author: BEACH, J.

text:
    MARCIA E. BUCHANAN v. MARIA MORENO ET AL.
    (AC 29962)
    Flynn, C. J., and Beach and Robinson, Js.
    Argued September 8
    officially released October 27, 2009

      Dominic A. Secondo, for the appellants (defendants).

      James O. Gaston, for the appellee (plaintiff).
   Opinion

BEACH, J.

In this negligence action, the defendants, Maria Moreno and Enaroy Simms, appeal following the trial court’s denial of their motion to set aside the verdict in favor of the plaintiff, Marcia E. Buchanan. On appeal, the defendants claim that the court abused its discretion in failing to admit a particular photograph as a full exhibit. On the basis of this claimed evidential impropriety, the defendants also contend that the court improperly denied their motion to set aside the verdict. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of the defendants’ appeal. Following a motor vehicle accident, the plaintiff filed a one count complaint sounding in negligence against the defendants. The plaintiff alleged that while she was traveling in an easterly direction in a parking lot located at 1975 Black Rock Turnpike in Fairfield, her vehicle was struck by another vehicle that was traveling in a northerly direction in the same parking lot, which was operated by Moreno and owned by Simms. The plaintiff alleged that she suffered injuries as a result of the collision. The defendants filed a special defense alleging that the plaintiff was negligent in causing the accident. Following a jury trial, the jury found in favor of the plaintiff. The jury found that the plaintiff was 25 percent negligent and, after reducing the damage award accordingly, awarded her damages in the amount of $196,003.68. The defendants subsequently filed a motion to set aside the verdict, which the court denied. This appeal followed.

The defendants claim that the court abused its discretion in declining to admit a photograph, which was marked as defendants’ exhibit A for identification, as a full exhibit. We disagree.

Our standard of review of an evidentiary ruling is well settled. “The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence . . . [and its] ruling on eviden-tiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” (Internal quotation marks omitted.) Viera v. Cohen, 283 Conn. 412, 452, 927 A.2d 843 (2007).

On March 5,2008, the defendants’ counsel asked Moreno whether the photograph was a fair and accurate depiction of the general layout of the parking lot on the day of the accident. Moreno answered affirmatively, and the defendants’ counsel sought to admit the photograph as a full exhibit. The plaintiff objected on various grounds, and the court permitted the plaintiff to voir dire Moreno. The photograph depicted a lane of travel that was marked “one way.” Moreno testified that the photograph did not depict the lane of travel in which the accident had occurred. The plaintiffs counsel objected, inter alia, on the additional grounds that the defendants had not timely disclosed the photograph and that he had seen the photograph for the first time on the preceding day.

The court sustained the plaintiffs objection. The court agreed that the photograph was not disclosed in a timely fashion. The court further reasoned that none of the parties placed the accident at the location depicted in the photograph, and, therefore, any probative value would be outweighed by the prejudicial impact.

The court did not abuse its discretion in declining to permit the introduction of the photograph as a full exhibit on the basis of untimely disclosure. In her interrogatories and production requests, the plaintiff asked the defendants if they were aware of any photographs depicting the accident scene and, if so, to provide her with certain information pertaining to such photographs and a copy of the photographs. The defendants did not object and in response gave information pertaining to other photographs, but not to the photograph in question. The date on the back of the photograph in question indicates that it was developed in July, 2007. The plaintiffs objection to the admission of the photograph as a full exhibit was based, inter alia, on the ground that the defendants did not disclose the photograph until March 4, 2008, the eve of trial.

Practice Book § 13-15 imposes a continuing duty, prior to and during trial, to correct or to supplement discovery responses. Practice Book § 13-14 provides in relevant part: “(a) If any party . . . has failed to comply with the provisions of Section 13-15 . . . the judicial authority may, on motion, make such order as the ends of justice require, (b) Such orders may include the following ... (4) The entry of an order prohibiting the party who has failed to comply from introducing designated matters into evidence . . . .” “Decisions on the entry of such sanctions rest within the sound discretion of the trial court.” Rullo v. General Motors Corp., 208 Conn. 74, 78, 543 A.2d 279 (1988) (discussing Practice Book § 231, now § 13-14). No compelling reason was advanced to explain the delay in disclosure, and no overwhelming need for the evidence has been suggested. The court was well within its discretion in not permitting a photograph, which was disclosed on the eve of trial, to be admitted as a full exhibit at trial.

On the basis of this claimed evidential impropriety, the defendants also contend that the court improperly denied their motion to set aside the verdict. In their motion to set aside the verdict, the defendants argued that the court abused its discretion in declining to admit the photograph marked as defendants’ exhibit A as a full exhibit. Following a hearing, the court denied the defendants’ motion, reasoning, inter alia, that the photograph was not disclosed until the eve of trial. We treat this claim the same as the defendants’ claim of evidential impropriety. For the reasons already set forth, we conclude that the court did not abuse its discretion in denying the defendants’ motion to set aside the verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court declined to admit the photograph as a full exhibit for several reasons, including late disclosure and relevance. The defendants focus on the latter in their appellate brief. We conclude that the court acted within its discretion in declining to admit the photograph as a full exhibit on the ground that the defendants untimely disclosed the photograph to the plaintiff. We offer no opinion as to the relevance of the photograph.

       The evidence portion of the trial apparently began on March 5, 2008.

       Practice Book § 13-15 provides: “If, subsequent to compliance with any request or order for discovery and prior to or during trial, a party discovers additional or new material or information previously requested and ordered subject to discovery or inspection or discovers that the prior compliance was totally or partially incorrect or, though correct when made, is no longer true and the circumstances are such that a failure to amend the compliance is in substance a knowing concealment, that party shall promptly notify the other party, or the other party’s attorney, and file and serve in accordance with Sections 10-12 through 10-17 a supplemental or corrected compliance.”

       As a basis for their claims before this court, the defendants refer rather vaguely to attorney work product. If there were merit to the assertion of such privilege, the remedy is nondisclosure rather than introduction into evidence.

       “The proper appellate standard of review when considering the action of a trial court . . . denying a motion to set aside a verdict ... is the abuse of discretion standard. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. ... We do not . . . determine whether a conclusion different from the one reached could have been reached. ... A verdict must stand if it is one that a jury reasonably could have returned and the trial court has accepted.” (Internal quotation marks omitted.) Terio v. Rama, 104 Conn. App. 35, 45, 930 A.2d 837 (2007), cert. denied, 285 Conn. 912, 943 A.2d 471 (2008).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    JAMES DAVIS v. COMMISSIONER OF CORRECTION
    (AC 29588)
    Gruendel, Alvord and Borden, Js.
    Argued September 10
    officially released October 27, 2009

      Charles F. Willson, special public defender, for the appellant (petitioner).

      Erika L. Brookman, deputy assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Warren Maxwell, former senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, James Davis, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. He claims that the court improperly dismissed his claims of ineffective assistance of counsel. We affirm the judgment of the habeas court.

The following facts and procedural history are relevant. The petitioner was convicted after a jury trial of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and sentenced to twelve years incarceration. The petitioner’s conviction was affirmed on direct appeal. State v. Davis, 33 Conn. App. 915, 635 A.2d 885 (1993), cert. denied, 228 Conn. 924, 638 A.2d 38 (1994). Thereafter, the petitioner filed this amended petition for a writ of habeas corpus alleging prosecutorial misconduct and ineffective assistance of trial and appellate counsel. The petitioner had been represented by attorney John Stawicki at trial and on appeal. He claimed that Stawicki was generally unprepared for trial and made several errors. He also claimed that Stawicki’s appellate performance was ineffective because Stawicki had failed to raise on appeal the issue of prosecutorial misconduct. The habeas court denied his petition. The court determined that procedural default prevented review of his prosecutorial misconduct claim and found no evidence of prejudice with respect to either of his ineffective assistance of counsel claims. This appeal followed.

The petitioner claims that the court improperly determined that his counsel was effective. More specifically, he asserts that the judgment of the court should be reversed because its determination that his attorney was prepared adequately rested on a misapprehension of fact.

On the basis of the testimony presented during the habeas hearing, the court found that Stawicki represented the petitioner on all four robbery charges. In fact, Stawicki provided representation to the petitioner with respect to only the fourth robbery charge, namely, the charge at issue in the present case. He had no connection with the other three trials. The petitioner argues that the court’s misunderstanding of his attorney’s involvement in his three previous robbery prosecutions undermines its conclusion that his attorney performed reasonably. In essence, the petitioner contends that the court’s mistaken belief that Stawicki had represented him on three prior occasions caused it to credit Stawicki with a broader understanding of the petitioner’s case than he actually had and led the court to determine that Stawicki’s trial performance was sufficient. He urges this court to reevaluate the adequacy of his counsel’s performance.

“A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. 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.” (Citation omitted; internal quotation marks omitted.) Mozell v. Commissioner of Correction, 291 Conn. 62, 77, 967 A.2d 41 (2009). Moreover, when a petitioner is claiming ineffective assistance of appellate counsel, he must establish “that there is a reasonable probability that but for appellate counsel’s error, the petitioner would have prevailed in his direct appeal.” Charles v. Commissioner of Correction, 112 Conn. App. 349, 351, 962 A.2d 868, cert. denied, 290 Conn. 922, 966 A.2d 235 (2009), citing Small v. Commissioner of Correction, 286 Conn. 707, 721-24, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008).

Although the petitioner acknowledges that the court rendered its decision based solely on a finding of no prejudice, he does not challenge that portion of the court’s holding. Because he does not provide any indication that his attorney’s allegedly deficient performance altered the outcome of his criminal trial or his direct appeal, the petitioner’s claim fails under the second prong of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (requiring habeas petitioner to establish both deficient performance by trial counsel and that deficient performance prejudiced defense). Accordingly, we affirm the judgment of the habeas court and do not address the adequacy of Stawicki’s performance or the court’s findings thereon.

The judgment is affirmed.

       The habeas court granted certification to appeal.

       At the time of his trial, the petitioner already was serving consecutive sentences totaling sixty-six years on three other robbery charges that involved some of the same witnesses, including the state’s key witness, Dani Carlson. Carlson testified in all four trials.

       The petitioner claims that Stawicki failed to obtain the files, including Dani Carlson’s testimony, from the petitioner’s three previous trials; relied on the “open file” policy of the state’s attorney’s office instead of making discovery requests; ineffectively cross-examined Carlson; and failed to seek a plea agreement.

       “In a habeas appeal, this court cannot disturb the underlying fads found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Necaise v. Commissioner of Correction, 112 Conn. App. 817, 820, 964 A.2d 562, cert. denied, 292 Conn. 911, 973 A.2d 660 (2009).

       The petitioner’s conclusory statements that but for the actions of counsel, the outcome of his criminal trial and appeal would have been different do not satisfy the prejudice prong of Strickland.


author: FLYNN, C. J.

text:
    RALSTON SAMUELS v. COMMISSIONER OF CORRECTION
    (AC 29192)
    Flynn, C. J., and Beach and Robinson, Js.

      Argued September 8
    officially released October 27, 2009

      Stephanie L. Evans, special public defender, for the appellant (petitioner).

      Robin S. Schwartz, assistant state’s attorney, with whom, on the brief, were Gail P. FLardy, state’s attorney, and Kelly A. Masi, assistant state’s attorney, for the appellee (respondent).
   Opinion

FLYNN, C. J.

After the habeas court granted certification to appeal, the petitioner, Ralston Samuels, filed this appeal from the judgment of the court dismissing his first amended petition for a writ of habeas corpus on subject matter jurisdiction grounds. On appeal, the petitioner claims that the court improperly held that it did not have subject matter jurisdiction over the petition because Public Acts 2006, No. 06-152, § 5, which modified General Statutes (Rev. to 2005) § 52-466, unambiguously expanded the jurisdiction of the habeas court and eliminated the “in custody” requirement from subsection (a) (2) for those petitioners who claim a deprivation of liberty and who presently are confined in a correctional facility as a result of being convicted of a crime. We affirm the judgment of the habeas court.

The following facts are necessary to the resolution of the petitioner’s appeal. In April, 2000, the petitioner pleaded guilty in two criminal dockets and was sentenced to a total effective term of two years incarceration, execution suspended after time served, followed by two years of probation. It is these April, 2000 convictions that are the subject of this habeas appeal. In September, 2000, the petitioner was found guilty of several crimes in a third criminal docket and was sentenced to a total effective term of thirty years incarceration, execution suspended after fifteen years, followed by ten years of probation. The petitioner then admitted to violating his probation in the first two criminal dockets, and he was sentenced to concurrent six month terms for those violations. On the basis of the April, 2000 convictions, the petitioner, who is not a citizen of the United States, was ordered deported in 2001.

In October, 2005, the petitioner, who still was incarcerated as a result of the September, 2000 conviction, filed a pro se petition for a writ of habeas corpus, challenging his April, 2000 convictions because of the collateral consequences of the trial court’s deportation order. On the basis of Lebron v. Commissioner of Correction, 274 Conn. 507, 530, 876 A.2d 1178 (2005), which held that a habeas court has subject matter jurisdiction to hear a petition for a writ of habeas corpus only when the petitioner remains in custody on that conviction, the habeas court dismissed the petition for lack of subject matter jurisdiction because the petitioner had finished serving his sentences on the April, 2000 convictions. See Ajadi v. Commissioner of Correction, 280 Conn. 514, 540, 911 A.2d 712 (2006) (“once the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual in custody for the purposes of a habeas attack upon it” [internal quotation marks omitted]). The habeas court then granted the petitioner certification to appeal. This appeal followed.

On appeal, the petitioner claims that the court improperly dismissed his habeas petition after concluding that it did not have subject matter jurisdiction because he did not meet the “in custody” requirement. He argues that Public Acts 2006, No. 06-152, eliminated Lebrón's in custody requirement from § 52-466 (a) (2), thereby expanding the jurisdiction of the habeas court to include cases in which the sentence has already been served, such as his April, 2000 convictions. The respondent, the commissioner of correction, although strongly disagreeing with the petitioner’s construction of the changes to § 52-466, argues, nonetheless, that, even if the petitioner were correct, such a legislative change clearly would be substantive in nature and, therefore, would apply only prospectively. During oral argument before this court, the petitioner agreed that his construction of § 52-466, as amended, equates to a substantive change in the law. We agree that such a change would be substantive. Furthermore, we conclude that, even if we, arguendo, were to agree with the petitioner’s construction of § 52-466, the changes in the law could not be applied to his petition because a retroactive application was not set forth by the legislature.

“It is axiomatic that, [w]hether to apply a statute retroactively or prospectively depends upon the intent of the legislature in enacting the statute. ... In seeking to discern that intent, [a court’s] point of departure is . . . [General Statutes] § 55-3, which . . . [our Supreme Court has] uniformly inteipreted ... as a rule of presumed legislative intent that statutes affecting substantive rights shall apply prospectively only. . . . The [legislature only rebuts this presumption when it clearly and unequivocally expresses its intent that the legislation shall apply retrospectively. ... As a corollary to this principle, [our Supreme Court also has] presumed that procedural or remedial statutes are intended to apply retroactively absent a clear expression of legislative intent to the contrary. . . . While there is no precise definition of either [substantive or procedural law], it is generally agreed that a substantive law creates, defines and regulates rights while a procedural law prescribes the methods of enforcing such rights or obtaining redress.” (Citations omitted; internal quotation marks omitted.) State v. Skakel, 276 Conn. 633, 679-81, 888 A.2d 985, cert. denied, 549 U.S. 1030, 127 S. Ct. 578, 166 L. Ed. 2d 428 (2006); see Mead v. Commissioner of Correction, 282 Conn. 317, 323-26, 920 A.2d 301 (2007) (concluding that substantive amendment, which changed indeterminate life sentences to determinate sixty year sentences, applied only prospectively when legislature gave no clear and unequivocal expression of retroactivity).

During oral argument before this court, the petitioner clearly conceded that if his construction of § 52-466, as amended, is correct, which we do not decide in this appeal, the legislative changes would be substantive. His construction could be applied prospectively only because the statute contains no clear and unequivocal expression from the legislature that such substantive changes would apply retroactively. Accordingly, we reject the petitioner’s claim, which would require a retroactive application of § 52-466 as amended.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-466, as amended by Public Acts 2006, No. 06-152, provides in relevant part: “(a) (1) An application for a writ of habeas corpus, other than an application pursuant to subdivision (2) of this subsection, shall be made to the superior court, or to a judge thereof, for the judicial district in which the person whose custody is in question is claimed to be illegally confined or deprived of such person’s liberty.
      “(2) An application for a writ of habeas corpus claiming illegal confinement or deprivation of liberty, made by or on behalf of an inmate or prisoner confined in a correctional facility as a result of a conviction of a crime, shall be made to the superior court, or to a judge thereof, for the judicial district of Tolland. . . .”

       This purely is for argument sake only and should not be read to imply any agreement with the petitioner’s construction of § 52-466.

       General Statutes § 55-3 provides: “No provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have a retrospective effect.”


text:
    GARDNER HEIGHTS HEALTH CARE CENTER, INC. v. RICHARD J. KOROLYSHUN ET AL.
    (AC 30097)
    Bishop, Gruendel and Harper, Js.
    Argued September 25
    officially released October 27, 2009

      Noah J. Schafler, for the appellant (named defendant).

      Mark S. Shipman, with whom, on the brief, were Rachel Kittredge Shipman and Mary Catherine Cur-ran, for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant Richard J. Korolyshun appeals from the order of the trial court denying his motion for attorney’s fees. We affirm the judgment of the trial court.

On March 19,2003, the defendant was appointed conservator of the estate of Jean Bartolucci, who was a patient at the plaintiff health care facility, Gardner Heights Health Care Center, Inc. Travelers Casualty & Surety Company of America (Travelers) issued a bond to the Probate Court to guarantee the defendant’s performance as a conservator. Subsequently, the plaintiff brought this action against the defendant and Travelers, claiming that the defendant breached his fiduciary duties while acting as Bartolucci’s conservator by, among other things, failing to obtain medicaid benefits for Bartolucci. The plaintiff also alleged that Travelers was liable as surety under the bond. The court rendered judgment in favor of the defendant and Travelers.

Thereafter, the defendant filed a motion for attorney’s fees pursuant to General Statutes § 42-150bb, which provides in relevant part that “[wjhenever any contract ... to which a consumer is a party, provides for the attorney’s fee of the commercial party to be paid by the consumer, an attorney’s fee shall be awarded as a matter of law to the consumer who successfully . . . defends an action . . . based upon the contract . . . .” (Emphasis added.) The underlying action here, however, was not such a contract action but was a claim of breach of fiduciary duty, which is a tort claim. See Ahem v. Kappalumakkel, 97 Conn. App. 189, 192 n.3, 903 A.2d 266 (2006). Accordingly, because § 42-150bb is not applicable to the action at hand, the court properly denied the defendant’s motion for attorney’s fees.

The judgment is affirmed.

       Travelers Casualty & Surety Company of America (Travelers) was also a defendant in this case. Because Travelers is not a party to this appeal, we refer to Korolyshun as the defendant in this opinion.


author: LAVINE, J. MCDONALD, J.,

text:
    STATE OF CONNECTICUT v. FRANKLYN E. ADAMS
    (AC 29404)
    Lavine, Beach and McDonald, Js.
    Argued March 20
    officially released November 3, 2009

      Franklyn E. Adams, pro se, the appellant (defendant).

      Paul J. Narducci, senior assistant state’s attorney, with whom, on the brief, was Michael L. Regan, state’s attorney, for the appellee (state).
   Opinion

LAVINE, J.

The pro se defendant, Franklyn E. Adams, appeals from the judgment of the trial court denying his “motion to open [the] judgment for [the] return of arrested or seized property . . . ,” The defendant claims that the court improperly failed to return property that was seized from him in criminal docket number CR-05-0284632-S, a case in which a nolle prosequi was entered pursuant to a plea agreement involving a total of six cases against the defendant. We decline to review the defendant’s claim because the record is inadequate for our review, as the defendant failed to seek an articulation of the court’s ruling; see State v. Bonner, 290 Conn. 468, 493, 964 A.2d 73 (2009) (“[w]ithoutthe necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the defendant’s claims] would be entirely speculative” [internal quotation marks omitted]); and because the claim is inadequately briefed. See State v. Glenn, 97 Conn. App. 719, 737 n.17, 906 A.2d 705 (2006) (“[w]here the parties cite no law and provide no analysis of their claims, we do not review such claims” [internal quotation marks omitted]), cert. denied, 281 Conn. 913, 916 A.2d 55 (2007). The judgment of the trial court is affirmed.

From the procedural history contained in the state’s brief, the transcripts of various proceedings in the trial court and the court file, we adduce the following procedural history. On May 23,2007, the defendant pleaded guilty, pursuant to the Alford doctrine, to possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a) in criminal docket number CR-06-0287205-T and breach of the peace in the second degree in violation of General Statutes § 53a-181 in criminal docket number CR-05-0284628-S. At the time the defendant entered his plea, he had pending against him four other criminal cases, including criminal docket number CR-05-0284632-S. The state agreed to a nolle prosequi of the other charges pending against the defendant. The court continued the matter for sentencing.

On August 22, 2007, the defendant appeared before the court for sentencing. Prior to sentencing, the court addressed the defendant, stating in relevant part: “Mr. Adams, in my coming to a conclusion today about what an appropriate sentence should be, I have looked at your record, and I am aware of your record and have been aware of your record during the pendency of this case. You have a number of prior drug convictions: 1995, possession of narcotics; 1996, sale of narcotics; 2000, sale of narcotics. And also a possession of marijuana from South Carolina in 2000. And you come back to the court today, you have six pending cases, a number of those also involve drug cases. So, seriously, there is no question in this court’s mind that you have a considerable drug problem.” (Emphasis added.) The court then sentenced the defendant to concurrent terms of imprisonment for a total effective sentence of sixty-one months in the custody of the commissioner of correction, followed by five years of special parole. The prosecutor entered a nolle prosequi as to the charges in the four other cases pending against the defendant, including criminal docket number CR-05-0284632-S, and ordered the defendant to forfeit the moneys and contraband seized in all of the cases. The defendant’s special public defender, Matthew Berger, questioned the court’s authority to order a forfeiture of moneys seized in the cases that were nolled. The court stated that it had the authority to do so.

At the time of sentencing, the defendant was enrolled in a graduate equivalency diploma program at the correctional institution where he was then incarcerated. To permit the defendant to complete that program, the court stayed the sentence until September 17, 2007. On September 17, 2007, the then pro se defendant filed a “motion to open [the] judgment for [the] return of arrested or seized property . . . After hearing arguments on the motion on September 21, 2007, the court stated to the defendant: “Now, if your understanding [at the time you pleaded guilty] was that you were going to get that money back and no one instructed you about that, then I am going to let you withdraw your plea and have a trial on these cases. That is your option. Otherwise, I am simply going to lift the stay today, sir, impose the sentence and assume that all money seized has been forfeited. If that is not what you want to do, then you can withdraw your plea and have a trial, and I will not impose sentence today.”

In response, the defendant stated, “No, I’m not withdrawing nothing because I don’t understand anything. The state only asked me for the $724 that I had. We made that agreement on May 22 or 23, when I was here; that was it.” The court stated that that was not its understanding of the plea agreement. The defendant then asked to speak with his special public defender, and the court passed the matter.

When the matter was taken up again, the court stated to the defendant: “We have had numerous discussions on the matter, Mr. Adams. It is—first of all, I am going to lift the stay today on the sentence that originally was effectuated on August 22, 2007. The stay is lifted, the sentence is imposed. At the time you pleaded and I imposed the sentence, prior to my staying it, I indicated that moneys would be forfeited. That is still this court’s position. If you take issue with that, you can certainly file an appeal. I would indicate to you that that is a civil matter, not a criminal matter, because it involves forfeiture of moneys.” The defendant appealed from the denial of his motion to open the judgment.

On appeal, we construe the defendant’s claim to be that the court improperly ordered him to forfeit $2744 and two cellular telephones that were seized during his arrest that led to the charges filed in criminal docket number CR-05-0284632-S. He argues that the court abused its discretion pursuant to State v. Rivers, 283 Conn. 713, 726, 931 A.2d 185 (2007) (state’s duty to ensure plea agreement is clear), and Practice Book § 17-4. The defendant failed, however, to set forth the relevant facts and analyze them pursuant to Rivers. Moreover, to the extent that the September 21, 2007 transcript, of which we took judicial notice as requested by the defendant, indicates that the court offered the defendant the option to withdraw his plea and proceed to trial, the defendant has not explained how the court abused its discretion pursuant to Rivers.

In Rivers, the plea bargain was conditioned on the defendant’s cooperating in the case against another accused. Id., 717-18. The defendant gave a statement to the police and testified at a preliminary hearing, but exercised his constitutional right against self-incrimination at the other accused’s trial. Id., 718-19. The state argued that the defendant failed to cooperate as required by his plea agreement; id., 719; and the trial court agreed. Id., 722. The defendant was tried, found guilty and sentenced more harshly than he would have been had he complied with his plea bargain. Id., 723. On appeal, our Supreme Court held that on the facts, the defendant had cooperated, that the plea agreement did not expressly require the defendant to testify at trial and any ambiguity in the agreement should be construed against the state. Id., 725-29. Because the defendant had performed his part of the agreement, specific performance was the only equitable remedy. Our Supreme Court ordered the sentence contemplated by the plea imposed. Id., 732-34.

The plea bargain at issue before us is different; it contained no executory provisions and no party to the agreement had performed. The court indicated that it would impose the agreed on sentence. If the defendant no longer wanted to accept the plea bargain to which he had agreed, the remedy was to withdraw his plea, as the court offered. The defendant rejected the option to withdraw his plea.

Alternatively, on August 22, 2007, the court stated that it had the authority to order the defendant to forfeit all moneys and contraband seized in all of the cases. The defendant has failed to seek an articulation of the legal and factual basis for that statement. See Practice Book § 66-5. Our Supreme Court has stated that appellate courts “are not required to review issues that have been improperly presented . . . through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) State v. Colon, 272 Conn. 106,153 n.19, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005). “[F]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed. . . . The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited.” (Internal quotation marks omitted.) State v. John G., 100 Conn. App. 354, 356 n.2, 918 A.2d 986, cert. denied, 283 Conn. 902, 926 A.2d 670 (2007). Moreover, “[i]t is incumbent upon the [defendant] to take the necessary steps to sustain [his] burden of providing an adequate record for appellate review. . . . Our role is not to guess at possibilities . . . but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the defendant’s claims] would be entirely speculative.” (Internal quotation marks omitted.) State v. Brunetti, 279 Conn. 39, 63, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S. Ct. 1328, 167 L. Ed. 2d 85 (2007).

“The general purpose of [the] rules of practice and their interplay is to ensure that there is a trial court record that is adequate for an informed appellate review of the various claims presented by the parties. . . . One specific purpose of a motion for articulation of the factual basis of a trial court’s decision is to clarify an ambiguity or incompleteness in the legal reasoning of the trial court in reaching its decision.” (Internal quotation marks omitted.) State v. Breton, 264 Conn. 327, 394, 824 A.2d 778, cert. denied, 540 U.S. 1055, 124 S. Ct. 819, 157 L. Ed. 2d 708 (2003). Litigants “cannot wholly ignore established procedures for the protection of [their] rights . . . and hope to receive on appeal the same treatment accorded to those who follow the rules of practice.” Seal Auto, Inc. v. Bozak, Inc., 199 Conn. 496, 518, 508 A.2d 415 (1986).

In one sentence of his brief, the defendant states that the court refused to grant his motion to open the judgment for the return of his property for its “own personal reasons.” In this regard, the defendant’s bald assertion is not only inadequately briefed, but the record also is inadequate for our review. Again, the transcript of the September 21, 2007 hearing reflects that the court was of the mind that it had the authority to order the moneys and cellular telephones forfeited and that the defendant could seek the return of the property pursuant to civil remedy. The record does not contain either the court’s explicit factual findings or the specific legal basis for its ruling. The defendant failed to seek an articulation. See Practice Book § 66-5.

We are aware that “[i]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party. . . . Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law. . . .

“The duty to provide this court with a record adequate for review rests with the appellant. ... It is incumbent upon the appellant to take the necessary step to sustain its burden of providing an adequate record for appellate review. [Practice Book § 60-5.] ... It is not the function of this court to find facts. . . . Our role is . . . to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court, any decision made by us respecting the defendant’s claims would be entirely speculative.” (Citations omitted; internal quotation marks omitted.) State v. Cotto, 111 Conn. App. 818, 820-21, 960 A.2d 1113 (2008). Several months ago, our Supreme Court restated the need for appellants to provide an adequate record for our review as required by Practice Book § 61-10 and the reasons therefor. See State v. Bonner, supra, 290 Conn. 493. In this appeal, the record is inadequate for our review.

The judgment is affirmed.

In this opinion BEACH, J., concurred.

MCDONALD, J.,

dissenting. I do not agree with the majority that the defendant, Franklyn E. Adams, did not present an adequate record to review his claim that the sum of $2744 was improperly taken from him after plea bargaining. As the majority notes, the defendant asked this court to take judicial notice of the official transcripts of the statement of the plea bargain and his Alford plea of May 23,2007, of his sentencing on August 22, 2007, and of the court’s ruling on his motion to open the judgment for the return of property on September 21, 2007, and this court agreed. In State v. Samuel, 94 Conn. App. 715, 718 n.4, 894 A.2d 363, cert. denied, 278 Conn. 911, 899 A. 2d 39 (2006), this court found the transcript of a plea canvass adequate to review the sufficiency of the canvass, an issue similar- to the issue in this case.

The majority faults the defendant for failing to seek articulation of the court’s rationale for ordering the forfeiture of the $2744. The record, to the contrary, shows that the court in doing so stated on the record that it had indicated at the time of the defendant’s plea and the imposition of sentence that moneys would be forfeited and that that still was the court’s position.

The plea bargain as presented by the state on the record on May 23,2007, did not provide that any moneys were to be forfeited to the state. In presenting the facts concerning the defendant’s plea, the only money the state referred to was the sum of $724 seized when the defendant was arrested on the charges to which he was pleading guilty. The record also did not reflect that the state stated that it agreed to nolle four other charges pending against the defendant. After the defendant’s plea was accepted, the court inquired about whether the $724 seized was to be forfeited, and the defendant’s counsel stated that that was what the state “has maintained.” The court then stated that it wanted “to make sure we understand that and that doesn’t become a hangup later.”

On August 22, 2007, after sentence was imposed and stayed at the defendant’s request, the state entered nol-les of the other pending charges against the defendant. The state then asked that the moneys seized be forfeited. The defendant’s counsel stated, as to the cases in which the defendant entered the Alford plea, that forfeiture is “routine,” but counsel contested “the state’s authority to forfeit money on a nolle charge.” The court then asked the clerk for the “inventory” of the files, and the clerk replied that there was $2744 in one of the nolled files and $724 in another docket. The court then ordered that all moneys be forfeited to the state.

Thereafter, the defendant filed a motion to open the judgment, requesting, inter alia, the return of the $2744. On September 21, 2007, with respect to that motion, the court stated that it was the court’s recollection that moneys were to be forfeited and that the motion questioned forfeiture as to money seized in nolled cases. The court stated that if the defendant understood differently, he could withdraw his plea and have a trial, otherwise the court would lift the stay and assume that all moneys seized had been forfeited. The defendant told the court that he was not withdrawing anything and that he had agreed only to the forfeiture of the $724. The court stated that that was not the agreement. After a recess, the court lifted the stay and stated that the moneys would be forfeited. The court stated that at the time of the plea and imposition of sentence, the court had indicated that the moneys would be forfeited and that that was still the court’s position. The court added that if the defendant took issue with that, he could file an appeal.

The state then erroneously stated to the court that it believed the forfeiture of all moneys in the defendant’s nolled case was on the record at the time of the defendant’s guilty plea. The court thereafter denied the defendant’s motion to open the judgment for the return of the $2744.

The defendant is an unrepresented prisoner who was given a stay of execution of his sentence to obtain his high school diploma. On appeal, the defendant’s pro se brief argues, albeit in rough form, that the court abused its discretion and ordered the $2744 forfeited without following the procedure under General Statutes § 54-33g, which governs seizure of property and in rem actions. Section 54-33g sets forth the procedure by way of summons and a hearing in which the state must prove the allegations that the property was used to commit a criminal offense. During oral argument before us, the state conceded that the in rem procedure had not been followed as to the $2744.

The defendant’s brief claims that the trial court abused its discretion in acting as it did, citing State v. Rivers, 283 Conn. 713, 931 A.2d 185 (2007). Our Supreme Court in Rivers held that the terms of the plea bargain should be stated clearly and unambiguously so that the defendant in assenting to waive certain rights knows what is expected of him and what he can expect in return. The Supreme Court further stated in Rivers that any ambiguous language must be construed against the state. In this case, the forfeiture of the $2744 was not put on the record as part of the plea bargain, and the court explicitly stated at the time of the plea that the sum of $744 was to be forfeited. Applying Rivers, I would conclude that the plea bargain was not kept.

In Rivers, our Supreme Court also discussed a remedy for the state’s failure to honor a plea bargain. The court cited authority that either an opportunity to withdraw a guilty plea or specific performance of a plea bargain is to be offered. In its discussion, the court cited authority that specific performance is preferred. It also alluded to Justice Douglas’ concurrence in Santo-bello v. New York, 404 U.S. 257, 267, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971), which stated that a defendant’s preference is to be accorded considerable, if not controlling, weight.

In this case, the state received the benefit of its bargain with the defendant in the defendant’s waiver of a trial and his guilty plea. A sentence within the limits agreed on was then imposed but the forfeiture of the $2744 was added. The court’s offer to allow the defendant to withdraw his plea could not place him in the same position as the offer he had accepted and on which he had pleaded guilty. The majority states that if the defendant no longer wanted to accept the plea bargain to which he had agreed, the remedy was to withdraw his plea, as the court offered. The defendant, on the record, however, did not agree at any time to the forfeiture of the $2744, and the state’s attorney and the court mistakenly disregarded the record plea bargain, which reflected the forfeiture of only the $724.

Santobello v. New York, supra, 404 U.S. 260-61, recognizes, as has our Connecticut court system; see Copas v. Commissioner of Correction, 234 Conn. 139, 153-54, 662 A.2d 718 (1995); that plea bargaining is an integral part of our criminal justice system. Bargains struck on the record must be adhered to by the state if plea bargaining is to continue. Because the court did not require the state to present evidence that the $2744 represented the means or proceeds of illegal activities, and absent a waiver of such a hearing by the defendant, I would reverse the order forfeiting the $2744.

I respectfully dissent.

       The defendant sought the return of $2744 and two cellular telephones.

       The defendant first filed a statement pursuant to Practice Book § 63-4 (a) (3) indicating that no transcripts will be necessary for this appeal. On December 5, 2008, the defendant filed a motion asking this court to take judicial notice of the transcripts dated May 23, August 22 and September 21, 2007, among other things. This court, granted the defendant’s motion to taire judicial notice of the transcripts. The state has included those transcripts in the appendix to its brief.

       Appellate courts may taire judicial notice of files of the trial court in the same or other cases. See McCarthy v. Commissioner of Correction, 217 Conn. 568, 580 n.15, 587 A.2d 116 (1991).

       See North Carolina v. Alford, 400 U.S. 25, 35, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       In docket number CR-06-0287206-T, the defendant was charged with, among other things, sale of a narcotic substance by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b).
      In docket number CR-06-0287207-T, the defendant was charged with, among other things, sale of a narcotic substance by a person who is not drug-dependent in violation of § 21a-278 (b).
      In docket number CR-06-0286552-S, the defendant was charged with assault in the third degree in violation of General Statutes § 53a-61 and criminal violation of a protective order in violation of General Statutes § 53a-223.
      In docket number CR-05-0284632-S, the defendant was charged with possession of narcotics in violation of General Statutes § 21a-279 (a), attempt to possess a controlled substance in violation of General Statutes §§ 53a-49 and 21a-279 (c), possession of a controlled substance in violation of § 21a-279 (c) and criminal impersonation in violation of General Statutes § 53a-130.

       The inventory of property seized in docket number CR-05-0284632-S states that the following property was seized: “1. clear zip-lock bag containing green plant like substance 2. photo ID # 011477789, Adams, Brimage 3. $2,744 US currency.”

       The following colloquy took place between the court and defense counsel:
      “[Defense Counsel]: I think in the cases where he entered the Alford plea, forfeiture is routine. In the nolle files, I would contest the state’s authority to forfeit money on a nolle charge.

        “The Court: What do we have for inventory in these files?
      “[The Clerk]: Two thousand seven hundred and forty-four dollars in [CR-05-0284632-S], one of the files to be nolled. And the other is $724 that is on docket [number CR-0287205-T].
      “The Court: All right. I hear you, [counsel], but all moneys are forfeited 1o the state of Connecticut. And I do believe the court has the authority to do that, and I am doing so. Any money that is ever seized in any cases involving drugs or any combination of cases on which the defendant is sentenced, all money is forfeited; and that is where the money is going.”

       Later in the proceeding, the court informed the defendant that he had civil remedies if he wanted to pursue them. The defendant failed to file a motion for articulation of the legal basis of the court’s statement that forfeiture of moneys is a civil matter. See Practice Book § 66-5.

       The form of the defendant’s three page brief barely meets the requirements of chapter 67 of the Practice Book, which sets forth the requirements for appellate briefs. The brief contains a background, argument and conclusion written in five single-spaced paragraphs.

       Practice Book § 17-4 concerns the setting aside of judgments in civil actions.

       In its ruling, the court implied that it had authority to order the forfeiture of moneys seized. Although it may be implicit in the court’s remarks that it found a nexus between the moneys and the crimes with which the defendant had been charged, we are unwilling to speculate to that effect.
      In the recent case of State v. Garcia, 108 Conn. App. 533, 550-55, 949 A.2d 499, cert. denied, 289 Conn. 916,957 A.2d 880 (2008), this court addressed the forfeiture of moneys seized along with contraband and the statutes that pertained to such forfeitures. Garcia, decided subsequent to the facts here, concluded that General Statutes § 54-36a (c) “empowers courts presiding over criminal actions to dispose of contraband, including currency linked to illegal drug transactions, provided that a nexus exists between the contraband and the crimes charged.” State v. Garcia, supra, 554-55.
      Whether the court in the case before us now was referring to § 54-36a (c) or some other statute when it ordered the forfeiture of the $2744, we do not know. The defendant should have requested an articulation of the court’s factual findings.

       The dissent suggests that the record is adequate for our review because the transcripts make clear the basis of the defendant’s claim. Whether his claim is clear is not the point, given the absence of an articulation by the trial court as to the factual and legal basis for its stating that it had the authority to order all moneys in all files forfeited. The defendant’s brief is inadequate, in part, because the defendant does not know the law and specific facts on which the court relied to challenge the ruling in a well reasoned analysis.

       See North Carolina v. Alford., 400 U.S. 25, 35, 91 S. Cl. 160, 27 L. Ed. 2d 162 (1970).

       The majority refers to State v. Garcia, 108 Conn. App. 533, 550-55, 949 A.2d 499, cert. denied, 289 Conn. 916, 957 A.2d 880 (2008), which was released after the proceedings in this case, as a possible basis of the court’s order of forfeiture. Garcia, however, involved a forfeiture after a trial in which the court heard evidence that there was a nexus between the moneys seized and illegal narcotics trafficking and made such a finding. There was no evidence heard by the court in this case on which to make such a finding and no such finding was made.


author: BISHOP, J.

text:
    BENJAMIN BROWNSTEIN ET AL. v. KENNETH C. SPILKE
    (AC 29796)
    (AC 29906)
    Bishop, DiPentima and Berdon, Js.

      Argued September 14 officially
    officially released November 3, 2009

      Daniel Shepro, for the appellant (substitute plaintiff J. Diamond Properties, LLC, in AC 29796).

      Georgina Spilke, pro se, the appellant (defendant in AC 29906).

      Glenn L. Formica, with whom, on the brief, were William B. Wynne, Joseph M. Wicklow III and Henry N. Silverman, for the appellee (named defendant).
   Opinion

BISHOP, J.

In these consolidated appeals, the substitute plaintiff, J. Diamond Properties, LLC (Diamond), and the defendant Georgina Spilke appeal from the judgment of the trial court denying Diamond’s motion for a deficiency judgment as to the defendant Kenneth C. Spilke. In AC 29796, Diamond claims that the court improperly determined that it failed to prove the fair market value of the subject property as of the date title vested in Diamond following a judgment of foreclosure and that it would be inequitable to grant the deficiency judgment. In AC 29906, Georgina Spilke contends that the defendant’s claim regarding the deficiency judgment is barred by the doctrine of res judicata. We affirm the judgment of the court in AC 29796 and dismiss the appeal in AC 29906.

The following factual and procedural history is relevant to the resolution of the issues on appeal. In 1986, the defendant executed a note and mortgage to Benjamin Brownstein and Pamela Brownstein in the amount of $54,500. The note was secured by a mortgage on certain real property in New Haven. On July 8, 1988, the Brownsteins commenced foreclosure proceedings against the defendant. Before the action was dismissed on the basis of dormancy in December, 1992, the court granted five motions filed by the Brownsteins for exemption from the dormancy list. After the case was reinstated to the docket in April, 1993, the court granted five additional motions for exemption from the dormancy list. On March 26, 2001, the Brownsteins filed a motion for a judgment of strict foreclosure and, on April 23, 2002, certified that the pleadings were closed.

The note and mortgage lien were assigned to KILM, Inc., which was substituted as the plaintiff on May 12, 2003. KILM, Inc., impleaded several additional defendants, including Georgina Spilke, who was the defendant’s wife at the time. Subsequently, KILM, Inc., transferred its interest to Diamond, which was substituted as the plaintiff on September 29, 2003.

On June 21, 2004, Diamond filed a motion for a judgment of strict foreclosure, which the court granted on August 2, 2004. On the basis of an appraisal performed by Charles A. Liberti of Blue Ribbon Appraisal, LLC, the court found the fair market value of the subject property as of that date to be $56,000. The court found the debt to be $143,548.97, comprised of principal in the amount of $54,500, and interest from April 1, 1988, through June 22,2004, in the amount of $88,436.84. Title vested in Diamond on September 14, 2004.

On October 7, 2004, Diamond timely filed a motion for a deficiency judgment against only the defendant and indicated, in its motion, that the fair market value of the property was $72,500. The defendant objected to the motion. He contended, inter alia, that his marriage to Georgina Spilke was dissolved in 2003, and that the dissolution decree provided that if she purchased the property then owned by KILM, Inc., she would not attempt to collect a deficiency judgment against him. He contended, as well, that their agreement further provided that the terms would be binding on others, including heirs and assigns, expressed or not. The defendant claimed that Diamond is an entity owned and operated by Georgina Spilke’s son, who had purchased the note to pursue a deficiency on behalf of his mother. On this basis, the defendant contended that Georgina Spilke was attempting to circumvent the dissolution agreement by having her son bring the deficiency action, and, consequently, the defendant should not be held responsible for the deficiency. The defendant also moved for contempt in the dissolution action, claiming that Georgina Spilke violated the above referenced provision by seeking a deficiency judgment in the foreclosure action. On October 14, 2005, the court denied the motion for contempt in the dissolution action, finding that Georgina Spilke’s son had acted independently from her in pursuing the deficiency judgment.

On March 27, 2008, the court denied the motion for a deficiency judgment and sustained the defendant’s objection. Thereafter, on July 1, 2008, the court issued an articulation, indicating that Diamond had failed to prove the value of the property at the time of vesting on September 14, 2004, and that it would be inequitable to grant the deficiency on the basis that “the history of the proceedings, the relationships between the parties and the delay in prosecuting the foreclosure action diligently increased the interest to the amount claimed in the deficiency.” Georgina Spilke filed a motion for reconsideration, which the court denied on the ground that she was not a party to the motion for a deficiency judgment. These appeals followed. Additional facts will be set forth as necessaiy.

I

AC 29796

Diamond claims that the court improperly concluded that it failed to establish the value of the property as of September 14, 2004, the date it obtained title. We disagree.

This court has noted that “[a] deficiency proceeding has a very limited purpose. . . . [T]he court, after hearing the party’s appraisers, determines the value of the property and calculates any deficiency. This deficiency judgment procedure presumes the amount of the debt as established by the foreclosure judgment and merely provides for a hearing on the value of the property. . . . The deficiency hearing concerns the fair market value of the subject property as of the date title vests in the foreclosing plaintiff under [General Statutes] § 49-14.” (Internal quotation marks omitted.) Citicorp Mortgage, Inc. v. Weinstein, 52 Conn. App. 348, 352, 727 A.2d 720 (1999). “[T]he value placed on the property by the court for the purposes of rendering judgment of strict foreclosure and setting law days [is] irrelevant to a subsequent deficiency judgment proceeding.” (Internal quotation marks omitted.) SKW Real Estate Ltd. Partnership v. Mitsubishi Motor Sales of America, Inc., 56 Conn. App. 1, 7-8, 741 A.2d 4 (1999), cert. denied, 252 Conn. 931, 746 A.2d 793 (2000).

“[I]mplicit in ... § 49-14 is the requirement that the party seeking a deficiency judgment satisfy her burden of proof regarding the fair market value of the property ... in particular, the requirement that the plaintiff provide the court with sufficient evidence to demonstrate that she is entitled to a deficiency judgment. . . . When considering a motion for a deficiency judgment, the trial court may make an independent determination as to the valuation of the property. . . . Our Supreme Court has held that, in a deficiency judgment proceeding, [t]he determination of [a property’s] value by a court is the expression of the court’s opinion aided ordinarily by the opinions of expert witnesses, and reached by weighing those opinions in light of all the circumstances in evidence bearing upon value and its own general knowledge of the elements going to establish it. . . . [T]he determination of the credibility of expert witnesses and the weight to be accorded then-testimony is within the province of the trier of facts, who is privileged to adopt whatever testimony he reasonably believes to be credible. . . .

“In determining valuation pursuant to ... § 49-14, the trier, as in other areas of the law, is not bound by the opinion of the expert witnesses .... The evaluation of testimony is the sole province of the trier of fact. We do not retry the case. The conclusion of the trial court must stand unless there was an error of law or a legal or logical inconsistency with the facts found. . . . We will disturb the trial court’s determination of valuation, therefore, only when it appears on the record before us that the court misapplied or overlooked, or gave a wrong or improper effect to, any test or consideration which it was [its] duty to regard.” (Citations omitted; internal quotation marks omitted.) Citicorp Mortgage, Inc. v. Weinstein, supra, 52 Conn. App. 352-53.

Here, the court concluded that Diamond failed to prove the fair market value of the property as of September 14, 2004. In support of its motion, Diamond offered the testimony of Liberti, who testified that the appraisal submitted by Diamond, estimating the value of the property at $60,000, was prepared by Leonard Courteman-che, also of Blue Ribbon Appraisal, LLC. According to Liberti, Courtemanche inspected the property on December 14, 2007, but backdated the appraisal to September 14, 2004. Attached to the appraisal, however, was a document indicating a sales price of the property, on September 22, 2004, of $75,000. In denying the motion for a deficiency judgment, the court noted these conflicting values in addition to the value of $72,500 suggested in Diamond’s motion for a deficiency judgment, and the $56,000 that was found to be the value as of the date of the judgment of foreclosure. On the basis of the four possible and conflicting valuations, in addition to the fact that the appraisal had been backdated, the court concluded that Diamond had failed to meet its burden of proving the value of the property when it obtained title. From our review of the record, it is evident that the court rejected the appraisal offered by Diamond. Because the court was free to accept or to reject any or all of the evidence regarding valuation, we cannot conclude that it improperly determined that Diamond had failed to prove the value of the property as of September 14, 2004.

II

AC 29906

Georgina Spilke claims that the court improperly sustained the defendant’s objection to Diamond’s motion for a deficiency judgment on the basis of her argument that the family court had determined that her son acted independently of her in pursuing the deficiency judgment, and, therefore, the defendant’s argument in opposition to the deficiency judgment was barred by the doctrine of res judicata. Georgina Spilke, however, was not a party to the motion for a deficiency judgment, and she has asserted that her son instituted the action for a deficiency judgment independent of her. Because she does not have a specific, personal and legal interest that has been specially and injuriously affected by the court’s judgment, she does not have standing to challenge the ruling, and, accordingly, this court is without jurisdiction to entertain her appeal. See Hunt v. Guimond, 69 Conn. App. 711, 715-16, 796 A.2d 588 (2002).

The judgment in AC 29796 is affirmed and the appeal in AC 29906 is dismissed.

In this opinion the other judges concurred.

       Several subsequent encumbrancers were impleaded as defendants in this action; however, because the deficiency judgment was sought only as to Kenneth Spilke, we refer to him in this opinion as the defendant.

       Because we affirm the judgment on the ground that the court did not improperly conclude that Diamond failed to prove the value of the property, we need not reach Diamond’s additional claim that the court improperly determined that it would be inequitable to grant the motion for a deficiency judgment.

       We note that the issue decided by the court in the marital dissolution action was whether Georgina Spilke had violated the dissolution agreement by seeking the deficiency judgment, not whether the defendant was liable for the deficiency judgment. Thus, even if Georgina Spilke had standing to appeal from the judgment of the court, because the merits of the deficiency judgment were not resolved by the marital dissolution cotut, it is not likely that the defendant’s opposition to the deficiency judgment would be barred by res judicata.


author: ALVORD, J.

text:
    MERRIMACK MUTUAL FIRE INSURANCE COMPANY v. JEFFREY RAMSEY ET AL.
    (AC 30245)
    Flynn, C. J., and Alvord and Sullivan, Js.
    Argued September 15
    officially released November 3, 2009

      Douglas P. Mahoney, with whom, on the brief, was Jason E. Tremont, for the appellant (defendant Meghan Laporta).

      Patricia M. Shepard, with whom, on the brief, was Lawrence H. Adler, for the appellee (plaintiff).
   Opinion

ALVORD, J.

In this action for a declaratory judgment, the defendant Meghan Laporta appeals from the summary judgment rendered by the trial court in favor of the plaintiff, Merrimack Mutual Fire Insurance Company. We affirm the judgment of the trial court.

The following facts are undisputed. On June 27, 2005, Jeffrey Ramsey visited the defendant as an invited guest in her apartment. The two were involved in a romantic relationship. Without provocation, Ramsey began stabbing himself and the defendant with a kitchen knife. He stabbed the defendant a total of twenty-four times, using a second knife when the first one broke.

The defendant suffered injury as a result of the attack and filed an action against Ramsey sounding in negligence. In her complaint, the defendant alleged that Ramsey suffered from a variety of mental and psychiatric disorders, and at no time dining the stabbing did he have an understanding of the nature or wrongfulness of his conduct or intend to cause her bodily injury. At the time the incident occurred, Ramsey was insured under a homeowner’s policy issued by the plaintiff to his parents, Franklin Ramsey and Rachel Ramsey.

On December 3, 2007, the plaintiff filed an amended complaint seeking a declaration that it had no obligation to defend or to indemnify Jeffrey Ramsey from claims arising from the defendant’s action in negligence. The plaintiff moved for summary judgment. It argued that it had no duty to defend or to indemnify Jeffrey Ramsey pursuant to a policy exclusion for injury arising out of sexual molestation, corporal punishment or physical or mental abuse (exclusion lk). The court agreed. It found that Jeffrey Ramsey’s actions clearly constituted physical abuse within the language of the exclusion, and it granted the plaintiffs motion for summary judgment. The defendant filed this appeal. On appeal, she claims that the court misinterpreted the policy exclusion and improperly granted the plaintiffs motion for summary judgment.

Construction of an insurance contract presents a question of law. Galgano v. Metropolitan Property & Casualty Ins. Co., 267 Conn. 512, 519, 838 A.2d 993 (2004). Accordingly, our review is plenary. “An insurance policy is to be interpreted by the same general rules that govern the construction of any written contract .... In accordance with those principles, [t]he determinative question is the intent of the parties, that is, what coverage the . . . [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy. ... If the terms of the policy are clear and unambiguous, then the language, from which the intention of the parties is to be deduced, must be accorded its natural and ordinary meaning. ... In determining whether the terms of an insurance policy are clear' and unambiguous, [a] court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity .... Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms. ... As with contracts generally, a provision in an insurance policy is ambiguous when it is reasonably susceptible to more than one reading. . . . Under those circumstances, any ambiguity in the terms of an insurance policy must be construed in favor of the insured because the insurance company drafted the policy. . . . This rule of construction may not be applied, however, unless the policy terms are indeed ambiguous.” (Citations omitted; internal quotation marks omitted.) Connecticut Medical Ins. Co. v. Kulikowski, 286 Conn. 1, 5-6, 942 A.2d 334 (2008).

Thus, the dispositive question in this case is whether exclusion lk is ambiguous. The exclusion states: “Coverage E—Personal Liability and Coverage F—Medical Payments to Others do not apply to ‘bodily injury’ . . . [a]rising out of sexual molestation, corporal punishment or physical or mental abuse . . . .” The policy defines “ ‘bodily injury’ ” as “bodily harm, sickness or disease, including required care, loss of services and death that results.” The policy does not define “sexual molestation,” “corporal punishment” or “physical or mental abuse.”

The defendant claims that the exclusion is ambiguous. She argues that the term “physical abuse” contains an implicit intentionality requirement and asserts that the court improperly failed to consider Jeffrey Ramsey’s intent when it determined that the exclusion applied. She claims that exclusion lk does not preclude coverage for her injuries because Jeffrey Ramsey did not intend or expect to harm her when he stabbed her twenty-four times with two knives.

We conclude that her reading of the policy is plainly unreasonable. The exclusion expressly exempts coverage for bodily injury arising out of physical abuse. Nowhere does it provide that a consideration of the abuser’s intent is required. In fact, the policy contains a separate exclusion that applies specifically to intentional acts. Exclusion la provides “Coverage E—Personal Liability and Coverage F—Medical Payments to Others do not apply to ‘bodily injury’ . . . [w]hich is expected or intended by the ‘insured.’ ” When both exclusions are read together, it is clear that exclusion lk does not require a consideration of the insured’s intent.

The only plausible interpretation of the Ramseys’ insurance policy is the natural and ordinary one accorded to it by the court in its well reasoned decision. The stabbing of the defendant clearly constituted physical abuse within the language of the policy. As such, the injuries suffered by the defendant are not covered, and the plaintiff has no duty to defend or to indemnify Jeffrey Ramsey.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff named Jeffrey Ramsey and Laporta as defendants. Ramsey failed to file an appearance, and a default was entered against him. We therefore refer to Laporta as the defendant in this opinion.

       The defendant also argues that exclusions lk and la are inconsistent and, as a result, should be interpreted in her favor. We disagree.


author: DiPENTIMA, J.

text:
    IN RE CHRISTOPHER B.

    (AC 29911)
    DiPentima, Lavine and Freedman, Js.

      Argued September 11 officially
    released November 3, 2009

      Karen Oliver Damboise, for the appellant (respondent mother).

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

      David T. Stone, 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

DiPENTIMA, J.

The respondent mother appeals from the judgment of the trial court terminating her parental rights with respect to her minor child, Christopher. On appeal, the respondent claims that the court improperly (1) determined that the department of children and families (department) made reasonable efforts to reunify Christopher with her, (2) determined that she had failed to achieve a sufficient degree of personal rehabilitation and (3) relied on evidence of her history prior to 2005 and disregarded current evidence in reaching its findings. We affirm the judgment of the trial court.

The following procedural history and facts, as found by the court, are relevant for our review. Christopher was bom on May 21,2000, the fourth child of the respondent. In March, 2002, the department became involved with the respondent after it was made aware of allegations regarding the condition of her apartment and use of dmgs with her older son in front of her other children. A department social worker conducted several visits where she found the apartment unsanitary and Christopher wearing soiled clothing, with stains on his body and his hair matted. The respondent did not keep Christopher’s medical or dental appointments, and, as of May, 2002, he was behind on his immunizations. The department was concerned about the lack of food in the apartment and Christopher’s safety.

During May, 2002, the department learned that a friend of the respondent was living in the respondent’s apartment and that he had had a physical altercation with the respondent’s older son, T. The respondent told the department that the presence of her friend was not a safety risk because she believed that all of her children, acting together, could subdue him if it was necessary. Additionally, the department learned that, at about the same time, several people had confronted T outside of the respondent’s apartment with firearms and a baseball bat. This altercation led to the injury to another of the respondent’s children. On another visit in May, 2002, a department social worker found food, cigarette ashes and maggots on the floor. During this time, social workers witnessed several occasions when Christopher acted out of control. On one occasion, he attempted to bite a social worker, and the respondent did not tell him to stop until prompted by the worker. The respondent also failed to ensure that her school-aged children were attending school.

Thereafter, in June, 2002, the police arrested the respondent on three counts of cruelty to persons in violation of General Statutes § 53-20 on the basis of the condition of her apartment. The respondent pleaded guilty and received a sentence of one year in prison, execution suspended, and three years probation on each count.

In 2002, the respondent refused to sign an authorization for homemaker services through the department of social services but did agree to work with a parent aide. The parent aide wanted to help her set limits for Christopher and to help her exercise proper follow through on discipline. The respondent, however, did not agree to pursue those goals and completed the program without addressing them. In 2003, the respondent failed to abide by a service agreement with the department that was aimed at improving the sanitary conditions in the home and keeping her children safe. She also failed to comply with a treatment plan addressing the same problems.

In May, 2005, police arrived at the respondent’s apartment in response to a report of a fight between T and another individual. There they found a .22 caliber revolver with an obliterated serial number. The revolver contained eight live rounds and one spent round. The respondent told police that she lived in the apartment with Christopher and another child. Before the police arrived, T had put the gun to his head and was spinning the chamber as if playing Russian roulette. At this point, the department increased its involvement with Christopher. In June, 2005, on an unannounced visit, a social worker found rotting food covered in mold, overflowing garbage bags, clothing and cigarette butts scattered around the home. At that time, the respondent signed a service agreement to keep the apartment clean and to provide for her children’s basic needs. By the next week, conditions had improved, but on the following visit, later in June, 2005, the apartment was found to be cluttered with toys, food, garbage and clothes.

In July, 2005, on a routine visit, a department social worker arrived at the respondent’s home and found a large abrasion on Christopher’s skin. Christopher slammed the front door and initially did not let the social worker enter the home because it was a “mess.” During this visit, state police had to be called to subdue one of the respondent’s other children, J, who was threatening to attack the social worker. On that visit, there was a bad odor in the home; clothes, debris and garbage littered the house. The carpet was blackened and soiled with dirty cigarette butts and grime. The mattresses were blackened. There was food on the floor. Social workers reported that on each visit in 2005, the home was in an unsanitary condition, and Christopher usually was out of control. One social worker reported an overpowering smell of urine and feces in the home, as well as cigarette butts on the floor and on a comforter lying near a couch.

In November, 2005, the court entered an order of temporary custody on behalf of Christopher, and he was removed from the home on the basis of the problems of the respondent’s mental health, anger management, parenting skills, poor hygiene, housing and medical and educational neglect. On December 5, 2005, the court confirmed the order and ordered specific steps for the respondent to take to facilitate Christopher’s return to her custody, including participation in individual and family counseling. Over the next several months, there was no sustained improvement in the sanitary conditions of the home.

In January, 2006, the respondent completed a psychological evaluation with a clinical psychologist who concluded that there was not a high likelihood that the respondent could provide an environment in which Christopher could be safe and prosper. In February, 2006, the respondent began therapy with a licensed psychotherapist. By November, 2007, after making some progress, the respondent’s ability to benefit from psychotherapy had reached a plateau. The respondent believed that continued psychotherapy, which included goals for setting firm limits with her children and curbing her anger, was no longer helpful or necessary. The respondent continued to have difficulty taking responsibility for the cleanliness of her home and improving her parenting ability.

On June 8, 2006, Christopher was adjudicated neglected and committed to the custody of the commissioner. On April 13, 2007, the commissioner of children and families (commissioner) filed a petition pursuant to General Statutes § 17a-112 et seq. to terminate the parental rights of the respondent as to Christopher. During the termination trial, which took place on March 11 and 12 and April 7 and 9, 2008, the court heard testimony from several witnesses. On April 11,2008, the court found that the department had made reasonable efforts to reunify Christopher with the respondent, that the respondent had failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of Christopher, she could assume a responsible position in his life and that the termination of parental rights was in the best interest of Christopher. Judgment was rendered in accordance with these findings. This appeal followed. Additional facts will be set forth as necessary.

I

The respondent first claims that the court improperly determined that the department made reasonable efforts to reunify Christopher with her. We conclude that there was sufficient evidence in the record to support the court’s determination.

We begin by setting forth the standard of review for the respondent’s claim. “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 .... General Statutes § 17a-112 (j) (1). . . . Turning to the statutory scheme encompassing the termination of the parental rights of a child committed to the department, [§ 17a-112] imposes on the department the duty, inter alia, to make reasonable efforts to reunite the child or children with the parents. The word reasonable is the linchpin on which the department’s efforts in a particular set of circumstances are to be adjudged, using the clear and convincing standard of proof. Neither the word reasonable nor the word efforts is, however, defined by our legislature or by the federal act from which the requirement was drawn. . . . [Reasonable efforts means doing everything reasonable, not eveiy-thing 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 Samantha C., 268 Conn. 614, 632, 847 A.2d 883 (2004).

“A finding is clearly erroneous 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. In applying the clearly erroneous standard to the findings of the trial court, we keep constantly in mind that our function is not to decide factual issues de novo. Our authority when reviewing the findings of a judge, is circumscribed by the deference we must give to decisions of the trier of fact, who is usually in a superior position to appraise and weigh the evidence. . . . The question for this court ... is not whether it would have made the findings the trial court did, but whether in view of the evidence and pleadings in the whole record it is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) In re Zion R, 116 Conn. App. 723, 732, 977 A.2d 247 (2009).

Our review of the record reveals that the evidence credited by the court supports the finding that the department made reasonable efforts to reunify Christopher with the respondent. In its memorandum of decision, the court discussed extensively the various issues present in the home over a period of nearly eight years, as well as the actions taken and services and assistance provided to the respondent by the department. The court specifically referred to evidence that the department had provided the respondent with a parent aide, access to the “Delta-T Group” program, therapy with a licensed psychotherapist and a comprehensive psychological evaluation of the respondent, in addition to the countless visits, service agreements, and personal efforts of department social workers and case aides. On the basis of this evidence, the court found that “[t]he department has made reasonable efforts to . . . reunify the child with the [respondent] in accordance with [§ 17a-lllb (a)]” and “has made reasonable efforts to effectuate the permanency plan.”

There is ample evidence in the record to support the court’s determination. We conclude that the court’s finding, by clear and convincing evidence, that the department made reasonable efforts to reunify Christopher with the respondent was not clearly erroneous.

II

The respondent’s next claim is that the court improperly determined that she had failed to achieve a sufficient degree of personal rehabilitation pursuant to § 17a-112 Q) (3). We conclude that there was adequate evidence in the record to support the court’s determination.

We begin by setting forth the standard of review for the respondent’s claim. “A trial court’s finding that a parent has failed to achieve sufficient rehabilitation will not be overturned unless it is clearly erroneous. . . . On appeal, our function is to determine whether the trial court’s conclusion was factually supported and legally correct. ... In doing so, however, [gjreat weight is given to the judgment of the trial court because of [the court’s] opportunity to observe the parties and the evidence. . . . We do 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. ... In order to terminate a parent’s parental rights under § 17a-112, the petitioner is required to prove, by clear and convincing evidence, that: (1) the department has made reasonable efforts to reunify the family; General Statutes § 17a-112 Q) (1); (2) termination is in the best interest of the child; General Statutes § 17a-112 Q) (2); and (3) there exists any one of the seven grounds for termination delineated in § 17a-112 Q) (3).” (Citation omitted; internal quotation marks omitted.) In re Melody L., 290 Conn. 131, 148-49, 962 A.2d 81 (2009).

In the present case, the commissioner alleged in her petition that the respondent had failed to achieve sufficient rehabilitation pursuant to § 17a-112 Q) (3) (B) (ii). That statute provides for the termination of parental rights when the child “is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .” General Statutes § 17a-112 O') (3) (B) (ii).

“Personal rehabilitation . . . refers to the restoration of a parent to his or her former constructive and useful role as a parent . . . [and] requires the trial court to analyze the [parent’s] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time. . . . The statute does not require [a parent] to prove precisely when she will be able to assume a responsible position in her child’s life. Nor does it require her to prove that she will be able to assume full responsibility for her child, unaided by available support systems. It requires the court to find, by clear and convincing evidence, that the level of rehabilitation she has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date she can assume a responsible position in her child’s life.” (Citations omitted; internal quotation marks omitted.) In re Eden F., 250 Conn. 674, 706, 741 A.2d 873, reargument denied, 251 Conn. 924, 742 A.2d 364 (1999).

The record shows that the court appropriately relied on the evidence of the respondent’s rehabilitative status as it related to the needs of Christopher. The court stated that the respondent “has been provided specific steps to take to facilitate the return of the child to the parent pursuant to § 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, [she] could assume a responsible position in the life of the child.” There was evidence that the respondent acted in a belligerent manner toward department social workers and sometimes refused to allow them access to her home. The respondent failed to complete or to cooperate fully with parenting assistance and counseling programs offered to her. Additionally, she failed to maintain necessary changes in the home. The court found, on the basis of the testimony of Mary H. Cheyne, a licensed clinical psychologist, and department social workers and case aides that “[the respondent’s] personality, which relied on blaming others for her problems, would subvert services offered to help [her] reunify with Christopher.” The court also adopted the conclusions of Cheyne and found that “[the respondent] would be unable to provide an environment for Christopher in which he could be safe and prosper.” On the basis of all of this evidence, the court found that the respondent had been unable to make progress in improving her parenting skills, “rejected the full benefit of the [parent aide] program,” and “made almost no progress in keeping a sanitary home.”

We therefore conclude, in view of the history of the respondent’s involvement with the department, the respondent’s inability to maintain any changes in her home and the psychological evaluations, that the court’s finding that the respondent had failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of Christopher, she could assume a responsible position in his life was not clearly erroneous.

III

The respondent’s final claim is that the court improperly relied on evidence of her history prior to 2005 and disregarded current evidence in reaching its findings as to the department’s efforts to reunify Christopher with her and her failure to achieve sufficient rehabilitation. Specifically, the respondent claims that the court improperly based its decision on evidence of services stemming from the department’s involvement with her before November, 2005, instead of evidence of services stemming from the current order. We do not agree.

We begin by setting out the standard of review. “ [T]he 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. . . . [0]n review by this court every reasonable presumption is made in favor of the trial court’s ruling.” (Internal quotation marks omitted.) In re Daniel C., 63 Conn. App. 339, 360, 776 A.2d 487 (2001).

The following additional facts are necessary for our consideration of the respondent’s claim. During the termination trial, a social worker for the department testified that prior to the department’s involvement in 2002, there was a “chronic history of neglect with this family.” Since Christopher’s birth, the department had been involved with the respondent’s family on at least two separate cases over a period of approximately six years. There were various services offered and provided to the respondent throughout Christopher’s life. Before the trial began, the respondent brought a motion in limine to preclude any evidence of the department’s involvement with the respondent in the years before Christopher was bom, as well as any services that were provided primarily for Christopher’s siblings. Although the court made no written ruling on the motion, throughout the trial, the court referred to its decision in ruling on the admissibility of certain evidence, stating at one point that any evidence admitted had to have occurred after Christopher’s birth and to have some sort of “nexus” to Christopher and to the respondent’s parenting as it related to him. The court found that such evidence was more probative than prejudicial. The court sustained objections to the offer of evidence relating to the respondent’s other children that the court saw as not directly affecting this case and refused to consider specific information concerning the respondent’s involvement with the department prior to Christopher’s birth in 2000.

Nevertheless, the respondent claims that the court wrongly based its decision on her history with the department dating back to 2002, while it only minimally addressed the efforts of the department and her cooperation with those efforts following the filing of the 2005 neglect petition. She also claims that the efforts made by the department after that filing were unfairly limited. The respondent argues that the court could not have found that the department made reasonable efforts to reunify Christopher with her because it did not provide adequate services in the time following the 2005 removal, regardless of what happened before that particular case was filed. To the contrary, the disinclination of the department to offer the respondent even more services than it did after the filing of the 2005 neglect petition “does not eradicate all of the department’s prior efforts to keep the respondent's] family intact.” In re Daniel C., supra, 63 Conn. App. 362. Further, the court did address evidence of the efforts of the department and actions of the respondent after November, 2005, as evidenced by its findings that “[m]ost notably, the department offered individual counseling to help [the respondent] understand how her deficits affected Christopher’s health, safety, behavioral and educational progress,” and the “respondent failed to follow through with individual counseling and has failed to adhere to the goal of appropriate parenting through individual counseling.”

The respondent concedes that facts from a prior case may be “informative” but claims that the court in this case wrongly treated them as “dispositive.” We are not persuaded by the respondent’s argument. In fact, the court in a termination of parental rights hearing should consider all potentially relevant evidence, no matter the time to which it relates. In re Anna Lee M., 104 Conn. App. 121, 128, 931 A.2d 949, cert. denied, 284 Conn. 939, 937 A.2d 696 (2007). “In order for the court to make a determination as to the respondent’s prospects for rehabilitation, the court was required to obtain a historical perspective of the respondent’s child caring and parenting abilities. . . . Because the parent-child relationship is at issue, all relevant facts and family history should be considered by the trial court when deciding whether to terminate the respondent’s parental rights. . . . The parent-child relationship presents an ongoing dynamic that cannot be frozen in time. The entire picture of that relationship must be considered whenever the termination of parental rights is under consideration by a judicial authority. ” (Citation omitted; internal quotation marks omitted.) Id. (“[t]o preclude consideration of the facts existing at the time of [a prior termination of parental rights proceeding] would not allow for a comprehensive analysis of the parent-child relationship” [internal quotation marks omitted]). Christopher was almost eight years old at the time of this trial, and the department had been involved with the respondent for most of his life. The court properly exercised its discretion in considering evidence of the department’s involvement with the respondent and Christopher before the November, 2005 petition, and in according appropriate weight to that evidence.

We conclude that the court did not abuse its discretion in determining that the evidence of the department’s involvement with the respondent in the years since Christopher’s birth was relevant.

The judgment is affirmed.

In this opinion the other judges concurred.

       The commissioner simultaneously sought to terminate the parental rights of Christopher’s three putative fathers, none of whom appeared at the hearing. All three petitions as to the putative fathers were granted, and none of the putative fathers has appealed.

         The respondent also argues that the court improperly made the finding, in the dispositional phase of the decision, and not the adjudicatory phase, as required by § 17a-112, that the department made reasonable efforts to reunite Christopher with her. This argument merits little discussion. A review of the memorandum of decision reveals that the court properly made a finding, on the basis of clear and convincing evidence, that the department had made reasonable efforts to reunify Christopher with the respondent in accordance with subsection (a) of General Statutes § 17a-lllb.

       Delta-T Group created a custom service for the respondent to assist her in ensuring that her older child, J, attended school and to help “model for [the respondent] how to parent [J] . . . how to take a leadership role, a parental role . . . A department social worker testified that although the initial reason for providing the respondent with Delta-T Group services was to address J’s behavior, the program was designed to work on general parenting skills for the respondent.

       The commissioner makes an alternate claim that if the court had reached the issue, “the record amply supports a finding that [the respondent], in fact was unwilling or unable to benefit from reunification efforts.” Although we need not reach this alternate claim, we note that because the court did not address this issue, it did not make the requisite factual findings. It is not this court’s role to do so. See Welsch v. Groat, 95 Conn. App. 658, 666, 897 A.2d 710 (2006).