text:
    STATE OF CONNECTICUT v. FERNANDO R.

    (AC 26516)
    Schaller, Rogers and West, Js.

      Argued January 5
    officially released September 18, 2007

      John R. Gulash, Jr., for the appellant (defendant).

      Denise B. Smoker, senior assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Paul J. Ferencek, senior assistant state’s attorney, for the appellee (state).

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

   Opinion

WEST, J.

The defendant, Fernando R., appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and risk of injury to a child in violation of General Statutes § 53-21 (a) (2). On appeal, the defendant claims that the trial court improperly (1) limited his cross-examination of a witness concerning bias and interest in violation of his sixth amendment right to confront witnesses and (2) denied his motion to suppress. We agree with the defendant’s first claim and therefore reverse the judgment of the trial court.

The defendant’s ten year old cousin, the victim, suffered a laceration to her hymen on August 21, 2003. According to the victim, the defendant touched her vagina, and she then felt something poke and scratch her. The defendant, who was seventeen years old and lived in the same home as the victim, denied touching her and instead suggested that she could have injured herself by masturbating while she was wearing false fingernails.

The defendant was arrested and charged with sexual assault in the first degree and risk of injury to a child. At trial, the victim testified that the defendant had injured her, and the defendant testified that he had not done so. The victim’s mother, to whom the victim first reported the injury, corroborated her testimony. Several other relatives of the victim and the defendant, however, testified that the victim and her mother had reputations for untruthfulness. The physician who examined the victim after her injury testified that it was possible but not reasonably probable that she could have injured herself. According to that physician, a ten year old girl ordinarily would not masturbate in such a way as to tear her hymen because to do so would be painful.

After considering the evidence, the jury returned a verdict of guilty on both counts. The court rendered judgment in accordance with the verdict and sentenced the defendant to a total effective term of twenty-five years incarceration, execution suspended after twelve years, followed by thirty-five years probation. This appeal followed.

I

The defendant first claims that the court improperly limited the cross-examination of a prosecution witness concerning bias and interest in violation of his sixth amendment right to confront witnesses as to two matters. The first matter concerned an investigation of the victim’s mother by the department of children and families (department). Witnesses who testified on behalf of the defendant testified that the victim initially told her mother that she had injured herself, but the mother later blamed the defendant in order to deflect attention from her possible role in causing or failing to prevent the victim’s injury. The second matter concerned the decision of the mother to contribute $4000 toward the defendant’s bond one day after his arrest. The defendant argued that the contribution indicated that the mother initially believed that the victim had injured herself, but the mother later blamed the defendant because his father failed to fulfill his promise to reimburse her for contributing to the posting of the defendant’s bond. The court precluded the defendant from cross-examining the mother as to both matters because it determined that they were collateral and irrelevant and would confuse the jury. We agree with the defendant that the court’s rulings with regard to both matters were improper.

We begin by noting the scope of the rulings under review. During cross-examination, the defendant questioned the victim’s mother about whether she had told any of her family members that the victim had initially told her that the victim had hurt herself. The state objected to this line of questioning. After a brief sidebar in which the defendant explained that the question was designed to impeach the mother’s credibility, the court permitted the defendant to continue questioning the mother. When the defendant repeated a question that already had been asked and answered, the state objected again. The court dismissed the jury at this point and requested an offer of proof from the defendant.

The defendant made an offer of proof. The state again objected to the form and the content of the question and argued that it was triple hearsay and irrelevant.

The court ruled that cross-examination regarding the department’s investigation and the mother’s contribution to the defendant’s bond were collateral and irrelevant. The defendant objected again in order to preserve the record for appellate review properly and then proceeded with the cross-examination. At the end of the trial, the defendant filed a motion for reconsideration regarding both of the issues that were excluded from the testimony. The court, for the reasons it stated during trial, denied both motions.

We set forth the legal principles that guide our resolution of this issue. “We traditionally apply a two part analysis to determine whether a party has been deprived of effective cross-examination. First, we determine whether the defendant received the minimum opportunity for cross-examination of adverse witnesses required by the constitution. ... If so, we then consider whether the trial court’s restriction of cross-examination amounted to an abuse of discretion under the rules of evidence. . . . [T]he sixth amendment to the [United States] constitution guarantees the right of an accused in a criminal prosecution to confront the witnesses against him. . . . The primary interest secured by confrontation is the right to cross-examination .... This right, however, is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process. . . . The trial court, in its discretion, may impose limitations on the scope of cross-examination, as long as the defendant has been permitted sufficient cross-examination to satisfy constitutional requirements. . . . The confrontation clause does not . . . suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination.” (Internal quotation marks omitted.) State v. Saucier, 90 Conn. App. 132, 136-37, 876 A.2d 572 (2005), aff'd, 283 Conn. 207, 926 A.2d 633 (2007).

“The first question, therefore, is whether the defendant’s cross-examination of the victim satisfied the constitutional standards required by the sixth amendment. . . . The constitutional standard is met when defense counsel is permitted to expose to the jury the facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. . . . [W]e consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial.” (Citations omitted; internal quotation marks omitted.) Id. Put another way, our threshold inquiry is whether this constitutional standard has been met. See State v. Laccone, 37 Conn. App. 21, 31, 654 A.2d 805 (1995), appeal dismissed, 235 Conn. 746, 669 A.2d 1213 (1997).

Next, “[i]f we conclude that the court improperly restricted the defendant’s opportunity to impeach a witness for motive, interest, bias or prejudice, we then proceed with a harmless error analysis. . . . Whether such error is harmless in a particular case depends upon a number of factors, such as the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.” (Citation omitted; internal quotation marks omitted.) State v. Hedge, 93 Conn. App. 693, 698-99, 890 A.2d 612, cert. denied, 277 Conn. 930, 896 A.2d 102 (2006).

A

Accordingly, we must first determine whether the court’s ruling to exclude matters regarding the department’s investigation of the victim’s mother and the decision of the victim’s mother to contribute $4000 toward the posting of the defendant’s bond one day after his arrest violated the defendant’s sixth amendment right to confrontation. We conclude that the ruling did result in a violation of the defendant’s sixth amendment right to confrontation.

“The primary interest secured by confrontation is the right to cross-examination .... and an important function of cross-examination is the exposure of a witness’ motivation in testifying. . . . Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. ... In order to comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defendant to expose to the jury facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” (Citations omitted; internal quotation marks omitted.) State v. Arline, 223 Conn. 52, 60, 612 A.2d 755 (1992). “Although it is axiomatic that the scope of cross-examination generally rests within the discretion of the trial court, [t]he denial of all meaningful cross-examination into a legitimate area of inquiry fails to comport with constitutional standards under the confrontation clause.” (Internal quotation marks omitted.) State v. Santiago, 224 Conn. 325, 331-32, 618 A.2d 32 (1992).

The constitutional standard has not been met in this case because the defendant was denied meaningful cross-examination of the victim’s mother that would have elicited facts tending to show motive. “[E]vidence tending to show motive, bias or interest of an important witness is never collateral or irrelevant. [Indeed, it] may be . . . the very key to an intelligent appraisal of the testimony of the [witness].” (Internal quotation marks omitted.) State v. Hedge, supra, 93 Conn. App. 699; see also Conn. Code Evid. § 6-5. Restricting the defendant from cross-examining the mother regarding her fear of the department, her contribution of $4000 toward the defendant’s bond and the failure of the defendant’s father to reimburse her for the contribution eliminated jury consideration of a possible motive for her to lie about the cause of her daughter’s injury.

In addition to showing the motive of the witness, these issues may have illuminated the flaws in the testimony of the victim’s mother and impeached her credibility. “It is fundamental that for the purpose of impeaching the credibility of his testimony, a witness may be cross-examined as to statements made out of court . . . which contradict those made upon direct examination. . . . This is based on the notion that talking one way on the [witness] stand, and another way previously, raises a doubt as to the truthfulness of both statements.” (Internal quotation marks omitted.) State v. Schiavo, 93 Conn. App. 290, 306-307, 888 A.2d 1115, cert. denied, 277 Conn. 923, 895 A.2d 797 (2006). The mother was a key prosecution witness, and she was not only the minor victim’s mother but also the first person the victim went to after the alleged assault. The defendant offered proof, outside the presence of the jury, of out-of-court statements made by the mother that were inconsistent with her statements made during direct examination. Specifically, the defendant claimed that the mother told family members that the victim had first told her that the victim had injured herself. In addition, the mother’s fear of the department prevented her from telling the authorities these facts. Furthermore, the defendant claimed that the mother’s contribution to his bond was inconsistent with her testimony that he sexually assaulted her daughter and consistent with her daughter’s having injured herself. Because the defendant was not permitted to cross-examine the mother on those issues, the jury was unable to make a proper determination of her credibility.

The court’s denial of the cross-examination of the victim’s mother regarding both of these matters pertained not only to the witness’ motive but also to her very credibility. Because cross-examination is so important to elucidate the flaws in a witness’ testimony, the court improperly ruled that the two excluded matters were collateral and irrelevant. That ruling resulted in a violation of the defendant’s sixth amendment right to confrontation because it damaged the overall quality of his cross-examination of the mother.

B

In accordance with State v. Hedge, supra, 93 Conn. App. 698-99, we next must consider whether the corut’s improper ruling harmed the defendant. “The correct inquiry for identifying harmless constitutional error is to ask whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Boyd, 89 Conn. App. 1, 14, 872 A.2d 477, cert. denied, 275 Conn. 921, 883 A.2d 1247 (2005).

For a number of reasons we find that the court’s rulings were harmful to the defendant. First, the testimony of the victim’s mother was important in the prosecution’s case because she was the first person to receive a report of the victim’s injury. Second, although other witnesses, such as a police officer and a physician, testified as to the victim’s report of injury, the mother had a much closer relationship with the victim. In light of that relationship, the testimony of the mother was particularly important and not merely cumulative. Finally, the strength of the state’s case depended heavily on her credibility, but the court deprived the defendant of a significant opportunity to challenge her testimony by prohibiting questioning as to the department’s investigation of her and her decision to contribute $4000 toward the posting of the defendant’s bond. We therefore conclude that the court’s improper preclusion of cross-examination of the mother was not harmless beyond a reasonable doubt. Accordingly, the defendant is entitled to a new trial.

II

Although our resolution of the defendant’s first claim is dispositive of the appeal, we address the second claim because it is likely to arise again at his new trial. The defendant claims that the court improperly denied his motion to suppress statements that he made to police officers before the officers read him his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The defendant made the statements at issue after the victim sustained her injury and went to a hospital with her mother. The physician who examined the victim notified the police that the victim could have been sexually assaulted, and an officer and a lieutenant then were dispatched to the hospital in order to investigate. The lieutenant subsequently requested that two other officers go to the defendant’s home, but those officers did not know that the defendant was a suspect in a sexual assault. They asked him why they had been sent to his home, and he responded that the victim’s mother had accused him of injuring the victim. The officers then waited for further instructions, and the defendant chose to wait with them outside his home. Approximately forty-five minutes later, the lieutenant arrived at the defendant’s home and arrested him. The defendant argues that the court should have granted his motion to suppress the statements that he made to the officers who first arrived at his home because he was effectively in custody at that time. We disagree.

“Two threshold conditions must be satisfied in order to invoke the warnings constitutionally required by Miranda: (1) the defendant must have been in custody; and (2) the defendant must have been subjected to police interrogation. . . . [Although the circumstances of each case must certainly influence a determination of whether a suspect is in custody for proposes of receiving Miranda protection, the ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. ... A person is in custody only if, in view of all the surrounding circumstances, a reasonable person would have believed [that] he was not free to leave. . . . Thus, in determining whether Miranda rights are required, the only relevant inquiry is whether a reasonable person in the defendant’s position would believe that he or she was in police custody of the degree associated with a formal arrest. . . .

“The defendant bears the burden of proving that he was in custody for Miranda purposes. . . . Two discrete inquiries are essential to determine custody: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. . . . The first inquiry is factual, and we will not overturn the trial court’s determination of the historical circumstances surrounding the defendant’s interrogation unless it is clearly erroneous. . . . The second inquiry, however, calls for application of the controlling legal standard to the historical facts. . . . The ultimate determination of whether a defendant was subjected to a custodial interrogation, therefore, presents a mixed question of law and fact, over which our review is de novo.” (Internal quotation marks omitted.) Stale v. Kirby, 280 Conn. 361, 393-94, 908 A.2d 506 (2006).

Examining the circumstances of the present case, we conclude that the defendant was not in police custody when he spoke to the officers who first arrived at his home. The defendant voluntarily answered those officers’ questions, and they did not restrain his freedom of movement to the degree associated with a formal arrest. He chose to wait outside his home with them while they waited for further instructions from the lieutenant. It was not until forty-five minutes after the officers arrived at the defendant’s home that the lieutenant arrived and arrested him. A reasonable person in the defendant’s position would not have believed that he was in police custody until the lieutenant arrested him. Accordingly, the court properly denied the defendant’s motion to suppress.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       The sixth amendment to the United States constitution provides in relevant part that “[i]n all criminal prosecutions, the accused shall eiyoy the right ... to be confronted with the witnesses against him . . . .”

       The record is unclear as to the nature of the department’s investigation of the victim’s mother, but it appears that the department conducted at least a limited inquiry of the living arrangements after the August 21,2003 incident.

       It bears noting that the court also failed to instruct the jury that the testimony of the victim’s mother was limited by the constancy of accusation doctrine. The court instructed the jury on that doctrine only as to the testimony of a police officer who had interviewed the victim. Our Supreme Court has explained that “[t]he constancy of accusation doctrine is well established in Connecticut .... Until [State v. Troupe, 237 Conn. 284, 677 A.2d 917 (1996)], we permitted witnesses to testify about the details of a victim’s accounts of [an] alleged sexual assault on the theory that, if the victim’s stoiy were true, the evidence would show constancy in the charge even to the details, and the truth would the more clearly appear. ... In [Troupe], however, we restricted the doctrine so that a constancy of accusation witness could testily only to the fact and the timing of the victim’s complaint. Even so limited, the evidence would be admissible solely for corroboration of the victim’s testimony, and not for substantive purposes.” (Internal quotation marks omitted.) State v. Gonzalez, 272 Conn. 515, 526, 864 A.2d 847 (2005); see also Conn. Code Evid. § 6-11 (c).
      In the present appeal, the defendant explicitly declines to claim that the court improperly instructed the jury. The defendant instead focuses on the court’s decision to preclude him from cross-examining the mother as to the department’s investigation of her and her contribution to the posting of his bond. Those two matters for cross-examination concerned whether the victim reported to her mother a sexual assault by the defendant or instead reported that she had injured herself. Any testimony of the mother as to the details of the alleged assault is not relevant to our consideration of the limits that the court placed on her cross-examination. Furthermore, the state suggests that the testimony of the mother was admissible for substantive purposes under the excited utterance exception to the rule against hearsay. See State v. Kelly, 256 Conn. 23, 40-43, 770 A.2d 908 (2001).

       The following transcript excerpt from the defendant’s cross-examination of the victim’s mother provides context for our discussion of his claim:
      “Q. Have you ever told any other of your family members that [the victiml said that she hurt herself first and then she said that [the defendant] hurt her?
      “A. . . . No. . . .
      “Q. In that conversation with [your aunt], didn’t you tell her that [the victim] first said she hurt herself and then said [the defendant] hurt her?
      “A. . . . No. Never.
      “Q. Did you ever express to anyone doubt in [the victim’s] recitation of the events?
      “[The Prosecutor]: Objection.
      “The Court: Sustained.
      “Q. You didn’t call the police, isn’t that correct?
      “A. ... No.
      “Q. You took the child to the hospital?
      “A. . . . Yes.
      “Q. The hospital called the police?
      “A. . . . Yes.
      “Q. Then, you basically were overseen by social workers from [the department], is that correct?
      “A. . . . Yes.
      “Q. Did you ever indicate to [your aunt] in a conversation that you were unable to express an alternative story because you would be subject to arrest? The alternative story being that first, [the victim] said she hurt herself and then she said—
      “[The Prosecutor]: Objection.”

       The following transcript excerpt provides the defendant’s offer of proof:
      “[Defense Counsel]: At least two family members, in conversations with the witness, have said that [the victim’s mother] said that the child first said that she hurt herself and then changed to that [the defendant] hurt her.
      . . . Yes.
      “The Court: Okay. All right. ... So, family members said that [the victim’s mother] first said that [the victim] said it. Go ahead.
      “[Defense Counsel]: And she expressed to them that she is afraid to tell them that now because she would be subject to arrest.
      “The Court: Okay. So, your question is going to be—your first question is going to lie as it is: did you ever tell family members that [your daughter] said that you said that [your daughter] said the following; is that right?
      “[Defense Counsel]: Yes. . . .”

       The following is the state’s objection to this line of inquiry:
      “[The Prosecutor]: I think both the form and the content of the question are inadmissible. First of all ... it elicits at least triple hearsay. Second of all, I don’t see how any of that is relevant. As I understand it, it is designed to show that this witness is making up her story. I mean, I just don’t see the relevance of whatever [the victim] told [her mother]. It doesn’t seem to be germane to anything here at all. She has related what [the victim] told her. She was not present. Whatever reason she has for not speaking to [the department] . . . does not impeach her credibility or [the victim’s]. And I just think it is so unreliable and it elicits such hearsay evidence because, essentially, what the jury is going to hear is what [the victim] told her. And that is hearsay. That is the foundation of the inquiry. [The victim] first told her that she hurt herself. And then [the victim] told her, made up a story, in her belief she made up the story about [the defendant]. And then the jury is going to hear that this witness apparently told some relative that she doesn’t want to tell this to the [department] because she is afraid they are going to take her child away from her. It has no relevancy to the issue at hand. It is completely unreliable.
      “[Defense Counsel]: Let me add . . . [t]his lady, the next morning, contributed $4000 in a pool with the family members, to bond out my client, who supposedly assaulted her daughter. Now, she had to have some misgivings about the truth of this allegation. Now, we all know and we all admire [the department] for the work that they do. They are very zealous in what they do, and we have a woman who is illiterate in both English and Spanish. . . .
      [S]he was threatened with the fact . . . that this wasn’t an appropriate living arrangement for all of these children. If that was her concern, and she makes that recitation, I ask her if the original recitation was the child hurt herself and then she changed it. She says no, I think I have a right to impeach her with the idea that these forces were in place coupled with the fact that she, I mean, she contributed $4000 ... to get the man out of jail, who supposedly assaulted her daughter. . . .
      “[The Prosecutor]: Your Honor, her misgivings about the truth of [the victim’s] allegation has nothing to do with this case. That is for the jury to decide. . . . She has simply related what [the victim] told her.
      “The Court: That is the problem I am having. When she came into the room and you went out to the bathroom with her, didn’t she first say, I hrurt; myself, and then later, [the defendant] hurt her? No. Did you tell any family members otherwise? No. I mean, that is the end of the line of questioning. I don’t see where we are going with any further questioning on this. It is a question of what this girl said. And you have already had an ability to examine her. You asked her what this young girl said to her and what she might have said to other family members. And she said, no, I didn’t say anything to any other family members. So, where are we going with it? If we are going to sit here and beat this to death, she has given you an answer.
      “[Defense Counsel]: If the . . . primary witness here, the first which is the strength of the state’s case because of the immediacy of the report.
      “The Court: Right.
      “[Defense Counsel]: If there was something other than that, if it wasn’t [the defendant] hurt me, it was: ma, I hurt myself, some discussions, whatever. And then it became [the defendant] hurt me. I think that the fact that it wasn’t so immediate, the immediacy of the reporting, the accuracy of the first report, I should have an opportunity to inquire into it.
      “[The Prosecutor]: Your Honor, while the jury is out, I object to any questions which are designed, as this one is, to determine whether she actually believed [the victim] or if she had any underlying reason to doubt [the victim] because it has no relevance whatsoever. She was not present when this happened. She wasn’t there. She didn’t see it. Whether she believes [the victim] or not, doesn’t make a bit of difference.
      “The Court: That is right. It is the ultimate trier who makes that determination, not whether she believes her or not. She is a fact witness. She is going to report what she is going to report, what the girl said to her; what she said to the police; what she said is fine. Did you say anything inconsistent with what you have testified here to? No, I did not. That is the end of it. What you are trying to do is characterize [the victim’s] reporting to her by way of her characterizing it otherwise to other people. And that to me is just too far removed.
      “[Defense Counsel]: Will the court allow the inquiry as to her posting bond ....
      “[The Prosecutor]: What is the relevance? That is what I would like to know. . . .
      “[Defense Counsel]: She never expected him to be arrested because she didn’t believe it happened. I am just trying to make my explanation, Your Honor. She didn’t call the police. She took the kid to the hospital. . . . [A]ccept my premise that she wasn’t entirely sure that this kid, [who] she has trusted all forever, all of a sudden, out of nowhere, this occurs. Okay? And so she has misgivings about this. This takes—well, I will do what I have to do as far as the medical care and then I will deal with this. She is not familiar with the system, the mechanism of the system takes over. Now—
      “The Court: You are dealing with mandatory reporters, so mandatory reporters call the cops.
      “[Defense Counsel]: So, the next thing you know, this kid gets arrested. The next morning, she is going to join with other family members in pooling? And that is a pretty significant amount of money to be, you know—maybe a few days later there would be righteous indignation, it drops away or whatever, it is all family, maybe we could straighten this out. But the very next morning, she gives $4000 to help get the guy out who just molested her daughter? I think that is pretty significant ....
      “The Court: You are using that collateral issue to characterize the reporting of the child here. You ought to use that issue to indicate to the trier of fact that she has a problem with what the child reported to her. There may be many motivations for her joining with other family members in posting a bond, many motivations. And it is a collateral issue that, what you are trying to do, I think, is introduce that collateral issue to raise inferences in the minds of the trier that shouldn’t be here.
      “[Defense Counsel]: With all due respect to the court, Your Honor, if the outcry witness, the mother of the victim has misgivings about the truth of this allegation, which I believe that by posting $4000 the next day indicates, I think that is something the jury should know and take into consideration as, all right, the kid said this, okay. . . .
      “The Court: That sounds like an Augustinian great leap of faith. That is how I would characterize what you have just said. Now, I may be wrong. What is your position on it?
      “[The Prosecutor]: I object ... it has no relevancy. It is just designed, as the other question was, to show the jury that this witness may very well have misgivings about her daughter’s allegation. And that issue, that whole question has no relevancy here. It is the jury’s role to determine the credibility of the victim. So, that whole lino of questions regarding what she thought of her daughter’s allegation, I would object to it.”

       The following is an excerpt from the transcript of the court’s ruling on tírese issues:
      “The Court: What she is going to report to you is factually what happened and what she did. Whether or not they believe the young woman’s testimony here, whether or not they believe that the young woman said the following to her mother, to this witness, that is up to them. The ultimate credibility, the weight they give her testimony, is simply up to them. But I am not going to let you characterize her reporting on an issue relating to the posting of a bond the next day because I think it is a collateral issue that is intended to really confuse the jury. And I don’t really see that it has any relevance here. So, I am not going to allow you to do it. . . .
      “[Defense Counsel]: The recitation of events by this witness I have a right to challenge. I have a right to ask her what, if I believe them to be true, what motives she may have had to exaggerate the charges, exaggerate the allegations, exaggerate her recitation of events, conveniently leave out portions of the recitation of events because she is fearful some governmental agency might take some action. I don’t think that is uncommon in the area of impeachment of inquiry as it relates to impeachment.
      “[The Prosecutor]: There is absolutely no foundation for the question . . . [a]nd . . . there have been no inconsistencies elicited. . . . There is no factual predicate for these questions, and they are prejudicial by their very nature. And they are misleading.
      “The Court: I would agree. . . .
      “[Defense Counsel]: All I need is a good faith basis for these, as an officer of the court, to ask these questions. I am not attempting to dream up something here that I haven’t heard through my investigation of this case. . . .
      “[The Prosecutor]: ... I agree with counsel, right, he only has to show a good faith basis for asking these questions about a motive to fabricate or a motive to align herself with [the victim], when originally she may have doubted her. There is absolutely no showing of that from this witness. But I think if counsel wants to explore that, he better be prepared to call somebody from [the department] to testify about the family situation, what their motives were. And he can’t do that because I have spoken to [the department] and, as a matter of fact, given the question that was already asked, I may very well call them and ask them about what was their determination regarding the family situation. It has already been implanted in their minds now that there might be some [department] involvement. These questions are so prejudicial and they just open up a whole Pandora’s box where the state now has to call other witnesses and put on other testimony. And then the jury is lost ... in all of these collateral issues, which really have nothing to do with [the victim’s] credibility. [The victim] was there. She is the only eyewitness, other than [the defendant].
      “The Court: This credibility you are attacking here, you are attacking the child’s credibility ... or her credibility?
      “[Defense Counsel]: The child’s credibility and then coupled—then the witness’.
      “The Court: I mean, she has testified about what the child said and did on the evening in question. She has testified about what she said and did on the evening in question. You are getting in . . . collateral issues that really don’t belong in the case. What you are trying to do is try your case by some of these side possibilities, if you will, without any basis whatsoever, without laying the basis for those kinds of questions being asked. For instance, the posting of the bond, I mean, you know and I know there can be a myriad of reasons to help other family members post the bond in this instance. It doesn’t mean anything. What you are trying to convey to the jury is, hey, the next morning she helps bond this guy out. She mustn’t have believed her daughter. That is exactly what the questions is—
      “[Defense Counsel]: And who wouldn’t think that?
      “The Court: There are many reasons for it, and it is collateral.
      “[Defense Counsel]: But it is one of the possible inferences—
      “The Court: One of the possible motivations is not what is probable, likely and relevant. That is the key issue. . . .
      “[Defense Counsel]: ... I mean, given this same set of circumstances, and if it was our own child, I wouldn’t care what level of loyalty, and I think most people wouldn’t care what level of loyalty you may have for the extended family, you are not going to put your hard earned money up to bail some cousin out or nephew, or whatever he might be, after an assault like tiiis if you believe it is true. That just doesn’t ring true, human experience. I respectfully disagree with the court. . . .
      “The Court: ... I really think that is an issue that is collateral to the issue at hand. And it is not relevant for consideration by the trier. Do you wish to be heard on anything else?
      “[The Prosecutor]: ... is the court also granting my motion regarding the questions about [the department] involvement? . . .
      “The Court: Are we getting into that or are we just going to drop that line of questioning because I don’t want to waste a lot of time on the same kind of a ruling. I don’t know what the relevance of that is.”

       For context, the following is the transcript excerpt of the defendant’s record for the bond issue:
      “[Defense Counsel]: It was my intention to ask this witness whether or not she contributed $4000 the next morning to bond my client out of jail.
      “The Court: Right.
      “[Defense Counsel]: It is my understanding that the court is disallowing me from asking that. And the purpose of my question is to impeach [the] testimony [of the victim’s mother] in which she said that [the victim] said that [the defendant] hurt her. I believe that the subsequent activity, helping to bond out the alleged assailant of her child, is inconsistent to the point of showing that what she said on the [witness] stand here is not true, that there was only one allegation, not an alternative in her mind that, first, that the child said she hurt herself and then she said that [the defendant] hurt [the victim]. I believe that if I were allowed to put that before the jury, they could draw the conclusion that . . . what she said on the [witness] stand is not true, that there were two different allegations here, two different assertions. That would be the purpose.
      “[The Prosecutor]: And I will indicate for the record, we spent probably over an hour discussing the exhibit entry in chambers. The state’s argument was that simply because she bonded out her nephew . . . would not logically mean that the victim had made any kind of statement in the bedroom [that] she had hurt herself. If it does anything, it would show perhaps that she did not believe her daughter’s allegation, and the state’s argument, quite simply, is that whatever she believes about her daughter’s allegation is not relevant to this case. That is for the jury to decide.
      “The Court: What about that position?
      “[Defense Counsel]: My question doesn’t go to her belief. My question goes to show that her responses to my questions were inaccurate because of her subsequent behavior. And I asked her, didn’t she first say that she hurt herself and then [she] said [the defendant]. She said no. It is my contention that, showing that she was willing to contribute $4000 the next morning, undermines the credibility of her response to my questions. It doesn’t have anything to do with believability.
      “The Court: I think you are wrong. I think you are making a highly speculative leap there. And I think the purpose of your inquiry is to lead the trier of fact to draw an inference that, in fact, an alternative thing was said by the complainant in the case. It doesn’t necessarily go directly to credibility of [the victim’s mother]. I also think you are into speculation as to why she did what she did a day later. For those two reasons, I am not going to allow that in. I appreciate the fact that you made a record for whatever reason you think appropriate.”


source: Caselaw Access Project

author: HARPER, J. SCHALLER, J.,

license: Public Domain

text:
    THOMAS PAYTON v. MARY ELLEN H. PAYTON
    (AC 27037)
    Schaller, DiPentima and Harper, Js.

      Submitted on briefs February 9
    officially released September 18, 2007

      Geraldine Ficarra and Michael Ruben Peck filed a brief for the appellant (defendant).

      Lori Welch-Rubin filed a brief for the appellee (plaintiff).

      Ian Angus Cole, filed a brief for the guardian ad litem of the minor child.
   Opinion

HARPER, J.

The defendant, Mary Ellen H. Payton, appeals from the postdissolution orders of the trial court awarding the plaintiff, Thomas Payton, physical custody of the parties’ minor child. On appeal, the defendant claims that the court’s modification of its custody order was improper because (1) at the hearings on the plaintiffs motion for modification, the child did not have legal representation, (2) a previously ordered report from the family relations division of the Superior Court had not been filed at the time that the court rendered its decision and (3) the court failed to accord appropriate weight to the facts bearing on the court’s determination. We affirm the judgment of the trial court.

The relevant facts underlying this appeal are not in dispute. The parties were married on October 14, 1983, and have one minor child who was bom on July 4, 1998. On July 2, 2002, the plaintiff filed a complaint for dissolution of marriage on the ground that the marriage had broken down irretrievably. On June 26, 2003, the court dissolved the parties’ marriage and incorporated into its judgment the provisions of a marital settlement agreement (settlement). In the settlement, both parties agreed that they would have joint legal custody of their child and that their child would reside with the defendant. The parties further stipulated that the plaintiff would have “broad and reasonable visitation rights,” including visitation pursuant to a schedule included in the settlement. At the time of the dissolution of the marriage and at all times thereafter, the defendant resided in Connecticut and plaintiff resided in Virginia.

On September 27, 2004, the plaintiff filed a motion for modification in which he requested an order granting him physical custody of the parties’ minor child. As grounds for modifying the custody order, the plaintiff alleged that “[t]he current home continues to be an unstable environment, emotionally [and] financially threatening the growth and development of the minor child.” Following three days of hearings on the motion in August, 2005, the court concluded that it was not in the best interest of the child to permit the defendant to retain physical custody. Accordingly, the court granted the motion and ordered an immediate transfer of physical custody of the child to the plaintiff.

Thereafter, the defendant filed a motion for reargument in which she alleged, inter alia, that (1) the child should have been represented by legal counsel at the hearing, (2) the court improperly failed to apply the multifactor analysis set forth in Ireland v. Ireland, 246 Conn. 413, 717 A.2d 676 (1998), for deciding a motion for permission to relocate, (3) the court improperly decided the motion in the absence of a previously ordered report from the family relations division and (4) the court failed to consider properly the various facts pertaining to whether to award physical custody of the child to the plaintiff. The motion for reargument was denied. This appeal followed.

It is well settled that, in family matters, “this court will not disturb the trial court’s orders unless it has abused its legal discretion or its findings have no reasonable basis in fact. ... It is within the province of the trial court to find facts and draw proper inferences from the evidence presented. . . . [W]here 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, these facts are clearly erroneous.” (Citations omitted; internal quotation marks omitted.) Rummel v. Rummel, 33 Conn. App. 214, 220-21, 635 A.2d 295 (1993). Likewise, “[w]e review claims that the court improperly denied a motion for reargument under the abuse of discretion standard. . . . When reviewing a decision for an abuse of discretion, every reasonable presumption should be given in favor of its correctness.” (Citation omitted; internal quotation marks omitted.) Murray v. Murray, 65 Conn. App. 90, 102, 781 A.2d 511, cert. denied, 258 Conn. 931, 783 A.2d 1029 (2001). Having set forth the applicable standard of review, we turn to the grounds on which the defendant alleges that she is entitled to argue anew the motion for modification of physical custody.

I

We begin by addressing the defendant’s claim that the court improperly failed to appoint counsel to represent the interests of the minor child. The defendant argues that the failure to take such action was improper because there was no one at the hearings to ensure the adequate protection and promotion of the child’s interests. We disagree.

General Statutes § 46b-54 (a) provides in relevant part that a trial court “may appoint counsel for any minor child ... if the court deems it to be in the best interests of the child,” and § 46b-54 (b) provides in relevant part that counsel “may also be appointed . . . when the court finds that the custody, care, education, visitation or support of a minor child is in actual controversy . . . .’’As the word “may” implies, a court’s decision to appoint counsel for a minor child is entirely discretionary. As such, “the failure of the court to appoint an attorney [generally is] not such a clear abuse of discretion that [a party] would be entitled to reversal on that ground.” (Internal quotation marks omitted.) Lambert v. Donahue, 78 Conn. App. 493, 503, 827 A.2d 729 (2003).

In this case, the court ordered the appointment of Gayle Carr, an attorney, as guardian ad litem for the minor child. In an articulation of its decision to grant the plaintiffs motion, the court stated that it did not appoint counsel for the child because neither party requested such an order. In addition, the court stated that it was disinclined to order such an appointment sua sponte because “the defendant resisted any and all motions” and did not want to pay her share of the fee for Carr’s service as guardian ad litem.

On appeal, the defendant does not challenge the factual underpinnings of the court’s explanation. Furthermore, the evidence does not reflect that the parties were indifferent to the impact that the custody determination would have on their child, which would have suggested that the child needed an appointed advocate to ensure the protection of her interests. In light of the court’s reasons for not appointing counsel for the child and the fact that neither party made such a request, we are not persuaded that the court improperly exercised its discretion in this regard.

II

Next, we address the defendant’s claim that the court’s issuance of the custody orders in the absence of a previously ordered report by the family relations division was improper. According to the defendant, proceeding to judgment without the report directly contravened the mandatory language of Practice Book § 25-GO. We disagree.

General Statutes § 46b-6 authorizes a trial court to order an investigation of any circumstances pertaining to the disposition of a family relations matter. Consistent with the language of General Statutes § 46b-7, Practice Book § 25-60 (a) provides that if the court orders such an investigation, “the case shall not be disposed of until the report has been filed . . . unless the judicial authority shall order that the case be heard before the report is filed, subject to modification on the filing of the report.” In this case, the court ordered the family relations division to prepare a report concerning custody of the child. The original return date on the report was February 25, 2005, yet it still had not been completed by August 24, 2005, the date of the first hearing on the motion for modification. Neither party objected to the issuance of a decision prior to the filing of the report. Furthermore, it is undisputed that the court did not receive a report from the family relations division after it issued its order transferring physical custody to the plaintiff.

We begin by noting that there is no evidence to suggest that the court’s judgment was not “subject to modification on the filing of the report” and therefore noncompliant with the mandates of Practice Book § 25-60 (a). Although the court did not mention specifically the caveat that its judgment may be modified upon receipt of the report, we axe unaware of any case, and the defendant has not cited any, that has held that a judgment is not “subject to modification” within the meaning of Practice Book § 25-60 unless the court states so expressly. The family relations division never filed a report with the court. Accordingly, it is pure conjecture to assume that the court would not have been willing to modify the judgment on that basis.

Moreover, our Supreme Court has stated that a court’s decision to order an investigation pursuant to § 46b-6 is discretionary. Ridgeway v. Ridgeway, 180 Conn. 533, 542 n.6, 429 A.2d 801 (1980). As such, “[w]hile it may be helpful to a judge deciding a custody dispute to obtain the disinterested assessment such a report should provide . . . the court [is not] required to do so.” Id. Here, the court heard three days of testimony from the parties concerning their respective living situations, as well as testimony from Carr on that subject. Although a report from the family relations division may have been helpful, there was other evidence from which the court could evaluate each party’s ability to serve as the custodial parent. Under such circumstances, in which the defendant did not object at the hearing or otherwise request that the court postpone its decision pending the completion of the report, we cannot say that the court abused its discretion as to this issue. See Cotton v. Cotton, 11 Conn. App. 189, 193, 526 A.2d 547 (1987) (where party did not seek continuance pending recommendation of family relations division, trial court within its discretion not to consider previously ordered study from family relations division before rendering judgment).

Ill

We now turn to the defendant’s argument relating to the merits of the court’s order awarding physical custody to the plaintiff. The defendant claims that the court based its decision on an improper weighing of the facts. Specifically, the defendant contends that the court accorded excessive weight to her demeanor during the hearings, while affording insufficient weight to the plaintiffs lack of previous experience as the custodial parent and the effect that severely reducing contact with the defendant would have on the child. We are not persuaded.

“The authority to render orders of custody and visitation is found in General Statutes [Rev. to 2003] § 46b-56, which provides in part: (a) In any controversy before the Superior Court as to the custody or care of minor children . . . the court may at any time make or modify any proper order regarding . . . custody and visitation . . . . (b) In making or modifying any order with respect to custody or visitation, the court shall (1) be guided by the best interests of the child . . . .” (Internal quotation marks omitted.) Kennedy v. Kennedy, 83 Conn. App. 106, 113, 847 A.2d 1104, cert. denied, 270 Conn. 915, 853 A.2d 530 (2004). “Before a court may modify a custody order, it must find that there has been a material change in circumstance since the prior order of the court, but the ultimate test is the best interests of the child. . . . The sole question is whether the trial court abused its discretion in deciding that the best interests of the child would be served by [the modification]. The trial court [has] the advantage of observing the witnesses and the parties. Considerable evidence [normally is] presented concerning the activities of the parties since [the rendering of the original judgment]. In circumstances like these, whether the best interests of the [child] dictate a change of custody is left to the broad discretion of the trial court. ... A mere difference of opinion or judgment cannot justify the intervention of this court. Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference.” (Internal quotation marks omitted.) Id.

The following additional facts are necessary to our resolution of the defendant’s claim. In the articulation of its decision, the court stated that it granted physical custody to the plaintiff on the basis of its belief that “the defendant was not emotionally stable.” To support that conclusion, the court cited the defendant’s behavior during the course of the hearings, which, it believed, showed signs of a “significant and obvious mental and emotional deterioration . . . .” The court also relied on the testimony of Sidney Horowitz, a neuropsychologist, and Carr concerning their impressions of the defendant on the basis of their previous interactions with her. In particular, the court took note of Carr’s statement that she found the defendant’s “level of anger” to be “scary” and that she had concerns about the “history of violence involving [the defendant].” The court also mentioned Horowitz’ testimony that he believed that the defendant has “traits of borderline personality disorder” and “traits of histrionic personality disorder.”

The court also expressed concerns about whether the emotional needs of the child were being met. In that regard, it noted Carr’s testimony that “the emotional stability ... of the child is lost in the home” and Horowitz’ testimony that “an environment that is potentially calmer . . . and less labial” would likely produce “a more proactive and better result for a child [growing] up.” Finally, the court stated that it relied on its evaluation of the testimony of Horowitz and Carr concerning the plaintiffs interaction with and ability to care for the child.

The court did not state expressly that it found either (1) that there had been a material change of circumstances that altered its earlier finding concerning the best interest of the child or (2) that the original custody order was not based on the best interest of the child. See Kelly v. Kelly, 54 Conn. App. 50, 55-56, 732 A.2d 808 (1999). The court clarified in its articulation, however, that “[t]he change of custody motion was determined by the court under the best interests of the child standard as set forth in General Statutes § 46b-56.” Because of its explicit reference to the standard enunciated in § 46b-56, we are satisfied that the court made all of the requisite findings in deciding the motion for modification. Furthermore, the defendant did not ask the court to explain further its findings as to this issue, and she does not claim on appeal that the court applied the wrong legal standard in deciding the motion.

The court is vested with broad discretion in determining what actions would be in the best interest of a child. See Stahl v. Bayliss, 98 Conn. App. 63, 68, 907 A.2d 139, cert. denied, 280 Conn. 945, 912 A.2d 477 (2006). Accordingly, this court remains ever vigilant not to usurp that authority or to substitute its judgment for that of the trial court. In this case, a review of the court’s articulation reveals that it paid careful attention to the evidence concerning the defendant’s emotional stability, including her behavior and demeanor during the proceedings. Furthermore, it is apparent from the articulation that the court considered whether the plaintiff would be able to care adequately for the child. On the basis of our certainty that the court considered the arguments propounded by the defendant, we cannot say that the court abused its discretion by concluding that the evidence weighed in favor of transferring physical custody of the child to the plaintiff.

The judgment is affirmed.

In this opinion DiPENTIMA, J., concurred.

SCHALLER, J.,

concurring. Although I agree with the result, I respectfully disagree with the majority’s conclusion that the trial court made all of the requisite findings under the circumstances of this case. The majority states: “The court did not state expressly that it found either (1) that there had been a material change of circumstances that altered its earlier finding concerning the best interest of the child or (2) that the original custody order was not based on the best interest of the child. See Kelly v. Kelly, 54 Conn. App. 50, 55-56, 732 A.2d 808 (1999). The court clarified in its articulation, however, that ‘[t]he change of custody motion was determined by the court under the best interests of the child standard as set forth in General Statutes § 46b-56.’ Because of its explicit reference to the standard enunciated in § 46b-56, we are satisfied that the court made all of the requisite findings in deciding the motion for modification.” (Emphasis added.) I cannot agree that it is enough simply to refer to the standard stated in § 46b-56 without making specific findings of a material change in circumstances or that the original custody order was not made in the best interest of the child.

On April 12, 2006, the court issued an articulation of its order awarding the plaintiff, Thomas Payton, custody of the minor child. It stated that the “alleged instability [of the defendant, Mary Ellen H. Payton] was the sole issue of the modification . . . .’’It further opined that “a complete reading of the transcripts will show [that] the defendant was not emotionally stable. The defendant throughout the three days of hearings acted unstable, and her testimony was emotionally charged and she deteriorated significantly during the trial.” The court noted that this motion “was determined . . . under the best interest of the child standard as set forth in ... § 46b-56.”

In granting the plaintiff’s motion, the court relied on the testimony of Sidney Horowitz, a neuropsychologist, and attorney Gayle Carr, the guardian ad litem for the child. Horowitz indicated that the defendant exhibited the traits of borderline personality disorder and of a histrionic personality disorder. Carr testified that the emotional stability and the well-being of the child was lost in the defendant’s home. The court expressly stated that it “especially listened carefully to the testimony of . . . Horowitz and [Carr] . . . .’’It also made its determination to change physical custody on its observations of the plaintiffs interactions with the child and his ability to care for a special needs child. The court also took into account the defendant’s “significant and obvious mental and emotional deterioration during the trial . . . .” Absent in both the original order of a change of physical custody and the articulation is the prerequisite finding of either a material change in circumstances or that the custody order sought to be modified was not based on the best interest of the child.

The standard for a trial court’s modification of a custody order is clearly stated in our case law. “The authority to render orders concerning custody and visitation is found in General Statutes § 46b-56, which provides in relevant part: (a) In any controversy before the Superior Court . . . the court may at any time make or modify any proper order regarding . . . custody and visitation .... That section further provides that in modifying any order with respect to custody or visitation, the court shall ... be guided by the best interests of the child .... General Statutes [Rev. to 1997] § 46b-56 (b). [Our Supreme Court] has limited the broad discretion given the trial court to modify custody orders under . . . § 46b-56 by requiring that modification of a custody award be based upon either a material change of circumstances which alters the court’s finding of the best interests of the child . . . or a finding that the custody order sought to be modified was not based upon the best interests of the child. . . .

“To obtain a modification, the moving party must demonstrate that circumstances have changed since the last court order such that it would be unjust or inequitable to hold either party to it. Because the establishment of changed circumstances is a condition precedent to a party’s relief, it is pertinent for the trial court to inquire as to what, if any, new circumstance warrants a modification of the existing order. In making such an inquiry, the trial court’s discretion is essential.” (Citation omitted; emphasis added; internal quotation marks omitted.) Kelly v. Kelly, supra, 54 Conn. App. 55-56; see also Hall v. Hall, 186 Conn. 118, 122, 439 A.2d 447 (1982); Daddio v. O’Bara, 97 Conn. App. 286, 292, 904 A.2d 259, cert. denied, 280 Conn. 932, 909 A.2d 957 (2006); Senior v. Senior, 4 Conn. App. 94, 96, 492 A.2d 523 (1985).

The court must first consider what circumstances have changed warranting a custody change and then make a custody determination on the basis of the best interest of the child. See Kelly v. Kelly, supra, 54 Conn. App. 56 (trial court’s modification of dissolution decree without requisite finding improper). In this case, the modification was sought because, as the plaintiff alleged in his motion for modification, “[t]he current home continues to be an unstable environment, emotionally [and] financially . . . .” (Emphasis added.) In its August 31, 2005 order, the court stated that it was in the best interest of the child to award joint legal custody to the parties with physical possession to the plaintiff. There is no express finding of either a material change in circumstances or that the original order was not based on the best interest of the child.

The court, in its articulation dated April 12, 2006, stated that its decision was based on the best interest of the child standard. Again, the court did not make any determination as to a material change of circumstances warranting a custody change. Furthermore, there was no finding regarding the propriety of the original custody order. In the articulation, the court cited the defendant’s emotional instability, as evidenced by her behavior during trial, and relied on portions of testimony. It also stated that an immediate custody change was warranted because “[t]he defendant throughout the three days of hearings acted unstable, and her testimony was emotionally charged and she deteriorated significantly during the trial.” Beyond the ambiguity of those comments, the court’s strong reliance on its observations of the defendant’s demeanor and emotional state during this highly charged, contested custody matter is troubling. It is not evident whether these observations bear any relation whatsoever to her continuing capability as a parent as opposed to her response to the stress of going through a trial concerning a change in custody of her child, an experience which would be no small matter to any parent. Even the testimony containing allusions to her “alleged instability” is neither here nor there as it relates to how she performed or could perform in raising her child. It is apparent that there are no findings whatsoever concerning a material change in circumstances from the time of the original custody order or that the original custody order was not based on the best interest of the child. The court’s observations during the course of the hearing are not a suitable substitute for the specific findings that would warrant an immediate change in custody.

In Kelly v. Kelly, supra, 54 Conn. App. 50, we stated emphatically: “To obtain a modification, the moving party must demonstrate that circumstances have changed since the last court order such that it would be unjust or inequitable to hold either party to it. Because the establishment of changed circumstances is a condition precedent to a party’s relief, it is pertinent for the trial court to inquire as to what, if any, new circumstance warrants a modification of the existing order. In making such an inquiry, the trial court’s discretion is essential. . . . [T]he trial court’s discretion [however] only includes the power to adapt the order to some distinct and definite change in the circumstances or conditions of the parties.” (Internal quotation marks omitted.) Id., 55-56.

In my view, the court failed to make the required findings with respect to the plaintiffs motion for modification of custody. It is axiomatic that it is not our function, as an appellate court, to engage in fact-finding. Miller v. Westport, 268 Conn. 207, 221, 842 A.2d 558 (2004); see also Monette v. Monette, 102 Conn. App. 1, 22, 924 A.2d 894 (2007) (Schaller, J., concurring). It is, however, also well established that our review is limited to claims raised by the parties in their briefs. “We need no citation for our long settled rule that an appellant’s claims must be fully and adequately briefed and argued in the brief submitted to this court.” Legnos v. Legnos, 70 Conn. App. 349, 250 n.l, 797 A.2d 1184, cert. denied, 261 Conn. 911, 806 A.2d 48 (2002). A thorough review of the defendant’s brief reveals that she did not make a claim with respect to the court’s failure to find either a material change in circumstances or that the custody order sought to be modified was not based on the best interest of the child. Although the absence of findings by the court is troubling, it cannot provide a basis for reversing the judgment of the court changing custody of the minor child.

For those reasons, I respectfully concur in the judgment.

       The defendant also argues that the court improperly permitted Sidney Horowitz, a neuropsychologist, to testify concerning his forensic evaluations of the parties because he failed to provide them previously with written copies of those evaluations. Our review of the record, however, reveals that this issue was never raised before the trial court. Because this unpreserved issue has been raised for the first time on appeal and the defendant has not requested review under any doctrine by which this court may review unpreserved claims, we decline to address it. See Perry v. State, 94 Conn. App. 733, 740, 894 A.2d 367, cert. denied, 278 Conn. 915, 899 A.2d 621 (2006).

       The child has special needs due to the fact that she is physically disabled.

       General Statutes § 46b-6 provides in relevant part: “In any pending family relations matter the court or any judge may cause an investigation to be made with respect to any circumstance of the matter which may be helpful or material or relevant to a proper disposition of the case. . . .”

       General Statutes § 46b-7 provides in relevant part: “Whenever, in any family relations matter ... an investigation has been ordered, the case shall not be disposed of until the report has been filed . . . .”

       In its articulation of its decision granting the plaintiffs motion, the court stated that the family relations report was not completed on time because the defendant’s postponement of her appointments with a neuropsychologist, Sidney Horowitz, who evaluated the parties, caused a corresponding delay in the completion of her psychological evaluation.

       Notably, the defendant does not claim that the report would have yielded additional or new information concerning each party’s ability to retain physical custody of the child. See Duve v. Duve, 25 Conn. App. 262, 594 A.2d 473, cert. denied, 220 Conn. 911, 597 A.2d 332 (1991), cert. denied, 502 U.S. 1114, 112 S. Ct. 1224, 117 L. Ed. 2d 460 (1992). Instead, her argument is seemingly premised on the supposition that the failure to file the report, in and of itself, warrants reversal of the judgment of the court.

       The defendant also claims that the plaintiff “sought a relocation order under the guise of a motion for modification . In keeping with that assertion, the defendant argues that the court failed to evaluate the merits of the motion pursuant to the factors set forth in Ireland v. Ireland, supra, 246 Conn. 413. We disagree. The facts of this case make it plain that the motion did not concern relocation, as contended by the defendant. Motions for permission to relocate are filed in situations involving a custodial parent’s proposed establishment of a primary residence in another state. See generally id. Here, the court was asked to determine which parent should have custody, not whether the custodial parent should be permitted to relocate outside of the state. Accordingly, the motion was identified properly as a motion for modification of custody.

       I am mindful of our decision in Lambert v. Donahue, 78 Conn. App. 493, 506, 827 A.2d 729 (2003), in which we rejected a claim that the court modified custody without making a finding of changed circumstances, in part, on the basis of the court’s references to General Statutes §§ 46b-56, 46b-84, 46b-62 and 46b-87. In Lambert, we also noted that the court’s memorandum of decision was “replete with references to evidence that demonstrates a change in circumstances by the parties’ complete inability to communicate concerning the child.” Lambert v. Donahue, supra, 506. Such evidence is absent in the present case.

       Our Supreme Court recently stated: “We long have held that, in the absence of a question relating to subject matter jurisdiction, the Appellate Court may not reach out and decide [an appeal] before it on a basis that the parties never have raised or briefed. ... To do otherwise would deprive the parties of an opportunity to present arguments regarding those issues. ... If the Appellate Court decides to address an issue not previously raised or briefed, it may do so only after requesting supplemental briefs from the parties or allowing argument regarding that issue.” (Citations omitted; internal quotation marks omitted.) State v. Dalzell, 282 Conn. 709, 715, 924 A.2d 809 (2007).


author: SCHALLER, J.

text:
    AVALONBAY COMMUNITIES, INC. v. PLANNING AND ZONING COMMISSION OF THE TOWN OF WILTON
    (AC 27239)
    Schaller, DiPentima and Gruendel, Js.

      Argued February 15
    officially released September 18, 2007

      Maureen Danehy Cox, with whom, on the brief, was Jennifer Sills Yoxall, for the appellant (defendant).

      Timothy S. Hollister, with whom was Gian-Matthew Ranelli, for the appellee (plaintiff).
   Opinion

SCHALLER, J.

The defendant, the planning and zoning commission of the town of Wilton (commission), appeals from the judgment of the trial court rendered in favor of the plaintiff, AvalonBay Communities, Inc. The principal issue in this appeal is whether the court properly concluded, pursuant to General Statutes § 8-30g (g), that the reasons supporting the commission’s denial of the plaintiffs applications for a zone change and site plan approval relating to the proposed development of a luxury apartment complex that included units of affordable housing were not supported by sufficient evidence in the record. Specifically, the commission claims that the court improperly (1) determined that the reasons supporting its denial were not supported by sufficient evidence in the record and (2) created a new legal standard under § 8-30g (g) for commissions challenging affordable housing applications. We affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history. The plaintiff sought to construct a 100 unit luxury apartment complex, with 30 percent of the units reserved as affordable housing rental units, on a 10.6 acre parcel on Route 7 in Wilton. In February, 2003, the plaintiff submitted three applications to the commission in connection with the proposed development. Specifically, the plaintiff applied for an amendment to the zoning regulations to include a housing opportunity development district (HOD) with the purpose of increasing the availability of affordable housing in Wilton, a zone change to reclassify the proposed development site as an HOD zone and approval of a site development plan. The commission approved the zoning amendment with modifications and denied the zone change and site plan approval applications, both initially and after the applications had been revised. Thereafter, the plaintiff appealed from the decision of the commission to the Superior Court pursuant to § 8-30g (g). The court dismissed the plaintiffs appeal with regard to the proposed amendment to the zoning regulations, concluding that the plaintiff was not aggrieved by the commission’s decision to approve the amendment with modifications and, therefore, lacked standing to appeal from the decision. With respect to the zone change and site plan approval applications, the court sustained the plaintiffs appeal, concluding, in part, that the commission’s reasons for denying the applications were not supported by sufficient evidence in the record. The court remanded the case to the commission with direction to approve the zone change and site plan applications. This appeal followed upon the granting of certification by this court.

As a threshold matter, we set forth the standard of review and legal principles that guide our resolution of the commission’s appeal. As our Supreme Court has stated, “a fundamental purpose of the affordable housing statute was to eliminate . . . deference to commission judgments.” Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674, 716, 780 A.2d 1 (2001). To accomplish this goal, the legislature “recommended a new review procedure in which the reasons given by a commission . . . for its adverse decision will have to be persuasively supported in the record . . . .” (Internal quotation marks omitted.) Id.

“[I]n conducting its review in an affordable housing appeal, the trial court must first determine whether the decision from which such an appeal is taken and the reasons cited for such decision are supported by sufficient evidence in the record. General Statutes § 8-30g (g). Specifically, the court must determine whether the record establishes that there is more than a mere theoretical possibility, but not necessarily a likelihood, of a specific harm to the public interest if the application is granted. If the court finds that such sufficient evidence exists, then it must conduct a plenary review of the record and determine independently whether the commission’s decision was necessary to protect substantial interests in health, safety or other matters that the commission legally may consider, whether the risk of such harm to such public interests clearly outweighs the need for affordable housing, and whether the public interest can be protected by reasonable changes to the affordable housing development. . . . Because the plaintifffs] appeal to the trial court is based solely on the record, the scope of the trial court’s review of the [commission’s] decision and the scope of our review of that decision are the same.” (Citation omitted; internal quotation marks omitted.) Carr v. Planning & Zoning Commission, 273 Conn. 573, 596-97, 872 A.2d 385 (2005).

In applying § 8-30g (g), we are mindful that the commission “remains the finder of fact and any facts found are subject to the ‘sufficient evidence’ standard of judicial review.” River Bend Associates, Inc. v. Zoning Commission, 271 Conn. 1, 24, 856 A.2d 973 (2004). The sufficient evidence standard under the first prong of § 8-30g (g) requires the commission “to show a reasonable basis in the record for concluding that its decision was necessary to protect substantial public interests. The record, therefore, must contain evidence concerning the potential harm that would result if [the application were granted] and concerning the probability that such harm in fact would occur.” (Internal quotation marks omitted.) Id., 26, quoting Kaufman v. Zoning Commission, 232 Conn. 122, 156, 653 A.2d 798 (1995).

I

We first consider the commission’s claim that the court improperly determined that the reasons supporting its denial were not supported by sufficient evidence in the record. Specifically, the commission challenges the decision of the court with respect to three reasons for the denial of the plaintiffs applications: (1) inadequate traffic gaps on Route 7; (2) inadequate recreational space; and (3) safety concerns associated with the Wilton Acres Road bus stop. We address each of the commission’s arguments in turn.

A

We first examine the commission’s contention that the record contains sufficient evidence to sustain its determination that there are inadequate gaps in traffic to allow drivers to exit from the proposed development safely. In support of its denial of the plaintiffs applications, the commission stated that “[t]he [plaintiffs] traffic engineer was unable to document his gap analysis and address concerns noted by the Commission’s traffic engineering consultant or adequately address observations noted by area residents, the Commission and the Commission’s staff.” The commission concluded that “[b]ased on evidence from the Commission’s traffic consultant, there appear[s] to be inadequate time gaps for turning movements from the proposed site onto Route 7, raising a serious safety issue for the residents as well as persons traveling along Route 7.” The court found that the commission’s concerns regarding the inadequate number of gaps in traffic were not supported by sufficient evidence because the commission merely criticized the conclusions of the plaintiffs expert as incomplete without presenting specific evidence to undermine those conclusions.

We conclude that the court properly determined that the record does not contain sufficient evidence to support the commission’s denial of the plaintiffs applications on the basis of inadequate gaps in traffic. Although the evidence in the record reveals a high volume of traffic on Route 7, the record does not establish that the existing number of traffic gaps on Route 7 is insufficient, nor does it demonstrate that the risk to drivers would be increased as a result of the proposed development. The plaintiff submitted a traffic study to the commission conducted by its traffic engineers and transportation planners that counted the number of traffic gaps available during peak hours. The study concluded that, despite an increase in traffic volume, the number of available traffic gaps remained sufficient to allow drivers to exit the proposed development safely. The study further concluded that the proposed development would not exacerbate the current traffic conditions.

In a peer review of the plaintiffs development proposal, John P. Thompson, a professional engineer employed by the commission, questioned the methodology of the traffic study. Thompson further noted that the study provided insufficient documentation to support its conclusion as to the adequacy of the available traffic gaps and failed to consider a likely future reduction in gaps as a result of increases in traffic volume. Thompson concluded that the number of gaps would “most likely be reduced” as traffic volumes continued to increase, creating the “potential . . . [for] a higher level of driver frustration and ‘risk-taking’ . . . which could result in an unacceptably high incidence for accidents.” The town planner, Robert Nemey, and commission members similarly questioned the conclusions drawn in the traffic study. Notably, however, the record is devoid of specific evidence undermining the conclusion of the plaintiffs experts that the number of suitable traffic gaps would not be adversely affected by increases in traffic volume. See Kaufman v. Zoning Commission, supra, 232 Conn. 157 (“commission had the burden of showing evidence in the record to support its decision not to believe the experts—i.e., evidence which undermined either the experts’ credibility or their ultimate conclusions [emphasis in original]”). Furthermore, the conclusions reached by Thompson in his peer review of the plaintiffs proposal, on which the commission relied, were entirely speculative. Although Thompson cited a “probable reduction” in the number of available gaps as a result of increases in traffic volume, he did not provide any support for that assertion. Additionally, Thompson correlated a hypothetical reduction in the number of available gaps to a higher incidence of accidents without presenting an opinion as to the probability that such accidents would occur if the proposed development were constructed. We conclude, therefore, that the record establishes no more than a mere possibility of harm resulting from insufficient gaps in traffic.

B

We next consider the commission’s contention that the record contains sufficient evidence to sustain its determination that children likely would play on unsafe roadways and steep slopes as a result of the inaccessibility of a majority of the designated recreational areas and the lack of alternative recreational facilities. In denying the plaintiffs applications, the commission stated that nearly two-thirds of the recreation area would be unusable and that the proposed development would not safely comply with HOD zoning requirements governing recreation areas. The commission concluded that “[t]he lack of meaningful recreation space may result in children playing on developed or cleared land such as roadways or on steep slopes, both of which are unsafe . . . .” The court rejected the commission’s argument in part on the ground that “the record contains no evidence beyond the conjecture of the commissioners that children will be forced to play in roadways or on steep slopes.” The court further stated that “[t]he evidence in the record simply does not support a finding that the site cannot safely be used for an HOD [district] because of recreational needs.”

We conclude that the record does not contain sufficient evidence to support the commission’s denial of the plaintiffs applications on the ground that children would be exposed to dangerous conditions as a result of inadequate recreational space. On the basis of reviews submitted by Nemey and the commission’s planning expert, David J. Portman, the record contains evidence to suggest that portions of the designated recreational space would be inaccessible. On the basis of that fact, however, the commission offers speculation that children necessarily would play in unsafe areas. We note from the record that the development plans include designated recreational spaces, such as a swimming pool, a playscape and a clubhouse, all of which are permitted by the HOD regulations as stated in the amendment to the zoning regulations approved by the commission. Additionally, there is no evidence in the record to support the commission’s assertion that recreational spaces and facilities in the surrounding area would be inadequate. The record, therefore, is devoid of any specific findings of fact to support the commission’s assertion that the inaccessibility of much of the recreation space would leave children with no alternative but to play in unsafe areas.

C

We next consider the commission’s contention that there is sufficient evidence in the record to support its denial of the plaintiffs applications on the basis of safety concerns associated with the Wilton Acres Road bus stop. Specifically, the commission argues that there is sufficient evidence in the record to support its contention that, as a result of the safety concerns associated with the Wilton Acres Road bus stop, parents would likely drive their children to the bus stop, thereby causing dangerous traffic congestion on Wilton Acres Road. The court concluded that there was insufficient evidence in the record to support the commission’s assertion. We agree. The commission’s conclusion that, as a result of various safety concerns, parents would be likely to drive their children to the bus stop, thereby creating the potential for accidents due to traffic congestion is entirely speculative and, therefore, does not amount to sufficient evidence to support the commission’s denial of the plaintiffs applications.

In sum, we conclude that the court properly determined that there was insufficient evidence in the record to support the commission’s denial of the plaintiffs applications on the basis of inadequate traffic gaps on Route 7, inadequate recreational space and safety concerns associated with the Wilton Acres Road bus stop.

II

We next consider the commission’s claim that the court created a new legal standard under § 8-30g (g) for commissions challenging affordable housing applications. In support of its claim, the commission contends that, when the conclusions of its members and experts drawn from reasonable assumptions as to human behavior as well as its experts’ peer reviews of the plaintiffs development proposal are considered, sufficient evidence exists in the record to support its denial on the basis of the previously stated reasons. The crux of the commission’s argument is that, in failing to credit such information, the court implicitly and improperly created a new legal standard that is higher than the sufficient evidence standard because it will require commissions to hire experts to prove probable human behavior, thereby making it cost prohibitive for local commissions to challenge affordable housing applications. We disagree.

We begin by noting the applicable standard of review. Because the commission’s claim requires us to determine whether the court applied the correct legal standard in deciding whether the reasons supporting the commission’s denial were supported by sufficient evidence in the record, our review is plenary. See Hartford Courant Co. v. Freedom of Information Commission, 261 Conn. 86, 96-97, 801 A.2d 759 (2002).

In its memorandum of decision, the court applied the standard of review articulated in Carr v. Planning & Zoning Commission, supra, 273 Conn. 596-97, stating: “[T]he trial court must first determine whether the decision from which such appeal is taken and the reasons cited for such decision are supported by sufficient evidence in the record. General Statutes § 8-30g (g). Specifically, the court must determine whether the record establishes that there is more than a mere theoretical possibility, but not necessarily a likelihood, of a specific harm to the public interest if the application is granted.” The court further explained that “ [t] he test for determining whether such a decision is supported by sufficient evidence requires only that such evidence be included in the record upon which the commission’s decision is based. . . . The court must review the evidence in the record to determine whether the [commission’s] conclusions, which are clearly set forth in the record, are supported by sufficient evidence.” (Citations omitted.)

The commission maintains that the court applied a new legal standard in disregarding its conclusions as to safety risks reached on the basis of reasonably assumed human behavior. The commission’s argument, however, is flawed. In relying on assumptions as to how individuals will behave under a particular set of circumstances, the commission rested on speculation to support its safety concerns. As properly stated by the court, the sufficient evidence standard of § 8-30g (g) requires that the record establish more than a mere theoretical possibility of harm to support the denial of an affordable housing application. See River Bend Associates, Inc. v. Zoning Commission, supra, 271 Conn. 26. The record must contain evidence as to a quantifiable probability that a specific harm will result if the application is granted. See Kaufman v. Zoning Commission, supra, 232 Conn. 156; see also R. Fuller, 9B Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 51:6, p. 182.

In the present case, the conclusions of the commission’s members and experts regarding safety risks drawn from speculation as to likely human behavior fall short of establishing a quantifiable probability of specific harm. Similarly, the peer reviews of the commission’s experts discussed safety concerns in connection with the proposed development but did not identify the probability that specific harms would ensue. Mere concerns alone do not amount to sufficient evidence to support the denial of an affordable housing application pursuant to § 8-30g (g). The commission, therefore, failed to meet the sufficient evidence standard of § 8-30g (g). Specifically, the commission did not present evidence as to the extent of harm posed by its stated safety concerns or the probability of such harm if the plaintiffs applications were granted. See River Bend Associates, Inc. v. Zoning Commission, supra, 271 Conn. 24; Kaufman v. Zoning Commission, supra, 232 Conn. 156. For those reasons, we conclude that the trial court properly applied § 8-30g (g) in determining that the reasons supporting the commission’s denial were not supported by sufficient evidence in the record.

In sum, we agree with the conclusion of the court that the record does not contain sufficient evidence to support the commission’s denial on the basis of the reasons discussed in this opinion. The proper remedy, as noted by the court, is to remand the case to the commission with direction to approve the zone change and site plan applications.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 8-30g (g) provides in relevant part: “[T]he burden shall be on the commission to prove, based upon the evidence in the record compiled before such commission that the decision from which such appeal is taken and the reasons cited for such decision are supported by sufficient evidence in the record. The commission shall also have the burden to prove, based upon the evidence in the record compiled before such commission, that (1) (A) the decision is necessary to protect substantial public interests in health, safety, or other matters which the commission may legally consider; (B) such public interests clearly outweigh the need for affordable housing; and (C) such public interests cannot be protected by reasonable changes to the affordable housing development . . . .”

       General Statutes § 8-30g (h) allows the resubmission of an affordable housing application with modifications following an initial denial by a commission.

       The plaintiff has not appealed from the court’s decision upholding the commission’s approval of the proposed amendment to the zoning regulations with modifications.

       Affordable housing appeals to this court are subject to the certification requirement of General Statutes § 8-8 (o). Ensign-Bickford Realty Corp. v. Zoning Commission, 245 Conn. 257, 268-69, 715 A.2d 701 (1998). Section 8-8 (o), in relevant part, provides that in zoning matters “[t]here shall be no right to further review except to the Appellate Court by certification for review . . . .”

       The plaintiffs traffic engineer testified before the commission that a gap in traffic is measured as “the amount of time from the back of one bumper to the front of the next following bumper, for both ways of traffic.”

       With respect to traffic concerns, the court did find that there was sufficient evidence in the record to support the commission’s conclusion that the site driveway would operate at a failing level of service. The court explained that a failing level of service is assigned to an intersection or movement that is over capacity and where drivers may experience long delays. The court concluded, however, that the safety risk associated with a failing level of service did not outweigh the need for affordable housing. The commission has not challenged this determination by the court. Rather, the commission’s argument on appeal, and the one that we have addressed, focuses on the decision of the trial court that the record did not contain sufficient evidence to support the commission’s concerns relating to inadequate gaps in traffic.

       In support of its conclusion that parents would be likely to drive their children to the Wilton Acres Road bus stop, the commission asserts that its concerns as to the overall safety of the bus stop, namely, unsafe stopping distances, insufficient lighting, the lack of shelter and the lack of a defined waiting area, are supported by sufficient evidence in the record. The commission, however, did not provide any analysis in its brief as to insufficient lighting, lack of shelter and lack of a defined waiting area. We therefore decline to reach these issues.
      As a reviewing court, “[w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failing to brief the issue properly. ” (Internal quotation marks omitted.) BRJM, LLC v. Output Systems, Inc., 100 Conn. App. 143, 151-52 n. 7, 917A.2d 605, cert. denied, 282 Conn. 917, 925 A.2d 1099 (2007). We further decline to consider the commission’s concerns regarding stopping distances, lack of shelter and lack of a defined waiting area because such concerns were not a basis of the trial court’s decision with regard to the Wilton Acres Road bus stop. It is well established that appellate courts “will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim.” See Keating v. Glass Container Corp., 197 Conn. 428, 431, 497 A.2d 763 (1985).

       We note that even if we were to conclude that the record contained sufficient evidence to support the commission’s denial of the plaintiff’s applications, we would be unable to grant the commission the relief it seeks, namely, reversal of the judgment of the trial court and the upholding of the commission’s denial of the plaintiffs zone change and site plan applications, because the commission did not provide this court with any analysis demonstrating that its decision “was necessary to protect substantial interests in health, safety or other matters that the commission legally may consider, whether the risk of such harm to such public interests clearly outweighs the need for affordable housing, and whether the public interest can be protected by reasonable changes to the affordable housing development.” (Internal quotation marks omitted.) Carr v. Planning & Zoning Commission, supra, 273 Conn. 596-97.
      The commission summarily asserts that its stated risks of harm to the public interest outweigh the need for affordable housing and failed entirely to brief the remaining prongs of General Statutes § 8-30g (g). As we have stated, “[a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failing to brief the issue properly.” (Internal quotation marks omitted.) BRJM, LLC v. Output Systems, Inc., 100 Conn. App. 143, 152 n.7, 917 A.2d 605, cert. denied, 282 Conn. 917, 925 A.2d 1099 (2007).