text:
    State of Connecticut v. Justice T. Peay
    (5523)
    Daly, Bieluch and Norcott, Js.

      Argued November 18, 1987 —
    decision released March 8, 1988

      Jon L. Schoenhorn, for the appellant (defendant).

      Judith Rossi, deputy assistant state’s attorney, with whom, on the brief, were James G. Clark and Samuel Sferrazza, assistant state’s attorneys, for the appellee (state).
   Daly, J.

In this appeal from a judgment of conviction, rendered after a jury trial, of larceny in the sixth degree in violation of General Statutes § 53a-125b, the defendant raises three claims of error: (1) that the trial court improperly interjected facts into evidence; (2) that the court erred in its instructions on circumstantial evidence; and (3) that the court erred in refusing to instruct on the statutory definition of intent. Because we find reversible error on the second issue and the other claims are not likely to recur at the new trial, we discuss only the second issue.

The jury could reasonably have found the following facts. On January 10, 1986, the defendant was terminated from his job as sorter at Edwards Food Warehouse, in West Hartford. The defendant returned to the store on January 17 and was observed pushing a shopping cart containing two television sets to the rear of the store. At 3:05 a.m., Joe Delenegro, an employee of Edwards, observed the defendant in the parking lot. The defendant was seen leaning into a white Cadillac owned by another employee; next to him was a shopping cart containing a cardboard box labeled “Samsung color TV.” Upon reentering the store, the defendant pushed an empty cart.

Ronald Mullen, the assistant night manager, had noticed the defendant in the store that night and, although he thought it unusual for the terminated employee to be there, he did not ask the defendant to leave. Mullen also noticed that there were only four Samsung TV sets on display instead of five. After checking with the cashiers, Mullen instituted a search for the missing TV set. The TV set cartons have security stickers which will trigger an alarm unless deactivated by a cashier. A search of the store failed to unearth the set, but it was discovered that a chain on a back room overhead door had been removed from its pulley and the door was open about 3 feet. The door was located in the area of the store most familiar to the defendant due to his prior position as a sorter.

The defendant’s second claim of error is that the trial court erred in its instruction on circumstantial evidence. Specifically, the defendant argues that the trial court’s instruction that an inference could be drawn if it were “more probable than not, that the fact to be inferred is true,” impermissibly diluted the state’s burden of proof. Under the facts of this case, we find harmful error in these instructions.

As a preliminary matter, we note that the defendant did not file a request to charge on circumstantial evidence, nor did he take exception to that particular portion of the charge. Ordinarily, we decline to review claims of error not properly preserved for appeal, but because this claim implicates the defendant’s constitutional right to have the state prove him guilty beyond a reasonable doubt, we will review it. In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973); State v. Biggs, 13 Conn. App. 12, 20, 534 A.2d 1217 (1987).

“Our courts have consistently held that ‘a jury instruction in a criminal case which informs a panel that it may infer a fact when it is more probable than not that such a fact exists is erroneous “because, as applied to inferences for the finding of facts that are essential elements of the crime, it unconstitutionally dilutes the state’s burden of proving guilt beyond a reasonable doubt.” State v. McKenna, [11 Conn. App. 122, 135, 525 A.2d 1374 (1987)]. Such error, however, has been held to be reversible only if it is reasonably possible that the jury was misled by the trial court’s instructions. Id.’ State v. Trujillo, 12 Conn. App. 320, 330, 531 A.2d 142 (1987).” Biggs, supra, 20-21.

Our inquiry, therefore, is “whether ‘it is reasonably possible that the jury was misled by the instruction into misunderstanding an issue that has fundamental constitutional significance.’ State v. Torrence, 196 Conn. 430, 435-36, 493 A.2d 865 (1985).” State v. McDonough, 9 Conn. App. 631, 633, 521 A.2d 160, rev’d, 205 Conn. 352, 533 A.2d 851 (1987). Our Supreme Court has established a “bifurcated standard of review” which we use in resolving challenges to jury instructions regarding circumstantial evidence. State v. Gonzalez, 205 Conn. 673, 690-92, 535 A.2d 345 (1987). This bifurcated standard of analysis requires us first to classify the role of circumstantial evidence in the case at hand. If we find that this is a case that is largely proven by circumstantial evidence, (for example, involving a question of intent), “ ‘ “we will closely scrutinize the court’s instructions” on circumstantial evidence, in isolation from the remainder of the charge, to determine whether the court misled the jury as to the state’s burden of proof.’ State v. Robinson, 204 Conn. 207, 210, 527 A.2d 694 (1987).” State v. McDonough, 205 Conn. 352, 358, 533 A.2d 857 (1987). If, however, we conclude that this is a case in which circumstantial evidence plays a subordinate role, we review the instructions not in isolation, but as a whole to determine whether it is “ ‘reasonably possible that the jury was misled’ ” by an erroneous explanation regarding the use of circumstantial evidence. State v. Robinson, supra.” State v. McDonough, supra, 358. Further, upon completion of this examination, we review any error found to determine whether it was harmless. State v. Perez, 10 Conn. App. 279, 290, 523 A.2d 508, cert, denied, 203 Conn. 810, 525 A.2d 524 (1987).

We find that in the case at bar the state’s case consisted solely of circumstantial evidence. The issue in this case was whether a larceny by shoplifting had taken place. In order to prove that a larceny by shoplifting had occurred, the state had to prove (1) that the defendant intentionally took possession of a television set that was offered for sale at Edwards, and (2) that the defendant did not pay the purchase price of that television. General Statutes § 53a-119 (9). The state presented no direct evidence on either of these points. The defendant admitted being in the store. The state called one witness who saw the defendant in the store pushing a shopping cart with two TV sets in it. Another witness called by the state testified that he saw the defendant outside the store standing next to a shopping cart which contained a TV set box. There was no direct evidence that a TV set was purchased that evening, nor was there any direct evidence that the TV set carton that was observed outside next to the defendant contained a TV set or was from Edwards. Furthermore, no TV set was recovered. The state merely left all these circumstantial pieces of evidence for the jury to infer that the defendant committed larceny. This is not a case where circumstantial evidence was used to bolster the direct evidence; rather, it is a case in which circumstantial evidence was used to prove essential elements of the crime charged. Clearly, this is a case in which circumstantial evidence played a major and not a subordinate role.

Under these circumstances, we undertake a close scrutiny of the instruction on circumstantial evidence, in isolation from the remainder of the charge, which reveals that there was reversible error in the instruction. Because “it was reasonably possible that the jury was misled with respect to the state’s burden of proving intent beyond a reasonable doubt”; State v. Whelan, 200 Conn. 743, 758, 513 A.2d 86, cert, denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986); the instruction was erroneous.

The remaining question to answer is whether the erroneous instruction was harmless beyond a reasonable doubt. State v. Perez, supra, 290. “Such an analysis requires that we determine whether, based upon the whole record, it is clear beyond a reasonable doubt that the constitutional error did not contribute to the jury’s verdict.” State v. Trujillo, 12 Conn. App. 320, 333, 531 A.2d 142, cert. denied, 205 Conn. 817, 527 A.2d 588 (1987); see State v. Dullivan, 10 Conn. App. 474, 479, 523 A.2d 1353 (1987). We cannot say, on the basis of the record before us, that the erroneous instruction did not contribute to the jury’s verdict. Specifically, the state failed to proffer overwhelming evidence on the fact that the defendant did not pay the purchase price of the TV set. The only evidence proffered was the testimony showing that Mullen searched the store after speaking with the cashiers. Although it can reasonably be inferred from these facts that the purchase price was not tendered, the evidence can, by no means be seen as overwhelming. See State v. Dullivan, supra, 479.

There is error, the judgment is set aside and the case is remanded for a new trial.

In this opinion the other judges concurred.

       General Statutes § 53a-125b provides: “larceny in the sixth degree: class C MISDEMEANOR, (a) A person is guilty of larceny in the sixth degree when he commits larceny as defined in section 53a-119 and the value of the property or service is two hundred fifty dollars or less.”

       The instructions set forth in relevant part: “Next, we’ll deal with circumstantial evidence. Proof beyond a reasonable doubt does not mean that you must have direct evidence supporting a fact. You may apply the rule of circumstantial evidence of facts from which you are asked to infer the existence of another fact or set of facts. Such an inference may be made provided two elements in the application of this rule are satisfied. That the fact, from which you are asked to draw the inference, has itself been proven beyond a reasonable doubt and that the inference asked to be drawn is not only logical and reasonable, but it is strong enough so that you can find that it is more probable than not, that the fact to be inferred is true.”

       Although the state would much rather have us believe that the principal disputed issue was the credibility of the state’s witnesses, it was clearly not the major or only issue at trial. Cf. State v. McDonough, 9 Conn. App. 631, 635, 521 A.2d 160, rev’d, 205 Conn. 352, 533 A.2d 857 (1987).

       In State v. Rodgers, 198 Conn. 53, 56-60, 502 A.2d 360 (1985), our Supreme Court found reversible error in a trial court’s instruction that an inference may be drawn “if it is more probable that the fact to be inferred is true.”


source: Caselaw Access Project

author: Dupont, C. J.

license: Public Domain

text:
    Roban Realty, Inc. v. David H. Faile et al.
    (4912)
    Dupont, C. J., Bieluch and Norcott, Js.

      Argued September 29, 1987 —
    decision released March 8, 1988

      Hugh B. Gordon, for the appellant (plaintiff).

      W. Wilson Keithline, for the appellee (named defendant).

      William B. Barnes, for the appellees (defendant Linda Sabol et ah).
   Dupont, C. J.

A state trial referee, acting as the trial court, rendered judgment, in this declaratory judgment action, for the defendants, the lessees of certain commercial realty. The plaintiff lessor sought to hold the original lessee, the defendant David Faile, primarily liable for the amount by which the property tax on the realty had increased during the term of the lease. The plaintiff also sought the same recovery from the defendants Kimberly Avenue Dairy Queen, Inc. (KADQ), and Linda Sabol, assignees of the lease.

The increase in the property tax falls into two categories. One increase relates to the taxes on the assessment for improvements made by the lessees, and the other to taxes on the increase in the assessment of the original leased realty.

The parties submitted the case to the court on a stipulation of facts, exhibits and briefs, proferring no testimony. One exhibit was the lease between the plaintiff and Faile the original lessee. Article 16 of the lease relates to tax increases.

The plaintiff, Roban Realty, Inc. (Roban), is a corporation engaged in the purchase, sale and management of commercial real estate. At the time the lease in question was entered into in 1965, the premises were improved solely by a brick garage building. Between 1966 and 1970, Faile constructed additional improvements on the leased property. These consisted of a one-story brick building used to house a Dairy Queen ice cream business, a metal shed, fencing, and paving. Certain improvements were also made to the interior of the original garage building. On August 1,1977, Faile assigned his interest in the lease to the defendant KADQ, and on February 9, 1978, KADQ assigned its interest in the lease to the defendant Sabol. The plaintiff is seeking payment for tax increases for the period 1972 through 1983 attributable to tenant improvements on the leased property, and for tax increases on the original property from 1972 through 1979 pursuant to the tax escalation provision in Article 16 of the lease.

The trial court found that no provision in the lease provided that the defendants would pay property tax on increases caused by improvements constructed by them and that the parties had expressed no intention as to such taxes. Since there was no express intention that these taxes would be paid by the lessees, and since the improvements under the lease immediately became the property of the lessor, the court held that the defendants did not owe the plaintiff any additional rent for tax increases resulting from tenant improvements.

The trial court further found that the language of article 16 of the lease provided that the plaintiff had to invoice the defendants in a timely manner, with a tax bill or a photocopy of a tax bill as a condition precedent to any obligation of the defendants to pay any amount to the plaintiff for an increase in property tax relating to the originally leased property. The court found that no invoices, accompanied by tax bills or photocopies of tax bills, were ever sent to the defendants within the time required by the lease, and therefore held that the defendants did not owe the plaintiff any sum as additional rent for the increase in property tax relating to the originally leased property.

Our review of the trial court’s conclusions is limited under Practice Book § 4061 to determining whether those conclusions are clearly erroneous. Lavigne v. Lavigne, 3 Conn. App. 423, 427-28, 488 A.2d 1290 (1985). A trial court’s construction of a written agreement is an issue of fact subject to that limited standard of appellate review. Sweeny v. Sweeny, 9 Conn. App. 498, 519 A.2d 1237 (1987); Lavigne v. Lavigne, supra.

The plaintiff first claims that the trial court erred by finding that the lessees are not liable under the lease for increases in real estate tax due to improvements constructed by them on the leased premises.

The trial court noted in its memorandum of decision that although article 16 of the lease required the lessees to reimburse the lessor for tax increases on the property as originally leased, the parties had failed to incorporate a provision requiring payment by the lessees for tax increases due to tenant improvements. The trial court pointed out that the plaintiff is a corporation dealing in the purchase, sale and management of real estate, raising the inference that had the plaintiff intended such a provision to have been included, it would have done so. The trial court also took note of article 15 of the lease, which states: “All taxes, assessments and charges on the land or improvements and obligations secured by mortgage or other lien upon the premises shall be paid by lessor when due.” (Emphasis added.) These considerations convinced the trial court that the lease does not manifest an intention that the lessees should be liable for tax increases due to tenant improvements.

The court’s finding that there was no contractual intent that the lessees pay tax increases on improvements made by them led the court to conclude that there could, therefore, be no liability to pay for the same. The finding of a lack of intent is as much a finding of fact as a finding relating to the intent itself. See Cassidy v. Bonitatibus, 5 Conn. App. 240, 243, 497 A.2d 1018 (1985). The scope of the terms of a contract are questions of fact to be determined by the trier. Harry Skolnick & Sons v. Heyman, 7 Conn. App. 175, 178, 508 A.2d 64, cert, denied, 200 Conn. 803, 510 A.2d 191 (1986). The trial court here determined that the scope of article 16 did not include the taxation of improvements made to the realty. This conclusion is one of fact and is not clearly erroneous.

The plaintiff’s second claim is that the trial court erred in determining that the defendants are not liable for tax escalation payments pursuant to article 16 of the lease. Article 16 (a) requires the lessee to pay any tax increases on the leased property, up to $900 per year, in excess of the real estate tax existing in the first full fiscal real estate tax year during the term of the lease. Article 16 (b) provides: “Any amount due to Lessor under the provisions of [article 16] shall be paid upon rendition of the bill therefor, and Lessor shall, at the time of rendition of such bill, submit to Lessee the bill received from the taxing authorities or a photostat thereof.” In addition, article 16 (d) entitles the lessee to seek review of any tax assessment to the board of tax review and an appeal to the courts: “Lessee at his own cost and expense, may undertake, by appropriate proceedings, to review any tax assessments for any fiscal tax year occurring after the base tax year.”

The trial court found that the plaintiff should have provided invoices and tax bills to the defendants of the tax increases, within the time frame necessary for the defendants to exercise their right under the contract to seek review of tax assessments. The receipt of such invoices and bills was a condition precedent to the obligation of the defendants to pay for tax increases because that was the intent of the parties as expressed in article 16. See Strimiska v. Yates, 158 Conn. 179, 185-86, 257 A.2d 814 (1969).

The trial court also concluded that the lease provided the lessees the right to seek a review of any increase in taxes by the board of tax review, and that such a right could only be pursued within a finite time frame. See General Statutes §§ 12-110, 12-111, 12-112 and 12-118. The trial court further concluded that, in order for the defendant lessees to pursue such rights, the lessor was obligated to furnish tax invoices and tax bills promptly. Since the lessor did not do so, the trial court held that the defendants were not liable for the increase in property taxes as claimed by the plaintiff.

These conclusions were based on the facts contained in the stipulation of the parties and based on the lease itself. They are not clearly erroneous.

There is no error.

In this opinion the other judges concurred.

       The defendant Faile filed a cross complaint against the defendants KADQ and Sabol seeking indemnification; the defendants KADQ and Sabol cross complained against Faile, also seeking indemnification. Judgment was rendered for Faile on the cross complaint of KADQ and Sabol, and for KADQ and Sabol on the cross complaint of Faile. These judgments are not involved in this appeal.

       Article 16 of the lease provides: “tax increases, (a) For the purposes hereof ‘base tax year’ is the first full fiscal real estate tax year occurring during the term of this Lease. Lessee agrees to pay to Lessor the amount by which (i) the annual real estate taxes that are levied or assessed against the demised premises in each fiscal tax year beginning with the first fiscal tax year after the base tax year exceed (ii) the real estate taxes levied or assessed for the base tax year.
      “(b) Any amount due to Lessor under the provisions of this Article shall be paid upon rendition of the bill therefor, and Lessor shall, at the time of the rendition of such bill, submit to Lessee the bill received from the taxing authorities or a photostat thereof. Any tax increase shall be apportioned so that Lessee shall pay or receive his proportionate share of only that portion of the tax increase for such taxed year which corresponds with that portion of the tax year as falls within the term. The taxes for any fiscal tax year in respect to which Lessee is obligated to pay an increase in taxes shall be the amount of such taxes as finally determined to be legally payable by legal proceedings or otherwise. In no event shall Lessee be obligated to pay any interest or penalties imposed upon Lessor for late payment or otherwise.
      “(c) Notwithstanding the foregoing provisions of this Article, the maximum amount which Lessee shall be obligated to pay as additional rent hereunder shall not, during any one year of the term of this Lease, exceed an amount equal to ten (10%) per cent of the annual rent provided in Article 3 hereof.
      “(d) Lessee at his own cost and expense, may undertake, by appropriate proceedings, to review any tax assessments for any fiscal tax year occurring after the base tax year. Any documents required to enable Lessee to prosecute any such proceedings such be executed and delivered by Lessor on reasonable demand. Lessee shall, however, indemnify Lessor for any cost and other charges directed to be paid in or by any such proceedings. If Lessor shall receive any tax refund for any tax year as a result of any proceedings undertaken by Lessee pursuant to this Article, Lessor shall reimburse Lessee for any reasonable expenses incurred by Lessee in obtaining such tax refund, including reasonable attorney’s fees.”

       Article 7 of the lease provides in pertinent part: “ALTERNATION AND improvements. Lessee, at Ms own expense, may from time to time, make any alterations, additions and improvements, including but not limited to the construction of buildings, in and to the premises which he may deem necessary or suitable, but he shall make them in a good and workmanlike manner, without impairing the structural soundness of the building. All salvage shall belong to Lessee but all permanent additions made to the premises shall belong to Lessor and shall become part of the premises subject to this Lease, provided, however, that during the term of this Lease or any extension thereof, Lessee may construct, reconstruct, demolish, alter or change any such permanent additions made by Lessee.”

       Article 11 of the lease provides: “assignment. Lessee may use the premises for any lawful purpose or may vacate or sub-let all or any part of them, or assign this Lease; provided, however, that in any sub-let or assignment of said premises, Lessee shall remain primarily liable under this Lease unless, of course, the Lessor consents in writing to relieving Lessee of liability and responsibility hereunder.”

       Although the court, in effect, found that Article 16 of the lease did not apply to tax increases due to tenant improvements, the defendants during oral argument in this court conceded that the Article applied to both tax increases on the original leased realty and tax increases on the improvements. Even if Article 16 applies to both types of increases in property taxes, the court’s finding that the plaintiff had failed to submit invoices in a timely manner would prevent the plaintiff from recovery for either category of tax increase. Furthermore, the concession of the defendants does not require this court to adopt it as binding.

       The plaintiff argues that the following common law rule governs this case: “ ‘Where a lease is silent as to the payment of taxes, improvements which are removable by the tenant at the end of the term are taxable to him, and not to the landlord.’ ” Lawrence v. F.W. Woolworth Co., 63 Cal. 2d 119, 121, 403 P.2d 396, 45 Cal. Rptr. 140 (1965), and cases cited therein. This rule is inapposite to the present case. The improvements under the terms of the lease were not removable by the tenant and became the property of the landlord.


text:
    Nellie Sgarellino v. Eddie Hightower
    (5518)
    Dupont, C. J., Borden and O’Connell, Js.
    Argued December 4, 1987 —
    decision released March 8, 1988

      David L. Thompson, for the appellant (defendant).

      Howard Rosenfield, for the appellee (plaintiff).
   Dupont, C. J.

The defendant appeals from the trial court’s issuance of a contempt order against him for failure to make support payments to the plaintiff. We find error.

Pursuant to an adjudication of paternity, the defendant was ordered in January, 1983, to pay the plaintiff $27.50 per week for support of their child. The defendant’s payments were subsequently increased by $5 per week because of the defendant’s arrearage. In 1986, the defendant, who was employed by Colt Industries, participated in a labor strike called by his union. Thereafter, the defendant’s income consisted of $100 per week in strike benefits.

On May 16,1986, the defendant’s counsel contacted the family relations officer in Hartford in charge of this case, who orally agreed to a reduction in support payments to $10 per week while the defendant was on strike. Subsequently, the plaintiff moved from Hartford to Manchester, and the case was transferred to the family relations division of the Superior Court in Manchester. The family relations officer in Manchester stated at the contempt hearing that he informed the defendant that a court order, rather than an oral modification, was necessary to reduce the support payments. The defendant thereafter filed a motion to modify support payments which was denied on August 18,1986.

On September 15,1986, the defendant was found in contempt for his failure to pay $32.50 per week in support, despite his protestations that he had in good faith complied with the oral agreement to reduce the support payments. He was briefly incarcerated until he purged himself of the contempt by paying the plaintiff $732.50.

The defendant claims that the trial court erred (1) in failing to consider the defendant’s participation in a labor strike, (2) in disregarding the oral agreement to modify the support payments, (3) in basing its finding of contempt on unsworn representations of the plaintiff and the family relations officer and failing to afford the defendant the opportunity for cross-examination, (4) in disregarding the failure of defense counsel to receive notice of the trial court’s denial of the defendant’s motion to modify support payments, and (5) in failing to find that the Manchester family relations officer was obligated to give full force and effect to the oral modification made by the Hartford family relations officer.

I

Before considering the defendant’s claims of error, we must determine whether we have jurisdiction to hear this case. The plaintiff claims that the defendant’s appeal is moot in that no practical relief can follow from a determination of this appeal because the defendant’s payment purged the contempt finding. “ ‘[T]he existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.’ ” Shays v. Local Grievance Committee, 197 Conn. 566, 571, 499 A.2d 1158 (1985); McCallum v. Inland Wetlands Commission, 196 Conn. 218, 225, 492 A.2d 508 (1985). Therefore, the dispositive question is what, if any, actual relief could be granted the defendant by this court. See Papa v. New Haven Federation of Teachers, 186 Conn. 725, 731-32 n.6, 444 A.2d 196 (1982).

In determining the mootness of an appeal in a civil matter, the principles developed for determining mootness in criminal appeals in which an appellant has fully served his sentence may be examined. “Where collateral legal disabilities are imposed as a matter of law because of a criminal conviction, it is well established that a case will not be declared moot, even where the sentence has been fully served.” Shays v. Local Grievance Committee, supra, 572 n.4; see Pennsylvania v. Mimms, 434 U.S. 106, 108 n.3, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977); Sibron v. New York, 392 U.S. 40, 53-57, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968); Phaneuf v. Commissioner of Motor Vehicles, 166 Conn. 449, 452, 352 A.2d 291 (1974). Although our Supreme Court “[assumed], without deciding the matter, that no such collateral consequences attend a conviction for contempt”; Shays v. Local Grievance Committee, supra, 572 n.4; we find that such collateral consequences do attach in this case.

The trial court’s contempt order may impact on the defendant’s future status in this action. For example, a future citation for contempt, given the first finding of contempt which is the subject of this case, would make the defendant appear more recalcitrant than he might be, in fact. Such an impression is likely to affect a trial court’s determination of the penalty attendant on any future finding of contempt in this case.

We can afford the defendant practical relief from these collateral consequences by setting aside the trial court’s contempt order. “Where collateral legal disabilities have arisen, actual relief can be granted by way of a reinstatement of the appellant’s prior legal status.” Phaneuf v. Commissioner of Motor Vehicles, supra, 452-53. This court’s ability to grant relief to the defendant negates the plaintiff’s argument of mootness and makes this case appropriate for appellate review.

II

We first address the plaintiff’s third claim of error which relates to the trial court’s finding of contempt in the absence of any sworn testimony and in the absence of an opportunity by the defendant for cross-examination. We find error in the trial court’s reliance solely on the unsworn representations of the plaintiff and the family relations officer as a basis for the contempt finding.

Contempts of court may be classified as either direct or indirect, “ ‘the test being whether the contempt is offered within or outside the presence of the court.’ ” Cologne v. Westfarms Associates, 197 Conn. 141, 150, 496 A.2d 476 (1985). A direct contempt consists of words spoken or acts committed in the presence of the court or during its intermissions which tend to subvert, embarrass or prevent justice. 17 Am. Jur. 2d, Contempt § 6. The defendant’s failure to comply with the support order is, therefore, an indirect contempt because it occurred outside the presence of the trial court.

“[A] finding of indirect civil contempt must be established by ‘sufficient proof’ that is premised upon competent evidence presented to the trial court in accordance with the rules of procedure ‘as in ordinary cases.’ Potter v. Board of Selectman, [174 Conn. 195, 197, 384 A.2d 369 (1978)], quoting Huntington v. McMahon, [48 Conn. 174, 196 (1880)].” Cologne v. Westfarms Associates, supra, 155. This includes the requirement that a finding of indirect contempt be based upon sworn testimony. Cologne v. Westfarms Associates, supra, 155. Therefore, the trial court’s finding of contempt, based entirely on unsworn representations by the plaintiff and the family relations officer, was erroneous. As we find error in this regard, we need not address the defendant’s other claims of error.

There is error, the judgment finding the defendant in contempt is set aside and the case is remanded with direction to deny the contempt motion.

In this opinion the other judges concurred.

       Following the oral agreement between the defendant’s counsel and the family relations officer, the defendant made four support payments to the plaintiff: $10 on May 27,1986; $20 on June 13,1986; $30 on July 21,1986; and $120 on August 18, 1986.

       Counsel for the defendant stated at the contempt hearing that he did not receive notice of the denial of the motion to modify due to his failure to file an appearance in the modification action. The defendant also stated that he did not receive notice. The record indicates, however, that a copy of the denial was sent to the defendant.


author: Borden, J.

text:
    State of Connecticut v. Anthony De Matteo
    (5201)
    Dupont, C. J., Borden and O’Connell, Js.
    Argued December 1, 1987 —
    decision released March 8, 1988

      Jay C. Lyons, with whom were Andrea McDonald and, on the brief, Richard A. Johnson, for the appellant (defendant).

      Mitchell S. Brody, deputy assistant state’s attorney, with whom, on the brief, was Michael Lawlor, former deputy assistant state’s attorney, for the appellee (state).
   Borden, J.

The defendant appeals from the judgment of conviction, after a jury trial, of robbery in the third degree in violation of General Statutes § 53a-136, and larceny in the second degree in violation of § 53a-123. He claims that the trial court erred (1) in refusing to suppress the victim’s out-of-court and in-court identifications of the defendant, (2) in summarizing in its charge to the jury only the evidence favorable to the state on the disputed issue of identity, (3) in instructing the jury regarding drawing inferences from circumstantial evidence, and (4) in denying his motion to correct an illegal sentence, based on his claim of double jeopardy. We find no reversible error.

The jury could have reasonably found the following facts: On the afternoon of January 7,1985, Mary Ellen Rockwell exited from a New Haven restaurant owned by her and entered an adjacent alley, carrying three bags containing cash, check and credit card proceeds totalling more than $3500. In the alley, Rockwell observed an individual crouching behind a nearby dumpster. The individual approached Rockwell, pushed her to the ground, took the bags, and ran away.

Although a nylon stocking was pulled over the robber’s face, Rockwell was able to give the police a description of her assailant’s age, height, race, build, facial features, and clothing. Three days later, the police took Rockwell to the parking lot at the defendant’s place of employment and simply told her to observe individuals at that location. After a number of individuals, including about seven white males, entered the parking lot, the defendant, a white male, arrived at the location. Thereupon, Rockwell identified the defendant as her assailant.

I

The defendant contends that the identification procedure used by the police at his place of employment was unnecessarily suggestive and the resulting identification was unreliable. He also claims that the victim’s in-court identification of him was tainted by the out-of-court identification and should have been suppressed. We disagree.

In order to succeed on his motion to suppress the identification evidence, the defendant was required to prove (1) that the identification procedures were unnecessarily suggestive, and (2) that the resulting identification was not reliable in the totality of the circumstances. State v. Boucino, 199 Conn. 207, 218-19, 506 A.2d 125 (1986). The defendant argues that the challenged identification procedure was unnecessarily suggestive for a variety of reasons. Our Supreme Court has upheld the validity of “public place” identifications similar to that used in the present case. See, e.g., State v. Ruiz, 202 Conn. 316, 320-23, 521 A.2d 1025 (1987); State v. Amarillo, 198 Conn. 285, 291-93, 503 A.2d 146 (1986). As in Ruiz, the defendant here has failed “to specify any action of the police that can fairly be characterized as misconduct related to the identification”; State v. Ruiz, supra, 320; “[h]e does not maintain that the officers accompanying [the witness] did anything to induce her to select the defendant from the many people she observed as she sat in the parked car.” Id. “Therefore, although the victim believed that she was [present in the parking lot] to view a possible suspect, she was not presented with the defendant in a manner suggesting that the police believed him to be her assailant. The defendant was viewed . . . in a public place. The police officers] escorting] the victim . . . did not direct any attention to the defendant nor ask the victim any questions concerning the defendant.” State v. Amarillo, supra, 292. Accordingly, the identification procedure used here was not impermissibly suggestive, and the trial court properly denied the defendant’s motion to suppress the victim’s in-court and out-of-court identifications.

II

The defendant’s second claim of error merits little discussion. While summarizing the evidence in the course of its charge to the jury, the court stated: “But, at any rate, at the parking lot at Porto’s, as I recall her testimony, [the victim] recognized the defendant Anthony De Matteo as the person who in fact robbed her.” The defendant contends that this portion of the instruction constitutes error because it “unfairly and unnecessarily highlighted the state’s evidence.” For all of the reasons set forth in State v. Storlazzi, 191 Conn. 453, 464-67, 464 A.2d 829 (1983), we likewise conclude that “[t]he charge was a quite proper and balanced exercise of the judicial function of instructing the jury on the respective functions of court and jury. . . . The instructions, read in their entirety, did not direct or advise the jury on how to decide the matter, and fairly presented the case to the jury in such a way that no injustice was done to the defendant.” Id., 467; see also State v. Avila, 13 Conn. App. 120, 123-24, 534 A.2d 913 (1987) (per curiam).

Ill

In his third claim of error, the defendant challenges the court’s instruction to the jury regarding circumstantial evidence, claiming that the instruction unconstitutionally diluted the state’s burden to prove all the elements of a crime beyond a reasonable doubt. Although the defendant failed to object or except to this instruction at trial, we review this claim under the doctrine of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), because it implicates a fundamental constitutional right. State v. Hufford, 205 Conn. 386, 406, 533 A.2d 866 (1987); State v. Biggs, 13 Conn. App. 12, 20, 534 A.2d 1217 (1987).

Affording the defendant’s claim the appropriate scope of review; see, e.g., State v. Gonzalez, 205 Conn. 673, 690-92, 535 A.2d 345 (1987); State v. Hufford, supra, 407-408; State v. Robinson, 204 Conn. 207, 210-11, 527 A.2d 694 (1987) (per curiam); State v. Mullings, 202 Conn. 1, 12-14, 519 A.2d 58 (1987); State v. Biggs, supra, 21-23; State v. Walker, 9 Conn. App. 373, 376-77, 519 A.2d 83 (1986); State v. Farrar, 7 Conn. App. 149, 152-56, 508 A.2d 49, cert, denied, 200 Conn. 805, 512 A.2d 229 (1986); we find that this claim is controlled by State v. Farrar, supra, in which a •nearly identical charge was challenged on appeal. As in Farrar, “[w]e conclude, therefore, that although it was error for the court to charge as it did, considering the overall charge and its likely effect on the jury, it is not reasonably possible that the jury was misled. . . . The error, therefore, was not reversible.” (Citation omitted.) Id., 156.

IV

In his final claim of error, the defendant contends that the court erred in denying his motion to correct an illegal sentence. The defendant was sentenced to seven years for larceny in the second degree in violation of General Statutes § 53a-123 (a) (3), and three years for robbery in the third degree in violation of General Statutes § 53a-136, with the sentences to run consecutively. In his motion, the defendant claimed that “multiple punishment for larceny [in the second degree] and robbery [in the third degree] arising out of the same set of facts is a violation of the double jeopardy protection of [the] Connecticut and the United States Constitution^].”

“The double jeopardy prohibition [of the fifth amendment to the United States constitution] applies to the states because of the fourteenth amendment to the United States constitution. State v. McCall, 187 Conn. 73, 89, 444 A.2d 896 (1982). Double jeopardy attaches where multiple punishments are imposed for the same offense in a single trial. Id. The question to be resolved is whether the two offenses charged are actually one. It must be determined, by an examination of the statutes, the information, and the bill of particulars, if any, and exclusive of the evidence introduced, whether proof of the violation of one statute requires proof of the violation of the other statute. If the elements of the greater offense include all of the elements of the lesser offense, then double jeopardy attaches. Id., 91; see also State v. Amaral, 179 Conn. 239, 425 A.2d 1293 (1979). ‘[T]he test-to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.’ Blockburgerv. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932).” State v. Harris, 11 Conn. App. 397, 402-403, 527 A.2d 724, cert, denied, 205 Conn. 801, 529 A.2d 719 (1987).

The defendant argues that a conviction for robbery presupposes the commission of a larceny, and that therefore the larceny conviction here did not require proof of any additional fact which the robbery conviction did not. We disagree.

The defendant correctly points out that a conviction for robbery presupposes the commission of a larceny. This, however, does not necessarily lead to the conclusion that double jeopardy principles have been violated. See State v. Boucino, supra, 222-24; see also In re Juvenile Appeal (84-4), 1 Conn. App. 642, 645, 474 A.2d 485 (1984) (evidence insufficient to sustain conviction of larceny in the second degree held sufficient to sustain conviction of robbery in the third degree). Rather, we must examine the statutes and the information charging the defendant with these crimes to determine whether each charge requires proof of a fact which the other does not. In making this determination, we are concerned with theoretical possibilities, and do not focus on the evidence presented. State v. Brown, 163 Conn. 52, 60-63, 301 A.2d 547 (1972); State v. Harris, supra, 402-403.

It is clear that § 53a-123 (a) (3) and § 53a-136 each require proof of a fact which the other does not. Larceny from the person pursuant to § 53a-123 (a) (3) requires an actual trespass to the person of another; it is a conceptually separate and distinct offense from simple larceny, which requires only proof of a taking of property with intent permanently to deprive the owner of possession. In re Juvenile Appeal (84-4), supra, 645. In State v. Crowe, 174 Conn. 129, 134, 384 A.2d 340 (1977), our Supreme Court aligned itself with those courts which define a larceny “from the person” as “requir[ing] a taking from the actual person,” as opposed to “a taking of property in the possession and control of the owner. ... In our view, larceny from the person requires an actual trespass to the person of the victim. Because of the trespass to the person, the offense is a serious crime in itself so that the value of the property stolen does not enter into the magnitude of the crime. On the other hand, the removal of the property from the presence or control of the victim lacks such a trespass and is insufficient to constitute larceny from the person. We are, therefore, in accord with the rule that larceny from the person is a separate and distinct offense from that of simple larceny.” Id. The larceny which underlies a conviction for robbery in the third degree, however, only requires proof of a simple larceny together with the use or threatened use of force. In re Juvenile Appeal (84-4), supra.

Larceny in the second degree, as charged in the state’s long form information, required proof that the defendant “with intent to deprive another of property or to appropriate the same to himself or a third person . . . wrongfully took, obtained and withheld property from the person of Mary Ellen Rockwell . . . .” Robbery in the third degree, as charged in that information, required proof that the defendant “did use physical force upon Mary Ellen Rockwell in the course of committing a larceny for the purpose of compelling the owner of property to deliver up that property. . . .”

Under this information, it was possible, in the course of committing a larceny, to “use physical force upon Mary Ellen Rockwell” for the purpose of compelling her “to deliver up” her property, without also taking property from her person. For example, one can imagine a scenario in which the defendant, in the course of committing a larceny from Rockwell, used physical force upon her for the purpose of compelling her to deliver up property of hers which was in her presence or control but which was not taken from her person. Thus, under this information, the conviction of larceny in the second degree required proof of a fact, namely, a taking from the actual person of the victim as opposed to a taking from her presence and control, which the conviction of robbery in the third degree did not require. Accordingly, the defendant’s convictions for larceny in the second degree and robbery in the third degree were not constitutionally defective, and the separate sentences imposed for those offenses were proper.

There is no error.

In this opinion the other judges concurred.

       The court instructed the jury on circumstantial evidence as follows: “Proof beyond a reasonable doubt does not mean that you must have direct evidence supporting a fact. You may apply the rule of circumstantial evidence. This rule involves the offering of evidence of facts from which you are asked to infer the existence of another fact or a set of facts. Such an inference may be made provided two elements in the application of this rule are satisfied.
      “First, that the fact from which you are asked to draw the inference has itself been proven beyond a reasonable doubt and secondly, that the inference asked to be drawn is not only logical and reasonable, but is strong enough so that you can find that it is more probable than not that the fact to be inferred is true.
      “It is your right to draw inferences if you conclude that the facts you find proven reasonably establish other facts by reason and logic and are not the result of speculation, surmise or guesswork.
      “If from the facts you find proven beyond a reasonable doubt, you reasonably do infer other facts, you may then use the facts so inferred as a basis for a further inference that other facts exist, including the facts going to establish the guilt or the innocence of the defendant.”

       General Statutes § 53a-123 (a) (3) provides in pentinent part: “(a) A person is guilty of larceny in the second degree when he commits larceny as defined in section 53a-119 and: ... (3) the property, regardless of its nature or value, is taken from the person of another . . . .” “Larceny” is defined in General Statutes § 53a-119 as follows: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .”

       “A person is guilty of robbery in the third degree when he commits robbery.” General Statutes § 53a-136 (a). “Robbery” is defined in General Statutes § 53a-133 as follows: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”

       The defendant’s motion to correct an illegal sentence and his preliminary statement of issues to this court both base this claim on federal and state constitutional grounds. In his brief, however, the defendant only refers to the federal constitution with respect to this claim of error. We therefore consider any claim of error based on state constitutional grounds to be abandoned. Pepe v. New Britain, 203 Conn. 281, 282 n.l, 524 A.2d 629 (1987).


author: Spallone, J. Bieluch, J.,

text:
    In re Saba P.

    (5753)
    Spallone, Bieluch and Stoughton, Js.
    Argued December 16, 1987 —
    decision released March 8, 1988

      Conrad Ost Siefert, for the appellant (respondent).

      Paul J. Bakulski, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Robert W. Garvey, assistant attorney general, for the appellee (petitioner).

      Jefferson Hanna III, for the minor child.

      Philip D. Tegeler and Shelly Geballe filed a brief for the Connecticut Civil Liberties Union Foundation, as amicus curiae.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, 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.

   Spallone, J.

The respondent appeals from the judgment of the trial court terminating her parental rights, claiming as error (1) that the trial court misapplied the time requirements of General Statutes § 17-43a, and (2) that the “extended period of time” requirement of General Statutes § 17-43a (b) is unconstitutionally vague.

On May 8,1986, the petitioner, the commissioner of the department of children and youth services (DCYS), filed a petition to terminate the parental rights of Saba’s parents. The petition was subsequently amended to reflect that the father was deceased. The petition alleged that it was in Saba’s best interest to terminate her mother’s parental rights because: (1) the child had been abandoned by the mother in the sense that she had failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child within the meaning of General Statutes § 17-43a (b) (1); (2) the child had been found in a prior proceeding to have been neglected or uncared for, and the mother 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, she could assume a responsible position in the life of the child within the meaning of General Statutes § 17-43a (b) (2); (3) the child had been denied by reason of act or acts of commission or omission the care, guidance or control necessary for her physical, educational, moral or emotional well-being within the meaning of General Statutes § 17-43a (b) (3); and (4) there is no ongoing parent-child relationship, as defined by General Statutes § 17-43a (b) (4).

A trial was held during which evidence was introduced to support the following facts. On April 11,1985, the child Saba, who was born on October 2,1980, was voluntarily placed in foster care where she still remains. On December 10, 1985, Saba was adjudicated an uncared for child and committed to DCYS.

Saba’s mother suffers from a long history of mental illness which has been diagnosed as chronic schizophrenia, undifferentiated. She has been admitted to the Norwich Hospital as an in-patient on eight separate occasions over a period of twenty years for periods ranging from a few days to almost seven years. She was admitted three times during 1985 and 1986 for periods totalling seven months. Her prognosis is “poor” and Saba would be clearly at risk if placed in her care. Further, it would be “several years, if ever,” before the mother could safely care for Saba. Also, there was a “probability” of further future admission of the mother to Norwich Hospital. At the time of trial, the mother was receiving heavy doses of lithium carbonate, approximately 900 milligrams per day. The mother talks and screams to herself and is prone to violent behavior. The mother visited Saba four times during the period from February of 1986, to the time of trial. These visits were initiated and encouraged by DCYS. The visits failed in their purpose of establishing a positive bond between mother and child because the mother, instead of relating to the child, used the visitation time to talk about subjects of apparently greater interest to her such as social security benefits and other personal items not relevant to her parental relationship with her daughter.

As far as Saba is concerned, she recognizes the respondent as her mother but has no feelings which reflect any emotional ties to her. Saba has developed a warm and loving relationship with her foster parents. The trial court expressly found that the “emotional ties between Saba and her foster parents are significant, healthy and clearly the best thing that has happened to Saba in her young life.” Saba is at a critical age and has gone through a violent and unstable history. The trial court found that it was in the best interest of Saba to terminate the respondent’s parental rights and expressly stated that “Saba’s situation cries out for permanency.”

Thereupon, the court found that, by clear and convincing evidence, three grounds existed to justify the termination of the respondent’s parental rights. The court found that the grounds had existed for more than one year and also found that it would be in the best interest of the child to terminate the mother’s parental rights. The trial court specifically found that Saba had been “abandoned” under General Statutes § 17-43a (b) (1); had been denied, by reason of respondent’s omission, the care, guidance or control necessary for her physical, educational, moral or emotional well-being under General Statutes § 17-43a (b) (3); and that “no ongoing parent-child relationship” existed under General Statutes § 17-43a (b) (4). The respondent has appealed.

We hold, initially, that the only claim of error properly before this court is the respondent’s first claim of error, i.e., that the trial court misapplied the time requirements of General Statutes § ll-áAa. We will not consider the respondent’s second claim of error because it was not raised in the trial court. Practice Book § 4185; In re Juvenile Appeal (84-7), 3 Conn. App. 30, 33, 484 A.2d 472 (1984).

General Statutes § 17-43a (b) provides that the court may terminate parental rights if it finds that “over an extended period of time, which . . . shall not be less than one year,” at least one of the four statutory grounds for termination exists. Since the grounds are listed in the disjunctive, the court need find only one ground to grant the petition. In re Juvenile Appeal (84-BC), 194 Conn. 252, 258, 479 A.2d 1204 (1984).

The respondent’s argument is based upon the premise that the court, in making a finding as to whether the grounds for termination have been in existence for not less than one year, is limited to the date of commitment as the starting point for measuring the one year requirement. We disagree.

Although the respondent, DCYS and the trial court speak in terms of the year commencing at a particular date, we do not determine the statutory year as legally requiring any fixed starting date. The statutory requirement is, simply that, at the time of the adjudication, statutory grounds exist for the termination of parental rights, and that those grounds must have existed for not less than one year. The statute does not say “one year from the date of placement” or “one year from the date of commitment.” It requires only that the ground exist for not less than one year. This is so regardless of the status of the child. The child may be in placement, in commitment or still at home being cared for by grandparents, siblings, other relatives or strangers and may at the same time be subject to parental behavior amounting to grounds for termination of parental rights.

We acknowledge that numerous cases involving coterminous petitions have been brought and termination of parental rights have been sustained where the “waiting period” was traced from placement in foster care not the date of commitment. See, e.g., In re Theresa S., 196 Conn. 18, 491 A.2d 355 (1985); In re Nicolina T., 9 Conn. App. 598, 520 A.2d 639 (1987); In re Christine F., 6 Conn. App. 360, 505 A.2d 734 (1986)-, In re Juvenile Appeal (85-3), 3 Conn. App. 194, 485 A.2d 1369 (1985).

We do not believe, however, that a “waiting period” is a requirement of the statute. We hold that the one-year requirement is a minimum period of time during which the grounds for termination must exist. Whether the grounds for termination exist for not less than one year is a question of fact to be determined by the court from the facts and circumstances in any given case. Our review of the record in this case reveals ample support for the trial court’s finding that the grounds for termination in this case were in existence for not less than one year.

There is no error.

In this opinion, Stoughton, J., concurs.

Bieluch, J.,

dissenting. I respectfully disagree with the conclusion of the majority opinion that the record in this case amply supports the trial court’s finding that the grounds for termination of the respondent’s parental rights were in existence for not less than one year.

Saba was born to Janina and Marion on October 2, 1980. In April of 1985, the mother separated from her husband, taking Saba with her. An older brother, Arthur, then 23 years of age, became concerned about Saba’s care because of the mother’s mental illness. Since he could not make suitable child care arrangements for her, he wished her placed voluntarily through DCYS. The parents gave their written consent to this. On April 11, 1985, Saba was placed in a foster home. She was later committed to DCYS on December 10, 1985, after adjudication as an uncared for child. A petition requesting the termination of parental rights was withdrawn at that time to allow the brother the opportunity to explore the possibility of becoming her caretaker.

Upon the brother’s later suggestion that it would be in the best interests of Saba to be freed for adoption, DCYS, on May 13, 1986, filed a petition to terminate the parental rights of the parents. Jurisdiction for the petition was based on General Statutes § 17-43a (e). The grounds alleged were those specified in § 17-43a (b) (1), (2), (3) and (4). The petition contained two further allegations relating to the statutory time requirement for termination of parental rights: (1) that the stated reasons had existed for not less than one year; and (2) that a waiver of the one year requirement would be in the best interests of the child.

On June 22, 1986, the child’s father died of cancer. Because of this, the petition was amended at the commencement of the hearing to delete that portion which sought to terminate the parental rights of the father. The hearings were held on September 3 and 23,1986, after which the court filed its memorandum of decision.

In its memorandum, the court initially considered the one year requirement of § 17-43a (b). The court acknowledged that the standard of proof required for a waiver of the time requirement under § 17-43a (c) was not clear, but concluded, “in any event, the petitioner has not proved by even a preponderance of the evidence that'such a waiver is necessary.” Because of the one year requirement, therefore, the court denied the petition as to the allegation under § 17-43a (b) (2), since that period had not expired after Saba’s adjudication as an uncared for child on December 10,1985. The court did, however, find that the remaining three statutory grounds alleged met the one year threshold limitation because the original petition of May 13, 1986, and its amendment on September 3, 1986, to exclude the father because of his intervening death, were filed more than one year from the voluntary placement of Saba on “April 1, 1985.” It thereafter concluded that these grounds were established by the petitioner upon clear and convincing proof.

The court found that the mother was confined at Norwich Hospital on eight separate occasions over the previous twenty years for “chronic schizophrenia, undifferentiated.” During the period of Saba’s voluntary placement in foster care, the mother was an inpatient at the hospital in April and December, 1985. Subsequent to Saba’s adjudication as an uncared for child on December 10, 1985, the mother was hospitalized in June of 1986. There was a probability of a ninth, or even a tenth, admission to a psychiatric hospital.

A psychologist testifying for DCYS maintained that Saba was at risk of physical injury from her mother, but a medical doctor called as a witness by the mother found that the mother was not prone to violence and was not a danger to her child or to herself. The medical doctor expressed the opinion that the child’s reunion would possibly be beneficial to the mother’s attempt to stabilize her psychiatric condition. Without concluding further on this conflicting testimony, the court observed that the medical doctor had made no evaluation of Saba and had offered no opinion as to the effect on Saba of a return to her mother. The court did find, however, that the mother visited her child during foster care on several occasions, “but, to say the least, these visits have been less than successful.”

The trial court found that for the period commencing April 1,1985, to the time of the hearing, Saba had been abandoned by her mother under the provisions of § 17-43a (b) (1) “in that Janina P. has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child. . . [even though] that failure on the part of Saba’s mother has been occasioned, at least in part, by [the] mother’s psychiatric illness.”

The court found further ground for termination of Janina’s parental rights under § 17-43a (b) (3) in that Saba had been denied the care, guidance or control necessary for her physical, educational, moral or emotional well-being. The court observed in this regard that Saba was responding favorably to the removal from the previous home environment provided by her mother.

Finally, the court found proven the remaining ground for termination of Janina’s parental rights as set forth in § 17-43a (b) (4) because there was no ongoing parent-child relationship. “[A]t least in part because of her schizophrenia, [the mother] has not met on a day to day basis, or even on an occasional basis, the physical, educational, moral and emotional needs of the child. . . . [T]o allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to Saba’s best interest.”

In reviewing its ultimate findings under § 17-43a (d), the court concluded: “There is no question that [the] mother might have done better at maintaining a relationship with Saba if she were not severely handicapped by her emotional disability . . . [but] it is Saba’s best interests which are at issue here and not Janina’s. Saba’s situation cries out for permanency, and it is therefore found, by clear and convincing proof, that the parental rights of Janina P. should be terminated in her daughter Saba.”

In response to the petitioner’s motion for articulation, the trial court made the following supplementary findings: (1) “[W]ith respect to the ground for termination of parental rights found in Connecticut General Statutes section 17-43a (b) (2) (i.e., ‘failure to rehabilitate’), the one year ‘waiting period’ is calculated from the date of adjudication of the child as neglected or uncared for in the prior proceeding in this case, specifically December 10,1985. ... (2) [W]ith respect to the other three grounds in the petition for termination of parental rights (i.e., ‘abandonment,’ ‘acts of parental commission or omission,’ and ‘no parent-child relationship’) the one-year ‘waiting period’ was calculated from April 1,1985, the date of voluntary placement of the child in foster care. . . . (3) [T]here was no evidence before the court that the child’s situation was such that any significant difference in the welfare of the child would occur if the hearing in this case were heard three months later, in December instead of September.”

There are two claims raised on appeal: (1) the court did not properly measure the one year period under § 17-43a (b), and (2) the time requirement is unconstitutionally vague. Since the constitutional question was not raised below, we do not consider it. “The general rule against considering claims not raised at trial, Practice Book [§ 4185] applies also to constitutional issues . . . . ‘Only in most exceptional circumstances can and will this court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court.’ State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973).” (Citations omitted.) Burritt Mutual Savings Bank of New Britain v. Tucker, 183 Conn. 369, 377, 439 A.2d 396 (1981). There is nothing in the record to bring the respondent within any exception to this rule. State v. Evans, supra, 69-70.

The respondent argues that the period of time required to establish any of the four grounds for termination of parental rights specified in § 17-43a (1), (2), (3) and (4), is “an extended period of time,” but not less than one year. The commencement of this period, therefore, must be measured from the inception or beginning of the alleged ground, and not from the voluntary placement of Saba by her parents in a foster home. With that I would agree. I would disagree, however, with the mother’s claim that the required time for the grounds alleged in § 17-43a (b) (1), (3) and (4) and found proven here must necessarily be marked from the legal commitment as an uncared for child on December 10, 1985.

“The word 'period’ as applied to time carries with it the idea of the separation of a designated interval of time from the flow of time in general.” Van Dresser v. Firlings, 305 Mass. 51, 54, 24 N.E.2d 969 (1940). There must be a beginning and an ending in the measuring of an extended period of time of not less than one year under § 17-43a (b). The ending would necessarily be coterminous with the trial on a petition brought thereunder. The beginning must be fixed by the date of origin of the specific ground relied upon under subsections (1), (3) or (4) of § 17-43a (b).

The voluntary beneficent act of placing Saba in a foster home under the guidance and direction of DCYS cannot by its own facts be considered as evidence of any one of these three grounds for termination of parental rights. It was not an act of abandonment of Saba under § 17-43a (b) (1); it was not a denial, by parental act of commission or omission, of the care, guidance or control necessary for Saba’s physical, educational, moral or emotional well-being under § 17-43a (b) (3); nor was it the termination of the parent-child relationship under § 17-43a (b) (4); all as found by the trial court. Not being evidence of any of these grounds for the termination of parental rights, the voluntary placement of Saba in a foster home cannot mark the beginning of the “extended period of time” required to be measured for at least one year as a condition precedent to the granting of a petition for such termination of Janina’s parental rights.

Saba’s commitment to DCYS on December 10,1985, following her adjudication as an uncared for child under General Statutes § 46b-129, while probative of the time requirement under § 17-43a (b), does not necessarily fix the beginning of the extended period of time in all cases. An earlier date may be established by evidence relevant to any of the statutory grounds for termination of parental rights under the law. A review of all statutes relating to the termination of parental rights supports this position.

The petition for the termination of Janina’s parental rights was filed on the judicial department form JD-JM-40 Rev. 2-85. The identification of this form indicates that it was prepared for use in proceedings under General Statutes §§ 17-43a and 45-61c. The jurisdictional statement provided on this form relates to petitions under the following circumstances: (1) termination under § 17-43a where child previously committed to DCYS; (2) termination of parental rights under § 17-43a (e) where child not previously committed to DCYS; and (3) transfer from probate court under § 45-61c (g). As noted earlier, the petition in this case was erroneously brought under § 17-43a (e), instead of pursuant to § 17-43a after a prior commitment of Saba to.DCYS. My earlier review of the law related to a petition filed under § 17-43a after a prior commitment to the custody of DCYS under § 46b-129 as an uncared for child, the factual situation in this case.

Section 17-43a (e) provides that any petition brought by DCYS pursuant to § 46b-129 for the commitment of a neglected, uncared-for or dependent child may be accompanied by a petition for termination of parental rights filed under § 17-43a “notwithstanding that such child has not been committed to the commissioner of children and youth services.” Such a provision for the filing of simultaneous petitions excludes the possibility that a commitment under § 46b-129 must mark the beginning of the “extended period of time” required by § 17-43a (b).

Similarly, the statutory provisions for the transfer of petitions to terminate parental rights from the courts of probate to the superior court exclude the possibility that a commitment under § 46b-129 must fix the beginning of the “extended period of time” required by § 17-43a (b). General Statutes § 45-61c (a) permits the filing in a court of probate of a petition to terminate parental rights. Section 45-61c (g) authorizes the transfer of such a petition to the superior court. Whether heard in the court of probate, or on transfer in the superior court, such a petition would not be conditional upon a prior commitment of the child to DCYS as an uncared for child. Section 45-61f (f) (1), (2) and (3) provide the same grounds for termination of parental rights as § 17-43a (b) (1), (3) and (4), respectively. Missing only is the ground provided in § 17-43a (b) (2), relating to a child previously committed to DCYS as uncared for, since a petition under § 45-61f (f) in the probate court is independent of and unrelated to a prior commitment to the custody of DCYS under § 46b-129. The required “extended period of time” under § 45-61f (f), which like § 17-43a (b), “shall not be less than one year,” therefore, cannot be measured from a commitment to the custody of DCYS under § 46b-129.

I agree with the majority in its conclusion that whether the grounds for termination exist for an extended period of not less than one year is a factual determination to be made on a case by case basis. I disagree, however, with their conclusion that the record supports the trial court’s finding that the alleged grounds for the termination of Janina’s parental rights of Saba existed for not less than one year. First, the court did not factually establish the beginning date of each ground for the measurement of the required period of not less than one year. Second, the court terminated the mother’s parental rights because of her chronic schizophrenia, rather than upon a finding that her mental illness manifested itself in conduct demonstrative of an inability to care for her child. The court focused on Janina’s status as a mentally ill person, rather than upon her conduct and relationship to Saba. See In re Nicolina T., 9 Conn. App. 598, 607, 520 A.2d 639 (1987).

For these reasons, I dissent.

       We will only consider this claim of error as it relates to the amicus curiae brief filed by the Connecticut Civil Liberties Union. We granted permission for an amicus brief limited solely to the issues before us which were properly raised by the respondent. Any other issues raised in the amicus brief fall outside such limitation.

       This appears to have been in error. General Statutes § 17-43a (e) provides in relevant part: “Any petition brought by the commissioner of children and youth services to the superior court, pursuant to subsection (a) of section 46b-129, may be accompanied by a petition for termination of parental rights filed in accordance with this section with respect to such child, notwithstanding that such child has not been committed to the commissioner of children and youth services.”
      Saba had previously been adjudicated an uncared for child and committed to DCYS under § 46b-129 (a). The jurisdictional statement should properly have been based on General Statutes § 17-43a (a) through (d), providing for termination of parental rights of a child previously committed to DCYS.

       General Statutes § 17-43a (b) provides in relevant part: “(b) The superior court upon hearing and notice, as provided in sections 45-61d and 45-61f, may grant such petition if it finds, upon clear and convincing evidence, that the termination is in the best interest of the child and that, with respect to any consenting parent, such parent has voluntarily and knowingly consented to termination of his parental rights with respect to such child or that, with respect to any nonconsenting parent, over an extended period of time, which, except as provided in subsection (c) of this section, shall not be less than one year: (1) The child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child; or (2) the parents of a child who has been found by the superior court to have been neglected or uncared for in a prior proceeding have failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, they could assume a responsible position in the life of the child; or (3) the child has been denied, by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for his physical, educational, moral or emotional well-being. Nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights; or (4) there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day to day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child.”

       General Statutes § 17-43a (c) provides: “The court may waive the requirement that one year expire prior to the termination of parental rights if it finds from the totality of the circumstances surrounding the child that such a waiver is necessary to promote the best interest of the child.”

       This date is in error. The record discloses that the voluntary placement of Saba by her parents took place on April 11, 1985.

       General Statutes § 17-43a (d) provides: “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered or provided to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (3) the feelings and emotional ties of the child with respect to his parents, any guardian of his person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (4) the age of the child; (5) the efforts the parent has made to adjust his circumstances, conduct, or conditions to make it in the best interest of the child to return him to his home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (6) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonble act or conduct of the other parent of the child, or the unreasonble act of any other person or by the economic circumstances of the parent.”

       General Statutes § 45-61f (f) provides in relevant part: “At the adjourned hearing or at the initial hearing where no investigation and report has been requested, the court may approve the petition terminating the parental rights and may appoint a guardian of the person of the child, or if the petitioner requests, the court may appoint a statutory parent, if it finds, upon clear and convincing evidence that the termination is in the best interest of the child and that, with respect to any consenting parent, such parent has voluntarily and knowingly consented to termination of his parental rights with respect to such child or that, with respect to any nonconsenting parent, over an extended period of time which, except as provided in subsection (g) of this section, shall not be less than one year: (1) The child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child; or (2) the child has been denied, by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for his physical, educational, moral or emotional well-being. Nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights; or (3) there is no ongoing parent child relationship which is defined as the relationship that ordinarily develops as a result of a parent having met on a continuing, day-to-day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of the parent child relationship would be detrimental to the best interests of the child.”


text:
    D’Esopo and Company, Inc. v. Douglas W. Bleiler, et al.
    (3944)
    Borden, Bieluch and Foti, Js.
    Argued January 19 —
    decision released March 8, 1988

      JohnS. Pinney, with whom, on the brief, was Thomas E. Gaffey, for the appellant (plaintiff).

      Edward J. Daly, Jr., for the appellees (defendants).
   Borden, J.

The plaintiff appeals, after a trial to the court, from a judgment in the amount of $6300 rendered in favor of the defendants on their counterclaim alleging that the plaintiff negligently discharged its responsibility to install adequate subflooring in their home. The plaintiff challenges (1) the trial court’s conclusion that a builder who has properly followed plans and specifications supplied by the homeowner or his agent may be held liable for loss or damage which results solely from defects in those plans and specifications, in the absence of negligence on the builder’s part or any express warranty by the builder, (2) the trial court’s finding of fact that the subflooring was inadequately secured, and (3) the trial court’s assessment of cost of repair damages as of the date of trial, rather than the date of the alleged breach of duty. Because we conclude that the trial court’s finding of liability is not supported by the evidence, we find error.

In its memorandum of decision, the trial court found the following facts. The parties entered into a written contract in which the plaintiff, a general contractor, agreed to build a house for the defendants. The defendants’ architect supplied the plans and specifications for the house, to which some change orders were made. The original plans and specifications supplied by the architect called for vinyl flooring in certain areas of the house. After the plywood subflooring was installed, the defendants and their architect decided to change the floor covering in those areas from vinyl to ceramic tile. The architect did not alter the plans for the subflooring when the change to ceramic tile was made. After the job was completed, cracks developed in the tile floors. The plaintiff’s president testified at trial that he now believes that another layer of plywood subflooring would have prevented the cracking of the tiles, although no one suggested this to him before the work was done. The court concluded that it was the plaintiff’s responsibility to assure adequate preparation of the floor on which the tile was installed and that the plaintiff had failed to do so.

In an articulation, the court set forth, inter alia, the following additional findings and conclusions: “[I]t was the builder’s responsibility to provide subflooring adequate for the installation of tile. The plywood subflooring here was not sufficiently rigid to keep it from moving. The cracks which developed in the tile follow the seam lines in the subflooring. The inference reasonably to be drawn from this is that the subflooring was inadequately secured, allowing it to lift up at its seams. While the subflooring specifications were drawn before a change from linoleum to tile was made, the builder never inquired of the architect whether anything more needed to be done. The tile installer . . . did inquire about the subflooring construction of [the plaintiff]. Based on [the plaintiff’s] description of the construction, [the tile installer] thought the flooring adequate to support the tile. [The tile installer’s] inquiry should have alerted [the plaintiff] to the concern for stability as well as strength .... The defendants have proved that the plaintiff failed to exercise [that degree of care which a skilled builder of ordinary prudence would have exercised under the same or similar circumstances] and that he should have known that the cracks would be the foreseeable result.” (Emphasis added.)

The plaintiff claims that his failure to inquire whether additional subflooring was necessary cannot be a basis of liability when his work followed the plans and specifications provided by the defendants’ architect, and that there was no evidence that he failed to construct the subflooring in accordance with those plans. We agree.

“[T]he rule has become well settled in practically every American jurisdiction in which the matter has been involved, that a construction contractor who has followed plans or specifications furnished by the contractee, his architect, or engineer, and which have proved to be defective or insufficient, will not be responsible to the contractee for loss or damage which results, at least after the work is completed, solely from the defective or insufficient plans or specifications, in the absence of any negligence on the contractor’s part, or any express warranty by him as to their being sufficient or free from defects.” Annot., 6 A.L.R.3d 1394, 1397. Our Supreme Court followed this common law rule in Southern New England Contracting Co. v. State, 165 Conn. 644, 656, 345 A.2d 550 (1974), noting “that a contractor will not be responsible for loss or damage resulting from defective plans or specifications supplied by the contractee.” See also Tompkins, Inc. v. Bridgeport, 94 Conn. 687, 110 A. 193 (1920); Hills v. Farmington, 70 Conn. 450, 39 A. 795 (1898).

Therefore, the trial court could not have based its finding of liability upon damage which developed as a result of the plaintiffs compliance with, and its failure to question, the specifications provided by the defendants. Under the circumstances of this case, then, the plaintiff’s liability could properly be based only upon an adequately supported finding of negligence of the plaintiff in securing the plywood subflooring.

The court found in effect that the plaintiff was negligent in that “the subflooring was inadequately secured, allowing it to lift up at its seams.” The plaintiff, however, challenges this finding of fact as lacking any support in the evidence. In examining whether this finding may properly support the court’s legal conclusion, we must “determine whether there is evidence to support the finding. If not, the finding is clearly erroneous.” Buddenhagen v. Luque, 10 Conn. App. 41, 45, 521 A.2d 221 (1987).

All of the evidence adduced at trial indicated that the subflooring was built in accordance with the specifications, and that the cause of the cracking in the tile was that additional plywood subflooring should have been included in the architect’s plans, and thus in the sub-floor, in order to provide additional strength to support the tile flooring. A review of the transcript makes clear that the theory of the defendants’ case with respect to the counterclaim was that the builder should have known that the subflooring it was hired to install would not support the tile to be installed; the defendants’ case was based on evidence showing inadequate strength, not inadequate stability, in the subflooring.

Only Harold Epstein, the defendants’ expert witness on the issue of cost of repair damages, provided testimony arguably which supports the court’s finding regarding movement in the subflooring. On cross-examination, and over the objection by the defendants, Epstein testified that he observed movement in the sub-floor prior to the installation of the tiles and that he informed the defendants that another layer of plywood was needed to provide enough strength to prevent cracking in the tiles to be laid. In his testimony, however, Epstein neither suggested that the subflooring was installed improperly nor opined that an inadequately secured subflooring was the cause of the cracking. Even read in a light most favorable to supporting the trial court’s finding, at most this evidence only corroborated prior testimony suggesting that not enough subflooring had been installed; it did not support the court’s finding respecting the stability of the work performed.

Without any expert testimony suggesting that the floor was inadequately secured or that an inadequately secured flooring was the cause of the damage to the tiles, the trial court’s finding in this regard was clearly erroneous. Under the facts of this case, in the absence of expert testimony explaining how the work performed by the plaintiff failed to comply with “that degree of care which a skilled builder of ordinary prudence would have exercised under the same or similar conditions”; Calderwood v. Bender, 189 Conn. 580, 584, 457 A.2d 313 (1983); and how that negligence caused the damages complained of, a factfinder could not properly have inferred that fact. Thus, the court’s conclusion regarding liability cannot stand.

There is error, the judgment on the defendant’s counterclaim is set aside and the case is remanded with direction to render judgment for the plaintiff on the defendants’ counterclaim.

In this opinion the other judges concurred.

       Because the trial court’s finding of liability is erroneous, requiring our direction of judgment in the plaintiff’s favor, we need not address the plaintiff’s claim of error on the issue of damages.

       The defendants’ counsel objected to any questions asked of Epstein regarding the condition of the subfloor, noting that Epstein “hasn’t been called here as an expert in this case on the cause of what happened to the floor but only to the price.”


author: Stoughton, J.

text:
    In re Jason D.

    (6272)
    Borden, O’Connell and Stoughton, Js.
    Argued January 6 —
    decision released March 15, 1988

      Edward G. Pizzella, with whom, on the brief, were Robert G. Pizzella and Sidney L. Rosenblatt, for the appellants (petitioners).

      Heather Wilson, assistant attorney general, with whom were Jane Scholl, assistant attorney general, and, on the brief, Joseph I. Lieberman, attorney general, for the appellee (respondent).

      Brian Thomas Walsh, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, 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.

   Stoughton, J.

This is an appeal from the dismissal of a petition for termination of parental rights which was filed in the Probate Court and transferred to the Superior Court. We find no error.

On December 3, 1984, the adoptive parents of Jason filed a petition pursuant to General Statutes § 45-61c in the Court of Probate for the district of Newington. The attorney for the minor child contested the petition and requested that the matter be transferred to the Superior Court under the provisions of § 45-61c (g). The matter was transferred to the Superior Court on January 21, 1987. On June 13, 1987, the commissioner of the department of children and youth services (DCYS), the previously appointed guardian of Jason, moved to dismiss the petition. The motion to dismiss was granted, and the adoptive parents have appealed. They claim that the trial court erred (1) in holding that the adoptive parents have no standing to petition for termination of their parental rights with respect to a child committed to the DCYS, (2) in holding that a child over the age of fourteen years cannot be estopped to deny his consent to a petition for the termination of parental rights, and (3) in holding that the child’s failure to join in the petition did not constitute a waivable jurisdictional defect.

The trial court found inter alia, the following among other facts. Jason was born on October 21,1970, and, the parental rights of his biological parents having been terminated, was adopted by the petitioners on January 12, 1981. After a year of escalating conflicts and runaways, the adoptive parents asked DCYS to place Jason in foster care. On February 8, 1984, the adoptive parents admitted that Jason was homeless and agreed to his commitment to DCYS. The commitment continued to the time of the hearing. In response to a petition for support filed by the bureau of collection services, the adoptive parents agreed to a support order. When no payment was made on the order, the bureau filed a motion for contempt. Two days before the scheduled hearing on the motion, the adoptive parents initiated the action for termination of their parental rights.

DCYS moved to dismiss the petition claiming that the court lacked subject matter jurisdiction for two reasons. The first claim was that the youth was committed to DCYS at the time of the petition, and the petition was neither brought in the Superior Court for juvenile matters which pursuant to General Statutes § 46b-121 has jurisdiction over such matters, nor was it brought by any of the persons authorized by General Statutes § 17-43a to petition for termination of parental rights with reference to a committed child. The second claim was that the minor child had not joined in the petition as required by General Statutes § 45-61c.

In a well reasoned memorandum of decision, the trial court considered the relevant statutory provisions and their legislative history. It then reached the following conclusions: (1) the Superior Court, sitting as a Court of Probate following transfer of a contested termination petition filed under § 45-61c, lacks jurisdiction to entertain such petition when the subject child is committed to DCYS under § 46b-129; (2) only DCYS or the attorney for a committed child may file petitions to terminate parental rights of committed children, which petitions must originate in the Superior Court; (3) neither the Probate Court nor the Superior Court may entertain petitions to terminate the parental rights of any child over the age of fourteen who has not affirmatively joined in such petition.

We find that the third of these conclusions is dispositive of this appeal. Even if we assume without deciding that the parents may petition the Court of Probate to terminate their parental rights over a committed child pursuant to the provisions of § 45-61c (a), as the petitioners maintain they are entitled to do, § 45-61c (a) contains the proviso that where the minor child with respect to whom the petition is brought has attained the age of twelve, the minor child shall join the petition. It is not necessary for us to decide whether the parents may petition the Court of Probate in such circumstances because the petitioners do not assert any authority other than § 45-61c for their petition, and the record is clear that the child was over fourteen and did not join in the petition. The jurisdiction of the Court of Probate is governed entirely by statute and it may only act as authorized by statute. Palmer v. Hartford National Bank & Trust Co., 160 Conn. 415, 428, 279 A.2d 726 (1971). A court which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation. Heiser v. Morgan Guaranty Trust Co., 150 Conn. 563, 565, 192 A.2d 44 (1963). Where the petition does not show that the minor child joined in the petition, the Court of Probate lacked jurisdiction to entertain it. Since the Probate Court lacked jurisdiction of the subject matter, so too did the Superior Court after the transfer to it of the petition, and the court was correct in dismissing the petition.

The claim by petitioner that the statutory requirement that a child of a certain age join in the petition may be satisfied by evidence of the child’s conduct or behavior, or that the child should be estopped from denying consent by his conduct or behavior, we find unpersuasive. The legislative requirement that the child join in the petition is clearly expressed, and we agree with the trial court that this consent cannot be waived by conduct.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 46b-121. (Formerly Sec. 51-302). juvenile matters defined, authority of COURT. Juvenile matters include all proceedings concerning uncared-for, neglected or dependent children and youth' and delinquent children within this state, termination of parental rights of children committed to a state agency, matters concerning families with service needs and contested termination of parental rights transferred from the probate court, but does not include matters of guardianship and adoption or matters affecting property rights of any child or youth over which the probate court has jurisdiction. In such juvenile matters, the superior court shall have authority to make and enforce such orders directed to parents, including any person who acknowledges before such court paternity of a child born out of wedlock, guardians, custodians or other adult persons owing some legal duty to a child or youth therein, as it deems necessary or appropriate to secure the welfare, protection, proper care and suitable support of a child or youth subject to its jurisdiction or otherwise committed to or in the custody of the commissioner of children and youth services. Said court shall also have authority to grant and enforce injunctive relief, temporary or permanent in all proceedings concerning juvenile matters. If any order for the payment of money is issued by said court, the collection of such money shall be made by said court, except orders for support of children committed to any state agency or department, which orders shall be made payable to and collected by the department of administrative services. In juvenile matters, the court shall have authority to make and enforce orders directed to persons liable hereunder on petition of said department of administrative services made to said court in the same manner as is provided in section 17-324, in accordance with the provisions of subsection (b) of section 17-31i, section 17-32, 17-82e, 17-295, 17-295a, 46b-129 or 46b-130, and all of the provisions of section 17-324 shall be applicable to such proceedings. Any judge hearing a juvenile matter may make any other order in connection therewith within his authority to grant as a judge of the superior court and such order shall have the same force and effect as any other order of the superior court.”

       General Statutes § 17-43a provides in pertinent part: “In respect to any child committed to the commissioner of children and youth services in accordance with section 46b-129, either the commissioner, or the attorney who represented such child in the prior commitment proceeding, or an attorney appointed by the superior court on its own motion, or an attorney retained by such child after attaining the age of fourteen may petition the court for the termination of parental rights with reference to such child, including the right to petition the court for the revocation of the commitment of the child. The petition shall be in the form and contain the information set forth in subsection (b) of section 45-61c . . . .”

       “[General Statutes] Sec. 45-61c. petition to terminate parental rights, (a) Any of the following persons may petition the court of probate to terminate parental rights of all persons who may have parental rights regarding any minor child or for the termination of parental rights of only one parent provided the application so states: (1) Either or both parents, including a parent who is a minor; (2) the guardian of the child; (3) the selectmen of any town having charge of any foundling child; (4) a duly authorized officer of any child care agency or child-placing agency or organization or any children’s home or similar institution approved by the commissioner of children and youth services; (5) a blood relative of the child, descented from a common ancestor not more than three generations removed from the child, if the parent or parents have abandoned or deserted the child; (6) the commissioner of children and youth services, provided the custodial parent of such minor child has consented to the termination of parental rights and the child has not been committed to the commissioner, and no application for commitment has been made; provided in any case hereunder where the minor child with respect to whom the petition is brought has attained the age of twelve, the minor child shall join the petition.”