text:
    HIGHGATE CONDOMINIUM ASSOCIATION, INC. v. ROBERT MILLER ET AL.
    (AC 31647)
    Alvord, Bear and West, Js.

      Argued December 10, 2010
    officially released June 14, 2011

      Paul J. Garlasco, for the appellant (plaintiff).

      Jeffrey M. Knickerbocker, for the appellee (defendant U.S. Bank National Association, as trustee).
   Opinion

PER CURIAM.

The plaintiff, Highgate Condominium Association, Inc., appeals from the decision of the trial court granting the motion of the defendant U.S. Bank National Association, as trustee (U.S. Bank), to open the judgment of strict foreclosure rendered in favor of the plaintiff. On appeal, the plaintiff claims that the court did not possess the authority to open the judgment because the title to the foreclosed property had become absolute in the plaintiff and, thus, the judgment was opened improperly. We agree and, accordingly, reverse the decision of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiffs claim on appeal. On December 12, 2008, the plaintiff commenced the underlying action to foreclose its statutory hen on a condominium unit located in Watertown. The complaint alleged that, pursuant to General Statutes § 47-258, the lien resulted from the failure of the titleholder, Robert Miller, to pay the plaintiff for required common charges as contained in the declaration of condominium. As a result of its interest in the subject property, the defendant was also named in the complaint and writ of summons. The plaintiff stated that it provided proper service of process to all relevant parties, including the defendant, who was allegedly served at an address in Owensboro, Kentucky. On January 20, 2009, the defendant was defaulted for failure to appear. Thereafter, on April 27, 2009, the court, Agati, J., granted the plaintiffs motion for strict foreclosure and ordered an assignment of law days set to commence on June 30, 2009. The defendant did not attempt to redeem the property prior to the running of the law days. On July 7, 2009, the plaintiff provided notice to all parties that, as result of the judgment of strict foreclosure, title to the subject property had become absolute in the plaintiff.

The defendant subsequently filed separate appearances on July 29 and August 11, 2009, with the Superior Court. On August 27, 2009, pursuant to Practice Book § 10-30, the defendant filed a motion to dismiss the foreclosure action on the ground that the plaintiff did not serve the defendant properly, and, as a result, the court lacked personal jurisdiction over the defendant as required by General Statutes § 52-59b. The defendant claimed that it did not have an office at the address that the plaintiff allegedly served. The plaintiff objected to that motion, claiming that it had served the defendant properly and that any attempt to open the judgment was prohibited by General Statutes (Rev. to 2009) § 49-15 (a). On September 21, 2009, the court, Cronan, J., denied the defendant’s motion to dismiss. Included in its denial, however, the court added a notation stating, “until motion to open is filed.” Consequently, the defendant filed a motion to open the judgment on September 15, 2009, and reiterated its claim that the court lacked personal jurisdiction over it. During a hearing on October 19, 2009, the defendant requested that the judgment be opened and that the court either rule on its motion to dismiss or set a new law day specific to its interests in the subject property. Each party presented conflicting statements regarding the efficacy of the plaintiffs service. Thereafter, the court granted the defendant’s motion to open the judgment without comment, but did not rule on the defendant’s pending motion to dismiss for lack of personal jurisdiction or set a new law day specific to the defendant’s interest in the subject property. The plaintiff did not request an articulation of the court’s decision and subsequently filed the present appeal.

Following oral argument before this court, we, sua sponte, ordered the trial court to articulate the factual and legal basis for its decision to grant the motion to open the judgment of strict foreclosure. In an April 4, 2011 articulation, the court stated that it “granted the defendant’s motion to open on the papers [and that the] defendant’s motion did reference the issue of improper service.” The court also noted in its articulation that although it offered the parties an opportunity to present further arguments in a “less frenzied forum” rather than what they encountered on the foreclosure docket, the parties declined the invitation. Additional facts will be set forth as necessary.

In this appeal, the plaintiff, in reliance on § 49-15 (a), claims that, because title to the subject property had become absolute in the plaintiff, the court did not have the authority to grant the defendant’s motion to open the judgment of strict foreclosure in the absence of a specific finding that it lacked personal jurisdiction over the defendant. We agree.

We begin by setting forth set our standard of review. “Because a challenge to the personal jurisdiction of the trial court is a question of law, our review is plenary.” Myrtle Mews Assn., Inc. v. Bordes, 125 Conn. App. 12, 15, 6 A.3d 163 (2010).

It is a general rule that “a judgment of strict foreclosure ordinarily cannot be opened after the law day has passed, [unless] the judgment [is] attacked on the ground that the court lacked jurisdiction over the party challenging it.” Argent Mortgage Co., LLC v. Huertas, 288 Conn. 568, 576, 953 A.2d 868 (2008). Once title has vested, no practical relief is available “\p]rovided that this vesting has occurred pursuant to an authorized exercise of jurisdiction by the trial court . . . .” (Emphasis added; internal quotation marks omitted.) First National Bank of Chicago v. Luecken, 66 Conn. App. 606, 612, 785 A.2d 1148 (2001), cert. denied, 259 Conn. 915, 792 A.2d 851 (2002). A natural corollary of this principle is that a judgment of strict foreclosure may be opened only upon a finding that the court lacked jurisdiction over either the person or the case at the time the judgment of strict foreclosure was entered. Anything less would appear to be in direct contravention of the strictures of § 49-15 (a) and our subsequent case law. See Argent Mortgage Co., LLC v. Huertas, supra, 576; First National Bank of Chicago v. Luecken, supra, 612.

“It is axiomatic . . . that a court cannot render a judgment without first obtaining personal jurisdiction over the parties. No principle is more universal than that the judgment of a court without jurisdiction is a nullity. . . . Such a judgment . . . may always be challenged. ... [A] defect in process . . . implicates personal jurisdiction.” (Internal quotation marks omitted.) Myrtle Mews Assn., Inc. v. Bordes, supra, 125 Conn. App. 16. Although our Supreme Court has recognized that “[w]hen a motion to dismiss for lack of personal jurisdiction raises a factual question which is not determinable from the face of the record, the burden of proof is on the plaintiff to present evidence which will establish jurisdiction”; Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 54,459 A.2d 503 (1983); it also has instructed that “where a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts. ... An evidentiary hearing is necessary because a court cannot make a critical factual [jurisdictional] finding based on memoranda and documents submitted by the parties.” (Citations omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 652-54, 974 A.2d 669 (2009); see also Coughlin v. Waterbury, 61 Conn. App. 310, 315-16, 763 A.2d 1058 (2001).

In the present case, given the stringent limitations placed on a court’s authority to open a judgment of strict foreclosure pursuant to § 49-15 (a), it was critical for the court to make a definitive factual and legal finding regarding the issue of its personal jurisdiction over the defendant. See Narayan v. Narayan, 122 Conn. App. 206, 216, 3 A.3d 75 (court’s failure to make requisite statutory findings to support its exercise of jurisdiction rendered court’s decision void), cert. granted on other grounds, 298 Conn. 914, 4 A.3d 833 (2010). Here, the court stated that it “granted the defendant’s motion to open on the papers [and that the] defendant’s motion did reference the issue of improper service.” Although the plaintiff did not request a further evidentiary hearing to establish that the court possessed jurisdiction over the defendant, the testimony of its counsel, that the plaintiff served the defendant properly, was cut short when the court informed him that there were other cases on the foreclosure docket that needed to be addressed. See footnote 5 of this opinion. This testimony, in light of the defendant’s motion and allegations that it had not been served properly, created a disputed issue of fact pertaining to the efficacy of the service, and the court should have conducted a hearing to establish whether its authority to open the judgment was implicated pursuant to its jurisdiction over the defendant. See Coughlin v. Waterbury, supra, 61 Conn. App. 315. (“[w]hen issues of fact are disputed, due process requires that an evidentiary hearing be held with the opportunity to present evidence and to cross-examine adverse witnesses”). We conclude, therefore, that the court improperly granted the motion to open the judgment of strict foreclosure without first making a factual and legal determination that it lacked personal jurisdiction over the defendant.

The decision of the court to open the judgment of strict foreclosure is reversed and the case is remanded for further proceedings in accordance with this opinion.

       The plaintiff commenced the underlying action naming Robert Miller, U.S. Bank, Beneficial Mortgage Company of Connecticut and Mortgage Electronic Registration Systems, Inc., as defendants having an interest in the subject property. U.S. Bank is the only defendant that has participated in this appeal. For convenience, we refer in this opinion to U.S. Bank as the defendant.

       The plaintiff frames this issue as an abuse of the court’s discretion. We conclude, however, that the plaintiff is questioning the authority of the trial court to act. Our Supreme Court “has concluded that an order opening a judgment is ordinarily not a final judgment. ... [It also has] recognized, however, that [a]n order of the trial court opening a judgment is ... an appealable final judgment where the issue raised is the power of the trial court to open. . . . Indeed, [the] court has recognized an exception . . . for those cases in which the appellant makes a colorable challenge to the jurisdiction of the trial court to open the judgment.” (Citations omitted; internal quotation marks omitted.) Novak v. Levin, 287 Conn. 71, 77, 951 A.2d 514 (2008).

       The plaintiff reports that it served the defendant at 4801 Frederica Street, Owensboro, Kentucky. Certified return receipts indicate that Sarah Ward signed for the writ of summons and complaint. On October 19, 2009, at a hearing on the defendant’s motion to open the judgment and motion to dismiss, the plaintiffs counsel informed the court that he had spoken to Ward on the telephone and that she had confirmed to him that she signed the certified return receipt in her capacity as an employee of the defendant. In its memorandum of law in support of its motion to dismiss, the defendant denied having an office at that address, stating, “[ujpon information and belief, this address is a branch office of a bank, not the defendant’s address.” At oral argument before this court, both parties acknowledged that someone signed the return receipt for the certified writ of summons and complaint at the Owensboro, Kentucky address. The defendant, however, reiterated its denial that it had any knowledge that Ward was its agent or that it had an office located at that address.

       General Statutes (Rev. to 2009) § 49-15 (a) provides in relevant part that “no . . . judgment [of strict foreclosure] shall be opened after the title has become absolute in any encumbrancer.”

       At the hearing, the plaintiffs counsel, attorney Paul J. Garlasco, requested that he be able to provide sworn testimony regarding the efficacy of his service on the defendant in addition to certain conversations that allegedly transpired between him and the defendant’s counsel. After the court granted this request, Garlasco provided testimony regarding the manner in which he attempted to serve the defendant and that he was informed by the person that signed the return receipt of the complaint and writ of summons that she was an agent of the defendant. During Garlasco’s testimony, however, the court informed Garlasco that it needed to attend to other cases on the docket and that his testimony and summation would need to be cut short. The following colloquy ensued between the court and counsel for the parties:
      “The Court: If you want to have a full hearing with everyone here, I’d be happy to oblige. But this morning, summarize or we’ll put it off.
      “Attorney Garlasco: I’d like to summarize it, Your Honor, because we’ve been here multiple times. And each time the defendant, through its own neglect, failed to move forward. . . .
      “[The Defendant’s Counsel]: Your Honor, we were here, both of us were here, on numerous occasions—
      “The Court: All right, I’m not going to put up with this. I will read the memorandum, make a decision on the memorandum.”

       The defendant’s motion to open the judgment asserted that the court lacked personal jurisdiction over the defendant as a result of improper service of process. See footnote 3 of this opinion. The court was also in possession of the defendant’s memorandum in support of its motion to dismiss for lack of personal jurisdiction and the plaintiffs objection to that motion.

       The court stated, in its April 4, 2011 articulation, that it “established the procedure of rescheduling matters that would involve prolonged oral argument to a Wednesday afternoon when the Housing Court judge . . . was available.”

       In Argent Mortgage Co., LLC, our Supreme Court determined that because the trial court possessed proper personal jurisdiction over the defendant at the time that the judgment of strict foreclosure was entered, the proper form of judgment in response to the defendant’s motion to open that judgment was to dismiss the motion to open the judgment of strict foreclosure as moot because there is no practical relief available to the defendant. Argent Mortgage Co., LLC v. Huertas, supra, 288 Conn. 581-82.

       This court has held that in certain situations, not present here, an evidentiary hearing is not necessary where there are undisputed factual allegations, the parties have submitted affidavits supporting their positions and the plaintiff failed to request the hearing. See Walshon v. Ballon Stoll Bader & Nadler, P.C., 121 Conn. App. 366, 371, 996 A.2d 1195 (2010).

       Although the plaintiff concedes, as it must, that the court would have possessed the authority to open the judgment had it found that it lacked personal jurisdiction over the defendant, we conclude that the court did not make such a requisite finding.


source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    DERRICK TAYLOR v. THERESA C. LANTZ ET AL.
    (AC 32242)
    Lavine, Robinson and West, Js.

      Argued March 23
    officially released June 14, 2011

      Derrick Taylor, pro se, the appellant (plaintiff).

      LynnD. Wittenbrink, assistant attorney general, with whom were Michael King, certified legal intern, and, on the brief, Richard Blumenthal, former attorney general, for the appellees (defendants).
   Opinion

ROBINSON, J.

The plaintiff, Derrick Taylor, appeals from the summary judgment rendered by the trial court in favor of the defendants, Theresa C. Lantz, Jeffrey E. McGill, Suzanne Ducate, Fred Levesque and Mary M. Marcial. On appeal, the plaintiff claims that the court improperly concluded that (1) there were no genuine issues of material fact and (2) the defendants were entitled to qualified immunity. We affirm the judgment of the trial court.

Viewed in the light most favorable to the plaintiff; see, e.g., Rodriguez v. Testa, 296 Conn. 1, 6, 993 A.2d 955 (2010); the record reveals the following relevant facts and procedural history. In 1995, the plaintiff was sentenced to a term of imprisonment of eighty years following his conviction for murder, conspiracy to commit murder and assault in the second degree. On May 7, 2003, the department of correction (department) transferred custody of the plaintiff to the New Jersey department of corrections (New Jersey department). While the plaintiff was in the custody of the New Jersey department, officials discovered a loaded handgun secreted in a pantry ceiling at the facility where the plaintiff was being housed. After giving a voluntary statement in which he admitted to hiding the weapon, the plaintiff pleaded guilty to several institutional violations related to the incident.

In December, 2006, the plaintiff was returned to the custody of the department. On or about December 8, 2006, the plaintiff received a notice of an administrative segregation hearing, stating that the department was reviewing him for placement on administrative segregation status, a type of restrictive status, due to the weapon incident in New Jersey. After a hearing on December 13, 2006, the plaintiff was placed on administrative segregation status.

The plaintiff requested and was granted an appeal from his placement on administrative segregation status. On February 6,2007, a second hearing was held. The hearing officer determined that the plaintiff “pose[d] a threat to the safety and security of staff and facility” and recommended that the plaintiff be placed on administrative segregation status. On February 7, 2007, Levesque authorized the plaintiffs placement on administrative segregation status.

On May 1, 2008, the plaintiff was notified that he had been reclassified to special needs management status, another type of restrictive status. The plaintiff filed a request to appeal his placement on special needs management status, arguing that the reclassification violated his right to due process because he had not been afforded a hearing. The request subsequently was denied, and the plaintiff remained on special needs management status until October 16, 2008.

By complaint filed September 15, 2008, the plaintiff brought this action against the defendants in their individual and professional capacities pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983. In the complaint, the plaintiff alleged, inter alia, that the defendants had violated his right to due process, as guaranteed by the fourteenth amendment to the United States constitution, by placing him on special needs management status without providing him with notice and a hearing. In his prayer for relief, the plaintiff requested “[a] declaratory judgment determining whether [his] right to due process has been violated.” The plaintiff also sought damages, costs, attorney’s fees and other relief that the court deemed just and proper.

On July 29, 2009, the defendants filed a motion for summary judgment, alleging, inter aha, that there was no genuine issue of material fact and that the defendants were entitled to qualified immunity. The trial court granted the defendants’ motion on March 8, 2010. In its memorandum of decision, the corut concluded that viewing the evidence in the light most favorable to the plaintiff, there were no genuine issues of material fact as to whether the plaintiff had been deprived of due process. Alternatively, the court concluded that summary judgment was proper because the defendants were entitled to qualified immunity as a matter of law. This appeal followed. Additional facts will be set forth as necessary.

The plaintiff first claims that the court improperly concluded that there were no genuine issues of material fact. More specifically, the plaintiff argues that a genuine issue exists as to whether his reclassification to special needs management status subjected him to an atypical and significant hardship. The plaintiff also argues that there was a genuine issue as to whether special needs management status was a “mental health status.” We reject both of these arguments.

Before considering the plaintiffs individual arguments, we set forth the applicable standard of review and relevant legal principles. Pursuant to Practice Book § 17-49, summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” “A material fact is a fact that will make a difference in the result of the case. . . . The facts at issue are those alleged in the pleadings. ...

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. ... To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent. . . .

“The party opposing a motion for summary judgment must present evidence that demonstrates the existence of some disputed factual issue .... The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist. ... To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts . . . which contradict those stated in the movant’s affidavits and documents. . . . The opposing party to a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence. . . . Our review of the trial court’s decision to grant a motion for summary judgment is plenary.” (Citations omitted; emphasis omitted; internal quotation marks omitted.) Gianetti v. Health Net of Connecticut, Inc., 116 Conn. App. 459, 464-65, 976 A.2d 23 (2009). With these principles in mind, we turn to the plaintiffs arguments raised in support of his claim.

I

We first consider the plaintiffs argument that a genuine issue exists as to whether his reclassification to special needs management status subjected him to an atypical and significant hardship. We are not persuaded.

The following additional facts are relevant to the plaintiffs first argument. In his complaint, the plaintiff alleged that “[t]he conditions in [s]pecial [n]eeds [m]anagement [status] . . . subjected] [him] to an atypical and significant hardship in relation to the ordinary incidents of prison life.” The defendants denied this allegation and also submitted a copy of § 9.4 of the department’s administrative directives (directive) in support of their motion for summary judgment.

According to the directive, both administrative segregation and special needs management are a form of restrictive housing status. The directive sets forth general conditions of confinement for all inmates on a restrictive housing status. It also provides that all inmates on a restrictive housing status shall have limited access to programs and privileges afforded to inmates in the general population. It does not set forth different confinement conditions or limitations based upon the specific form of restrictive housing status.

In his affidavit in opposition to the defendants’ motion for summary judgment, the plaintiff attested: “Not only were the conditions in [s]pecial [n]eeds [m]anagement [status] more restrictive than those in general population, but in some ways they were more restrictive than the conditions [that] I had been subjected to in [administrative segregation] immediately prior to my placement in [s]pecial [n]eeds [m]anagement [status].” Aside from this bald assertion, the plaintiff produced no evidence regarding the differences in the conditions of confinement in special needs management status and administrative segregation status.

Under the substantive law, “[t]o prevail on a claim under 42 U.S.C. § 1983, a plaintiff must [prove] (1) that some person has deprived him of a federal right, and (2) that the person who has deprived him of that right acted under color of . . . law.” (Internal quotation marks omitted.) Broadnax v. New Haven, 294 Conn. 280, 299, 984 A.2d 658 (2009). In the present case, the plaintiff alleged that the defendants deprived him of the right to due process, as guaranteed by the fourteenth amendment to the United States constitution.

“The fourteenth amendment to the United States constitution provides that the [s]tate [shall not] deprive any person of life, liberty, or property, without due process of law .... In order to prevail on his due process claim, the [plaintiff] must prove that: (1) he has been deprived of a property [or liberty] interest cognizable under the due process clause; and (2) the deprivation of the property [or liberty] interest has occurred without due process of law.” (Emphasis omitted; internal quotation marks omitted.) State v. Fernandes, 300 Conn. 104, 122, 12 A.3d 925 (2011). Therefore, to implicate the protections of the due process clause, the plaintiff must have been deprived of a protected liberty interest.

An inmate does not have a protected liberty interest in his classification, per se. Wheway v. Warden, 215 Conn. 418, 431, 576 A.2d 494 (1990). Instead, to constitute a deprivation of liberty, the inmate must have been subjected to a confinement or restraint, which imposes “an atypical and significant hardship ... in relation to the ordinary incidents of prison life. . . . Additionally, the [inmate] must establish that the state has granted its inmates, by regulation or by statute, a protected liberty interest in remaining free from that confinement or restraint.” (Citation omitted; internal quotation marks omitted.) Coleman v. Commissioner of Correction, 111 Conn. App. 138, 141-42, 958 A.2d 790 (2008), cert. denied, 290 Conn. 905, 962 A.2d 793 (2009).

In the present case, at the time the plaintiff was classified to special needs management status, he already was on another form of restrictive housing status, administrative segregation. In essence, the plaintiffs classification was a horizontal move, i.e., from one restrictive housing status to another, rather than a vertical move, i.e., from the general population to a restrictive housing status. Because the plaintiff did not have a protected liberty interest in his classification status alone, it was necessary for him to establish that the change in his classification status imposed an atypical and significant hardship.

Turning to the plaintiffs claim, the defendants submitted a copy of the directive in support of their motion for summary judgment. The directive showed equivalent conditions of confinement for inmates on special needs management status and administrative segregation status. Therefore, because the conditions of confinement were alike, the defendants met their burden of showing the absence of a genuine issue of material fact, namely, that reclassifying the plaintiff to special needs management status subjected him to an atypical and significant hardship. Given the directive, to survive the motion for summary judgment, the plaintiff was required to submit some evidence to the contrary.

In opposition, the plaintiff provided only his affidavit, in which he stated conclusorily that he had been subjected to more restrictive conditions of confinement on special needs management status. Such a conclusory statement, however, in and of itself, does not provide a sufficient evidentiary foundation to demonstrate the existence of a genuine issue of material fact. See, e.g., Shukis v. Board of Education, 122 Conn. App. 555, 565, 1 A.3d 137 (2010) (“[t]o establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue” [internal quotation marks omitted]). Instead, it was necessary for the plaintiff to plead specific facts, which, if true, would enable a fact finder to conclude that the conditions of confinement subjected the plaintiff to an atypical and significant hardship. See Chadha v. Shimelman, 75 Conn. App. 819, 828, 818 A.2d 789, cert. denied, 264 Conn. 909, 826 A.2d 180 (2003). The plaintiff, however, failed to plead such specific facts, or to produce any countervailing evidence, demonstrating how the conditions of confinement on special needs management status differed from the conditions on administrative segregation. The plaintiff, therefore, failed to demonstrate the existencé of a genuine issue of material fact.

II

We next consider the plaintiffs second argument that there was a genuine issue as to whether special needs management status was a “mental health status.” According to the plaintiff, as a mental health status, special needs management status carries a stigma and, pursuant to Vitek v. Jones, 445 U.S. 480, 100 S. Ct. 1254, 63 L. Ed. 2d 552 (1980), the department was required to provide him with a hearing before designating him to this status. We are not persuaded.

In his complaint, the plaintiff alleged that special needs management “was designed for severely mentally ill prisoners considered too violent and/or disruptive for Gamer Correctional Institution, the [department] facility . . . that houses inmates deemed to be in need of mental health care.” In addition to denying this allegation, the defendants also submitted the directive as evidence of the purpose of special needs management status. The directive provides that special needs management is a status “for inmates who have demonstrated behavioral qualities either through the serious nature of their crime, their behavior, or through reasonable belief that they continue to pose a threat to the safety and security of staff, other inmates, themselves, or the public.” (Emphasis added.) The plaintiff produced no evidence in contradiction to the directive.

Even if we were to assume, without deciding, that Vitek requires the department to provide an inmate with a hearing prior to classifying him or her to a mental health status, we conclude that there is no genuine issue as to whether special needs management is a mental health status. Contrary to the plaintiffs allegation, the directive submitted by the defendants showed that special needs management is a status for inmates with “behavioral” problems, rather than mental health problems. As the directive demonstrated that special needs management was not a mental health status, it was necessary for the plaintiff to “substantiate [his] adverse claim by showing that there [was] a genuine issue . . . together with the evidence disclosing the existence of such an issue.” (Internal quotation marks omitted.) Gianetti v. Health Net of Connecticut, Inc., supra, 116 Conn. App. 465.

“Demonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred.” (Emphasis added.) Trotta v. Branford, 26 Conn. App. 407, 412, 601 A.2d 1036 (1992). This means that the party opposing summary judgment must establish “[t]he existence of the genuine issue of material fact ... by counteraffidavits and concrete evidence”; (emphasis omitted; internal quotation marks omitted) Gianetti v. Health Net of Connecticut, Inc., supra, 116 Conn. App. 465; which would be admissible in evidence at a trial on the claim. United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 377, 260 A.2d 596 (1969).

A review of the record discloses that the plaintiff did not present any evidence from which the court could have inferred that special needs management is a mental health status. The only purported evidence presented by the plaintiff was in the form of the allegations of his complaint, which the defendants denied. Such “unadmitted allegations in the pleadings [however] do not constitute proof of the existence of a genuine issue as to any material fact on a motion for summary judgment.” Trotta v. Branford, supra, 26 Conn. App. 412. Therefore, because the plaintiff failed to produce any evidence in contradiction to the directive, he failed to substantiate his adverse claim. Accordingly, we conclude that the trial court properly granted the defendants’ motion for summary judgment.

Having concluded that the court properly granted the motion for summary judgment because there were no genuine issues of material fact, we need not reach the plaintiffs claim that the court improperly concluded that the defendants were entitled to qualified immunity.

The judgment is affirmed.

In this opinion the other judges concurred.

       At all times relevant to this action, the defendants were employed by the department of correction (department) in the following positions: Lantz was the commissioner of the department; McGill was the warden of the Northern Correctional Institution; Ducate was the director of psychiatric services for the department; Levesque was the director of offender classification and population management for the department; and Marcial was the director of programs and treatment for the department.

       For a detailed account of the facts underlying his conviction, see State v. Taylor, 239 Conn. 481, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997).

       Section 1983 of title 42 of the United States Code provides in relevant part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. . . .”

       The plaintiff does not contend that the hearing he received prior to being classified to administrative segregation status was constitutionally deficient.

       In Vitek, the United States Supreme Court held that “due process requires a hearing before state officials may involuntarily transfer a prisoner from a prison to a state mental hospital. That holding . . . was driven by the perceived stigma associated with mental health treatment.” State v. Campbell, 224 Conn. 168, 185 n.18, 617 A.2d 889 (1992), cert. denied, 508 U.S. 919, 113 S. Ct. 2365, 124 L. Ed. 2d 271 (1993).


author: BEACH, J.

text:
    IN RE LUCIANO B.

    (AC 32601)
    (AC 32602)
    Beach, Bear and Flynn, Js.

      Argued March 7
    officially released June 14, 2011

      Dana M. Hrelic, with whom were Brendon P. Levesque and, on the brief, Michael S. Taylor, for the appellant (respondent father in AC 32601).

      David B. Rozwaski, for the appellant (respondent mother in AC 32602).

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

      Shawn Mark O’Neill, for the minor child in both cases.

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

   Opinion

BEACH, J.

In this consolidated opinion, the respondent mother and the respondent father appeal from the judgment of the trial court terminating their parental rights with respect to their minor child, Luciano. In docket number AC 32601, the father claims that the court erred in finding that (1) the department of children and families (department) had made reasonable efforts to reunite him with Luciano and (2) he had failed to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable time he could assume a responsible position in the child’s life. In docket number AC 32602, the mother claims that the court erred in finding that (1) the department had made reasonable efforts to reunite her with Luciano, (2) she had failed to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable time she could assume a responsible position in the child’s life and (3) it was in Luciano’s best interest to terminate her parental rights. We affirm the judgment of the trial court.

The trial court found the following facts. Luciano was bom in April, 2008. Both Luciano and the mother tested positive for cocaine upon his birth. On May 16,2008, the petitioner, the commissioner of children and families (commissioner), filed a petition for neglect and an ex parte motion for temporary custody concerning Luciano. On that same date, the court found that Luciano was in immediate physical danger from his surroundings and vested his temporary care and custody in the commissioner. On May 23, 2008, the court sustained the ex parte order of temporary custody. The issues leading to the filing of the neglect petition included the mother’s substance abuse issues as well as a history of domestic violence, including, but not limited to, an incident in which hospital staff saw the father shove the mother while she was holding Luciano, who, at the time, was a little over two weeks old.

The mother has severe and long-standing substance abuse issues intertwined with a history of being involved with violent men. A past relationship was marked by her use of cocaine and by domestic violence. The father has a criminal history, which began in 1982 and includes, among other things, arrests for domestic violence. The couple’s relationship was marked by domestic violence. In September, 2007, a criminal court issued a full protective order for the mother, but in April, 2008, the order was downgraded to a partial protective order, which allowed the parents to live together.

On July 17, 2008, Luciano was adjudicated neglected and committed to the custody and guardianship of the commissioner. On that date, the court reaffirmed the specific steps for possible reunification that had been ordered on May 23, 2008, following the hearing on the order of temporary custody. Among other things, the steps required the mother to attend counseling to address depression, substance abuse and domestic violence issues. The father was also required to cooperate with a substance abuse evaluation and to address issues of domestic violence.

The father was referred for a substance abuse evaluation in May, 2009, which he attended briefly. He was asked to leave because he had intimidated the staff. Although his urine screen came back negative for substances, the father’s evaluation was never completed. The father was also referred to a twenty-six week program at the Non Violence Alliance (alliance). The father, however, attended only six weeks before he was incarcerated in August, 2008, following arrests for violation of a protective order relating to a former wife. While incarcerated, the father became ineligible for services offered by the department of correction as a result of an altercation with another inmate. As a result, he did not begin a six week domestic violence class entitled “Embracing Fatherhood” until May, 2009. At about this time, the commissioner filed the petition to terminate parental rights. The father was released on July 31, 2009, and agreed to participate in the more intensive domestic violence program offered by the alliance.

The mother was referred to the Hospital of Saint Raphael for intensive outpatient treatment, but she missed three appointments in part because of the hospitalization of one of her other children. In July, 2008, the department then referred her to Crossroads for inpatient treatment to address her mental health and substance abuse issues, but she missed that appointment. Although the mother received methadone maintenance at the APT Foundation starting in August, 2008, she was not receiving counseling adequate to meet her needs. When the department made another referral for the mother in September, 2008, to Crossroads, she again missed her appointment. After the third referral to Crossroads in October, 2008, the mother entered the program at the Amethyst House. After spending twenty days in the program, she left because she had violated program rules. Although the program was willing to accept her back, she refused to return and was unwilling to resume inpatient treatment at any other facility.

Also in October, 2008, the mother was evicted from the home she shared with the father; as noted above, he was incarcerated in August, 2008. If she had stayed with the Crossroads/Amethyst House inpatient treatment program, however, she could have received transitional housing services. Instead, she remained transient, living with family and friends while she sought intensive outpatient treatment at Grant Street Partnership. If she had been able to demonstrate ninety days of being free from substance abuse, she would have then been eligible to apply for the supportive housing program. On January 15, 2009, however, she tested positive for cocaine. On February 27, 2009, she again tested positive for illegal substances, this time for morphine. In March, 2009, the mother again tested positive for cocaine, and, as such, she was discharged from Grant Street Partnership for noncompliance.

By the time the commissioner had filed the termination of parental rights petition in May, 2009, the father was still incarcerated and had failed to take advantage of even the limited services available from the department of correction due to an altercation with an inmate. The mother had continually tested positive for illegal substances or was not in consistent treatment or both. She was again unemployed and had no stable or appropriate place to live. Luciano had been in foster care since birth and was, at this point, one year old.

In July, 2009, however, the mother finally managed to remain substance free for three months. She had secured a job and had been attending Harbor Health Services for intensive outpatient treatment following a referral by the department. Her attendance, however, declined as she worked more hours. On July 31, 2009, the father was released from incarceration, and he and the mother resumed living together.

In September, 2009, Nancy A. Randall, a psychologist, interviewed the parents pursuant to a court-ordered evaluation. Randall recommended that the parents be given no more than three additional months to comply strictly with her treatment recommendations. She noted that the mother was making some progress toward emotional stability and sobriety. Randall observed that the father had only been recently released from his incarceration, but, thus far, had not demonstrated any problems. While endorsing continued reunification efforts for the next three months, Randall insisted that both parents needed to demonstrate a commitment to ongoing treatment. Randall considered the father to be at a continued risk for domestic violence because of his history of such violence and his failure to address these issues adequately in treatment services. Randall recommended that the father attend weekly individual therapy sessions to deal with domestic violence, anger management, judgment and interpersonal issues. Randall recommended that the mother receive continued treatment for substance abuse and other mental health treatment. Randall concluded by suggesting that if both parents strictly complied in the next three months with all treatment recommendations, then visits with Luciano should be upgraded to unsupervised visits at the end of three months. If there were continued compliance and no indications of substance abuse, domestic violence or issues with visitation, reunification could occur within the following three months. Because of Randall’s recommendations, the commissioner agreed to reschedule the trial date of October 15, 2009. The parties agreed to reschedule the trial to January 28, 2010.

The father attended two sessions of the alliance program in October, 2009, but then lapsed for several months. In November, 2009, his father died, and he did not attend the alliance program in November. He went to two sessions in December, 2009, and did not attend in January, 2010. He went back to the program, however, and by May 5, 2010, he had attended all but one session of the alliance program.

The mother was referred to State Street Counseling Services and began treatment on October 6, 2009. She attended all sessions in October but missed several sessions in November and December, 2009, and January, 2010. As of May 5,2010, when her counselor, Megan Tredennick, testified at trial, the mother had continued to attend sessions but frequently cancelled and had to reschedule. The mother claimed to have had conflicts with her work schedule, visitation with Luciano and court dates. When the department asked the mother for proof of her employment, she could not provide the department with a reliable telephone number for her employer or documentation regarding her work schedule.

On January 28, 2010, Randall testified at trial that because the parents had not sufficiently complied with her recommendations in the three month period, the time had come for Luciano to be able to live in a permanent environment. She maintained this position even as she acknowledged that there were no known incidents of domestic violence or substance abuse in the three month period. She testified that domestic violence typically does not occur every day but, with increased stressors operating on the parents and inadequate treatment, Luciano would be at risk if he were returned to the parents’ care. In Randall’s opinion, by giving the parents an extra three months of time to work toward reunification, she was “stretching the limit” as to what was acceptable for Luciano’s needs. Randall farther testified that children require permanency because it provides them with personal security, allows them to feel safe within their family and allows them to trust their environment.

The court found that the department had made reasonable efforts to reunify Luciano with his parents as of the date of the filing of the petition and that the parents had failed to achieve the requisite degree of personal rehabilitation. The court terminated the parental rights of the mother and father after finding that doing so was in Luciano’s best interest. This appeal followed.

General Statutes § 17a-112 Q) provides in relevant part: “The Superior Court . . . may grant a petition filed [for termination of parental rights] if it finds by clear and convincing evidence that (1) the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent ... (2) termination is in the best interest of the child, and (3) . . . (B) the child (i) has been found by the Superior Court or the Probate Court to have been neglected or uncared for in a prior proceeding . . . and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent. . . and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .”

“A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. ... In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights [under § 17a-112 (j)] exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child. . . .

“Our standard of review on appeal from a termination of parental rights is limited to whether the challenged findings axe clearly erroneous. ... A finding is clearly erroneous when either there is no evidence in the record to support it, or the reviewing court is left with the definite and firm conviction that a mistake has been made. . . . [G]reat weight is given to the judgment of the trial court because of [the trial court’s] opportunity to observe the parties and the evidence. . . . [An appellate court does] not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. . . . [Rather] every reasonable presumption is made in favor of the trial court’s ruling.” (Internal quotation marks omitted.) In re Sole S., 119 Conn. App. 187, 190-91, 986 A.2d 351 (2010).

I

We first address the claims of the father and mother regarding the court’s finding that the department made reasonable efforts to reunite them with Luciano.

“In order to terminate parental rights under § 17a-112 (j), the department is required to prove, by clear and convincing evidence, that it has made reasonable efforts ... to reunify the child with the parent, unless the court finds . . . that the parent is unable or unwilling to benefit from reunification .... [Section 17a-112] imposes on the department the duty, inter alia, to make reasonable efforts to reunite the child or children with the parents. The word reasonable is the linchpin on which the department’s efforts in a particular set of circumstances are to be adjudged, using the clear and convincing standard of proof. Neither the word reasonable nor the word efforts is, however, defined by our legislature or by the federal act from which the requirement was drawn. . . . [Reasonable efforts means doing everything reasonable, not everything possible. . . . The trial court’s determination of this issue will not be overturned on appeal unless, in fight of all of the evidence in the record, it is clearly erroneous.” (Internal quotation marks omitted.) In re G.S., 117 Conn. App. 710, 716, 980 A.2d 935, cert. denied, 294 Conn. 919, 984 A.2d 67 (2009). “It is axiomatic that the law does not require a useless and futile act.” In re Antony B., 54 Conn. App. 463, 476, 735 A.2d 893 (1999).

A

We first turn to the father’s claim that the court failed to consider the department’s failure to comply with court-ordered specific steps. Specifically, he argues that the department failed to provide adequate case management services and failed to monitor the father’s progress and compliance with the recommended services. We disagree.

When determining that the department made reasonable efforts to reunify the father with Luciano, the court made the following findings. “[The father] was referred for substance abuse evaluation per the court-ordered specific steps but because he was asked to leave due to intimidating behavior, the evaluation was never completed. While he was referred to and began the alliance program for domestic violence, he only completed six weeks before he was incarcerated for one year, from August, 2008, through July 31, 2009, for violating a protective order. While in jail, he had limited opportunities to take advantage of services, such as parenting and domestic violence programs, but because he was involved in an altercation, he became ineligible to participate for 120 days. As such, he did not even begin such programs until May, 2009, when the termination petition was filed.”

First, the father claims that his inability to form a particularly strong bond with Luciano for much of his first year did not arise from his unwillingness to visit his son more frequently, but rather from the department’s severe limitation on the number of times that the father was allowed to visit with Luciano. The father specifically argues that while he had weekly visits with Luciano prior to incarceration, the department made no efforts to increase this visitation despite the progress being made to strengthen the bond between Luciano and the father. Additionally, he argues, the department did not increase his visitation after he was incarcerated, during which time visitation was on a monthly basis, even though, according to Joshua Fisher, the social worker who brought Luciano to him during that time, the father “did the best he could given the circumstances.”

Although the father now argues that the department failed to give him more frequent contact with Luciano, a department social study, dated June 4, 2009, stated that of the twelve weekly supervised visits offered to the father prior to his incarceration, the father attended only five. Fisher testified at trial that after the father was incarcerated, he was offered and accepted visitation on a monthly basis. Fisher further testified that the department could not offer the father more frequent visitation because of Luciano’s young age and the “distance and difficulty to get him into the prison system.” “[Reasonable efforts means doing everything reasonable, not everything possible.” (Internal quotation marks omitted.) In re G.S., supra, 117 Conn. App. 716.

Second, the father argues that there is no evidence in the record to suggest that the department asked him for feedback as to the effectiveness of the alliance program in which he participated prior to being incarcerated. He states that he fully complied with the alliance program prior to incarceration and that if the department had communicated with him about his experience with the program, the commissioner may not have found it necessary to file the petition to terminate his parental rights during his incarceration and before he had been given an opportunity to re-engage and complete the program. He contends that the department easily could have tailored a plan to accommodate his incarceration.

There is evidence in the record that the department communicated with him regarding domestic violence programs. After attending six weeks of the twenty-six week alliance program, the father was incarcerated as a result of having violated a protective order. Fisher testified that shortly after the father was incarcerated, he advised the father that it would be in his best interest to participate in a domestic violence program while incarcerated. The father, however, became ineligible for services offered by the department of correction as a result of an altercation with another inmate. Fisher testified that during the monthly visits attended by Fisher, the father and Luciano, he discussed with the father at length the need for a higher level of domestic violence treatment, as the alliance program was more intensive than the domestic violence programs that the department of correction was offering. Fisher further testified that he advised the father that it would be preferable to re-engage in the alliance program upon discharge.

With respect to this issue, the father also argues that the department did not take steps to communicate with him concerning what had occurred during the altercation that had prevented him from participating for 120 days in the programs for which he signed up. By the time he was eligible to participate in the programs, the commissioner had already filed the petition to terminate parental rights. He argues that if the department had maintained regular communication with him, it is possible that the commissioner may have waited to file the petition until he had had the opportunity successfully to complete the treatment programs within the department of correction.

There was evidence that the department monitored the father’s progress. The department was aware of the incident that had prevented him from participating in treatment programs within the department of correction. Fisher testified at trial that the father had signed up for anger management and fatherhood support programs while incarcerated, but he was unable to participate for some time in those programs because he received “a ticket,” the “official reason” for the disciplinary ticket being an altercation with another inmate. He testified that the father’s “story” was that he was “minding his own business” when another inmate hit him over the head. Fisher was aware of both versions of the event. Any claim by the father that the commissioner would have waited to file the petition for termination of parental rights until after his incarceration if the department had communicated with him cannot prevail. First, the department had communicated with him, and, second, a claim hypothesizing what the commissioner would have done is speculative. See In re Samantha S., 120 Conn. App. 755, 759, 994 A.2d 259 (2010) (role on appeal not to guess at possibilities), appeal dismissed, 300 Conn. 586, 15 A.3d 1062 (2011).

Third, the father argues that other than the monthly visitation with Luciano, no other case management service was provided to the father during his incarceration and prior to the filing of the petition for termination of parental rights. He argues that Fisher never followed up with the father to see if he had signed up for programs with the department of correction, as Fisher had advised the father to do; when Fisher was incorrectly informed by prison counselors that the father had not signed up for such programs, he failed to communicate with the father as to why he had not done so. He argues that the failure to request feedback and to maintain communication with him about his progress meant that the monthly visitation he had with Luciano was the only service provided to the father during his incarceration. The father argues that this service alone was not sufficient to satisfy the “reasonable efforts” requirement of § 17a-112 and claims that his situation is similar to that in In re Vincent B., 73 Conn. App. 637, 809 A.2d 1119 (2002), cert. denied, 262 Conn. 934, 815 A.2d 136 (2003).

In In re Vincent B., supra, 73 Conn. App. 645, this court reversed an order terminating a father’s parental rights because the department had made “no efforts at reunification at all.” In that case, the father voluntarily entered a long-term inpatient substance abuse treatment program, and his participation in the program was successful. Id., 642. While he was in the treatment program, the commissioner filed the petition to terminate his parental rights because of an incident that had occurred in his absence. Id., 643. Based on the department’s past experience with the father, in which he failed to benefit from reunification services with respect to his two other children, the department decided not to engage in reunification efforts with the child that was the subject of the termination petition. Id., 642-44. The department believed that efforts at reunification had been exhausted and offered the father the opportunity only to visit with the child. Id. The court concluded that the department’s efforts to reunite the respondent and the child were not reasonable under the circumstances of that case. Id., 644. In In re Vincent B. the court stated: “[F]rom the evidence before us, the only request made by the department was that the [father] complete substance abuse treatment. The [father] did so. The department did not make reasonable efforts when it should have done so. In fact, the record reflects that at least as of July, 2000, the department had made no efforts at reunification at all. Although making no efforts to reunify a parent and his or her child may be reasonable in certain circumstances, it was not so in this case.” Id., 645.

The circumstances in the present case are significantly different from those in In re Vincent B. In the present case, the department did not deny the father reunification services during incarceration. Rather, the record indicates that the department made efforts at reunification while he was incarcerated. Upon the father’s entrance into the custody of the department of correction, Fisher advised the father to participate in programs pertaining to domestic violence and fatherhood and to obtain a substance abuse screening because he had not finished such screening prior to incarceration as a result of his intimidating behavior toward the staff. Although Fisher did not testify at trial that he communicated directly with the father regarding whether the father had signed up for such programs while incarcerated, he did testify that he communicated with prison counselors as to that issue. Furthermore, the father had contact with Fisher each month, when he transported Luciano to the father for visitation. Additionally, while incarcerated, the father participated via telephone in an administrative case review in October, 2008.

Fourth, the father argues that the department continued to fail to follow the court-ordered specific steps after the filing of the termination petition. The court may consider evidence regarding the progress of rehabilitation after the filing of the petition; see, e.g., In re Latifa K., 67 Conn. App. 742, 747-49, 789 A.2d 1024 (2002); and may consider the specific steps in deciding whether the degree of rehabilitation has been sufficiently encouraging. See General Statutes § 17a-112 (j) (3) (B) (ii). As noted above, counseling and monitoring was provided, and the trial was continued to accommodate the effort.

After carefully considering the father’s arguments, we conclude that the court did not err in finding that the department made reasonable efforts to reunify the father with Luciano.

B

We next address the mother’s claim that the court erred in finding that the department made reasonable efforts to reunite her with Luciano. We disagree.

The court found the following. “[The department] referred [the mother] three times to Crossroads for inpatient treatment, an appropriate and reasonable service given the length of time she has had . . . serious substance abuse and mental health issues. She was also referred to the Hospital of Saint Raphael for intensive outpatient treatment in June, 2008, but missed all three appointments scheduled for her. She failed to appear twice for her appointments at Crossroads before she finally began to comply in October, 2008. When she was discharged from Crossroads following violation of [its] no smoking rule and her refusal to return to the program, she rejected further inpatient treatment and attended Grant Street intensive outpatient services. She was ultimately discharged for noncompliance, having tested positive throughout her treatment [there], from January, 2009, through May, 2009. Just prior to the filing of the termination of parental rights petition, [the mother] was referred to Harbor Health for intensive outpatient treatment. [The mother] was also referred to parenting in November, 2008, but failed to attend due to her work schedule.”

First, the mother argues that the court failed to take into account her desire to seek treatment. She highlights Fisher’s testimony in which he stated that although she missed three appointments with the Crossroads program, he thought she was sincere in wanting to seek treatment. Section 17a-112 (j), however, focuses on whether the department “made reasonable efforts” at reunification, rather than a parent’s willingness to reunify.

Second, the mother argues that the court’s finding that she had been “discharged” from the Crossroads program “is not entirely correct.” She argues that, as indicated by Fisher, she voluntarily left the program because she became upset after an incident in which she lost a privilege due to her having violated the program’s.rule against smoking. Although the court’s use of the term “discharge” may be ambiguous, the court, earlier in its opinion, clearly stated that the mother “left the [Crossroads] program in November, 2008, because she had violated program rules.” At any rate, whether the mother was discharged or voluntarily left the program has no bearing, for the purpose of this case, on whether the department made reasonable efforts. The mother had severe and long-standing substance abuse issues. The department made several referrals for the mother for substance abuse treatment. Several referrals were made to the Hospital of Saint Raphael’s chemical dependency program, but the mother missed all three appointments scheduled for her. She was also referred three times to the inpatient Crossroads program to address her mental health and substance abuse issues. The mother failed to enter the program on the first two referrals, finally entered on the third, but soon left. Although the program was willing to accept her again, the mother refused.

Third, the mother argues that the court’s finding that she failed to follow through with a parenting program is “not entirely supported by the evidence.” She argues that Annette Johnson, a social worker with the department, testified that she referred the mother to a parenting program, but that she did not have confirmation as to whether the mother engaged in that program. The mother argues that there was no other testimony as to any other referrals for parenting education for her, aside from Tredennick’s testimony that as part of the mother’s treatment, she received counseling on parenting skills.

The evidence shows that the department made reasonable efforts to engage the mother in parenting classes. Johnson referred the mother to a parenting program. Johnson testified that the mother stated that the address given to her by Hill Health was incorrect, but Johnson confirmed with Hill Health that the address she had provided was correct. Johnson again told the mother to return to Hill Health. Johnson, however, testified that she did not know whether the mother attended Hill Health. “[Reasonable efforts means doing everything reasonable, not everything possible.” (Internal quotation marks omitted.) In re G.S., supra, 117 Conn. App. 716. The mother was also referred to State Street counseling. Tredennick, who worked at State Street, testified that the mother received counseling on, inter alia, parenting skills, but frequently cancelled or had to reschedule.

After carefully considering the mother’s arguments, we conclude that the court did not err in finding that the department made reasonable efforts to reunify the mother with Luciano.

II

We next address the claims of the father and mother that the court erred when it found that they failed to achieve personal rehabilitation.

“Section 17a-112 (c) (3) (B) [now (j) (3) (B)] requires the court to determine whether the degree of personal rehabilitation . . . encourage [s] the belief that within a reasonable time . . . such parent could assume a responsible position in the life of the child .... Personal rehabilitation refers to the reasonable foreseeability of the restoration of a parent to his or her former constructive and useful role as a parent, not merely the ability to manage his or her own life. ... In conducting this inquiry, the trial court must analyze the respondent’s rehabilitative status as it relates to the needs of the particular child .... The trial court must also determine whether the prospects for rehabilitation can be realized within a reasonable time given the age and needs of the child. ... [A] trial court’s finding that a parent has failed to achieve sufficient rehabilitation will not be overturned unless it is clearly erroneous . . . .” (Citations omitted; internal quotation marks omitted.) In re Tremaine C., 117 Conn. App. 590, 597, 980 A.2d 330, cert. denied, 294 Conn. 920, 984 A.2d 69 (2009). “In making its determination, the court may rely on events occurring after the date of the filing of the petition to terminate parental rights when considering the issue of whether the degree of rehabilitation is sufficient to foresee that the parent may resume a useful role in the child’s life within a reasonable time.” (Internal quotation marks omitted.) In re Sole S., supra, 119 Conn. App. 192 n.8.

In its memorandum of decision, when addressing the issue of rehabilitation, the court found the following. “In light of the statutory elements of this ground as well as the case law interpreting it, this court can find by clear and convincing evidence that the petitioner has met her burden as to both parents. The court finds that both parents have had a troubling and long history of domestic violence in their lives and [the mother], in particular, has also had a debilitating substance abuse problem. As noted above, both parents were offered services to address these issues, and, by May, 2009, the father had spent three-quarters of Luciano’s first year incarcerated as a result of violating a protective order. While incarcerated, [the father] became ineligible for what limited services were available due to an altercation with another inmate. Upon his release, he completed a parenting program and a six week domestic violence program. As such, he agreed to do the more intensive twenty-six week [affiance] program and was only just starting that program when in September, 2009, Dr. Randall made her recommendations to give both parents three more months to work toward reunification.

“Meanwhile, [the mother] spent her first four months following Luciano’s removal missing intake appointments at both the Hospital of Saint Raphael for intensive outpatient treatment and at Crossroads for intensive inpatient treatment for her mental health and substance abuse diagnosis. When she finally entered treatment in October, 2009, she made some progress, until she was found violating program rules and refused to return to inpatient treatment. Although [the department] discussed other inpatient programs, [the mother] decided to enter intensive outpatient treatment at Grant Street Partnership and eventually, after testing positive throughout treatment, was discharged in March, 2009.

“By the time [the mother] had seen Dr. Randall, she had enjoyed some stability and had been substance free for three months. Given the degree to which both parents were both recently stable in September, 2009, but still at high risk of eventually engaging in domestic violence or for [the mother] abusing substances, Dr. Randall recommended that the parents be allowed to demonstrate three months of strict compliance with individual therapy for both parents and substance abuse treatment and relapse prevention for the mother. Dr. Randall testified that their compliance with treatment was critical for parents to demonstrate that they can develop the tools to handle the kinds of stressors that can provoke a relapse or trigger domestic violence. Raising a child was itself a significant stressor, and Dr. Randall was adamant that Luciano would not be safe in their care if they could not demonstrate a commitment to complying with and benefiting from services.

“By the first day of trial on January 28, 2010, which was three months following the rescheduled trial date in October, 2009, the parents clearly failed to follow through with these requirements. [The father] missed all of November’s sessions following his father’s death in early November and half of December’s sessions and attended none in January, 2010. [The mother] missed half of her sessions as well.

“Troubling to Dr. Randall, as well as to this court, is that Dr. Randall’s requirement of three months of strict compliance was not terribly onerous. For three months, [the father] was required to attend counseling for domestic violence and other issues once a week; [the mother] was required to attend individual therapy once a week and substance abuse treatment and relapse prevention sessions once weekly. Compared with raising a child full-time, which the parents claim they want, one or two hours a week of treatment seems to be minimally demanding. Coupled with both parents’ admissions to Dr. Randall that they do not see a need for treatment and the degree to which both parents failed to comply and benefit from services in the year before [the commissioner] filed [the] termination petition, this court finds that they have failed to rehabilitate given Luciano’s age and critical need for permanency.

“Dr. Randall made clear that not only do the parents need ongoing services to maintain their stability, but that Luciano needs stability and permanency. Her recommendation to give the parents three additional months was in her words, ‘stretching the limit’ of what was appropriate for Luciano. Their failure to be consistent in their treatment for three additional months, when their future as parents of Luciano was critically at stake, bodes poorly for their ability to be stable, responsible and consistent caregivers for the next sixteen years of his life. The parents’ inability to marshal their energies and commit to their own rehabilitation in the first two years of Luciano’s life demonstrates a disregard and lack of appreciation for the significance of time in Luciano’s life. The court also notes that the parents in early April, 2010, reported to [the department] that they were separated and that the father was living in a hotel. Standing alone, this evidence is not terribly significant. In the context of the overall history of this case, the instability in their relationship is another level of unpredictability, if not volatility, which concerns this court.

“The court also notes that there was evidence that the [department] social worker, Annette Johnson, was followed by the parents while attempting to transport Luciano home after a visit. This incident as described by the social worker was highly credible and not inconsistent with the father’s history of violence and intimidation. Moreover, the court finds this evidence not only disturbing but yet another factor that supports this court’s findings. ... As Dr. Randall reiterated, this well established principle in child protection proceedings requires that Luciano have caregivers who can commit to his needs twenty-four hours a day, and who are willing to make the emotional commitment and connection that is at the foundation of healthy attachments, secure relationships and sound development. By their actions, the parents have demonstrated that they cannot meet their own needs, much less the full-time demands of a young child.” (Citations omitted.)

A

The father contends that the court relied heavily on Randall’s recommendation that as of September 24, 2009, both parents should be given “three more months to work toward reunification.” The department agreed to extend three more months in which some degree of rehabilitation perhaps could be realized. The termination hearing was rescheduled to January 28, 2010. He argues that he satisfied Randall’s recommendations that he “be involved in individual therapy on a weekly basis” and that there be “no further problems with . . . domestic violence,” as of the date of the final hearing in the matter on May 10, 2010. The father argues that the court failed to account for the fact that he completed the alliance program on May, 6, 2010; that he successfully completed a substance abuse evaluation and was determined to have no substance abuse issues; and that the record shows no incidents of domestic violence between the father’s release from prison and the date of the final hearing.

The father admits that he did not comply with the three month time frame but argues that the time frame was unreasonable under the circumstances. He argues that because he had recently been released from prison and had only just been referred back to the alliance program as of Randall’s September, 2009 report, the court’s implementation of the three month time frame effectively afforded him three total months, rather than three additional months, to comply with Randall’s recommendations. As such, the father argues, he was not afforded room for mistakes or for the occurrence of unexpected circumstances such as the death of his father in November, 2009.

We conclude that the trial court’s determination that the father had failed to rehabilitate himself is legally correct and factually supported. There was evidence before the court that the time frame suggested by Randall was reasonable. Randall testified that shortly after the father’s release from prison, she met with him and thought that he was in need of further treatment because of his ongoing history with domestic violence and the risk for further incidents. She testified that the parents were presenting themselves as an intact family for reunification purposes. Accordingly, in her reunification plan, Randall proposed that both parents be involved in individual therapy on a weekly basis and that as long as they were compliant and there were no further incidents of domestic violence, visits could increase after one month, with reunification within three months. Randall testified that in her professional opinion, if the parents were not compliant within the three month time frame, then it would not be appropriate to extend further time for reunification. Randall admitted that the time frame was abbreviated but stated that Luciano was almost two years old, had been in foster care his entire life and needed stability in his life.

The father argues that circumstances, such as his incarceration and the death of his father, made the three month time frame unreasonable. The court, however, relied on Randall’s testimony that the three month time frame was reasonable given the age and needs of Luciano. The age and needs of the child are appropriate considerations when determining whether a parent has achieved the necessary degree of personal rehabilitation. In re Tremaine C., supra, 117 Conn. App. 597. To the extent that this argument is one of credibility, the father cannot prevail. “It is axiomatic that the trial court, as trier of fact, is in the best position to judge the credibility of witnesses.” (Internal quotation marks omitted.) In re John G., 56 Conn. App. 12, 19, 740 A.2d 496 (1999). “The psychological testimony from professionals is rightly accorded great weight in termination proceedings.” (Internal quotation marks omitted.) In re Kezia M., 33 Conn. App. 12, 22, 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993).

The father, admittedly, failed to comply during the time frame, and the three month time frame was not the only reference point. The father has a lengthy criminal history that includes, among other things, multiple arrests for domestic violence. Shortly after Luciano’s birth, the department invoked an administrative hold on him because, inter alia, hospital staff witnessed the father shoving the mother while she was holding Luciano, who was approximately two weeks old. The father was unable to finish a substance abuse evaluation in May, 2009, because he had intimidated the staff. He was incarcerated in August, 2008, for violating a protective order pertaining to a former wife. While in prison, he was involved in an altercation with another inmate and thus was unable to avail himself of services within the department of correction for 120 days. When the father was afforded three additional months, following his release from prison, to work toward reunification he was unable to comply. Randall noted that she made minimal recommendations for reunification services because she understood that the parents had work and other obligations. The father was required to attend therapy sessions once weekly for domestic violence and other issues. The court and Randall recognized that three months of strict compliance was not terribly onerous. The father, however, attended none of the sessions in November following his father’s death, attended half of the sessions in December and attended none of the sessions in January. The court concluded that compared to raising a child full-time, the one or two hours per week of treatment seems minimally demanding.

The father argues that the fact that he complied by the date of the final hearing in May, 2010, renders the court’s finding that he had failed to rehabilitate erroneous. Despite the father’s recent strides, he failed to comply with Randall’s recommendation within the time frame she determined was appropriate given Luciano’s age and needs. “[I]n assessing rehabilitation, the critical issue is not whether the parent has improved her ability to manage her own life, but rather whether she has gained the ability to care for the particular needs of the child at issue.” (Internal quotation marks omitted.) In re Shyliesh H., 56 Conn. App. 167, 180, 743 A.2d 165 (1999). The court concluded that the failure of the parents “to be consistent in their treatment for three additional months, when their future as parents of Luciano was critically at stake, bodes poorly for their ability to be stable, responsible and consistent caregivers for the next sixteen years of his life. The parents’ inability to marshal their energies and commit to their own rehabilitation in the first two years of Luciano’s life demonstrates a disregard and lack of appreciation for the significance of time in Luciano’s life.” The court further noted that in early April, 2010, the parents were separated and the father was living in a hotel. The court concluded that in the context of the overall history of the case, this indicates a continued instability in their relationship.

We therefore conclude that the court did not err in finding that the father had failed to achieve such degree of personal rehabilitation that would encourage the belief that within a reasonable time, considering the age and needs of Luciano, he could assume a responsible position in the child’s life.

B

The mother argues that the court improperly focused on her prior history of noncompliance and failed to focus on the progress she had made toward reunification. She argues that she referred herself for methadone treatment and was compliant with weekly attendance and treatment; upon leaving the Crossroads program sought out and attended outpatient treatment; produced fourteen consecutive clean urine screens from November, 2008, to January, 2009; received negative results for a hair test in 2009; began individual counseling in 2009 and was making steady progress; testified that as of the date of the final hearing in May, 2010, she had been drug free for at least one year and three and one-half months.

We disagree with the mother’s argument that the court failed to give proper weight to her progress or that it improperly considered her past history. The court took into account and discussed the mother’s progress in its decision. See, e.g., In re Jennifer W., 75 Conn. App. 485, 499, 816 A.2d 697 (court inquired into full history of respondent’s parenting abilities although respondent made significant strides in drug rehabilitation in year preceding termination proceedings), cert. denied, 263 Conn. 917, 821 A.2d 770 (2003). Although the mother highlights the efforts and strides that she has made, “[l]amentably, motivation to parent is not enough; ability is required. . . . [I]n assessing rehabilitation, the critical issue is . . . whether the parent has . . . gained the ability to care for the particular needs of the child at issue . . . .” (Citations omitted; internal quotation marks omitted.) In re G.S., supra, 117 Conn. App. 718.

The court noted that by the time the mother met with Randall in September, 2009, she had enjoyed some stability and was substance free for three months. The court relied on the time frame suggested by Randall for full compliance. Given the parents’ recent stability, but high risk of relapse, Randall recommended that the parents be allowed to demonstrate three months of strict compliance with individual therapy for both parents and substance abuse treatment and relapse prevention for the mother. Randall noted that giving the parents three additional months was “stretching the limit” of what was appropriate for Luciano. As of the first day of trial in January, 2010, the mother had failed to follow through with this requirement and had missed half of her sessions. The court noted that the requirement of weekly individual therapy and weekly substance abuse treatment was not “terribly onerous.” The court found that the mother was not able to be consistent in treatment for three additional months, when her future as Luciano’s parent was at stake. The mother’s failure to comply with Randall’s minimal requirements caused the court to conclude that she could not meet the full-time demands of a young child.

We therefore conclude that the court did not err in finding that the mother had failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of Luciano, she could assume a responsible position in the child’s life.

Ill

We last address the claim by the mother that the court erred in finding, during the dispositional phase, that it would be in the child’s best interest to terminate her parental rights. We disagree.

“In the dispositional phase of a termination of parental rights hearing, the trial court must determine whether it is established by clear and convincing evidence that the continuation of the father’s parental rights is not in the best interests of the child. In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in [§ 17a-112 (k)]. . . . The best interests of the child include the child’s interest in sustained growth, development, well-being and continuity and stability of its environment. ... As with the findings made in the adjudicatory phase, we reverse the court’s determination of the best interest of the child only if the court’s findings are clearly erroneous.” (Citation omitted; internal quotation marks omitted.) In re Albert M., 124 Conn. App. 561, 566, 6 A.3d 815, cert. denied, 299 Conn. 920, 10 A.3d 1050 (2010).

The mother argues that the record establishes that she was steadily making progress toward putting herself in a position to care for Luciano; both social workers testified that she was attentive and loving toward Luciano; Luciano was able to identify her and was happy to see her; and that Luciano was two years old, thus giving opportunity to effectuate reunification. She argues that there has been no showing that continuing her parental rights would have a detrimental effect on Luciano’s best interest.

Although the mother claims that the evidence revealed that Luciano identified her and that she was loving toward him, “[o]ur courts consistently have held that even when there is a finding of a bond between parent and a child, it still may be in the child’s best interest to terminate parental rights.” In re Rachel J., 97 Conn. App. 748, 761, 905 A.2d 1271, cert. denied, 280 Conn. 941, 912 A.2d 476 (2006). The court found that Luciano is thriving in his foster home, where he has lived since birth, and is beginning to cry when he is separated from his foster parents. The court found that his foster parents are his psychological parents. The court further found that Luciano has a “visiting relationship” with his parents and does not cry when he is separated from them. Although the mother has made progress and her efforts are laudable, the record supports the court’s finding that, in light of the entire history, she has made inadequate progress to reach a parenting ability consistent with Luciano’s need for safety and permanency. “The balancing of interests in a case involving termination of parental rights is a delicate task and, when supporting evidence is not lacking, the trial court’s ultimate determination as to a child’s best interest is entitled to the utmost deference. . . . Although a judge [charged with determining whether termination of parental rights is in a child’s best interest] is guided by legal principles, the ultimate decision [whether termination is justified] is intensely human. It is the judge in the courtroom who looks the witnesses in the eye, interprets their body language, listens to the inflections in their voices and otherwise assesses the subtleties that are not conveyed in the cold transcript.” (Internal quotation marks omitted.) In re Davonta V., 285 Conn. 483, 497, 940 A.2d 733 (2008).

In its thorough and thoughtful decision, the court found by clear and convincing evidence that the child’s best interest would be served by granting the petition to terminate the mother’s parental rights. We conclude that the court’s findings and conclusions are not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court did not find the mother’s excuses credible in that visitation with Luciano was scheduled weekly and at the same time every week, and court dates are typically scheduled months in advance.

       On May 23, 2008, the court, Conway, J., ordered the department, inter alia, to ensure the child's safety and well-being; to develop a periodic treatment-permanency plan and to review it with the father; to provide case management services; and to refer the father to appropriate services and, as otherwise needed, to monitor his progress and compliance.

       He began a six week domestic violence class in May, 2009, when the commissioner filed the petition to terminate parental rights.

       The father, as noted above, was unable to participate in the programs while incarcerated due to an altercation with another inmate.

       To the extent that the mother claims that the court erroneously found that she failed to attend parenting programs, that argument is unavailing. The court made no finding, under § 17a-112 Q), that the mother was unable or unwilling to benefit from reunification; thus, our focus under that statutory section is on whether the court properly found that the department made reasonable efforts to reunify the child with the parent. Thus, that factual finding is not relevant to our analysis.

       As a result of Randall’s report, Fisher referred the father to the alliance program.

       Randall also recommended that the mother be involved in substance abuse treatment.

       The father also argues that the court erred in considering the father and mother together, and while three months may have been reasonable for the mother, it was not reasonable for the father. Fisher testified that upon the father’s release from prison, it was suggested that they pursue reunification on an individual basis but that the parents decided to do so jointly. Randall testified that the parents presented themselves as an intact family for reunification purposes. Thus, her plan for reunification involved both parents.

       The court credited Randall’s testimony that she did not excuse the father’s failure to comply due to the death of his father. According to Randall, the program could have provided support at the time of loss.

       The court apparently credited Randall’s testimony and discredited the mother’s testimony that as of May, 2010, she had been drug free for at least one year and three and one-half months.

       “In conducting this inquiry, the trial court must analyze the respondent’s rehabilitative status as it relates to the needs of the particular child .... The trial court must also determine whether the prospects for rehabilitation can be realized within a reasonable time given the age and needs of the child.” (Internal quotation marte omitted.) In re Jennifer W., supra, 75 Conn. App. 499-500.