author: ROBINSON, J.

text:
    ANTHONY VARCHETTA v. COMMISSIONER OF CORRECTION
    (AC 31768)
    Gruendel, Robinson and Pellegrino, Js.

      Argued September 18
    officially released November 19, 2013

      April E. Brodeur, assigned counsel, for the appellant (petitioner).

      Robin S. Schwartz, special deputy assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Brenda L. Hans, assistant state’s attorney, for the appellee (respondent).
   Opinion

ROBINSON, J.

The petitioner, Anthony Varchetta, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his second petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court abused its discretion when it denied his petition for certification to appeal and that he is entitled to habeas relief because the habeas court erred by using the wrong standard to conclude that he was afforded the effective assistance of both trial and habeas counsel. We dismiss the appeal.

The following facts and procedural history are relevant to our resolution of the petitioner’s present appeal. “On July 3, 2003, pursuant to a plea agreement, the petitioner entered a plea of guilty under the Alford doctrine to two counts of sexual assault in the first degree. In accordance with the terms of the plea agreement, the petitioner received an agreed on sentence of twelve years incarceration with thirteen years special parole. Additionally, the state entered a nolle prosequi to the related kidnapping charge and agreed not to charge the petitioner as a persistent dangerous sexual offender, which carries the possibility of a life sentence. At no time during the plea canvass or the sentencing hearing did the petitioner voice any dissatisfaction with the plea agreement or the performance of his attorney. Moreover, the petitioner never asked to withdraw his guilty plea at any time prior to or after the imposition of his sentence.

“On May 16, 2005, the petitioner filed a second amended petition for a writ of habeas corpus. The petitioner claimed, inter alia, that his attorney failed to investigate his case or to adequately advise him and, as such, his plea was not knowing, intelligent and voluntary.” (Footnotes omitted.) Varchetta v. Commissioner of Correction, 104 Conn. App. 357, 358-59, 933 A.2d 1224, cert. denied, 285 Conn. 902, 938 A.2d 594 (2007).

Approximately one week before the petitioner’s first habeas trial, the petitioner’s counsel, Kenneth Fox, filed a motion to amend the second amended petition for a writ of habeas corpus to add a claim of constructive ineffective assistance of counsel pursuant to United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). The habeas court, T. Santos, J., denied the motion and the case proceeded to trial. The habeas court found no basis for the petitioner’s claims, denied his petition for a writ of habeas corpus, and granted certification to appeal. This court affirmed the habeas court’s judgment. Varchetta v. Commissioner of Correction, supra, 104 Conn. App. 360.

On January 2, 2009, the petitioner filed a third amended petition for a writ of habeas corpus in the present action, alleging ineffective assistance of his prior habeas counsel. The petitioner also alleged that he was constructively denied effective assistance of counsel during critical pretrial stages of his trial pursuant to United States v. Cronic, supra, 466 U.S. 648. After a two day hearing, the habeas court, Nazzaro, J., rendered an oral decision from the bench, and found that none of the petitioner’s various trial counsel or habeas counsel had rendered deficient performance. The habeas court also found that, even if there was deficient performance, the petitioner was not prejudiced. The habeas court then concluded that the petitioner was afforded the effective assistance of both trial and habeas counsel, and, accordingly, denied the petitioner’s third amended petition for a writ of habeas corpus. Thereafter, the petitioner requested certification to appeal from the judgment of the habeas court.

In his petition for certification to appeal, the petitioner claimed that the habeas court erred by denying his claim that his prior habeas counsel had rendered ineffective assistance by failing to amend his complaint to include a Cronic claim as to the petitioner’s trial counsel. Further, the petitioner claimed that the habeas court failed to weigh the evidence properly pertaining to the petitioner’s claim of ineffective assistance of his trial counsel. On December 3, 2009, the habeas court denied the petition for certification to appeal. This appeal followed.

Our standard of review is well established. “[I]f either the petitioner or the respondent is denied a timely request for certification to appeal from a habeas court’s judgment, such review may subsequently be obtained only if the appellant can demonstrate that the denial constituted an abuse of discretion. . . . We recognize that [i]n enacting [General Statutes] § 62-470 (b), the legislature intended to discourage frivolous habeas appeals. ... A habeas appeal that satisfies one of the criteria set forth in Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 966 (1991), is not, however, frivolous and warrants appellate review if the appellant can show: that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . . [I]f an appeal is not frivolous, the habeas court’s failure to grant certification to appeal is an abuse of discretion.” (Internal quotation marks omitted.) Taylor v. Commissioner of Correction, 284 Conn. 433, 448, 936 A.2d 611 (2007).

“In determining whether the habeas court abused its discretion in denying the petitioner’s request for certification, we necessarily must consider the merits of the petitioner’s underlying claims to determine whether the habeas court reasonably determined that the petitioner’s appeal was frivolous. In other words, we review the petitioner’s substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria identified in Lozadct and adopted by this court for determining the propriety of the habeas court’s denial of the petition for certification. Absent such a showing by the petitioner, the judgment of the habeas court must be affirmed.” Id., 449.

“As to [a review] on the merits, [t]he standard of review of a habeas court’s denial of a petition for a writ of habeas corpus that is based on a claim of ineffective assistance of counsel is well settled. To prevail on a claim of ineffective assistance of counsel, a habeas petitioner generally must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).” (Internal quotation marks omitted.) Nicholson v. Commissioner of Correction, 93 Conn. App. 116, 119, 887 A.2d 963, cert. denied, 277 Conn. 926, 895 A.2d 799 (2006). “To satisfy the performance prong . . . the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. ... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . The claim will succeed only if both prongs are satisfied.'' (Emphasis added; internal quotation marks omitted.) Gonzalez v. Commissioner of Correction, 145 Conn. App. 16, 21, 75 A.3d 705 (2013).

The petitioner claims on appeal that the habeas court erred by using the incorrect standard to determine whether he was afforded the effective assistance of both trial and habeas counsel. He argues that the habeas court erred by requiring him to show that he would have been in a more favorable position if he had gone to trial than he was in taking the plea. Additionally, the petitioner argues that the court erred by requiring him to show that he would have been in a better position if he had been allowed to amend his petition for a writ of habeas corpus.

Both of the petitioner’s arguments challenge the habeas court’s application of the prejudice prong of the Strickland test. The petitioner, however, has failed to challenge the habeas court’s findings regarding his failure to prove any deficient performance of his trial and habeas counsel. Even if the petitioner were to prevail on his claim that the habeas court used the improper standard to determine prejudice, the habeas court’s unchallenged findings that he failed to prove deficient performance would stand. This court, therefore, would not be able to afford him any practical relief because the petitioner must prove both deficient performance and prejudice in order to establish his ineffective assistance of counsel claim. See Kearney v. Commissioner of Correction, 113 Conn. App. 223, 229, 965 A.2d 608 (2009) (court may dismiss petitioner’s claim if he fails to establish either prong). Because the petitioner’s claim fails as a matter of law, we cannot conclude that the issue presented in this appeal is debatable among jurists of reason, that a court could resolve it in a different manner, or that the question raised deserves encouragement to proceed further. We, therefore, conclude that the petitioner has failed to establish that the court abused its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       In his brief, the petitioner also claims that, in his first habeas action, the habeas court, T. Santos, J., used the wrong standard to conclude that the petitioner was afforded the effective assistance of trial counsel. The petitioner has already litigated in this court the first habeas court’s ruling regarding his ineffective assistance of trial counsel claim, and we affirmed the habeas court’s decision in Varchetta v. Commissioner of Correction, 104 Conn. App. 357, 359-60, 933 A.2d 1224, cert. denied, 285 Conn. 902, 938 A.2d 594 (2007). Any claim of error pertaining to the court’s judgment in the first habeas action should have been raised in the prior appeal. We, therefore, will not address the petitioner’s additional claim. See In re Application for Writ of Habeas Corpus by Dan Ross, 272 Conn. 653, 661, 866 A.2d 542 (2005) (“a party should not be able to relitigate a matter that it already has had a fair and full opportunity to litigate”).

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       The petitioner had two prior sexual assault convictions and a total of approximately nineteen other convictions.

       The petitioner claimed that his habeas counsel failed to (1) prepare adequately for the habeas trial; (2) meet with the petitioner; (3) conduct adequate legal research; (4) timely amend the petition for a writ of habeas corpus; (5) adequately investigate the petitioner’s claims; (6) present information in support of the petitioner’s Cronie claim; and (7) present certain information in support of the petitioner’s claim that his trial counsel was ineffective.

       The petitioner also claimed in his petition for certification that the habeas court abused its discretion by finding that his claim of constructive ineffective assistance of counsel did not warrant review. The petitioner, however, did not advance this claim on appeal.

       The respondent, the Commissioner of Correction, argues that we should dismiss the petitioner’s claim because it is unpreserved, as the petitioner did not raise it in his petition for certification to appeal. In response, the petitioner argues that he is nonetheless entitled to review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Because we have determined that the petitioner’s claims would fail as a matter of law, assuming they were properly preserved for appeal, we need not address these additional arguments.


source: Caselaw Access Project

author: ALVORD, J.

license: Public Domain

text:
    IN RE ETTA H. ET AL.

    (AC 35531)
    DiPentima, C. J., and Alvord and Sullivan, Js.

      Argued September 11
    officially released November 6, 2013

      Alison P. Gaston, with whom, on the brief, was Erich H. Gaston, for the appellant (respondent mother).

      Susan T. Pearlman, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Benjamin Zivyon and Karrol-Ann Brown, assistant attorneys general, for the appellee (petitioner).

      Ingrid E. Swanson, for the minor children.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79a-12, 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.

       November 6, 2013, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

ALVORD, J.

The respondent mother (mother) appeals from the judgments of the trial court terminating her parental rights as to her minor child Etta H. (Etta), adjudicating her minor child Queensara H. (Queensara), neglected, and committing Queensara to the custody of the petitioner, the Commissioner of Children and Families (commissioner). On appeal, the mother claims that, with respect to Etta, the court made clearly erroneous factual findings that: (1) the Department of Children and Families (department) made reasonable efforts to reunify the mother and Etta; (2) the mother is unable or unwilling to benefit from reunification efforts; (3) the mother failed to achieve sufficient personal rehabilitation under General Statutes § 17a-112 (j) (3) (B); and (4) termination of the mother’s parental rights is in Etta’s best interests. With respect to Queensara, the mother argues that: (1) the court made a clearly erroneous factual finding that Queensara is a neglected child; and (2) the court’s finding that committing Queensara to the care and custody of the commissioner is in Queensara’s best interests was a clear abuse of the court’s discretion. We affirm the judgments of the trial court.

The record reveals the following relevant facts and procedural history. Etta was bom in December, 2009. A referral to the department followed the mother’s arrest in February, 2010, for assault and breach of the peace arising out of an altercation with the father, for which Etta was present. The commissioner filed an order of temporary custody of Etta in May, 2010, on the basis of another domestic violence incident between the mother and the father. Etta was committed to the care and custody of the commissioner in August, 2010. She has been in her current foster placement since November, 2010. On July 27, 2011, the commissioner filed a petition pursuant to General Statutes § 17a-112 to terminate the parental rights of the mother for failure to achieve a sufficient degree of personal rehabilitation as to Etta.

Queensara was bom in late September, 2011. On October 5, 2011, the commissioner filed a petition pursuant to General Statutes § 46b-129, alleging that Queensara was neglected in that she was permitted to live under conditions, circumstances, or associations injurious to her well-being. The commissioner also filed an order for temporary custody. Queensara was placed in the same foster home as her sister, Etta, in October, 2011.

On January 30, 2012, the court, Gilligan, J., granted the commissioner’s motion to consolidate the two petitions for proposes of trial. Following six days of testimony from eleven individuals over the course of eight months, the court, Brown, J., issued a memorandum of decision on February 22, 2013, and rendered judgments terminating the mother’s parental rights as to Etta, adjudicating Queensara neglected, and committing Queensara to the custody and care of the commissioner. This appeal followed.

I

We first address the mother’s claims regarding the termination of her parental rights as to Etta. “A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. ... In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights [under § 17a-112 (j)] exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase ... [in which] the trial court determines whether termination is in the best interests of the child.” (Internal quotation marks omitted.) In re Jah’za G., 141 Conn. App. 15, 30, 60 A.3d 392, cert. denied, 308 Conn. 926, 64 A.3d 392 (2013).

“Our standard of review on appeal from a termination of parental rights is limited to whether the challenged findings are clearly erroneous .... A finding is clearly erroneous when either there is no evidence in the record to support it, or the reviewing court is left with the definite and firm conviction that a mistake has been made. . . . [G]reat weight is given to the judgment of the trial court because of [the trial court’s] opportunity to observe the parties and the evidence .... [An appellate court does] not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. . . . [Rather] every reasonable presumption is made in favor of the trial court’s ruling.” (Internal quotation marks omitted.) In re Kamal R., 142 Conn. App. 66, 69-70, 62 A.3d 1177 (2013).

A

We address the mother’s first two claims together. The mother challenges the court’s finding that the department made reasonable efforts to reunify the mother and Etta, and emphasizes the lack of “at home” and overnight visits with Etta in support of her argument. She also contends that she consistently has engaged with services and sought appropriate treatment and, therefore, the court erred in finding that she is unable or unwilling to benefit from reunification efforts. We do not find her arguments persuasive.

“In order to terminate parental rights under § 17a-112 (j), the department is required to prove, by clear and convincing evidence, that it has made reasonable efforts ... to reunify the child with the parent, unless the court finds . . . that the parent is unable or unwilling to benefit from reunification .... [Reasonable efforts means doing everything reasonable, not everything possible. . . . The trial court’s determination of this issue will not be overturned on appeal unless, in light of all of the evidence in the record, it is clearly erroneous.” (Internal quotation marks omitted.) In re Jah’za G., supra, 141 Conn. App. 30-31. “Accordingly, the department [is] required to prove in the trial court either that it has made reasonable efforts to reunify or, alternatively, that the parent is unwilling or unable to benefit from reunification efforts.” (Internal quotation marks omitted.) In re Dominico M., 141 Conn. App. 576, 580, 61 A.3d 612, cert. denied, 308 Conn. 933, 64 A.3d 331 (2013).

Our review of the record reveals that there was ample evidence supporting the court’s finding that the department made reasonable efforts to reunify the mother with Etta and also that the mother was unable or unwilling to benefit from reunification. The court-ordered specific steps for reunification, signed by the mother on October 19, 2010, required, in relevant part, that she participate in counseling and make progress toward the identified treatment goals of obtaining coping skills to manage anxiety and trauma, refraining from aggressive behaviors, and understanding the impact of domestic violence on the child. The department offered the mother multiple programs to aid in her reunification with Etta and to address her mental health needs, parenting education and visitation issues, and domestic violence issues. Supervised visitation with Etta was also provided. Although the mother highlights the testimony of Dr. Logan Green, a psychologist, that Etta would need to spend a significantly greater amount of time with the mother, including overnight visits, in order for a parent-child relationship to be fully established, the record reveals that Dr. Green qualified this assertion by stating it would be detrimental to Etta’s best interests to allow that relationship to develop further. He also testified that placing Etta with the mother prior to the mother’s development of minimally adequate parenting skills would be placing Etta at risk. Despite the extensive assistance of the department, the mother and the father continued to engage in incidents of domestic violence. This evidence sufficiently supports both of the court’s determinations regarding reunification. We conclude, therefore, that the court did not err in finding that the mother was unable or unwilling to benefit from reunification efforts and that the department made reasonable efforts to reunify.

B

The mother also claims that the court erred when it found that she failed to achieve a sufficient degree of personal rehabilitation within the meaning of § 17a-112 (j) (3) (B). The mother insists that the trial court’s conclusion that she failed to achieve rehabilitation is clearly erroneous because she made considerable efforts to comply with the court-ordered specific steps to reunify with Etta: she found employment, acquired stable housing, and greatly improved her relationship with the father. The mother asserts that the trial court “essentially penalized”, her for her husband’s failure to achieve personal rehabilitation. We are not persuaded.

“Section 17a-112 (c) (3) (B) [now (j) (3) (B)] requires the court to determine whether the degree of personal rehabilitation [achieved by the parent] . . . encourage [s] the belief that within a reasonable time . . . such parent could assume a responsible position in the fife of the child .... In conducting this inquiry, the trial court must analyze the respondent’s rehabilitative status as it relates to the needs of the particular child .... The trial court must also determine whether the prospects for rehabilitation can be realized within a reasonable time given the age and needs of the child. ... [A] trial court’s finding that a parent has failed to achieve sufficient rehabilitation will not be overturned unless it is clearly erroneous . . . .” (Internal quotation marks omitted.) In re Christopher C., 134 Conn. App. 464, 470, 39 A.3d 1122 (2012).

“Although the standard is not full rehabilitation, the parent must show more than any rehabilitation. . . . [E]ven if a parent has made successful strides in her ability to manage her life and may have achieved a level of stability within her limitations, such improvements, although commendable, are not dispositive on the issue of whether, within a reasonable period of time, she could assume a responsible position in the life of her children.” (Citations omitted; internal quotation marks omitted.) In re Alejandro L., 91 Conn. App. 248, 260, 881 A.2d 450 (2005). “[Psychological testimony from professionals is rightly accorded great weight in termination proceedings.” (Internal quotation marks omitted.) In re Luciano B., 129 Conn. App. 449, 475, 21 A.3d 858 (2011).

Our review of the record supports the trial court’s conclusion that the mother failed to attain a sufficient degree of personal rehabilitation. Although the court acknowledged that the mother was making progress, it found that she had not achieved a degree of personal rehabilitation to convince the court that she is ready to resume a responsible role in Etta’s life. The evidence before the court included testimony from Dr. Green that the earliest that the mother would be in a position to care for Etta was December, 2013, and the latest was June, 2014. The court recognized that this time frame, however, presumes that the mother continues to make progress toward her goal of “becoming self-sufficient, consistent with [her] therapy and counseling and avoid[ing] future domestic disputes.” The court identified the family’s domestic violence history as one of the major factors contributing to Etta’s commitment and, while it did refer to evidence that the father failed to complete a domestic violence course as part of its failure to rehabilitate analysis, there was ample evidence in the record regarding the mother’s failure to fully rehabilitate from her involvement in the domestic violence. In addition to the domestic violence incidents in April and September, 2011, the court heard testimony that the mother and the father’s personal issues with each other began “leaking into the visit[s]” with Etta, and their yelling and negative demeanor toward each other often caused Etta to cry and become withdrawn. Dr. Green testified that he did not see any significant mental health progress or change in the mother’s presentation between her 2010 and 2011 evaluations, and the mother continued to lack the desire to work through the domestic violence issues even as late as her 2011 evaluation. He determined in his 2011 evaluation that the mother has “not developed [a] minimal set of skills that axe important in raising a child of Etta’s age.” We therefore conclude that the court’s finding that the mother failed to achieve a sufficient degree of personal rehabilitation was not clearly erroneous.

C

The mother next argues that the court’s finding that the termination of the mother’s parental rights was in Etta’s best interests was clearly erroneous. The mother specifically directs this court’s attention to the fourth factor in § 17a-112 (k), and argues that the trial court erred in discounting the bond and love between the mother and Etta. We are not persuaded.

“In the dispositional phase of a termination of parental rights hearing, the emphasis appropriately shifts from the conduct of the parent to the best interest of the child. ... It is well settled that we will overturn the trial court’s decision that the termination of parental rights is in the best interest of the [child] only if the court’s findings are clearly erroneous. . . . The best interests of the child include the child’s interests in sustained growth, development, well-being, and continuity and stability of [his or her] environment. . . . [T]he trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent’s parental rights is not in the best interest of the child. In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in [§ 17a-112 (k)]. . . . The seven factors serve simply as guidelines for the court and are not statutory prerequisites that need to be proven before termination can be ordered. . . . There is no requirement that each factor be proven by clear and convincing evidence.” (Internal quotation marks omitted.) In re Alison M., 127 Conn. App. 197, 211, 15 A.3d 194 (2011).

On the basis of our review of the record in the present case, the trial court’s decision with respect to the best interests of the child was not clearly erroneous. At the time of the decision, Etta already had been in four placements since coming into the commissioner’s care. Dr. Green stated in his report that, with respect to the bond between the mother and Etta, “[E]tta appeared to have positive feelings for both her parents and certainly related well to them .... There is an ongoing parent/ child relationship in the minds of each parent but I do not know if a similar relationship exists in Etta’s mind as Etta is too young an age to verbalize adequately the extent to which she possesses those feelings . . . .” Based upon his evaluations, however, Dr. Green concluded that “it is in Etta’s best interests that she remain with her current foster parents with permanency in mind.” Dr. Green also opined that Etta is at high risk if she were returned to the mother, and provided extensive testimony as to the negative long-term consequences of the mother’s current deficits on Etta’s mental health and development. “[0]ur courts consistently have held that even when there is a finding of a bond between parent and a child, it still may be in the child’s best interest to terminate parental rights.” (Internal quotation marks omitted.) In re Jah’za G., supra, 141 Conn. App. 35. Accordingly, the possible existence of a bond between the mother and Etta is not enough to render the court’s best interests finding clearly erroneous as the evidence set forth previously sufficiently supports the court’s conclusion that termination of the mother’s parental rights was in Etta’s best interests.

II

We now turn to the mother’s claims as to Queensara. Before addressing the mother’s claims, we first set forth the procedures governing neglect proceedings. “Neglect proceedings, under ... § 46b-129, are comprised of two parts, adjudication and disposition. . . . During the adjudicatory phase, the court determines if the child was neglected. Practice Book § 35a-7 (a) provides in relevant part: In the adjudicatory phase, the judicial authority is limited to evidence of events preceding the filing of the petition or the latest amendment. . . . [General Statutes § 46b-120 (6)] provides that a child may be found neglected if the child is being denied proper care and attention, physically, educationally, emotionally or morally, or is being permitted to live under conditions, circumstances, or associations injurious to the well-being of the child or youth . . . .” (Internal quotation marks omitted.) In re Ja-lyn R., 132 Conn. App. 314, 318, 31 A.3d 441 (2011).

A

The mother contends that there was insufficient evidence from which the trial court could conclude that it is more likely than not that Queensara would be permitted to live under conditions, circumstances or associations injurious to Queensara’s well-being. In support, she cites to our Supreme Court’s discussion of predictive neglect in In re Joseph W., 305 Conn. 633, 46 A.3d 59 (2012). She also argues that the court failed to make findings whether she was willing to care for Queensara independently of the father. We are not persuaded.

As we previously have established, “[ajppellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review.” (Internal quotation marks omitted.) In re Haley B., 81 Conn. App. 62, 65, 838 A.2d 1006 (2004). “[Connecticut] statutes clearly and explicitly recognize the state’s authority to act before harm occurs to protect children whose health and welfare may be adversely affected and not just children whose welfare has been affected. . . . The doctrine of predictive neglect provides that [t]he department, pursuant to [§ 46b-120], need not wait until a child is actually harmed before intervening to protect that child. . . . This statute clearly contemplates a situation where harm could occur but has not actually occurred.” (Citations omitted; internal quotation marks omitted.) In re Ja-lyn R., supra, 132 Conn. App. 319.

Our review of the record and trial transcript reveals that there was testimony and other evidence to support the trial court’s finding of neglect. As we have previously noted, the record establishes that there was a significant history of domestic violence between the mother and the father, which included an altercation a few months prior to Queensara’s birth and a heated conflict during a supervised visit with Etta just days before Queensara’s birth. Consequently, the mother, the father, and the department entered into a safety plan prior to Queensara’s birth with the goal of ensuring that Queensara was not injured during one of these domestic violence incidents or exposed to a violent and hostile environment. The record reveals that both the mother and the father failed to abide by this safety plan—the father refused to continue safety planning and the mother failed to keep Queensara in a safe, conflict free environment as planned. This failure to comply with the safety plan, coupled with the history of domestic violence, sufficiently supports the court’s conclusion that Queensara was permitted to live under conditions, circumstances, or associations injurious to her well-being.

In support of her assertion that the court failed to make findings as to whether she was willing to care for Queensara independently of the father, the mother points to In re Joseph W., supra, 305 Conn. 633, specifically: “[I]n neglect proceedings involving the doctrine of predictive neglect, the petitioner is required to meet this standard with respect to each parent who has contested the neglect petition and who has expressed a desire, or at least a willingness, to care for the child independently of the other parent.” (Emphasis in original.) Id., 646. In that case, however, our Supreme Court went on to hold: “If the parents have indicated that they intend to care for the child jointly ... or if the trial court discredits a parent’s claim that he or she intends to care for the child independently, the trial court may treat the parents as a single unit in determining whether the petitioner has met its burden of proving predictive neglect.” Id., 647-48.

In the present case, the mother has not directed this court to any evidence that she expressed a desire, or at least a willingness, to care for Queensara independently of the father. In fact, our review of the record reveals that the mother and the father were married before Etta’s birth, that they were residing together at the time of the neglect proceeding, and that together, they created and were raising a third child. The court also heard testimony that the mother had expressed her intent to continue her relationship with the father and that the mother and the father remain committed to one another and remaining a family. Accordingly, we conclude that there was sufficient evidence for the court to treat the mother and the father as a single unit for the purpose of adjudicating whether Queensara was neglected.

B

Finally, the mother challenges as a clear abuse of discretion the court’s finding that committing Queens-ara to the care and custody of the department is in Queensara’s best interests. We disagree.

We begin with the standard of review. “To determine whether a custodial placement is in the best interest of the child, the court uses its broad discretion to choose a place that will foster the child’s interest in sustained growth, development, well-being, and in the continuity and stability of its environment. . . . [W]hen making the determination of what is in the best interest of the child, [t]he authority to exercise the judicial discretion under the circumstances revealed by the finding is not conferred upon this court, but upon the trial court .... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court reasonably could conclude as it did.” (Internal quotation marks omitted.) In re Karl J., 110 Conn. App. 22, 26, 954 A.2d 231, cert. denied, 289 Conn. 954, 961 A.2d 420 (2008).

As our review of the evidence before the trial court reveals, there were ample facts from which the court could conclude that it was in the best interest of Queens-ara to commit her to the care and custody of the commissioner until further order of the court. The mother and the father had engaged in multiple domestic violence incidents prior to Queensara’s birth. The court acknowledged that the mother successfully completed domestic violence counseling at 4Cs; however, it found that she still needed to continue to follow through with her mental health counseling and supervised visits with Queensara in order to demonstrate to the court that it would be in Queensara’s best interest to be returned home. The department did attempt a reunification program with Queensara and the mother through the R Kids program, but stopped supervised visits in July, 2012, without recommending reunification. R Kids reported that (1) the parents were unable to understand Queensara’s emotional needs; (2) the negative effects of the visits on Queensara need to be addressed; and (3) the mother and the father require intensive therapeutic family services. Dr. Green also testified that the mother had not sufficiently rehabilitated enough to care for herself, let alone a small child. Accordingly, it was not unreasonable for the court to conclude that it was in Queensara’s best interest to commit her into the care and custody of the department until further order of the court.

The judgments are affirmed.

In this opinion the other judges concurred.

       The court also terminated the parental rights of the respondent father (father), who is married to the mother, in the same proceeding. Only the mother has filed this appeal.

       This is Etta’s fourth foster placement since coming into the department’s care. Etta’s current foster parents are willing to adopt her.

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

         The mother also argues that it was not reasonable for the department to fail to refer Etta’s father to domestic counseling when domestic violence was the primary concern in reunifying the mother with Etta. The father, however, is not a party to the current appeal. The mother has not established in her brief how she has standing to bring this claim in her brief. It is well settled that we are not required to review claims that are inadequately briefed. Nowacki v. Nowacki, 129 Conn. App. 157, 163-64, 20 A.3d 702 (2011) (“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” [internal quotation marks omitted]). Accordingly, we decline to address this claim.

       “Section 17a-112 (j) clearly provides that the department is not required to prove both circumstances. Rather, either showing is sufficient to satisfy this statutory element.” (Internal quotation marks omitted.) In re Dominico M., supra, 141 Conn. App. 580. Here, the trial court found that the department satisfactorily proved both circumstances; therefore we shall consider both in our review.

       These services included: (1) a parenting support and education group through Clifford Beers Clinic; (2) the program First Foot Forward to receive additional parenting counseling during visitations with Etta; (3) counseling at the Coordinating Council for Children in Crisis (4Cs) for domestic violence treatment; (4) services at the Post Traumatic Stress Disorder (PTSD) Center; (5) services with Intensive Family Preservation, to address the domestic violence issues and to provide appropriate services to ensure that personal issues did not impact the ability to parent; (6) two court-ordered psychological evaluations with Dr. Logan Green.

       These incidents include an April, 2011 altercation where the father punched the mother in the face during an argument while she was four months pregnant with Queensara, resulting in the father’s arrest for assault in the third degree on a pregnant person, and a September, 2011 altercation during a joint, supervised visit with Etta at the department, where a dispute between the mother and the father escalated to the point where security had to be called and the father was instructed to leave the premises.

       Dr. Green testified that during this period of time, Etta would be developing an attachment system with whomever she was with, and reunification would “tear her away from that.”

       General Statutes § 17a-112 (k) (4) provides in relevant part: “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding . . . the feelings and emotional ties of the child with respect to the child’s parents, any guardian of such child’s person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties.”

       The mother also points to the first, second, and sixth factors of § 17a-112 (k), but fails to raise any new arguments regarding the court’s attention to these factors. Instead, she merely directs us to review the arguments she made earlier in her brief concerning whether the department made reasonable efforts to reunify the mother and Etta and whether the mother failed to achieve personal rehabilitation under § 17a-112 (j) (3) (B) (i). It is well settled that we are not required to review claims that are inadequately briefed. Nowacki v. Nowacki, 129 Conn. App. 157, 163-64, 20 A.3d 702 (2011). Furthermore, we already have dispensed of these arguments in parts I A and B of this opinion. Accordingly, we decline to review these claims.

       The court heard testimony that the mother and the father lived together until approximately February, 2010. From February, 2010, to approximately December, 2011 or January, 2012, the mother and the father lived separately due, in part, to their domestic violence history. From December, 2011, or January, 2012, onwards, the mother and the father have been living together in housing provided by their church.

       The mother also argues that the court should have transferred guardianship of Queensara to the paternal grandmother, who was granted intervenor status in April, 2011. This argument is without merit because no motion to revoke or transfer guardianship was ever filed in court. Accordingly, this issue was never before the trial court, and we decline to consider it now.


author: BEAR, J.

text:
    DOCTOR’S ASSOCIATES, INC. v. TROY W. WINDHAM TROY W. WINDHAM v. DOCTOR’S ASSOCIATES, INC.
    (AC 34372)
    (AC 34373)
    DiPentima, C. J., and Bear and Borden, Js.

      Argued September 19
    officially released November 26, 2013

      Jonathan M. Starble, with whom, on the brief, was Brooke M. Meting, for the appellant (defendant in the first case, plaintiff in the second case).

      Frank J. Mottola III, with whom were Dara Solan and Melissa Durso, and, on the brief, Ryan M. Budd, certified legal intern, for the appellee (plaintiff in the first case, defendant in the second case).
   Opinion

BEAR, J.

In AC 34372, Troy W. Windham, the defendant for purposes of that appeal, appeals from the judgment of the trial court confirming an arbitration award rendered in favor of the plaintiff, Doctor’s Associates, Inc., the owner of the Subway franchise system (Subway), and he also appeals from the judgment of the court denying his motion to dismiss Subway’s prejudgment remedy application. In AC 34373, Windham, the plaintiff for purposes of that appeal, appeals from the judgment of the court denying his application to vacate the arbitration award that had been rendered in favor of Subway. These appeals have been consolidated. On appeal, Windham claims that the court erred (1) in granting Subway’s application to confirm the arbitration award and in denying his application to vacate the award, and (2) in denying his motion to dismiss Subway’s prejudgment remedy application for lack of subject matter jurisdiction and lack of proper service. We affirm the judgments of the trial court.

The following facts, as found by the trial court, and procedural history are relevant to this appeal. Windham “operated two stores, denominated as stores #6109 and #11581, under two separate franchise agreements. [Subway] claimed that [Windham had] violated the terms of his franchise agreements concerning certain ‘decor upgrades,’ and it sought to terminate his franchise agreements. [Each agreement] between the parties required that disputes between them ‘arising out of or relating to the [agreement or breach thereof would be settled by arbitration. [Windham] retained Connecticut counsel [Jonathan M. Starble] regarding the dispute concerning #11581, and he testified at the hearing regarding that store. On June 16, 2010, an arbitrator ruled in [Windham’s] favor in that dispute, concluding that he was excused from timely performing the decor upgrades.

“Although [Windham’s] counsel had also contacted [Subway] during prearbitration negotiations concerning store #6109, counsel did not enter a formal ‘appearance’ with the case manager from the American Dispute Resolution Center, Inc. [center], with respect to that matter. He attests in his affidavit that he was not receiving any notices from the [center] concerning any arbitration proceedings for #6109. [Windham’s] counsel attests further that his correspondence with [Subway] led him to believe that the dispute concerning this store was being resolved. [Windham] does not dispute [Subway’s] evidence that [Windham] personally received notices from the [center] concerning [Subway’s] request for arbitration concerning store #6109, including a March 22, 2010 formal notice of hearing with a hearing date scheduled for July 14,2010, and a notice dated July 7,2010, indicating that [Subway] had filed documents in advance of the scheduled arbitration. Nonetheless, [Windham] attests in his affidavit that he believed that the parties were engaged in ongoing discussions and that the formal hearing would not go forward. On July 14, 2010, pursuant to [the center’s] rules, the formal arbitration hearing went forward without the presence of either [Windham] or his counsel. The arbitrator found that [Windham] had been sent ‘adequate and proper notice’ and rendered an award in [Subway’s] favor, terminating [Windham’s] franchise agreement with respect to store #6109. . . .

“[Windham’s] position [before the trial court was] that the behavior of [Subway’s] counsel in the ex parte hearing require [d] [the] court to vacate the award. In support thereof, [Windham] submitted to the court a transcript of the deposition testimony of Attorney Jeffrey Allen, [Subway’s] counsel, who participated in both arbitration proceedings concerning [Windham]. [Wind-ham] claim[ed] that . . . Allen failed to disclose to the arbitrator the following adverse facts known to him at the time. He did not disclose the existence of the prior arbitration with respect to store #11681, which involved similar issues and was decided in [Windham’s] favor less than one month before the formal hearing on store #6109. He failed to disclose that [Windham] had contested that termination. He did not disclose that [Wind-ham] had retained counsel with respect to #6109, who had engaged in negotiations with [Subway] concerning that store. Finally, he failed to disclose that [Windham] had a defense to his failure to perform timely the required decor upgrades, which was that [Subway] had failed to provide to [Windham] certain required design approvals in a timely manner. [Windham] maintains that . . . Allen had a duty to make these disclosures pursuant to [r]ule 3.3 (d) of our Rules of Professional Conduct, and that his failure to do so merits a finding by [the] court that the arbitration award was procured at the ex parte hearing by ‘undue means’ under [General Statutes] § 52-418 (a) (1).”

The court concluded: “Even if the court accepts the proposition that [Subway’s] attorney failed in his duty of full candor before the tribunal by failing to disclose facts that [Windham] believes were material and adverse to [Subway’s] position, [Windham] has not met his burden to demonstrate that the award was procured by ‘undue means.’ There has been no showing that [Subway’s] attorney acted intentionally in bad faith to conceal these facts from the arbitrator, or that he otherwise used underhanded, immoral or conniving means in order to procure the award. [Windham’s] remaining arguments—for example, that the arbitrator could have given collateral estoppel effect to the prior arbitration award, had he known about it—simply are not sufficient to invalidate or avoid the award because they do not fall within the proscriptions of § 52-418. Rather, [Windham] attempts to advance arguments before [the trial] court that he could have advanced before the arbitrator, had he not been absent from the arbitration proceeding. Although it is troubling that the award was procured without [Windham’s] participation, the arbitrator found that [Windham] had been sent ‘adequate and proper notice,’ and there is no serious dispute that he, in fact, received said notice. In light of the court’s limited role in the review of arbitral awards, [Windham’s] failure to demonstrate that the award was procured by ‘undue means’ is fatal to his application to vacate the award.” (Emphasis in original.) Accordingly, the court rendered judgments denying Windham’s application to vacate the arbitration award and granting Subway’s application to confirm that award. After the court rendered judgments, Windham filed a motion to reargue, which the court denied. This appeal followed. Additional facts will be set forth as necessary.

I

APPLICATIONS TO VACATE AND CONFIRM ARBITRATION AWARD

Windham claims that the court erred in granting Subway’s application to confirm the arbitration award and in denying his application to vacate the award. He argues that the court “erred in failing to hold that [Subway’s] former counsel violated [r]ule 3.3 (d) of the Rules of Professional Conduct, and [that] said violation is sufficient evidence that the arbitration award was procured by ‘undue means’ under ... § 62-418 (a) (1).” He farther argues that even if the court correctly found no violation of rule 3.3 (d) by counsel, it improperly failed to find that counsel’s “failure to disclose material facts in an ex parte proceeding [was] sufficient evidence that the arbitration award was procured by ‘undue means’ under ... § 62-418 (a) (1).” We are not persuaded.

Our Supreme Court “has for many years wholeheartedly endorsed arbitration as an effective alternative method of settling disputes intended to avoid the formalities, delay, expense and vexation of ordinary litigation. . . . When arbitration is created by contract, we recognize that its autonomy can only be preserved by minimal judicial intervention. . . . Because the parties themselves, by virtue of the submission, frame the issues to be resolved and define the scope of the arbitrator’s powers, the parties are generally bound by the resulting award. . . . Since the parties consent to arbitration, and have full control over the issues to be arbitrated, a court will make every reasonable presumption in favor of the arbitration award and the arbitrator’s acts and proceedings. . . . The party challenging the award bears the burden of producing evidence sufficient to invalidate or avoid it, and only upon a showing that it falls within the proscriptions of § 62-418 of the General Statutes, or procedurally violates the parties’ agreement will the determination of an arbitrator be subject to judicial inquiry.” (Citations omitted; internal quotation marks omitted.) O & G/O’Connell Joint Venture v. Chase Family Ltd. Partnership No. 3, 203 Conn. 133, 145, 523 A.2d 1271 (1987).

“Every reasonable presumption will be made in favor of the arbitrators’ acts. Schwarzschild v. Martin, 191 Conn. 316, 327, 464 A.2d 774 (1983). An arbitration award may not be set aside on a mere showing that the complaining party, or even the court, would have decided the matter differently. Von Langendorff v. Riordan, 147 Conn. 524, 528, 163 A.2d 100 (1960). An order vacating an arbitration award will be granted, pursuant to § 52-418 (a), only if the court finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means-, (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter was not made. General Statutes § 52-418 (a).” (Emphasis added; internal quotation marks omitted.) Alexandra v. Cappalli, 82 Conn. App. 432, 434, 844 A.2d 914 (2004). In order to grant a motion to vacate on these grounds, however, the trial court must find that the movant has “produce[d] evidence sufficient to invalidate . . . [the award].” Von Langendorff v. Riordan, supra, 527; see O & G/O’Connell Joint Venture v. Chase Family Ltd. Partnership No. 3, supra, 203 Conn. 156 (concluding that there was “no evidence whatsoever that the plaintiff procured the [arbitration] award by undue means”).

Section 52-418 (a) (1) has not been the subject of substantial judicial discussion, nor have its terms been defined by our legislature; see D. Rosengren, 13 Connecticut Practice Series: Construction Law (2005) § 9:11, p. 195 (“[t]here is sparse authority interpreting the first ground [procuring an award by corruption, fraud, or undue means]”); and the specific term “undue means” does not have a clear or obvious plain language meaning. See General Statutes § 1-2z. When a state statute is in need of construction and Connecticut authority is sparse, we frequently have looked to analogous federal statutes for guidance in the interpretation of our state legislation. See Horton v. Meskill, 187 Conn. 187, 192, 445 A.2d 579 (1982) (where state precedent is lacking, it is appropriate to look to authorities under comparable federal statute). This repeatedly has been the case in construing § 52-418. See, e.g., Hartford Municipal Employees Assn. v. Hartford, 128 Conn. App. 646, 653-54, 19 A.3d 193 (construing § 52-418 [a] [3] consistent with 9 U.S.C. § 10 [a] [3]), cert. denied, 301 Conn. 934, 23 A.3d 730 (2011); McCann v. Dept. of Environmental Protection, 288 Conn. 203, 215, 952 A.2d 43 (2008) (same); Bridgeport v. Kasper Group, Inc., 278 Conn. 466, 475-76, 899 A.2d 523 (2006) (same); Garrity v. McCaskey, 223 Conn. 1, 8 n.7, 612 A.2d 742 (1992) (“federal statute that provides for vacating an arbitration award, 9 U.S.C. § 10 [d], is virtually identical to General Statutes § 52-418 [a] [4] ”).

For purposes of the present case, the relevant portion of the Federal Arbitration Act, 9 U.S.C. § 10 (a), provides in relevant part: “In any of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration— (1) where the award was procured by corruption, fraud, or undue means,” which virtually is identical to § 52-418 (a) (1) of our General Statutes.

Under 9 U.S.C. § 10 (a) (1), “[t]he term undue means has generally been interpreted to mean something like fraud or corruption. [Three S Delaware, Inc. v. Dataquick Information Systems, Inc., 492 F.3d 520, 529 (4th Cir. 2007)]; see also [National Casualty Co.] v. First State Ins. Group, 430 F.3d 492, 499 (1st Cir. 2005) (The best reading of the term undue means under the maxim noscitur a sociis [it is known from fellows or allies] is that it describes underhanded or conniving ways of procuring an award that are similar to corruption or fraud, but do not precisely constitute either.).” (Emphasis altered; internal quotation marks omitted.) MCI Constructors, LLC v. Greensboro, 610 F.3d 849, 858 (4th Cir. 2010).

“The term ‘undue means’ [in 9 U.S.C. § 10 (a) (1)] must be read in conjunction with the words ‘fraud’ and ‘corruption’ that precede it in the statute. See Drayer v. Krasner, 572 F.2d 348, 352 (2d Cir.), cert. denied, 436 U.S. 948, 98 S. Ct. 2855, 56 L. Ed. 2d 791 (1978). Consistent with the plain meaning of fraud and corruption, and with the limited scope of judicial review of arbitration awards, other circuits have uniformly construed the term undue means as requiring proof of intentional misconduct.” PaineWebber Group, Inc. v. Zinsmeyer Trusts Partnership, 187 F.3d 988, 991 (8th Cir. 1999). Accordingly, to establish “undue means” under 9 U.S.C. § 10 (a) (1), a party must prove “nefarious intent or bad faith”; see id., 993; or conduct that is “immoral if not illegal.” A.G. Edwards & Sons, Inc. v. McCollough, 967 F.2d 1401, 1403 (9th Cir. 1992).

In National Casualty Co. v. First State Ins. Group, supra, 430 F.3d 499, the United States Court of Appeals for the First Circuit offered the following explanation: “Section 10 (a) (1) permits vacatur ‘[w]here the award was procured by corruption, fraud, or undue means.’ . . . The phrase ‘undue means’ in the statute follows the terms ‘corruption’ and ‘fraud.’ It is a familiar principle of statutory construction that a word should be known by the company it keeps. . . . The best reading of the term ‘undue means’ under the maxim noscitur a sociis is that it describes underhanded or conniving ways of procuring an award that are similar to corruption or fraud, but do not precisely constitute either.” (Citations omitted; emphasis in original.) The court then explained that “intentional malfeasance” is required to “justif[y] vacatur under the statute.” Id. We are persuaded that the interpretation of the phrase “undue means” by the federal Circuit Courts of Appeals cited previously is applicable to § 52-418.

In the present case, Windham contends that the arbitration award was defective because it was procured by Subway by the use of undue means in violation of § 52-418 (a) (1). Windham first argues that Allen violated rule 3.3 (d) of the Rules of Professional Conduct and that such a violation is “exactly the type of conduct that should be considered conclusive evidence of undue means under § 52-418 (a) (1).” Windham next argues that even if Allen did not violate rule 3.3 (d), he nonetheless still procured the award by undue means because he failed to disclose material facts to the arbitrator. Windham asserts that when neither he nor his attorney attended the arbitration hearing, Subway’s attorney had an obligation under rule 3.3 (d) of the Rules of Professional Conduct or otherwise to inform the arbitrator of all material facts, including that Windham had procured a favorable result in an earlier arbitration proceeding concerning a different franchise store but on a similar issue, that Windham had retained Connecticut counsel, that counsel for both parties had been engaged in discussions, that they had taken actions to attempt to resolve their dispute, and that Windham had a good faith defense to assert. He further argues that Subway’s failure to inform the arbitrator of these material facts amounted to the procurement of the arbitration award by “undue means.” He also contends in his reply brief that the arbitrator’s decision “was based on . . . Allen’s inaccurate and incomplete representations of the facts to the arbitrator.” We agree with the trial court that there is no evidence that Allen acted improperly in this case.

After analyzing the claims and arguments of Windham on appeal, it appears that he and Starble, essentially, are attempting to fault Allen for not protecting Windham’s interests in the face of their nonfeasance, by accusing Allen of violating rule 3.3 of the Rules of Professional Conduct by not telling the arbitrator about Windham’s alleged claims and defenses. We note that the Rules of Professional Conduct are not to be used in the way that Windham and Starble have used rule 3.3 in this appeal: “As we previously have recognized, however, the rules governing the professional conduct of attorneys, without more, do not give rise to a cause of action. See Mozzochi v. Beck, 204 Conn. 490, 500, 501 n.7, 529 A.2d 171 (1987); see also Standish v. Sotavento Corp., 58 Conn. App. 789, 796-97, 755 A.2d 910 (‘[violation of [a rule of professional conduct] should not give rise to a cause of action’), cert. denied, 254 Conn. 935, 761 A.2d 762 (2000); Noble v. Marshall, 23 Conn. App. 227, 231, 579 A.2d 594 (1990) (‘the Rules of Professional Conduct do not of themselves give rise to a cause of action’). Indeed, one of the introductory provisions of the Rules of Professional Conduct expressly provides that a ‘[violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule is a just basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule. Accordingly, nothing in the Rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty.’ Rules of Professional Conduct, scope, in Connecticut Practice Book (2004) p. 3; accord Mozzochi v. Beck, supra, 501 n.8.” Biller Associates v. Peterken, 269 Conn. 716, 722-23, 849 A.2d 847 (2004).

Moreover, it is elementary that if Windham wanted his claims and defenses presented to the arbitrator, Windham should have read and understood in a timely manner the import of the mail from the center and attended the hearing himself, or he should have had his attorney file an appearance in the matter so that the attorney would have received all mailings from the center, including notice of the scheduled date of the hearing. See, e.g., Dziedzic v. Pine Island Marina, LLC, 143 Conn. App. 644, 652-63, 72 A.3d 406 (2013). We also do not agree that in the context of this arbitration, it was Allen’s responsibility to notify Starble, a nonap-pearing attorney, of the scheduled hearing, nor do we agree with the implication of Starble’s argument that, in the context of this arbitration, Allen had an obligation to present Windham’s case or otherwise to assume any responsibility because of the absence of Windham and Starble and the possible repercussions therefrom. We conclude, moreover, that there is no evidence that Allen improperly offered an “inaccurate and incomplete representation of the facts to the arbitrator,” as is alleged by Windham and Starble.

In this case, the court specifically found that Wind-ham had presented no evidence that Allen had procured the arbitration award by undue means because there was no evidence that Allen had acted intentionally to conceal material facts from the arbitrator in order to procure the award. The court also noted that Windham, in his brief to the court, “declined to ‘cast any judgment on whether . . . Allen intentionally violated [r]ule 3.3 (d) . . . .’ ” (Emphasis omitted.) We agree with the court that Windham has presented no evidence of any improper or unethical behavior on the part of Allen. The court understood that Windham had failed to be present at the arbitration hearing or to have his attorney file an appearance in the arbitration and attend the hearing on his behalf. Accordingly, we conclude that the court properly denied Windham’s application to vacate the award, and it properly granted Subway’s application to confirm the award.

II

MOTION TO DISMISS

Windham next claims that the court erred in denying his motion to dismiss Subway’s prejudgment remedy application for lack of subject matter jurisdiction and lack of proper service.

The following additional facts are relevant to our consideration of this claim. After the court rendered judgment confirming the arbitration award, Subway filed an application for prejudgment remedy, pursuant to General Statutes § 52-278a et seq., to secure its rights with respect to the award of damages against Windham. On November 8, 2012, Windham filed a motion to dismiss the application on the ground that the court lacked subject matter jurisdiction because the “case involves the confirmation of an arbitration award and not a ‘civil action’ as required by Connecticut prejudgment remedy statutes” and on the ground that he was not served properly. The court denied Windham’s motion to dismiss and, after a hearing on the merits, rendered judgment granting Subway’s prejudgment remedy application. Windham then amended its appeal to this court.

A

Subject Matter Jurisdiction

Windham claims that the court erred in denying his motion to dismiss for lack of subject matter jurisdiction over the application for prejudgment remedy. We are not persuaded.

“A motion to dismiss tests . . . whether . . . the court is without jurisdiction. . . . [0]ur review of the court’s ultimate legal conclusion and resulting [determination] of the motion to dismiss [is] de novo. . . . Furthermore, [w]e have long held that because [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary. . . . Moreover, [i]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time. . . . Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. ... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction.” (Internal quotation marks omitted.) Ungerland v. Morgan Stanley & Co., 132 Conn. App. 772, 775, 35 A.3d 299 (2012).

In support of his claim that the court lacked subject matter jurisdiction in this case, Windham argues that, because “a prejudgment remedy is a special statutory right [such a remedy] is only available in a civil action [and] [a]n application to confirm an arbitration award is not a civil action.” Subway responds that, although Windham correctly asserts that a proceeding based on an application to confirm an arbitration award is not a civil action, the focus in this case should not be on the proceeding to confirm the award but should be on the judgment of the court that followed the proceeding because the prejudgment remedy in the present case was filed to secure the court’s judgment, already rendered, confirming the arbitration award. Subway further argues that, pursuant to General Statutes § 52-421 (b), the judgment of the court granting the application to confirm an arbitration award is “subject to all the provisions of law relating to a judgment or decree in a civil action . . . .” (Emphasis added; internal quotation marks omitted.) Therefore, it argues, the judgment has the full force and effect of any civil judgment. We conclude that the plain language of the statute supports Subway’s argument. See also Burnham v. Carr, 53 Conn. App. 425, 427, 431, 730 A.2d 643 (commenting with approval on process of applying for prejudgment remedy to secure assets while case is on appeal from judgment confirming arbitration award), cert. denied, 250 Conn. 901, 734 A.2d 980 (1999).

Our review of Windham’s claim requires us to examine § 52-421. “Issues of statutory construction raise questions of law, over which we exercise plenary review. . . . The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply.

. . . [W]e seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) Middlesex Mutual Assurance Co. v. Komondy, 120 Conn. App. 117, 125, 991 A.2d 587 (2010).

Section 52-421 (b) provides in relevant part that “[t]he judgment or decree confirming ... an award shall be docketed as if it were rendered in a civil action. The judgment or decree so entered shall have the same force and effect in all respects as, and be subject to all the provisions of law relating to, a judgment or decree in a civil action . . . .”

Although Windham relies on Waterbury v. Waterbury Police Union, Local 1237, 176 Conn. 401, 408, 407 A.2d 1013 (1979), for the proposition that “proceedings brought pursuant to § 52-420 to confirm . . . arbitration awards are not civil actions within the meaning of title 52,” under the plain language of § 52-421 (b), the judgment confirming an arbitration award, in all respects, is to be treated as a civil judgment, having “the same force and effect” thereof. General Statutes § 52-421 (b). Therefore, although the proceedings themselves are not civil actions within the meaning of title 52, the judgment rendered following those proceedings has “the same force and effect in all respects as . . . a judgment ... in a civil action . . . .” General Statutes § 52-421 (b). Accordingly, on the basis of the clear language of the statute, we conclude that Windham’s claim fails.

B

Service of Process

Windham next claims that the court erred in denying his motion to dismiss Subway’s prejudgment remedy application for lack of proper service under either General Statutes §§ 52-278c or 52-278m. He also claims that the court improperly held that even if service was improper, Windham failed to demonstrate any prejudice by the defect, arguing that he need not show prejudice because the statutory requirements for service require strict adherence. We are not persuaded.

“[A] challenge to the jurisdiction of the courtpresents a question of law over which our review is plenary. . . . [T]he Superior Court . . . may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court’s exercise of personal jurisdiction. . . . [A]n action commenced by . . . improper service must be dismissed.” (Citations omitted; emphasis omitted; internal quotation marks omitted.) Alldred v. Alldred, 132 Conn. App. 430, 433-34, 31 A.3d 1185 (2011), appeal dismissed, 303 Conn. 926, 35 A.3d 1075 (2012). Issues involving statutory construction also raise questions of law, over which we exercise plenary review. Middlesex Mutual Assurance Co. v. Komondy, supra, 120 Conn. App. 125.

Windham argues that the court erred in denying his motion to dismiss the application on the ground that service was not in compliance with the prejudgment remedy statutes. The following additional facts are relevant to our discussion of this claim. Subway filed with the court its application for prejudgment remedy on September 24, 2012. Thereafter the court fixed a date for the hearing, signed the order of hearing and notice, and returned the original documents to Subway with an order that Subway serve Windham on or before October 18,2012. On October 18,2012, Subway e-mailed the application for prejudgment remedy to Windham’s attorney and mailed a paper copy to him that same day. According to Windham, Subway’s service of process on October 18, 2012, did not comply with the service requirements set forth in the prejudgment remedy statutes, specifically §§ 52-278c (a) (4) and 52-278m. We are not persuaded.

Section 52-278c (a) provides in relevant part: “Except as provided in sections 52-278e and 62-278Í, any person desiring to secure a prejudgment remedy shall attach his proposed unsigned writ, summons and complaint to the following documents ... (4) A form of summons directed to a proper officer commanding him to serve upon the defendant at least four days prior to the date of the hearing, pursuant to the law pertaining to the manner of service of civil process, the application, a true and attested copy of the writ, summons and complaint, such affidavit and the order and notice of hearing . . . .”

Section 52-278m provides: “Whenever a prejudgment remedy is sought under the provisions of sections 52-278h or 52-278Í against a party who has previously filed a general appearance in such action, personal service of any application or order upon such party shall not be required, unless ordered by the court, but any such application or order may be served in the same manner as any motion in such action.” With respect to § 52-278m specifically, Windham argues that Subway’s service did not comply with either Practice Book § 10-12 or § 11-l, regarding the service of motions. He argues that these sections of the Practice Book require that the party serving a motion must do so on the same day that the motion is filed with the court. Windham contends that the statutory service requirements for an application for prejudgment remedy necessitate strict compliance because such a remedy is a statutory right in derogation of the common law.

Subway argues that service was proper under § 52-278m and under General Statutes § 52-278h. Section 52-278h provides: “The provisions of this chapter shall apply to any application for prejudgment remedy filed by the plaintiff at any time after the institution of the action, and the forms and procedures provided therein shall be adapted accordingly.” Subway also argues that the time requirements advanced by Windham are contrary to and incompatible with § 52-278c (c) and (d). Section 52-278c (c) provides: “The clerk upon receipt of all such documents in duplicate, if he finds them to be in proper form, shall fix a date for a hearing on the application and sign the order of hearing and notice except that if the application includes a request for a temporary restraining order, the court or a judge of the court shall act on the application for the temporary restraining order, fix a date for the hearing on the prejudgment remedy and sign the order of hearing and notice. The entry fee shall be then collected and the duplicate original document shall be placed in the court file.” Section 52-278c (d) then provides: “The clerk shall deliver to the applicant’s attorney the original of the documents for service. Service having been made, the original documents shall be returned to the court with the endorsement by the officer of his actions.”

Subway argues that the clear requirements of the prejudgment remedy statutes demonstrate that it could not have effectuated proper service on Windham on September 24,2012, because the court had not yet fixed a date for the hearing, signed the order of hearing and notice, or returned the original documents to Subway, all of which were necessary to trigger Subway’s obligation to provide notice to Windham’s attorney. Furthermore, it argues, the court’s order specified that it was to provide service on or before October 18, 2012, and it complied with that court’s order. We agree.

According to § 52-278h, if the application for prejudgment remedy was filed “after the institution of the action,” the forms and the procedures “shall be adapted accordingly.” Section 52-278m provides that personal service on a party is not necessary if an appearance previously has been filed, unless the court orders otherwise. Although § 52-278m also states that the application for prejudgment remedy “may be served in the same manner as any motion in such action,” § 52-278c (c) provides that the clerk “shall fix a date for the hearing,” “sign the order of hearing and notice,” and place one “duplicate original document ... in the court file.” Section 52-278c (d) then clearly provides that the clerk “shall deliver to the applicant’s attorney the original of the documents for service. Service having been made, the original documents shall be returned to the court with the endorsement by the officer of his actions.” Although § 52-278m provides that service may be made in the same manner as a motion, § 52-278c (c) and (d) set forth the specific procedure to be followed, and, in this case, the court specifically ordered Subway to make service on or before October 18, 2012, and Subway complied with that order. In this case, our review of the record convinces us that Subway complied with the relevant statutory procedures and the order of the court.

The judgments are affirmed.

In this opinion the other judges concurred.

       “[Windham] attests in his affidavit that, through administrative error, he did not open the package received July 7, 2010, until after the arbitration [had] occurred. He makes no representation that he did not receive the March 22, 2010 notice.”

       “In contrast, the issues with respect to store #11581 appear to have revolved around an intention to relocate stores.”

       “Rule 3.3 of the Rules of Professional Conduct is titled ‘Candor toward the Tribunal’ and requires, in relevant part: ‘(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.’ ”

       “Indeed, [Windham’s] counsel, in his brief [to the trial court], declined to ‘cast any judgment on whether . . . Allen intentionally violated [r]ule 3.3 (d) . . . .’ ” (Emphasis in original.)

       The facts involving Subway’s prejudgment remedy application, which are involved in Windham’s second claim, will be set forth in part II of this opinion.

       Although it occurred long before the enactment of § 52-418, Chief Justice Swift set forth a similar rule in Allen v. Ranney, 1 Conn. 569, 571 (1816), when he stated that without evidence of “fraud and misbehaviour” of a party, an arbitration award cannot be set aside.

       Windham does not contest the granting of the prejudgment remedy application on its merits.

       General Statutes § 52-421 (b) provides: “The judgment or decree confirming, modifying or correcting an award shall be docketed as if it were rendered in a civil action. The judgment or decree so entered shall have the same force and effect in all respects as, and be subject to all the provisions of law relating to, a judgment or decree in a civil action; and it may be enforced as if it had been rendered in a civil action in the court in which it is entered. When the award requires the performance of any other act than the payment of money, the court or judge entering the judgment or decree may direct the enforcement thereof in the manner provided by law for the enforcement of equitable decrees.”

       The court specifically found that Windham “does not claim any prejudice, nor was there any. This motion [to dismiss] was fully briefed and argued weeks [after it was filed]; and the hearing on the application has not been held pending [the outcome of] this motion. [Windham] will have had ample notice, an opportunity to be heard, and no deprivation of property rights has been executed.” Windham does not challenge these findings, which fully are supported by the record.

       Practice Book § 10-12 provides in relevant part: “(a) It is the responsibility of counsel ... to serve on each other party who has appeared one copy of every pleading subsequent to the original complaint, every written motion . . . and every paper relating to discovery, request, demand, claim, notice or similar paper .... When a party is represented by an attorney, the service shall be made upon the attorney unless service upon the party is ordered by the judicial authority....”
      Practice Book § 11-1 (c) provides in relevant part: “[A] motion, request, application or objection shall be served on all parties as provided in Sections 10-12 through 10-17 and, when filed, the fact of such service shall be endorsed upon.”