author: McLACHLAN, J.

text:
    STATE OF CONNECTICUT v. RICHARD CROUCH
    (AC 27903)
    McLachlan, Harper and Mihalakos, Js.
    Argued October 19, 2007
    officially released February 12, 2008

      Martin Zeldis, public defender, for the appellant (defendant).

      Melissa L. Streeto, assistant state’s attorney, with whom, on the brief, were Stephen J. Sedensky III, state’s attorney, and David R. Shannon, assistant state’s attorney, for the appellee (state).
   Opinion

McLACHLAN, J.

The defendant, Richard Crouch, appeals from the trial court’s judgment granting the state’s motion to modify the conditions of his probation. The defendant claims that the court improperly allowed a special condition of probation to be added that was in violation of the terms of the plea agreement and in violation of his constitutional right to due process. We affirm the judgment of the trial court.

In April, 2002, the defendant pleaded guilty under the Alford doctrine to injury or risk of injury to, or impairing morals of, children in violation of General Statutes § 53-21 (a) (l). At the same time, the defendant admitted violating the terms of probation that had been imposed for a 1997 conviction of risk of injury to children. See General Statutes § 53a-32. As a result of plea negotiations, the defendant was to serve four years incarceration for violating probation. For the charge of risk of injury to a child, he would receive a five year suspended sentence with five years of probation, to be served consecutively to the sentence on the violation of probation. Additionally, the state recommended the following special conditions of probation: substance abuse evaluation and treatment as deemed necessary, sex offender evaluation and treatment as deemed necessary, that the defendant stay away from United Methodist Church in Newtown and that he make no contact with the victim or the victim’s family. Accordingly, the court sentenced the defendant to four years of incarceration for violating probation and five year s of incarceration for risk of injury to a child, execution of that sentence suspended after four years of incarceration. Thereafter, the defendant was to be placed on probation for five years “with the condition that [he] submit to any psychiatric or psychological evaluation that the department of adult probation deems appropriate and that [he] submit to any treatment that may be indicated as a result of that evaluation. Further condition will be that [the defendant] submit to a substance abuse evaluation treatment and testing as is deemed appropriate by the [office] of adult probation.” (Emphasis added.) All of the foregoing conditions were explicitly recited by the court. In addition, the court expressly acknowledged that the defendant would not have to comply with sex offender registration.

The defendant was released from custody and began his probation on November 30, 2005. His probation officer, David Carter, initiated proceedings in December, 2005, to modify the conditions to include sex offender evaluation and treatment if necessary. On February 14, 2006, Carter formally filed a motion for modification of probation, and a hearing was held on May 22, 2006. The court granted the state’s motion after concluding, in a memorandum of decision, that the modification of the conditions of probation was reasonably related to the defendant’s rehabilitation and to the charge for which he had been convicted and sentenced.

“Probation is the product of statute. . . . Statutes authorizing probation, while setting parameters for doing so, have been very often construed to give the court broad discretion in imposing conditions.” (Citation omitted.) State v. Smith, 207 Conn. 152, 167, 540 A.2d 679 (1988). “On appeal, we review whether the trial court abused its statutory discretion in imposing a condition of probation.” State v. Graham, 33 Conn. App. 432, 447, 636 A.2d 852, cert. denied, 229 Conn. 906, 640 A.2d 117 (1994). “In reviewing the issue of discretion, we do so according it every reasonable presumption in favor of the trial court’s ruling. ... A defendant who seeks to reverse the exercise of judicial discretion assumes a heavy burden.” (Citation omitted.) State v. Smith, supra, 167.

“[T]he puipose of probation is to provide a period of grace in order to aid the rehabilitation of a penitent offender; to take advantage of an opportunity for reformation which actual service of the suspended sentence might make less probable.” (Internal quotation marks omitted.) State v. Smith, supra, 207 Conn. 164. “In keeping with the continuing supervision and authority given [to] the court under the statute, the court could modify or enlarge the conditions whether any such condition had been imposed at the time of sentencing or otherwise.” (Internal quotation marks omitted.) Id., 169. “[I]n determining whether a condition of probation [is proper] a reviewing court should evaluate the condition imposed under our Adult Probation Act in the following context: The conditions must be reasonably related to the purposes of the [Probation] Act. Consideration of three factors is required to determine whether a reasonable relationship exists: (1) the purposes sought to be served by probation; (2) the extent to which constitutional rights enjoyed by law-abiding citizens should be accorded to probationers; and (3) the legitimate needs of law enforcement.” (Internal quotation marks omitted.) Id., 170.

On appeal, the defendant claims that the court improperly allowed a special condition of probation to be added that was in violation of the terms of the plea agreement and in violation of his constitutional right to due process. The state argues that the defendant has failed to demonstrate that the condition of sex offender evaluation and treatment expressly was excluded from the terms of his probation. The state further maintains that the court did not abuse its discretion in granting the motion because the modification reasonably was related to the defendant’s rehabilitation. We agree with the state.

The record does not support the defendant’s argument that sex offender evaluation and treatment specifically were excluded in the plea agreement. What is evident is that the defendant bargained for a sentence that included a term of probation. “If he accepts the offer of probation, [the defendant] must accept all of the conditions. ... In accepting probation, the defendant accepted at the time of sentencing the possibility that the terms of his probation could be modified or enlarged in the future in accordance with the statutes governing probation.” (Citation omitted.) State v. Thorp, 57 Conn. App. 112, 121, 747 A.2d 537, cert. denied, 253 Conn. 913, 754 A.2d 162 (2000). Because the defendant accepted a sentence that included probation, modification of the terms of probation is not a violation of his constitutional rights, as long as the modified conditions reasonably relate to his rehabilitation and the preservation of the safety of the general public. See State v. Pieger, 240 Conn. 639, 647-49, 692 A.2d 1273 (1997). We therefore review the court’s decision for an abuse of discretion.

At the hearing, Carter testified that he moved to modify the conditions on the basis of (1) guidelines adopted by the court support services division mandating that probationers with the defendant’s profile participate in sex offender evaluation and treatment programs, (2) the defendant’s convictions of risk of injury to children and (3) the findings of a sex offender evaluation undertaken at the request of the parole board. That evaluation, dated October 3, 2003, classified the defendant’s dangerousness rating as mild and his recidivism for commission of the same or similar offenses as high. The recommendation was that the defendant participate in sex offender treatment, accept full responsibility for his behavior and undergo a polygraph examination to determine the accuracy of his account of the underlying events. Carter also testified that he had not made arrangements for the defendant to begin psychological or psychiatric evaluations, as ordered by the court at sentencing, pending the outcome of his motion, because he wanted the defendant to be evaluated by “someone that had the professional expertise to make assessments on whether or not [the defendant] was a risk to reoffend as a sexual offender.”

The defendant’s trial attorney, Robert Lacobelle, testified that the defendant would not have agreed to sex offender evaluation and treatment as a condition of any plea and that the condition specifically was excluded from the plea agreement. When questioned by the court as to what would happen if the required psychological treatment indicated “some sort of an underlying sexual deviancy” and that the defendant needed to undergo sex offender treatment, Lacobelle vaguely suggested that “a judge that had indicated that based on his evaluation, he wasn’t getting sex offender treatment, wouldn’t have imposed it.”

The facts of the underlying risk of injury to a child conviction suggest that sex offender evaluation and treatment is a condition of probation that is reasonably related to the defendant’s reformation. The office of adult probation is charged with encouraging and overseeing the defendant’s rehabilitation and with protecting the general public. Without a sex offender evaluation, it is not known what, if any, services the defendant would need to help him avoid reoffending and what steps would be necessary to protect the public. Furthermore, the parties do not dispute that the defendant agreed to a condition of probation that required him to undergo psychological or psychiatric evaluation and any treatment deemed necessary. Therefore, the court did not abuse its discretion in granting the state’s motion because the condition comports with the purposes sought to be served by the defendant’s probation and the legitimate purpose of law enforcement in rehabilitating him and in protecting the community.

The judgment is affirmed.

In this opinion the other judges concurred.

        North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). An Alford plea allows a defendant to enter a plea containing protestations of innocence while voluntarily, knowingly and understandingly consenting to the imposition of a prison sentence.

       General Statutes § 53-21 (a) provides in relevant part: “Any person who (1) wili'ully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child . . . shall be guilty of a class C felony . . . .”

       General Statutes § 53a-32 provides in relevant part: “(a) At any time during the period of probation or conditional discharge, the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation or conditional discharge, or may issue a notice to appear to answer to a charge of such violation . . . .”

       In 1997, the defendant pleaded guilty to risk of ipjury to a child for exposing his genitals and masturbating in public in the presence of three children. The underlying case in this appeal dates back to December, 2001, when the defendant, while on probation for the 1997 case, approached a child in the parking lot of United Methodist Church in Newtown. On the basis of his conduct toward the child, the state charged him with risk of injury to a child and violation of probation, for which the defendant pleaded guilty under the Alford doctrine.

       Although the transcript of the defendant’s plea canvass and sentencing discloses the court’s express finding regarding sex offender registration, it is silent as to the issue of sex offender evaluation and treatment. The following colloquy took place:
      “The Court: And there’s no condition of registration?
      “The Court: What was the agreement on that, [counsel]?
      “[Defense Counsel]: No. There was no condition of registration.
      “[The Prosecutor]: Well, I don’t see that here.
      “[Defense Counsel]: That was specifically mentioned, that we—
      “The Court: Right.
      “[The Prosecutor]: Right.
      “The Court: It was discussed.”

       General Statutes § 53a-29 (a) provides: “The court may sentence a person to a period of probation upon conviction of any crime, other than a class A felony, if it is of the opinion that: (1) Present or extended institutional confinement of the defendant is not necessary for the protection of the public; (2) the defendant is in need of guidance, training or assistance which, in his case, can be effectively administered through probation supervision; and (3) such disposition is not inconsistent with the ends of justice.”
      The statute concerning modifications of probation, General Statutes § 53a-30 (c), provides in relevant part: “At any time during the period of probation or conditional discharge, after hearing and for good cause shown, the court may modify or enlarge the conditions, whether originally imposed by the court under this section or otherwise . . . .”

       “Probation, like incarceration, is a form of criminal sanction imposed by a court upon an offender after verdict, finding, or plea of guilty. . . . Probation is simply one point (or, more accurately, one set of points) on a continuum of possible punishments ranging from solitary confinement in a maximum security facility to a few hours of mandatory community service. A number of different options lie between those extremes .... To a greater or lesser degree, it is always true of probationers . . . that they do not en,joy the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special [probation] restrictions. . . . These restrictions are meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer’s being at large.” (Citation omitted; internal quotation marks omitted). State v. Smith, supra, 207 Conn. 165.

       See footnote 5.

       The defendant participated in the sex offender evaluation from August 8 through September 22, 2003, while he was incarcerated.

       The defendant insisted throughout the trial and appeal, and even during the sex offender evaluation, that his alcoholism caused him to behave in ways that led to the risk of injury charges, and he refused to acknowledge that there might be other causal factors.

       The following colloquy occurred:
      “The Court: Psychological evaluation was a condition.
      “[Defense Counsel]: It was.
      “The Court: Right. And if the psychological evaluation came back indicating some sort of an underlying sexual deviancy, would that be a pathway to sexual offender treatment?
      “[Defense Counsel]: I—I don’t think with the court that sentenced him— I don’t believe that—that to be the case. The—if Your Honor looks at the—the various subsections and what probation—what conditions can be imposed under . . . whatever the probation statute is—psychological evaluation is something different, at least in my mind, than sex offender treatment because they’re specifically enumerated separately.
      “[The Prosecutor]: Okay. It says psychological evaluation deemed appropriate, that [the defendant] submit to any treatment that may be indicated as a result of that evaluation. So, it’s your understanding that if the evaluation came back saying he needs sex offender evaluation, that [the sentencing judge] wouldn’t have said he’s got to go to it?
      “[Defense Counsel]: No, I don’t think that’s—that’s what I said. . . . [I]f I said that, I misspoke. I’m saying that I don’t—whatever the question was— I thought it was ... if psychological testing said sex offender treatment was deemed necessary, do you think the judge would have imposed that? I didn’t think that he—he would have because I was already told, my recollection that ... he wasn’t getting sex offender treatment.

        “[The Prosecutor]: [B]ut . . . hypothetically . . . he’s ordered to go to the psych [evaluation], they say you got to go to sex offender treatment, we think that’s needed, and then the motion came before the court,. [The sentencing judge] wouldn’t say yep, you [got] to go to it? That wasn’t left open, that door wasn’t left open based on what it says in this transcript?
      “[Defense Counsel]: I think what it says in the—in the transcript, that those—if that’s what eventually occurs . . . what would the judge have done? Again, I’d speculate, but you know, if you want me to speculate, I’d say that a judge that had indicated that based on his evaluation, he wasn’t getting sex offender treatment, wouldn’t have imposed it. May have imposed other conditions.”

       We concluded in State v. Boyle, 102 Conn. App. 507, 925 A.2d 1172, cert. granted, 284 Conn. 908, 931 A.2d 266 (2007), that “for a condition of probation to be reasonably related to the defendant’s rehabilitation . . . there must be a nexus between the condition of probation and the charge for which a defendant is serving probation. Such a requirement not only serves to rehabilitate a defendant on the basis of the crime committed but also protects the constitutional rights of the probationer.” (Internal quotation marks omitted.) Id., 517-18.
      In the present case, the defendant was charged with risk of ipjury to a child for his lewd and lascivious conduct toward a child in the parking lot of a church. The defendant also previously had pleaded guilty to risk of injury to a child for masturbating in front of three children. Therefore, a nexus exists between requiring sex offender evaluation and treatment and the crime for which the defendant is serving probation.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    PHILIP FORSTER v. GUS GIANOPOULOS ET AL.
    (AC 27639)
    McLachlan, Harper and Lavine, Js.
    Argued September 24, 2007
    officially released February 12, 2008

      Stuart B. Ratner, for the appellants (defendants).

      Patrick J. McHugh, with whom, on the brief, were William M. Tong and Richard S. Gora, for the appel-lee (plaintiff).
   Opinion

HARPER, J.

The defendants, Gus Gianopoulos and Tom Gianopoulos, appeal from the default judgment rendered by the trial court in favor of the plaintiff, Philip Forster. The judgment followed an order that the defendants disclose certain documents to the plaintiff, with which the court determined the defendants had not complied. The defendants now claim that the court lacked authority to render a default judgment and, alternatively, that the court abused its discretion in rendering a default judgment. We disagree.

The following facts and procedural history are relevant to our disposition of the defendants’ appeal. On November 12,2003, the plaintiff brought an action seeking to collect on a series of allegedly unpaid promissory notes. In connection with this claim, on August 22,2005, the court granted a prejudgment remedy in favor of the plaintiff in the amount of $1,135,359.91. On August 23, 2005, the court granted the plaintiffs motion for disclosure of assets, which had requested that “each defendant . . . disclose any and all property, real or personal, in which [the] defendants have an interest, jointly or separately, and any and all debts owing to either or both defendants . . . .”

The parties subsequently scheduled a deposition of the defendants for September 29, 2005, and the plaintiff sent the defendants a notice of deposition on September 19,2005. The defendants failed to attend this deposition. Upon a failed attempt to reschedule the deposition, the plaintiff filed a motion for sanctions and judgment on October 28, 2005, pursuant to Practice Book § 13-14. On November 14, 2005, the court granted in part and denied in part this motion, ordering that the defendants “submit to examinations by deposition and disclose documents in furtherance of an order to disclose assets by December 15, 2005, or be subject to further sanctions, including entry of judgment.”

The defendants appeared at a deposition on December 14, 2005. At the deposition, the defendants, who had earlier pleaded guilty to and were awaiting sentencing for various federal tax and financial crimes, invoked their fifth amendment privilege against self-incrimination in response to the plaintiffs questioning. The defendants also failed to produce any of the documents at issue in the court’s November 14, 2005 order.

On December 22, 2005, the plaintiff filed a second motion for sanctions and judgment pursuant to Practice Book § 13-14. The court heard oral argument on the matter on January 23, 2006. At that hearing, the defendants’ attorney made the following representation: “ [A]t this point, [the defendants] are in the process of preparing a presentence investigation report [report]. ... I can assure Your Honor that it is a complete form .... It has every question imaginable on it. And failure to answer accurately is a federal crime in and of itself.” The defendants’ attorney continued, stating that “[w]e [have offered] to give [the plaintiff] a copy of the [report], which is a thick report, which would have every property owned by [the defendants], however owned, in New York State, in Connecticut, anywhere in the [United States], with documentation, because you have to give them copies of the deeds . . . copies of the bank statements, with actual backup documentation. Whatever is given to the [United States Probation Office], we have offered to give to the [plaintiff].” The court then ordered that “within forty-five days you’re going to provide the presentence investigation information to [the plaintiff] . . . .” Upon hearing further oral argument on February 27, 2006, the court imposed a deadline of April 10,2006, for the defendants to produce the report.

On April 10, 2006, the defendants still had not produced a copy of the report. The defendants’ attorney stated at a hearing held the same day that the report had not been provided to him by the defendants and, further, that the individuals who had prepared the report had submitted the only copy available to the United States Probation Office. Nevertheless, the defendants’ attorney represented that he had provided to the plaintiff the information contained within the report “to the extent that [he] was able to obtain that information.”

The court expressed concern with the fact that the defendants’ submission did not include a net worth statement, which the court had understood “would have been part and parcel of any submission that was going to be made.” The plaintiffs attorney further pointed out that the submission was “more or less in draft format,” that it did not list, as an action pending against the defendants, “this civil action, which has a prejudgment remedy against [the defendants] for over $1 million” and also that the real estate disclosure section did not “[square] with public records . . . .”

Over the defendants’ objection, the court thereafter granted the plaintiffs December 22, 2005 motion for additional sanctions and for judgment, and rendered a default judgment in favor of the plaintiff in the amount of $1,155,359.91. The court explained: “[T]he file is filled with references to prior actions that have been pending against [the defendants]. The lack of cooperation, prior orders of federal courts and this most recent information [regarding the defendants’ failure to produce a full copy of the report] indicates to the court that neither [defendant] is cooperating with the discovery order of this court. And furthermore, they’re concealing information from their attorneys here in this case. . . . That’s why this judgment, which is a very severe judgment and sanction, is being entered, because enough is enough.” This appeal followed.

I

The defendants first claim that the court lacked the authority to render a default judgment as a sanction for a violation of a discovery order. In support of this argument, the defendants contend that Practice Book § 13-14 (b) contains an exhaustive list of penalties that may be imposed following a discovery order violation and that although entry of default is one of those enumerated penalties, the simultaneous rendering of judgment is not. We disagree, as the court’s authority derives from Practice Book § 17-33 (b).

Practice Book § 17-33 (b) provides in relevant part that “the judicial authority, at or after the time it renders the default . . . may also render judgment in . . . any contract action where the damages are liquidated, provided the plaintiff has also made motion for judgment and provided further that any necessary affidavits of debt or accounts or statements verified by oath, in proper form, are submitted to the judicial authority.” We conclude that the court’s rendering of a default judgment was proper, as the dictates of Practice Book § 17-33 (b) had been met by the plaintiff.

The present case is one involving liquidated damages. “When a debtor knows precisely how much he is to pay and to whom he is to pay it, his debt is a liquidated one. ... An amount claimed to be due is a liquidated sum when it is susceptible of being made certain in amount by mathematical calculations from factors which are or ought to be in the possession or knowledge of the party to be charged.” (Citation omitted; internal quotation marks omitted.) Costello v. Hartford Institute of Accounting, Inc., 193 Conn. 160, 165, 475 A.2d 310 (1984).

The plaintiffs complaint set forth a breach of contract action to collect unpaid principal, interest and penalties on a series of promissory notes. The determination of the total amount due on each promissoiy note involved a simple mathematical calculation of the outstanding principal balance multiplied by the predetermined interest rate as specified in each note. The court engaged in such a calculation at the prejudgment remedy hearing, determined that amount to be $1,135,359.91, and subsequently informed the defendants of that precise amount. On appeal, the defendants do not claim that this amount was incorrectly calculated; instead, they argue only that the “court lacked the authority to grant judgment (not default) against the defendants for an alleged discovery violation.” As the dictates of Practice Book § 17-33 (b) have been met, we must disagree with the defendants. The court was within its authority to render judgment at the same time as the entry of default.

II

The defendants next claim that, regardless of the court’s authority to impose a default judgment, the court’s rendition of a default judgment amounted to an abuse of discretion. We disagree.

“In order for a trial court’s order of sanctions for violation of a discovery order to withstand scrutiny, three requirements must be met. First, the order to be complied with must be reasonably clear. In this connection, however, we also state that even an order that does not meet this standard may form the basis of a sanction if the record establishes that, notwithstanding the lack of such clarity, the party sanctioned in fact understood the trial court’s intended meaning. This requirement poses a legal question that we will review de novo. Second, the record must establish that the order was in fact violated. This requirement poses a question of fact that we will review using a clearly erroneous standard of review. Third, the sanction imposed must be proportional to the violation. This requirement poses a question of the discretion of the trial court that we will review for abuse of that discretion.” Millbrook Owners Assn., Inc. v. Hamilton Standard, 257 Conn. 1, 17-18, 776 A.2d 1115 (2001). Application of these principles leads us to conclude that the court was within its discretion to render a default judgment.

On January 23, 2006, the court issued the following order to be complied with: “within forty-five days you’re going to provide the presentence investigation information to [the plaintiff] . . . .” The defendants have not contested the clarity of this order on appeal. Nevertheless, we find that this order was abundantly clear and could not have been misunderstood, given the colloquy between the court and the defendants’ attorney at the hearing on January 23, 2006. It is apparent to this court that the defendants’ attorney thoroughly understood the subject of the court’s order as he had anteriorly explained the contents of the report to the court in great detail at that hearing.

We cannot conclude that the court improperly determined that this January 23, 2006 order was in fact violated by the defendants. “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . Because it is the trial court’s function to weigh the evidence and determine credibility, we give great deference to its findings. . . . In reviewing factual findings, [w]e do not examine the record to determine whether the [court] could have reached a conclusion other than the one reached. . . . Instead, we make every reasonable presumption . . . in favor of the trial court’s ruling.” (Internal quotation marks omitted.) Stevenson Lumber Co.-Suffield, Inc. v. Chase Associates, Inc., 284 Conn. 205, 216-17, 932 A.2d 401 (2007).

It is uncontested that the defendants failed to provide a copy of the report to the plaintiff and, thus, violated the January 23, 2006 order. Instead, the defendants’ attorney provided the information contained within the report “to the extent that [he] was able to obtain that information,” and the defendants now argue that the information as provided was in substantial compliance with the January 23, 2006 order. Even if substantial compliance were adequate to satisfy the requirements of Millbrook Owners Assn., Inc., however, we cannot conclude that the submission was even in substantial compliance with the January 23, 2006 order.

On the basis of the express representation of the defendants’ attorney, compliance with the January 23, 2006 order contemplated disclosure of “a thick report, which would have every property owned by [the defendants], however owned, in New York State, in Connecticut, anywhere in the [United States], with documentation, because you have to give [the United States Probation Office] copies of the deeds . . . copies of the bank statements, with actual backup documentation.” Although that which was produced did include a listing of securities, real estate, personal property and bank accounts owned by the defendants, supporting documentation was wholly lacking. The court also was quick to recognize that the submission did not include a net worth statement, which the court had viewed as a noteworthy portion of the January 23, 2006 order. Further, the court considered the representation of the plaintiffs attorney that the defendants had not disclosed all outstanding civil actions pending against them and also had failed to include real estate holdings accurately as reflected in municipal land records. In light of the foregoing, we conclude that it was not clear error on the part of the court to have found that the defendants had failed to comply with its January 23, 2006 order.

The issue of whether the court’s rendition of a default judgment was proportional to the defendants’ violation presents a more difficult question. In determining the proportionality of a sanction to a violation, we have in the past considered the severity of the sanction imposed and the materiality of the evidence sought; Message Center Management, Inc. v. Shell Oil Products Co., 85 Conn. App. 401, 412, 857 A.2d 936 (2004); whether the violation was inadvertent or wilful; McVerry v. Charash, 96 Conn. App. 589, 598, 901 A.2d 69, cert. denied, 280 Conn. 934, 909 A.2d 961 (2006); see Blinkoff v. O & G Industries, Inc., 89 Conn. App. 251, 259, 873 A.2d 1009, cert. denied, 275 Conn. 907, 882 A.2d 668 (2005); and whether the absence of the sanction would result in prejudice to the party seeking the sanction. Advanced Financial Services, Inc. v. Associated Appraisal Services, Inc., 79 Conn. App. 22, 47, 830 A.2d 240 (2003). Upon considering each of these factors, we conclude that the court did not abuse its discretion in rendering a default judgment.

We recognize that the discovery sanction imposed by the court, a default judgment, is the most severe a court may impose. We further recognize that the evidence sought by the plaintiff, disclosure of the defendants’ assets, is immaterial to the determination of liability in what essentially amounts to a collections case. Nonetheless, we conclude that the court was well within its discretion to issue a sanction of last resort, given the attendant circumstances. In coming to this conclusion, we place particular emphasis on the defendants’ conduct leading to their violation of the court’s January 23, 2006 order, as well as our conclusion that the plaintiff would have been prejudiced absent the sanction as imposed.

The defendants’ conduct leading to their noncompliance with the court’s January 23, 2006 order demonstrates that this noncompliance was most certainly wilful. The defendants had first been ordered to disclose documents on August 22, 2005, close to eight months prior to the court’s rendering of the default judgment. The defendants thereafter engaged in a pattern of delay tactics, which involved entirely failing to attend one deposition, withholding documents and other information from their own attorney and the wholesale failure to produce a single asset related document for nearly eight months. Furthermore, at the hearing on April 10, 2006, the defendants did not attempt to set forth any good faith reason for their noncompliance. Instead, the defendants’ attorney disclosed relevant documents “to the extent that [he] was able to obtain that information.” On the basis of the defendants’ nonchalant attitude toward the court’s August 23 and November 14, 2005 discovery orders, it would be difficult for us to conclude that the defendants’ violation of the January 23, 2006 order was anything but wilful.

Additionally, prejudice to the plaintiff would have resulted from the failure to impose a default judgment. The court stated, and we agree, that alternative sanctions would have been unlikely to result in the disclosure of the documents at issue. The defendants are involved in complex bankruptcy and federal criminal tax and financial proceedings. Absent the sanction of a default judgment, by the time the plaintiff may have been made aware of the defendants’ assets, if at all, his prejudgment remedy, and any favorable judgment obtained at trial, may well have become impossible for the plaintiff to enforce.

For the foregoing reasons, we conclude that the sanction imposed by the court was not disproportionate to the violation and, thus, did not amount to an abuse of discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court denied, without prejudice, the plaintiffs request for entry of judgment and granted his request for attorney’s fees through August 22,2005.

       The report was being prepared in connection with the ongoing, unrelated federal criminal tax and financial prosecution of the defendants.

       We note that although the judgment amount differs from that granted via prejudgment remedy, and no explanation for this difference appears in the record, none of the parties has challenged this difference.

       Practice Book § 13-14 (a) provides in relevant part that “[i]f any party has . . . failed to respond to requests for production ... or has failed to comply with a discovery order made pursuant to Section 13-13 ... or has failed to appear and testify at a deposition duly noticed pursuant to this chapter, or has failed otherwise substantially to comply with any other discovery order made pursuant to Sections 13-6 through 13-11, the judicial authority may, on motion, make such order as the ends of justice require.”
      Practice Book § 13-14 (b) then provides in relevant part: “Such orders may include the following:
      “(1) The entry of a nonsuit or default against the party failing to comply ----”

       We note that the calculation of damages generally occurs at a hearing in damages, held after the entry of a default but prior to the rendition of judgment.

       We also note that the plaintiff, on December 22,2005, submitted amotion, supported by affidavit, for judgment for failure to comply with court-ordered discovery.

       The court later granted an extension to April 10, 2006.

       The defendants provide us with no authority to suggest that substantial compliance with a discovery order would satisfy the requirements of Mill-brook Owners Assn., Inc.

       “[T]he court’s discretion should be exercised mindful of the policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court. . . . Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regal'd to necessary rules of procedure. . . . Therefore, although dismissal of an action is not an abuse of discretion where a party shows a deliberate, contumacious or unwarranted disregard for the court’s authority . . . the court should be reluctant to employ the sanction of dismissal except as a last resort.” (Citations omitted; internal quotation marks omitted.) Millbrook Owners Assn., Inc. v. Hamilton Standard, supra, 257 Conn. 16-17. As “[t]he reasoning of Millbrook Owners Association, Inc., applies equally to nonsuits and dismissals;” Blinkoff v. O & G Industries, Inc., supra, 89 Conn. App. 258; it applies equally to defaults as well.

       The defendants also appeared at a second deposition during which they invoked their fifth amendment privilege against self-incrimination in response to each and every question posed. Although the defendants certainly were entitled to invoke this privilege, we note that “[t]he fifth amendment privilege against self-incrimination . . . does not . . . forbid the drawing of adverse inferences against parties to civil actions [who] refuse to testify in response to probative evidence offered against them.” (Citation omitted.) Olin Corp. v. Castells, 180 Conn. 49, 53, 428 A.2d 319 (1980).

       Alternative sanctions likely would not be effective because the defendants not only had failed to comply with previous discovery orders but also because the court’s prior imposition of sanctions had been ineffective in inducing the defendants’ compliance. Indeed, even after the court imposed the sanction of attorney’s fees on November 14,2005, the defendants continued to conceal documents from their own attorney, the plaintiff and the court.


author:
BISHOP, J.
      BORDEN, J.,

text:
    IN RE SHANAIRA C.

    (AC 28419)
    Bishop, Gruendel and Borden, Js.

      Argued November 13, 2007
    officially released February 12, 2008

      Roseann Canny, for the appellant (intervenor Stephanie E.).

      Patricia B. Johnson, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

      Marcia McCormack, for the appellee (respondent mother).

      Trudy Condio, for the minor child.

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

   Opinion

BISHOP, J.

This appeal arises from a neglect petition that resulted in the commitment of the minor child, Shanaira, to the custody of the petitioner, the commissioner of children and families (commissioner), and the subsequent revocation of that commitment. The intervening former girlfriend of Shanaira’s father, Stephanie E. (intervenor), appeals from the judgment of the trial court revoking the commitment of Shanaira to the custody of the commissioner. On appeal, the intervenor contends that the court (1) violated her due process rights in failing to allow her to introduce evidence at the revocation hearing and (2) abused its discretion in revoking the commitment. We affirm the judgment of the trial court.

The following factual and procedural history is germane to our resolution of the intervenor’s appeal. On March 28, 2006, the commissioner filed a neglect petition and motion for an order of temporary custody of Shanaira on the basis of allegations of medical and educational neglect, as well as domestic violence and drug abuse by the father. The court granted the order. At that time, Shanaira had been residing with her father and his girlfriend, the intervenor. On April 3, 2006, the intervenor filed a motion to intervene, which was granted by the court on May 9, 2006. On July 6, 2006, the intervenor filed a motion to transfer guardianship of Shanaira to herself, and, on September 18, 2006, she filed a motion for visitation. The court consolidated the trial of these motions with the trial of the neglect petition.

After three days of trial, on October 17, 2006, the court adjudicated Shanaira neglected. The court also denied the intervenor’s motions for guardianship and visitation. On November 2, 2006, the court committed Shanaira to the custody of the commissioner. The court continued the matter to December 15, 2006. In doing so, the court expressed its intention to send Shanaira to Florida to live with the respondent mother.

On December 12, 2006, the commissioner filed a motion to revoke the commitment of Shanaira on the ground that reunification with the respondent mother, in Florida, was in the child’s best interest. The motion to revoke was heard on December 15, 2006, and all parties were present. The commissioner submitted to the court a status report, a report from Shanaira’s therapist and a report from the mother’s therapist. The inter-venor opposed the motion to revoke and informed the court that she would be calling witnesses, including her mother and Shanaira’s aunt, who was also the foster mother. The attorney for the minor child also indicated that she had one witness, Shanaira’s schoolteacher. The court allowed testimony from Shanaira’s aunt and teacher. On the basis of the reports submitted by the commissioner, the testimony and the statements of counsel, including that of the intervenor, the court found that revocation of the commitment was in Sha-naira’s best interest and granted sole custody of Sha-naira to the respondent mother. This appeal followed.

Because the respondent mother challenges the inter-venor’s standing to bring this appeal, and such a claim implicates our jurisdiction, we address that issue first. See West Farms Mall, LLC v. West Hartford, 279 Conn. 1, 11 n.6, 901 A.2d 649 (2006). The respondent mother contends that the intervenor does not have standing to bring this appeal challenging the revocation of the commitment of Shanaira because her standing terminated when the court denied her motions for guardianship and visitation and committed Shanaira to the custody of the commissioner. We disagree.

As noted, the intervenor was granted intervenor status on May 9,2006. Practice Book § 35a-4 permits intervention in the dispositional phase of the trial. “Disposition in a neglect petition may take one of a number of forms, including return to parents, return to parents with a protective order, foster care placement, or the initiation of proceedings to terminate parental rights.” (Internal quotation marks omitted.) In re Elisabeth H., 40 Conn. App. 216, 219, 669 A.2d 1246 (1996). “Whether to maintain or revoke the commitment is a dispositional question . . . .” Practice Book § 35a-14 (c).

Here, although the commitment of Shanaira to the custody of the commissioner was a disposition, the court indicated that the commitment was temporary and continued the matter to December 15, 2006, with the stated intention of transferring custody of Shanaira to the respondent mother on that date. The intervenor objected to the revocation of the commitment and the transfer of custody to the respondent mother, contending that it was not in Shanaira’s best interest. Because the revocation of commitment is a step in the dispositional phase of a neglect petition and, in this case, was a necessary step in facilitating the court’s intended disposition, the intervenor was a proper party to that proceeding.

Appellate standing is established “if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected.” (Internal quotation marks omitted.) Hunt v. Guimond, 69 Conn. App. 711, 715, 796 A.2d 588 (2002). Because the court’s ruling revoking the commitment was adverse to the intervenor’s interest in the disposition of the neglect petition, the intervenor has standing to bring this appeal.

The intervenor first claims on appeal that the court violated her due process rights in failing to hold an evidentiary hearing on the motion to revoke the commitment.

“The issue of whether the court violated the defendant’s procedural due process rights is a question of law over which this court’s review is plenary. . . . The fundamental requisite of due process of law is the opportunity to be heard. . . . The hearing must be at a meaningful time and in a meaningful manner. . . . Inquiry into whether particular procedures are constitutionally mandated in a given instance requires adherence to the principle that due process is flexible and calls for such procedural protections as the particular situation demands. . . . There is no per se rule that an evidentiary hearing is required whenever a [property] interest may be affected. Due process ... is not a technical conception with a fixed content unrelated to time, place and circumstances. . . .

“The United States Supreme Court analyzes claims of procedural due process in accordance with the three part test set forth in Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). The Connecticut Supreme Court uses the same test. . . . That test requires a consideration of the private interest that will be affected by the official action, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, and the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” (Citations omitted; internal quotation marks omitted.) GMAC Mortgage Corp. v. Glenn, 103 Conn. App. 264, 273-74, 931 A.2d 290 (2007). “Due process does not mandate full evidentiary hearings on all matters, and not all situations calling for procedural safeguards call for the same kind of procedure. ... So long as the procedure afforded adequately protects the individual interests at stake, there is no reason to impose substantially greater burdens . . . under the guise of due process.” (Citation omitted; internal quotation marks omitted.) Id., 275. “The bottom-line question is whether the denial rendered the [proceeding] fundamentally unfair in view of the Mathews factors.” In re Shaquanna M., 61 Conn. App. 592, 606, 767 A.2d 155 (2001).

As noted, Practice Book § 35a-4 permits intervention in the dispositional phase of a neglect proceeding. In this case, the intervenor participated in every aspect of the neglect proceedings, including the revocation hearing. Over the course of the five days of trial on the neglect petition, the intervenor filed motions, cross-examined witnesses, called witnesses on her behalf and made arguments to the court. On the date that the court considered revocation, however, the record reveals that the nature of the intervenor’s interest in the case had changed because her previously filed motions for guardianship and visitation had been denied. Therefore, although she still had standing to participate in the continuing dispositional phase of the proceeding, her personal interest in the proceeding was diminished.

At the revocation hearing, the intervenor indicated her intention to introduce the testimony of her mother and Shanaira’s foster mother. On the basis of the scant representations made by the intervenor and in the absence of an offer of proof as to the testimony she sought to introduce, we can glean that she intended to show that the child’s behavior had deteriorated since the last hearing. Thus, in seeking to introduce testimony, the intervenor was not attempting to further her personal interests in obtaining guardianship or visitation but, rather, she apparently was trying to prevent custody from being transferred to the respondent mother.

Although the intervenor was not permitted to call witnesses at the revocation hearing as she had requested, the court did hear testimony from Shanaira’s foster mother and teacher. Both witnesses testified, when examined by the court, as to the time period since the last hearing, the same time period that the intervenor sought to address. The intervenor did not at any point indicate that she wanted to question the witnesses further or that she would have presented testimony other than or in addition to that elicited by the court. After hearing this testimony, the court awarded custody of Shanaira to the respondent mother. Under these circumstances, it is not apparent that permitting the intervenor’s mother to testify or allowing the intervenor to introduce the testimony of Shanaira’s foster mother herself would have elicited any facts that were not already before the court. On this basis, and mindful of the diminished personal interest of the intervenor following the denial of her motions for guardianship and visitation, we do not find an erroneous deprivation of due process in refusing her request to call her own witnesses. We, therefore, conclude that the court afforded the intervenor all the process that she was due.

The intervenor next claims that the court abused its discretion in revoking the commitment because it failed to make a finding that a cause for commitment no longer existed. We are not persuaded.

Our review of this claim is controlled by General Statutes § 46b-129 (m), which provides in relevant part: “The commissioner, a parent or the child’s attorney may file a motion to revoke a commitment, and, upon finding that cause for commitment no longer exists, and that such revocation is in the best interests of such child or youth, the court may revoke the commitment of any child or youth. . . .” “The burden is clearly upon the persons applying for the revocation of commitment to allege and prove that cause for commitment no longer exists. Once that has been established, the inquiry becomes whether a continuation of the commitment will nevertheless serve the child’s best interests.” (Internal quotation marks omitted.) In re Patricia C., 93 Conn. App. 25, 30, 887 A.2d 929, cert. denied, 277 Conn. 931, 896 A.2d 101 (2006).

“The trial court’s determination ... as to whether to maintain or revoke the commitment is largely premised on that prior adjudication. . . . The court, in determining whether cause for commitment no longer exists, would obviously look to the original cause for commitment to see whether the conduct or circumstances that resulted in commitment continue to exist.

. . . Accordingly, the trial court considers not only the adjudication, but also the attendant facts.” (Citations omitted; internal quotation marks omitted.) In re Allison G., 276 Conn. 146, 160, 883 A.2d 1226 (2005).

“On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. . . . The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous.” (Internal quotation marks omitted.) In re Cameron C., 103 Conn. App. 746, 757, 784 A.2d 979, 930 A.2d 826 (2007).

Here, the intervenor provided this court only with the transcript from the December 15, 2006 hearing. In fact, the intervenor objected to the release of the transcripts of the remainder of the neglect proceeding and, therefore, we are unable to ascertain the court’s specific reasons for committing Shanaira to the custody of the commissioner. We can discern from the neglect petition, however, that the allegations of neglect concerned Shanaira’s father, with whom Shanaira was living at the time the petition was filed. In revoking the commitment of Shanaira to the commissioner, the court talked extensively about the ability of the respondent mother to care for her. Although the court did not explicitly make a finding that the respondent mother’s fitness to care for Shanaira meant that there was no longer a cause for commitment, this is clearly the import of the court’s comments, particularly in light of the court’s finding that it was in the best interest of Shanaira that the commitment be revoked and that sole custody be granted to the respondent mother. Thus, even on the basis of the sparse record provided by the intervenor, we conclude that the court’s conclusion was legally and factually supported.

The judgment is affirmed.

In this opinion GRUENDEL, J., concurred.

BORDEN, J.,

dissenting. I agree with the majority that the intervenor, Stephanie E., has standing to appeal in this case. I disagree, however, with the majority’s conclusion that the intervenor’s due process rights were not violated by the procedures adopted by the trial court in the hearing on the motion by the petitioner, the commissioner of children and families, to revoke the commitment. I would conclude that, as both the intervenor and the minor child argue, (1) the court did not provide a proper evidentiary hearing on that motion, as contemplated by General Statutes § 46b-129 (m) and Practice Book § 35a-14 (c), and (2) the hearing that the court did provide violated the intervenor’s due process rights. I therefore respectfully dissent, and would reverse the judgment of the trial court and remand the case for a new hearing on the petitioner’s motion to revoke commitment.

The following procedural history, some of which is described in the majority opinion, is undisputed between the majority and this dissent. The parties to the proceedings were (1) the petitioner; (2) the minor child, Shanaira C.; (3) the father of the child; (4) the respondent mother of the child, who, at the time of the filing of the petition, was living in Florida; and (5) the intervenor, who was the father’s girlfriend and had been the child’s caretaker for the prior two years while the father and she had been living together. All were represented by counsel.

On March 24, 2006, the petitioner took the child into temporary care and custody pursuant to the ninety-six hour hold provision of General Statutes § 17a-101 (g). On March 28,2006, the petitioner filed a neglect petition and a motion for an order of temporary custody regarding the child, which the court, Dannehy, J., granted ex parte. As a result, the child was removed from the custody of the father. She was placed in the custody of the petitioner and placed in temporary foster care with the mother of the intervenor. On April 3, 2006, the father’s girlfriend, the intervenor, moved to intervene pursuant to Practice Book § 35a-4 (b). On April 7, 2006, the order of temporaiy custody was sustained by agreement. On April 9, 2006, the court, A. Santos, J., granted the intervenor’s motion to intervene on the ground that the child referred to her as the child’s mother, she had cared for the child for the prior two years and that intervention was in the best interest of the child. Thereafter, on September 1, 2006, the child was placed in foster care with her aunt, the father’s sister. On July 5, 2006, the intervenor filed a motion to transfer guardianship of the child to her and, on September 18, 2006, filed a motion for visitation with the child, which the court consolidated for hearing with the hearing on the neglect petition.

The neglect petition and the intervenor’s motions were heard by the court, Hon. William L. Wollenberg, judge trial referee, on September 18 and 21, and October 17, 2006. At the close of evidence on October 17, the court adjudicated the child neglected, denied the inter-venor’s motions and excused the intervenor from the case.

At the next hearing date, November 2,2006, however, pursuant to the petitioner’s motion, the court rescinded its ruling to excuse the intervenor from the case. At the close of evidence on that date, the court ordered the child committed to the custody of the petitioner and indicated its intention to send the child to Florida to live with the respondent mother. The court set December 15,2006, as the next hearing date, and stated: “Unless there’s something that comes that’s drastic, [the child will] be going to Florida. . . . I’m telling you, this is a preview of coming attractions if everything is fine. If I get here ... on [December 15] and this is not the case, then things will take a different turn. But at this point with the evidence I have, I have plenty of evidence to make this decision if things are the same. That’s what I want to find out.” On December 12, 2006, the petitioner filed a motion to revoke the commitment on the ground that reunification of the child with the respondent mother was in her best interest and that the cause for commitment no longer existed. Accordingly, the petitioner moved that the court revoke the commitment and restore guardianship of the child to the respondent mother.

On December 15,2006, all parties were in attendance. Before the court were (1) the in-court review that the court had ordered and (2) the petitioner’s motion to revoke the commitment. When the intervenor stated that she would be calling witnesses regarding the petitioner’s motion to revoke commitment, because that involved, as she stated to the court, “a dispositional hearing,” the court indicated its view that she had been a party only for the purpose of seeking guardianship, which the court had denied. The intervenor, in response, stated that she was “a party, this is a disposi-tional hearing, and we argue that we have a right to call witnesses, and we have a right to argue whether this is in the best interest of the child” and that “this is a revocation of commitment, [t]his is a hearing, we have witnesses.” (Emphasis added.) The intervenor then stated that she would be “[b]ringing on witnesses to show that there has been a terrible decline in this child’s behavior and her schoolwork,” that “[w]e have new evidence, Your Honor, and I remember you saying the last time we were here that it would be likely that you may revoke the commitment. Not that you automatically were, barring some significant issues that may have arisen, and we believe that there have been, Your Honor.” When the court asked the intervenor what witnesses she would be offering, the intervenor said that she intended to offer the child’s foster mother, the inter-venor’s own mother “whom the child has been visiting with,” and with whom the child had originally been placed in temporary foster care from March 28 until September 1, 2006, and that the child’s attorney would be offering the child’s teacher. The intervenor stated, in furtherance of her offer of proof, that “[r]ecently . . . there has been a significant deterioration” in the child’s well-being.

The court ruled that the intervenor had no standing on the basis of its view that her only cognizable interest was her previously denied interest in seeking guardianship of the child. The court stated that it would hear only from the child’s foster mother, who “may make a statement,” and the child’s teacher.

The court then brought the child’s foster mother into the courtroom, and the petitioner clarified that “this is not an examination, correct, Your Honor; she’s making a statement?” The court affirmed that, “[n]o, she’s making a statement, she’s making a statement.” After the foster mother was sworn in, the court addressed her. It told her that she was being asked “to give us a statement . . . it’s as though you were writing a letter to us . . . [l]etting us know how Shanaira is doing . . . and say whatever you want and we’ll bear with you. . . . Don’t be concerned if you have to just rattle things off.” After the foster mother’s statement, the court excused her, without inviting any party to examine her.

The court then brought in the child’s teacher and examined her in a question and answer format. When the court was about to excuse her, the child’s attorney requested that she be permitted to ask “one question that ... I was hoping would be touched on, that wasn’t.” The court stated, “yes, go ahead, I’m going to let you do that.” After a brief series of questions by the child’s attorney and some follow-up questions by the court, the court excused the witness.

The court then invited argument on the petitioner’s motion to revoke commitment. Counsel for the petitioner argued in favor of revocation. Then, counsel for the child and the father offered their arguments opposing revocation. When the intervenor’s counsel asked to do so, the court stated: “Very shortly, madam. I’ll hear you out of respect for you, and that’s all. I don’t think you have standing . . . .” The intervenor’s counsel then made a brief statement.

The court then rendered its decision. It found that it was in the child’s best interest that the commitment to the petitioner be revoked and that sole custody be granted to the respondent mother in Florida. It stated: “The child will be going to Florida with [the respondent mother], . . . And it starts today.” Accordingly, the child left for Florida with the respondent mother before the twenty day appeal period had expired. The interve-nor did not seek a stay and filed her appeal in this case on January 4, 2007. The child has since been living with the respondent mother in Florida.

Although the majority treats the intervenor’s argument on appeal as if it only claimed a violation of due process, I read the claim as in two parts, namely, that the court did not provide a proper evidentiary hearing, as required by (1) statute and the rules of practice and (2) due process of law. I agree with the intervenor on both parts of the claim.

I

Preliminarily, I address the court’s determination that the intervenor had no standing in the hearing on the petitioner’s motion to revoke commitment because her previous motion for guardianship had been denied. This was incorrect. She had been granted intervenor status, not because she sought guardianship, but because, as the caretaker for the child for the prior two years, to whom the child referred as “mommy,” the court had determined that it was in the best interest of the child that she be permitted to intervene, and at that point there was no indication that she intended to seek guardianship. Indeed, the petitioner subsequently recognized as much by successfully requesting the court to rescind its prior order excusing her from the case following the denial of her motion for guardianship. Moreover, she made it clear at the hearing on the motion to revoke commitment that she sought to advance, not her interest, but that of the child. See Practice Book § 35a-4 (b).

I next note that the hearing on the motion was contested. Thus, whatever informal procedures may be desirably employed in uncontested dispositional hearings in such sensitive matters as the placement of children by the juvenile division of the Superior Court, I know of no statute, rule of practice or principle that permits such procedures to be used in contested hearings. Compare, e.g., General Statutes § 46b-129 (g), which provides for limited use of hearsay evidence at a contested hearing on an order for temporary custody.

Although, I recognize that the court had heard considerable evidence in the adjudicatory phase of the proceeding and had clearly indicated its intention to send the child to Florida to live with the respondent mother, that did not permit the court to dispense with the procedural requirements attendant on a motion to revoke commitment, absent agreement by all the interested parties. Moreover, the court’s indicated intention was explicitly conditional on whether new evidence would be produced, which the intervenor sought to bring to the court’s attention, and the court did not explicitly say that it intended to grant full guardianship to the respondent mother without any judicial oversight.

II

With this background in mind, I turn to the interve-nor’s claim that the court was required by statute and Practice Book rule to conduct a proper evidentiary hearing on the petitioner’s motion to revoke commitment. It is axiomatic that the court must conduct an evidentiary hearing on a motion for an order of temporary commitment. The requirement for such a hearing is implicit in the statutory scheme for such a motion; see General Statutes § 46b-129 (b) through (j); by our case law; see, e.g., In re Juvenile Appeal (83-CD), 189 Conn. 276, 295, 455 A.2d 1313 (1983); In re Brianna C., 98 Conn. App. 797, 804, 912 A.2d 505 (2006); and by our rules of practice; see, e.g., Practice Book §§ 35a-7, 35a-8 and 35a-9. Indeed, it is unthinkable that our law would not require such a hearing for such sensitive and important factual determinations as whether a child has been neglected and where the child’s best interest lies.

The same is true, therefore, for the factual determinations that accompany a ruling on a motion to revoke commitment. It is equally unthinkable that a court would be permitted to determine that the cause for a prior commitment no longer exists and that the best interest of a child requires a different placement without an evidentiary hearing, at least when those sensitive facts are contested. Although § 46b-129 (m), which governs revocation of commitments is quite brief, its requirements of the court’s “finding that cause for commitment no longer exists, and that such revocation is in the best interests of such child” imply a similar evidentiary hearing. Our case law clearly implies the same. See In re Patricia C., 93 Conn. App. 25, 30, 887 A.2d 929 (in revocation of commitment proceeding, burden of proof is on movant to prove that cause for commitment no longer exists; once that is established, question is what placement is in child’s best interest), cert. denied, 277 Conn. 931, 896 A.2d 101 (2006); see also In re Nasia B., 98 Conn. App. 319, 330, 908 A.2d 1090 (in revocation of commitment proceeding, court must follow mandate of statute). Our Practice Book provision makes it even clearer. Practice Book § 35a-14 (c), which governs proceedings on motions to revoke commitment, explicitly provides that such a proceeding “is a dispositional question” and allocates the varying burdens of proof on the questions of whether the original cause for commitment still exists and what is in the best interest of the child. It is obvious that allocations of burdens of proof imply an evidentiary hearing.

The hearing provided by the court lacked the fundamental hallmarks of a proper evidentiary hearing, namely, the right to present witnesses and to examine the witnesses who did testify. The intervenor was not permitted to bring forth or question witnesses, including one witness, the intervenor’s mother, who never testified. The intervenor was not permitted to question the witnesses who did testify. The court, with limited exceptions, conducted all of the examinations of those witnesses who were brought forth, and the intervenor was not permitted even to ask follow-up questions. This simply was not a proper evidentiary hearing as our law knows it.

Ill

Although in my view this conclusion would resolve this appeal, I nonetheless address the due process analysis employed by the majority because of its conclusion that the hearing comported with due process. Although I agree with the majority that the three part test articulated in Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), applies, I disagree with how the majority applied it in this case. In my view, the proper application of the Mathews test compels the conclusion that a proper evidentiary hearing was required.

The first part of the Mathews test requires consideration of the private interest that will be affected by the official action. In my view, the majority has misidentified the interest at stake here. That private interest was not, as the majority suggests, the intervenor’s interest in obtaining guardianship or custody of the child. As the majority correctly notes, that had already been determined by the court. She had been permitted to intervene premised on the child’s best interest. That premise did not disappear simply because she also unsuccessfully sought to gain custody of the child. Thus, the private interest at stake in the dispositional hearing on the petitioner’s motion to revoke commitment was, instead, the best interest of the child. It is clear from the transcript that, as a factual matter, that was what the intervenor was seeking to protect in the dispositional revocation hearing, and it is even clearer that, as a legal matter, that was what was at stake in that hearing. The intervenor’s interest in the best interest of the child did not end or diminish with the adverse determination of the intervenor’s attempt to gain guardianship of the child, as the majority suggests. There can be few more important private interests than this, and, therefore, the accuracy of the fact-finding process is extremely important. That accuracy can best be effectuated by a traditional evidentiary hearing, with the right to present and examine witnesses. As Professor Wigmore has famously stated, cross-examination “is beyond any doubt the greatest legal engine ever invented for the discovery of truth.” 5 J. Wigmore (Chadboum Rev. Ed. 1974) § 1367, p. 32.

The second factor is the risk of an erroneous deprivation of such interest through the procedures used and the probable value of additional or substitute procedural safeguards. This factor, also, persuasively points to the necessity of a properly conducted evidentiary hearing. The risk of harm to a child arising from an erroneous determination of the best interest of that child is obvious, as is the value of the additional procedural safeguards of the right of an intervenor to present and examine witnesses. The participation of an interve-nor, such as the intervenor here, would reduce the risk of an erroneous determination. The intervenor had been the caretaker of the child for two years, and the witness whom she sought to present had been the child’s foster caretaker for five months and had visited with the child recently. She sought to bring in new evidence, through presentation of the witness and through examination of the current foster mother, of a recent deterioration in the child’s schoolwork and behavior. This was evidence that would have enhanced the reliability of the court’s ultimate decision.

The third factor is the petitioner’s interest, including the function involved and the fiscal and administrative burdens that the additional procedural safeguards would entail. This factor also points persuasively in favor of a full evidentiary hearing. The petitioner’s interest was also the best interest of the child, and it would have entailed veiy little administrative burden for the court to engage in what would normally be expected, namely, a proper evidentiary hearing. All that would have been involved would have been to permit the inter-venor to present her mother as a witness and to examine the witnesses who did testify. Generally, the administrative costs involved would be those associated with allowing an intervenor to present evidence, to call witnesses and to cross-examine the witnesses of others. Given the broad discretion that the court is authorized to exercise in evidentiary matters, so as to exclude unduly repetitious and only marginally relevant material, it is difficult to see, in light of what was at stake, how allowing an intervenor to participate fully in a proper evidentiary hearing could be deemed an excessive administrative burden.

I would, therefore, reverse the judgment and order a new dispositional hearing on the petitioner’s motion to revoke commitment. I recognize, however, that the child has now been living in Florida with the respondent mother for more than one year. It would be blinking at reality and would be inconsistent with the goal of such a hearing, namely, to determine the child’s best interest, to ignore that fact. I would, therefore, also order that the dispositional hearing focus on the present status of the child and what is in her best interest at the time of the new hearing.

       The neglect petition named both the child’s father and mother as respondents. Because only the respondent mother has participated in this appeal, we refer to her as the respondent.

       The intervenor subsequently filed a motion for reargument or reconsideration of her motions, which was denied on November 13, 2006. The intervenor did not appeal from that ruling to this court.

       Practice Book § 35a-4 provides in relevant part: “(b) Other persons including, but not limited to, siblings may move to intervene in the dispositional phase of the trial and the judicial authority may grant said motion if it determines that such intervention is in the best interest of the child or in the interests of justice.
      “(c) In making a determination upon a motion to intervene by any other applicant, the judicial authority shall consider:
      “(1) the timeliness of the motion as judged by all the circumstances of the case;
      “(2) whether the applicant has a direct and immediate interest in the case;
      “(3) whether the applicant’s interest is not adequately represented by existing parties;

        “(4) whether the intervention may cause delay in the proceedings or other prejudice to the existing parties;
      “(5) the necessity for or value of the intervention in terms of- resolving the controversy before the judicial authority.
      “(d) Upon the granting of such motion, such grandparent or other applicant may appear by counsel or in person. Intervenors are responsible for obtaining their own counsel and are not entitled to appointment of counsel at state expense by the court.”

       We note that although the judicial form for intervention refers to General Statutes §§ 46b-129 (c) and 46b-57, Practice Book § 35a-4, which took effect January 1, 2003, is the pertinent rule governing the intervention in this case.

       In support of her contention that she had a right to call her own witnesses, the intervenor repeatedly relied on the fact that the foster mother has a statutory right to be heard in a revocation proceeding. Although the interve-nor is correct in this regard, counsel for the intervenor did not represent the foster mother at the hearing, and there is no authority for the proposition that she had a due process right to call her as her own witness.

       After indicating that it would hear the testimony of Shanaira’s foster mother and teacher, the court inquired of the parties whether there was “anything else before we proceed?” The intervenor did not respond or object.

       Although it is not noted in the majority opinion, the minor child adopted the arguments of the intervenor in this appeal.

       General Statutes § 46b-129 (m) provides: “The commissioner, a parent or the child’s attorney may file a motion to revoke a commitment, and, upon finding that cause for commitment no longer exists, and that such revocation is in the best interests of such child or youth, the court may revoke the commitment of such child or youth. No such motion shall be filed more often than once every six months.”

       Practice Book § 35a-14 (c) provides: “Whether to maintain or revoke the commitment is a dispositional question, based on the prior adjudication, and the judicial authority shall determine whether it is in the best interest of the child to maintain or revoke upon a fair preponderance of the evidence. The party seeking to maintain the commitment has the burden of proof that it is in the best interest of the child to maintain the commitment. The party seeking revocation of commitment has the burden of proof that no cause for commitment exists. If the burden is met, the party opposing the revocation has the burden of proof that revocation would not be in the best interest of the child. If a motion for revocation is denied, a new motion shall not be filed by the movant until at least six months has elapsed from the date of the filing of the prior motion unless waived by the judicial authority.”

       Because I conclude that the dispositional hearing was both statutorily and constitutionally inadequate, I do not reach the question of whether the evidence supported the court’s revocation of commitment.

       Although the father’s girlfriend did not intervene until April 9, 2006, as I will discuss, for purposes of consistency and clarity I refer to her as the intervenor throughout this opinion.

       Practice Book § 35a-4 (b) provides: “Other persons including, but not limited to, siblings may move to intervene in the dispositional phase of the trial and the judicial authority may grant said motion if it determines that such intervention is in the best interest of the child or in the interests of justice.”

       The petitioner stated to the court that “the court is the sole judge of the evidence, the court controls how much evidence it hears, when to close evidence.”

       General Statutes § 46b-129 (g) provides: “At a contested hearing on the order for temporary custody or order to appear, credible hearsay evidence regarding statements of the child or youth made to a mandated reporter or to a parent may be offered by the parties and admitted by the court upon a finding that the statement is rehable and trustworthy and that admission of such statement is reasonably necessary. A signed statement executed by a mandated reporter under oath may be admitted by the court without the need for the mandated reporter to appear and testily unless called by a respondent or the child, provided the statement: (1) Was provided at the preliminary hearing and promptly upon request to any counsel appearing after the preliminary hearing; (2) reasonably describes the qualifications of the reporter and the nature of his contact with the child; and (3) contains only the direct observations of the reporter, and statements made to the reporter that would be admissible if the reporter were to testify to them in court and any opinions reasonably based thereupon. If a respondent or the child gives notice at the preliminary hearing that he intends to cross-examine the reporter, the person filing the petition shall make the reporter available for such examination at the contested hearing.”

       Indeed, both the intervenor and the child’s counsel unsuccessfully sought to persuade the court to have the child governed by an interstate compact arrangement by virtue of which there would be such oversight.

       Practice Book § 35a-7 provides: “(a) In the adjudicatory phase, the judicial authority is limited to evidence of events preceding the filing of the petition or the latest amendment, except where the judicial authority must consider subsequent events as part of its determination as to the existence of a ground for termination of parental rights.
      “(b) In the discretion of the judicial authority, evidence on adjudication and disposition may be heard in a non-bifurcated hearing, provided disposition may not be considered until the adjudicatory phase has concluded.”
      Practice Book § 35a-8, which governs the burden of proof, provides: “(a) The petitioner shall be prepared to substantiate the allegations of the petition. If a custodial parent fails to appear, the judicial authority may default that parent, evidence may be introduced and judgment rendered. In the event of a coterminous hearing, the judicial authority shall ensure that the parents are given adequate time to appear.
      “(b) The clerk shall give notice by mail to the defaulted party and the party’s attorney of the default and of any action taken by the judicial authority. The clerk shall note on the docket the date that such notice is given or mailed.”
      Practice Book § 35a-9, which governs admissibility of evidence at the dispositional hearing, provides: “The judicial authority may admit into evidence any testimony relevant and material to the issue of the disposition, including events occurring through the close of the evidentiary hearing, but no disposition may be made by the judicial authority until any mandated social study has been submitted to the judicial authority. Said study shall be marked as an exhibit subject to the right of any party to require that the author, if available, appear for cross-examination.”

       See footnote 2.

       See footnote 3.

       The majority suggests that the intervenor did not ask to do so. It is clear that such a request would have been futile because the court had made clear its view that she had no standing in the proceeding.

       Indeed, the majority does not appear' even to apply the second and third parts of the Mathews test.


author: GRUENDEL, J.

text:
    MITCHEL A. DAVIS v. ANNA HEBERT ANNA HEBERT v. YOLANDA DAVIS
    (AC 28310)
    DiPentima, Gruendel and Borden, Js.
    Argued October 22, 2007
    officially released February 12, 2008

      Jenna N. Sternberg, for the appellant (defendant in the first case, plaintiff in the second case).

      William J. O’Sullivan, for the appellees (plaintiff in the first case and defendant in the second case).
   Opinion

GRUENDEL, J.

Anna Hebert, the defendant in the first case and the plaintiff in the second case (hereinafter the plaintiff), appeals from the judgment of the trial court rendered following the granting of the motion by Yolanda Davis, the defendant in the second case, and Mitchel A. Davis, the plaintiff in the first case, (hereinafter the defendants) to restore consolidated cases to the docket and to compel settlement. She claims that the court improperly made a finding of mutual mistake sufficient to restore the withdrawn consolidated cases to the docket. We reverse the judgment of the trial court.

The following facts are relevant to the plaintiffs appeal. The plaintiff owned a home in Enfield. At some point, the plaintiff transferred the home by quitclaim deed to her daughter, Yolanda Davis, and subsequently moved into an apartment in Manchester then owned by Yolanda Davis’ husband, Mitchel Davis. In April, 2005, Mitchel Davis filed an eviction action against the plaintiff for failure to pay rent. In response, the plaintiff filed an answer to the eviction complaint and filed a separate action against her daughter for the return of the Enfield home to the plaintiff. Yolanda Davis filed a response with special defenses as well as a counterclaim to this action.

On August 10, 2005, the court granted a motion to consolidate the two cases. Prior to the commencement of the trial, the parties entered into a settlement agreement, and all parties filed withdrawals of their actions. The settlement agreement provided, inter alia, that Yolanda Davis would quitclaim her interest in the Enfield property to the plaintiff so that the plaintiff could reestablish it as her home. It also provided that the plaintiff would file a petition in bankruptcy so as to avoid as much debt as possible against the Enfield property. Furthermore, it provided that “[u]pon obtaining a final nonappealable order avoiding all possible judgment liens against the Enfield property, which date is anticipated by the parties to be on or about ninety (90) days after [the plaintiff] receives her discharge in bankruptcy, [the plaintiff] will thereupon without protest, objection or delay, vacate the Enfield property. [The defendants] will also immediately thereupon take all necessary and appropriate steps to sell the Enfield [property.”

Approximately nine months after the settlement agreement was entered into and the actions were withdrawn, the defendants received a letter from the plaintiff indicating that she was not interested in selling her Enfield home or moving. In response, the defendants moved the court to compel the settlement agreement. The plaintiff objected to the motion to compel, as the actions were withdrawn and the court no longer had jurisdiction over the parties absent a motion to restore the consolidated cases to the docket. In response to the plaintiffs objection, the defendants filed a motion to restore the cases to the docket and then filed a supplemental motion to restore the cases to the docket and to compel the settlement agreement. The plaintiff filed an objection to the defendants’ motions, arguing that the motion to restore the cases to the docket was untimely, as it was filed after the four month limitation set forth in General Statutes § 52-212a. The motions were heard and a decision rendered in which the court found that, although the motions were filed after the four month limitation, the parties had operated under a mutual mistake regarding the timing of resolving the lien issue through bankruptcy. As mutual mistake is an exception to the four month limitation, the court restored the consolidated cases to the docket and compelled the settlement agreement. This appeal followed.

It is well established that “[a] judgment rendered may be opened after the four month limitation [set forth in General Statutes § 52-212a and Practice Book § 17-43] if it is shown that the judgment was obtained by fraud, in the absence of actual consent, or because of mutual mistake.” (Internal quotation marks omitted.) Richards v. Richards, 78 Conn. App. 734, 739, 829 A.2d 60, cert. denied, 266 Conn. 922, 835 A.2d 473 (2003). This court has concluded that withdrawals are analogous to final judgments. See Sicaras v. Hartford, 44 Conn. App. 771, 775-79, 692 A.2d 1290, cert. denied, 241 Conn. 916, 696 A.2d 340 (1997). As such, § 52-212a and its exceptions for fraud, lack of actual consent and mutual mistake apply to restoring cases to the docket as well as to opening final judgments. See id., 778.

In the present case, the defendants filed their motion to restore the consolidated cases to the docket after the four month limitation provided in § 52-212a. The defendants argued that, although they filed their motion outside of the four month limitation period, their motion fit within the mutual mistake exception. The court found that the parties were mutually mistaken regarding the timing for the bankruptcy process to resolve the lien issue in the parties’ settlement agreement. On the basis of this finding of mutual mistake, the court restored the cases to the docket and compelled the settlement agreement.

“The question of whether a case should be restored to the docket is one of judicial discretion.” Id., 779. “A court’s determinations as to . . . whether there has been a mutual mistake are findings of fact that we will not disturb unless they are clearly erroneous.” (Internal quotation marks omitted.) Terry v. Terry, 102 Conn. App. 215, 223, 925 A.2d 375, cert. denied, 284 Conn. 911, 931 A.2d 934 (2007). “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Doody v. Doody, 99 Conn. App. 512, 517, 914 A.2d 1058 (2007).

“A mutual mistake is one that is common to both parties and effects a result that neither intended.” Inland Wetlands & Watercourses Agency v. Landmark Investment Group, Inc., 218 Conn. 703, 708, 590 A.2d 968 (1991). “[A] unilateral mistake will not be sufficient to [restore the cases to the docket].” (Internal quotation marks omitted.) Richards v. Richards, supra, 78 Conn. App. 740. In the present case, the court determined that the “parties underestimated the time it would take to resolve the lien issue through bankruptcy to allow for the intended sale of the property. This error with respect to the legal consequences arose from ignorance, surprise, imposition or misplaced confidence.” The court made this determination based solely on the settlement agreement. An evidentiary hearing was never held. We conclude that, given the evidence before the court, the finding of mutual mistake was clearly erroneous.

The question before the court, as raised by the defendants in their motion to restore the cases to the docket, was whether both parties were under the mistaken belief that receiving a final, nonappealable order avoiding all possible judgment liens would take no longer than four months from the execution of the settlement agreement. The court concluded that both parties were mistaken about the time it would take to resolve the lien issue because it was not resolved within four months from the time the settlement agreement was entered into but, rather, was resolved on or after July 21, 2006. In other words, the court assumed that both parties intended that the process would take no longer than four months from the execution of the settlement agreement in order to conclude that this intention of the parties was mistaken. There was no evidence before the court to support its conclusion that both parties intended that the entire process would take no longer than four months to be completed. Although the defendants may have been operating based upon this mistaken belief, a unilateral mistake is not sufficient to restore the cases to the docket. See Richards v. Richards, supra 78 Conn. App. 740. The only timetable contemplated by both parties was how soon after the bankruptcy process a final, nonappealable order resolving all liens would be received by the plaintiff. The anticipated time frame would be ninety days from the bankruptcy discharge. This timetable did not include filing for a discharge in bankruptcy and receiving that discharge. Because there is no evidence in the record tending to show that both parties intended that the entire process would take no longer than four months from the execution of the settlement agreement, the court’s finding that the parties were mutually mistaken about this intention is clearly erroneous.

The judgment is reversed and the case is remanded with direction to deny the defendants’ motion to restore the consolidated cases to the docket and to compel settlement.

In this opinion the other judges concurred.

       The plaintiff also claims that the court improperly enforced the parties’ settlement agreement and ordered the eviction of the plaintiff. We need not address these issues in light of the plaintiffs principal claim.
      In addition, the plaintiff claims that the court lacked authority to hear the motion to restore the cases to the docket and compel settlement because the motion was filed by facsimile and appeared not to have included the proper filing fee. We decline to review this claim, as it was briefed inadequately. See Rosier v. Rosier, 103 Conn. App. 338, 340 n.1, 928 A.2d 1228 (“We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . We consistently have held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . [Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court. . . . Where the parties cite no law and provide no analysis of their claims, we do not review such claims.” [Internal quotation marks omitted.]), cert. denied, 284 Conn. 932, 934 A.2d 247 (2007).

       The settlement agreement was not given to the court at the time the parties stipulated that the cases had been settled.

       General Statutes § 52-212a provides in relevant part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. . .

       Following oral argument, the parties were asked to file with this court supplemental briefs on the issue of whether the trial court constitutionally was required to hold an evidentiary hearing prior to determining that a mutual mistake existed. A review of the transcript reveals that any due process right the plaintiff may have had to an evidentiary hearing was waived by the plaintiff.