present § 17a-112 (c) (3) (E).