author: ROBINSON, J.

text:
    KENNETH B. PORTER v. COMMISSIONER OF CORRECTION
    (AC 29936)
    Gruendel, Robinson and Alvord, Js.

      Argued February 2
    officially released April 13, 2010

      Michael D. Day, for the appellant (petitioner).

      Rita M. Shair, senior assistant state’s attorney, with whom were John A. Connelly, state’s attorney, and, on the brief, Catherine Brannelly Austin, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

ROBINSON, J.

The petitioner, Kenneth B. Porter, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. Following the court’s denial of his petition for certification to appeal, the petitioner appealed, claiming that the court (1) abused its discretion by denying his petition for certification to appeal and (2) improperly concluded that he was not denied the effective assistance of trial counsel. We dismiss the appeal.

The following facts, which the jury reasonably could have found at the petitioner’s criminal trial, are relevant to the petitioner’s allegations of ineffective assistance of trial counsel. “On December 2,2000, Richard Sutphin was driving a public utilities truck on Cooke Street in Waterbury. Sutphin was forced to stop the truck at the intersection of Cooke Street and Buckingham Street because the [petitioner] was in the roadway, pushing a car. When the car that [he] was pushing was driven away, the [petitioner] approached the front of Sutphin’s truck. Upon reaching the truck, the [petitioner] began to yell, pull his hair out, and wildly strike the truck with his fists and head. [He] continued that behavior for approximately fifteen minutes. During that time, Sut-phin radioed for police assistance, left the truck and ran toward an approaching police car that was driven by Sergeant Paul Ezzo of the Waterbury police department.

“At that time, the [petitioner], seeing an approaching vehicle driven by Andelino Vilar, turned away from the truck and jumped on to the hood of Vilar’s car. The [petitioner] began to strike the car. During the attack, the [petitioner] reached through an open window, grabbed Vilar’s sweater and attempted to pull Vilar out of the vehicle.

“Ezzo approached the [petitioner] and informed him that he was placing him under arrest. The [petitioner] began to swing, kick and bite at Ezzo. Ezzo, Sutphin and Ted Peil, a private citizen, attempted to restrain the [petitioner]. While wrestling the [petitioner] to the ground, Ezzo called for additional police assistance and was repeatedly struck by the [petitioner], Ezzo sprayed the [petitioner] with Mace. The Mace had little or no effect on the [petitioner]. When additional police support arrived, it eventually took seven officers approximately thirty minutes to subdue and to place the [petitioner] under arrest.” State v. Porter, 76 Conn. App. 477, 480-81, 819 A.2d 909, cert. denied, 264 Conn. 910, 826 A.2d 181 (2003).

As a result of the incident, the petitioner was charged with numerous crimes. After a trial at which the petitioner represented himself with the assistance of standby counsel, the jury found him guilty of one count of assault of public safety personnel in violation of General Statutes § 53a-167c (a), one count of interfering with an officer in violation of General Statutes (Rev. to 1999) § 53a-167a (a) and two counts of breach of the peace in violation of General Statutes (Rev. to 1999) § 53a-181 (a) (1) and (2). Id., 479. The court, Cofield, J., gave the petitioner a total effective sentence of ten years to serve in prison and ten years of special parole. The petitioner appealed. On appeal, this court reversed the petitioner’s conviction, in part, and remanded the case “with direction to combine the conviction of interfering with an officer with the conviction of assault of public safety personnel and to vacate the sentence on the conviction of interfering with an officer.” Id., 502. The judgment was affirmed in all other respects. Id.

In August, 2005, the self-represented petitioner filed the petition for a writ of habeas corpus that is at issue in this appeal. Appointed counsel filed a second amended petition, alleging, in relevant part, that the petitioner had been denied the effective assistance of trial counsel in that, prior to trial, attorney Rosemary Montesi failed to (1) file a notice of intent to assert a defense of mental disease or defect pursuant to Practice Book § 40-17, (2) secure defense witnesses to testify at trial, (3) have the petitioner evaluated for treatment under the Connecticut alcohol and drug abuse commission (commission), (4) investigate adequately the factual basis or evidence to support the issues claimed and (5) represent the petitioner within the range of competency demonstrated by lawyers of ordinary training and skill in criminal law. The petitioner also alleged that, but for counsel’s errors and omissions, the jury’s verdict would have been different. Following trial, the court denied the petition for a writ of habeas corpus and denied the petition for certification to appeal.

In his appeal, the petitioner claims that the court abused its discretion by failing to grant his petition for certification to appeal with respect to his claim that Montesi’s representation was ineffective because she failed to file a notice of the affirmative defense of mental disease or defect. “In a habeas appeal, although this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, 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. . . . Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits. . . .

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . . For the petitioner to prevail on his claim of ineffective assistance of counsel, he must establish both that his counsel's performance was deficient and that there is a reasonable probability that, but for the counsel’s mistakes, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Francis D. v. Commissioner of Correction, 118 Conn. App. 350, 352-53, 983 A.2d 70 (2009), cert. denied, 294 Conn. 930, 986 A.2d 1056 (2010).

The habeas court made the following relevant findings of fact following trial. Both the petitioner and Mon-tesi testified. The court found Montesi to be highly credible and the petitioner generally not credible. After she was appointed to represent the petitioner, Montesi met with the petitioner, who told her that at the time of the incident, he was upset because his wife, who was pregnant, had gone to meet her former husband. The petitioner was praying in the middle of the street and “had an aura about him which was demonic.” He also told Montesi that he remembered Vilar’s car approaching the intersection but denied attempting to pull Vilar out of his car. Montesi found the petitioner’s actions on December 2, 2000, to be “bizarre” and took numerous steps to explore issues related to the petitioner’s competency to stand trial, the existence of a defense of mental disease or defect and the likelihood that the use of drugs had affected the petitioner’s behavior at the time of the incident.

In Montesi’s opinion, the petitioner was competent to stand trial: he understood the charges against him, was able to recall the events surrounding the crime and was able to assist in his defense. Each time she and the petitioner discussed the facts, the petitioner’s report was lucid and clear. In an effort to obtain a second opinion regarding the petitioner’s competency, Montesi asked Julie King and Audrey Bennet, licensed clinical social workers in the public defender’s office, to interview the petitioner. King and Bennet also believed that the petitioner was competent. Montesi, therefore, never filed a motion for an evaluation to determine the petitioner’s competency to stand trial.

On several occasions, Montesi explored with the petitioner whether drug or alcohol use had affected his behavior at the time of the incident. Montesi knew that the petitioner resided at Connecticut Renaissance House in July, 2000, and that he occasionally used marijuana. Montesi, therefore, asked the petitioner if he was interested in a substance abuse program. The petitioner informed Montesi that he did not want such a program, as it would be a “setup” for failure. When Montesi asked the petitioner directly whether he was under the influence of drugs or alcohol at the time of the incident, he “vehemently denied” the use of drugs or alcohol. Moreover, Montesi testified that the petitioner’s December 4, 2000 medical records from St. Mary’s Hospital do not indicate the presence of drugs or alcohol. Consequently, Montesi and the petitioner never discussed the filing of a motion for substance abuse evaluation pursuant to General Statutes § 17a-693.

Montesi also explored the possibility of an affirmative defense of mental disease or defect pursuant to General Statutes § 53a-13. Through the office of the public defender, Montesi requested that Kenneth M. Selig, a forensic psychiatrist, interview the petitioner and evaluate him for competency, mental disease or defect and intoxication. Montesi sent Selig a copy of the police reports, records from the petitioner’s hospitalization at St. Mary’s Hospital and Connecticut Renaissance, Inc. Selig interviewed the petitioner on September 22, 2001, and reported to Montesi that there was no evidence of the petitioner’s involuntary intoxication at the time of the incident. In Selig’s opinion, the petitioner was competent to stand trial, but Selig could not conclude that the petitioner was incapable of forming the specific intent for the crimes with which he was charged. Selig could not rule out that the petitioner had been under the influence at the time of the incident because the petitioner had smoked marijuana the week before. Montesi shared Selig’s opinion with the petitioner, who responded that was “fine.” The petitioner denied to Montesi that he had a mental disease or defect and claimed that he was “just praying” at the time of the incident.

Montesi was appointed standby counsel for the petitioner after the court, Damiani, J., granted the petitioner’s motion to dismiss her. Montesi was in the courtroom throughout the entire trial, but the petitioner never sought her advice or asked her a question until the jury returned its guilty verdict on the part A information. The habeas court found it noteworthy that after the close of the state’s case-in-chief, when the prosecutor filed a motion in limine to preclude evidence of mental disease or defect, the petitioner did not consult with Montesi.

At the habeas trial, the petitioner testified that he did not discuss drug treatment with Montesi and that the incident was not drug induced. The petitioner met with Selig for about one hour in September, 2001. Selig informed the petitioner that the petitioner “seem[ed] competent” and that he had no “recommendations” for the petitioner. The petitioner also acknowledged that he met with King and Bennet to discuss his mental health history. As the result of a disagreement the petitioner had with Montesi in July, 2001, he filed a motion to dismiss her as his counsel. See footnote 1 of this opinion.

The criminal trial record discloses that from October 12, 2001, to January 2, 2002, the petitioner, self-represented, filed eleven pretrial and trial motions. At the habeas trial, the petitioner recalled that the state filed a motion in limine to preclude evidence of mental disease or defect, and claimed that that was the “first time [he] had heard of this type of defense” and that he “was not aware of the affirmative defense of mental disease or defect.” Later, he testified that he had “raised the [issue of] mental disease or defect” with Montesi, who informed him that such a defense could not be used as an affirmative defense.

In adjudicating the allegations of the petitioner’s second amended petition for a writ of habeas corpus, the court noted that ineffective assistance of counsel claims are not available to a petitioner who elects to proceed as a self-represented party. See State v. Oliphant, 47 Conn. App. 271, 281, 702 A.2d 1206 (1997), cert. denied, 244 Conn. 904, 714 A.2d 3 (1998). Here, however, the petitioner’s claims concern counsel’s representation prior to the time the petitioner was permitted to represent himself, and are thus amenable to a claim of ineffective assistance. See State v. Gethers, 193 Conn. 526, 541, 480 A.2d 435 (1984). In adjudicating the allegation that Montesi rendered ineffective assistance to the petitioner at his criminal trial, the court applied the standard established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

Under Strickland, “[t]o prevail on a claim of ineffective assistance of counsel, a petitioner must show that (1) counsel’s performance was deficient and (2) the deficient performance prejudiced the defense. . . . The first prong is satisfied by proving that counsel made errors so serious that he was not functioning as the counsel guaranteed by the sixth amendment. The second prong is satisfied if it is demonstrated that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. Because both prongs . . . must be established for a habeas petitioner to prevail, a court may dismiss a petitioner’s claim if he fails to meet either prong.” (Citations omitted; internal quotation marks omitted.) Gibson v. Commissioner of Correction, 118 Conn. App. 863, 873-74, 986 A.2d 303 (2010).

In this case, the petitioner alleged, in part, that Mon-tesi rendered ineffective assistance by failing to file a notice of intent to rely on the defense of mental disease or defect prior to trial. The court found that the petitioner’s claim failed for several reasons. Although the petitioner repeatedly denied to Montesi that he had a mental disease or defect, she had Selig perform a psychiatric evaluation. Selig determined, on the basis of his interview with the petitioner and the records available to him, that he could not conclude that at the time of the alleged crimes the petitioner was unable to form the requisite intent to commit them. On the basis of Selig’s evaluation and the petitioner’s denial of having a mental disease or defect, Montesi reasonably concluded that the affirmative defense of mental disease or defect was unavailing. The court, therefore, concluded that the petitioner’s claim failed to satisfy the first prong of Strickland.

The court also concluded that the petitioner’s claim failed to satisfy the prejudice prong of Strickland. There were three weeks between the time the petitioner was given permission to represent himself and the commencement of trial. During that time, the petitioner never filed a Practice Book § 40-17 motion on his own behalf. The court reasoned that Practice Book § 40-17 provides in relevant part that a defendant file a notice not later than “forty-five days after the first pretrial conference in the court where the case will be tried ... or at such later time as the judicial authority may direct . . . .” (Emphasis added.) The judicial authority is granted discretion for good cause shown to permit the late filing of a notice or to grant additional time to the parties to prepare for trial. State v. Porter, supra, 76 Conn. App. 487 n.ll. The court concluded that, if the petitioner truly wanted to proceed on a mental disease or defect defense, he at least should have attempted to file a notice himself. Moreover, the petitioner informed Judge Cofield that he did not intend to put forth a mental disease or defect defense. If Mon-tesi had rendered ineffective assistance by failing to file notice of a mental disease or defect defense, the deficient performance was vitiated by the fact that the petitioner did not want to proceed on that theory of defense.

On the basis of our review of the record, we conclude that the habeas court did not abuse its discretion by denying the petitioner’s petition for certification to appeal. We agree with the reasoning of the court that the petitioner’s claim fails under both prongs of Strickland and that the issue is not debatable among jurists of reason, that the court could not resolve the issue in a different manner and that the question involved does not deserve encouragement to proceed further.

The record demonstrates that Montesi’s decision not to assert a mental disease or defect defense was a matter of trial strategy predicated on discussions she had with the petitioner, Selig’s expert opinion and the opinions of King and Bennet. “To satisfy the first prong of Strickland, the petitioner must . . . overcome the presumption that alleged ineffective assistance was not the result of sound trial strategy.” (Internal quotation marks omitted.) Beverly v. Commissioner of Correction, 101 Conn. App. 248, 252, 922 A.2d 178, cert. denied, 283 Conn. 907, 927 A.2d 916 (2007). Other than the petitioner’s bizarre behavior at the time he committed the crimes, Montesi had no evidence that the petitioner suffered from a mental disease or defect and thus no basis on which to found such an affirmative defense.

In his brief on appeal, the petitioner argues that the habeas court improperly found that he failed to show that Montesi’s “performance was deficient and prejudiced him when [she] failed to timely file a notice of intent to rely upon the affirmative defense of mental disease or defect or of extreme emotional disturbance at the time of the crime.” (Emphasis added.) The affirmative defenses of mental disease or defect and extreme emotional disturbance are separate defenses, which are mutually exclusive. In his second amended petition, the petitioner alleged nothing having to do with extreme emotional disturbance. We therefore will not consider that argument. See Johnson v. Commissioner of Correction, 288 Conn. 53, 59, 951 A.2d 520 (2008) (review limited to matters in record). As to his argument that Montesi might have proved his mental disease or defect by way of lay testimony, the argument misses the point. The petitioner’s claim is that prior to trial, Montesi failed to file notice of the affirmative defense. As we previously discussed, that was a matter of trial strategy, not trial performance, which is the factual predicate of the petitioner’s argument. Moreover, when he represented himself, the petitioner stated that he had no intention and made no effort to present an affirmative defense of mental disease or defect, so there was no need for notice of the same.

The appeal is dismissed.

In this opinion the other judges concurred.

       On or about December 5, 2000, attorney Rosemary Montesi was appointed to represent the petitioner. On October 11,2001, the court, Damiani, J., granted the petitioner’s motion to dismiss Montesi but appointed her standby counsel. Judge Damiani had denied the petitioner’s previous motion to dismiss counsel.

       The petitioner pleaded guilty to being apersistent serious felony offender pursuant to General Statutes § 53a-40 (c), as alleged in a part B information.

       The petitioner filed an earlierpetitionforawrit of habeas corpus, alleging that he had been denied the effective assistance of appellate counsel. His petition was denied by the habeas court, Hon. John Ottaviano, Jr., judge trial referee, and this court dismissed the petitioner’s appeal. Porter v. Commissioner of Correction, 99 Conn. App. 77, 912 A.2d 533, appeal dismissed, 284 Conn. 431, 934 A.2d 242 (2007).

         Practice Book § 40-17 provides: “If a defendant intends to rely upon the affirmative defense of mental disease or defect or of extreme emotional disturbance at the time of the alleged crime, the defendant shall, not later than forty-five days after the first pretrial conference in the court where the case will be tried or at such later time as the judicial authority may direct, notify the prosecuting authority in writing of such intention and file a copy of such notice with the clerk. If there is a failure to comply with the requirements of this rule, such affirmative defenses may not be raised. The judicial authority may for cause shown allow late filing of the notice or grant additional time to the parties to prepare for trial or make such other order as may be appropriate.”

       At the habeas trial, the petitioner testified that at the time he was arraigned on December 5, 2000, he requested that Montesi represent him.

       Connecticut Renaissance, Inc., is a nonprofit multiservice agency that provides mental health, substance abuse and community release services.

       At the habeas trial, the petitioner testified that the subject incident occurred on a Saturday and that he spent the weekend in jail. When he appeared in court on Monday, Judge Damiani ordered that he be taken to the hospital for treatment of his iivjuries.

       General Statutes § 17a-693 provides in relevant part: “The court, on its own motion or on motion of the state’s attorney or a person charged with a crime or convicted of a crime but not yet sentenced, may order, if the interests of justice will be served, that such person be examined, pursuant to the provisions of section 17a-694, to determine if the person is alcohol-dependent or drug-dependent and eligible for treatment under section 17a-696 or 17a-699. . .

       General Statutes § 53a-13 provides in relevant part: “(a) In any prosecution for an offense, it shall be an affirmative defense that the defendant, at the time he committed the proscribed act or acts, lacked substantial capacity, as a result of mental disease or defect, either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law.
      “(b) It shall not be a defense under this section if such mental disease or defect was proximately caused by the voluntary ingestion, inhalation or injection of intoxicating liquor or any drug or substance, or any combination thereof, unless such drug was prescribed for the defendant by a prescribing practitioner . . . .”

       Montesi testified that she asked Selig to examine the petitioner to determine whether the petitioner “was capable of forming the specific intent of the crime of assault on a police officer. And in addition to that whether or not he was under the influence of drugs at the time and whether or not he was competent.”

       See General Statutes § 53a-13 (b) in footnote 9 of this opinion.

       Following the jury’s verdict of guilty, the petitioner consulted with Montesi as to whether he should plead guilty to the part B information.

       In his motion to dismiss Montesi filed on August 1, 2001, the petitioner did not mention an affirmative defense of mental disease or defect.

       The petitioner himself filed the following motions, among others: a motion for a speedy trial, a motion for severance, a motion to appoint an investigator, a motion for a bill of particulars, a motion to exclude evidence of prior criminal history and acts of misconduct, a motion to reconsider, a motion to dismiss on the ground of insufficient evidence and a motion for a judgment of acquittal.

       The habeas court quoted from the transcript of the petitioner’s criminal trial. During the hearing on the motion in limine, the petitioner never told the court that he was hearing of the defense of mental disease or defect for the first time and did not oppose the state’s motion in limine. When Judge Cofield asked the petitioner if he was trying to present a defense of mental disease or defect, the petitioner responded: “Well, no, not actually, Your Honor, although the fact is that there was some mental incapacity. It was—no, that’s not it at all, I—my—my actual objective is to show and prove the lack of evidence of the state’s case.” And later the petitioner told the corut, “there was an interview with a doctor—I guess a Dr. [Selig], and his conclusion was that I was mentally competent.”

       In his direct appeal, the petitioner raised the claim that there was insufficient evidence to prove that he “was capable of forming the requisite intent based upon a mental defect . . . .” State v. Porter, supra, 76 Conn. App. 487 n.11. This court did not review the claim because the petitioner failed to file a notice of the affirmative defense of mental disease or defect. Id.

       “The affirmative defense of mental disease or defect, otherwise known as the insanity defense, is codified in General Statutes § 53a-13. . . . This defense has both a cognitive and a volitional prong. State v. Wilson, [242 Conn. 605, 613, 700 A.2d 633 (1997).] Under the cognitive prong [of the insanity defense], a person is considered legally insane if, as a result of mental disease or defect, he lacks substantial capacity ... to appreciate the . . . [wrongfulness] of his conduct. . . . Under the volitional prong, a person also would be considered legally insane if he lacks substantial capacity . . . to conform his conduct to the requirements of law.” (Citations omitted; internal quotation marks omitted.) State v. Madigosky, 291 Conn. 28, 39, 966 A.2d 730 (2009).

       See State v. Madigosky, 291 Conn. 28, 39-40, 966 A.2d 730 (2009) (differentiating affirmative defenses of mental disease and defect and extreme emotional disturbance).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    IN RE DANIEL L. ET AL.

    (AC 30084)
    Bishop, Alvord and Borden, Js.
    Argued March 15
    officially released April 13, 2010

      David B. Rozwaski, for the appellant (respondent father).

      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).

       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

PER CURIAM.

The respondent, the father of two minor children, Daniel L. and Diamond L., appeals from the judgments of the trial court terminating his parental rights as to the children. In substance, he claims that two of the court’s critical findings are clearly erroneous. Those two findings are that (1) he failed to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the ages and needs of the children, he could assume a responsible position in their lives, and (2) the termination of his parental rights was in the children’s best interests. See General Statutes § 17a-112 (j) (2) and (3) (B). We affirm the judgments of the trial court.

Our scope of review of such findings is well settled. Such findings must stand unless they are clearly erroneous. In re Shaun B., 97 Conn. App. 203, 209-10, 903 A.2d 246 (2006) (finding of lack of rehabilitation); In re Tyscheicka H., 61 Conn. App. 19, 26-27, 762 A.2d 916 (2000) (finding that termination in best interest of child). The court found that the petitioner, the commissioner of children and families, had established both factors by clear and convincing evidence. We have considered the thorough and well reasoned decision of the court in light of the claims of the respondent, as well as the entire record, and conclude that there was abundant evidence to support the critical factual determinations of the court.

The judgments are affirmed.

       The court also terminated the parental rights of the children’s mother. Because she has not appealed, we refer in this opinion to the respondent father as the respondent.


author: ALVORD, J.

text:
    IN RE KEYASHIA C.

    (AC 30297)
    Bishop, Alvord and Peters, Js.

      Argued February 11
    officially released April 13, 2010

      Rosemarie T. Weber, for the appellant (respondent mother).

      Susmita M. Mansukhani, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

       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

ALVORD, J.

The respondent mother appeals from the judgment of the trial court terminating her parental rights with respect to her minor child, Keyashia. The respondent claims that the court improperly found that (1) the department of children and families (department) had made reasonable efforts to reunify her with the child and (2) she had failed to achieve such a 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 child’s life. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the respondent’s appeal. The child was bom on May 26, 2005. On October 9, 2005, the respondent barricaded her bedroom door with a chair and climbed out the window, leaving her four month old child locked alone in the bedroom and the window open. Sometime later, the respondent’s sister forced her way into the room, found the child unattended and notified the police. The respondent was arrested and charged with risk of injury to a child, and the child was removed from her care pursuant to a ninety-six hour hold. The child immediately was placed in foster care and, since December 23,2005, has lived continuously with a maternal relative who would like to adopt her. On October 5,2006, the petitioner, the commissioner of children and families, moved to terminate the respondent’s parental rights, and, on August 5, 2008, the court rendered judgment of termination pursuant to General Statutes § 17a-112 Q) (3) (B) (i). This appeal followed.

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

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

The respondent first claims that the court improperly found that the department made reasonable efforts to reunify her with her child because it is her position that the services provided to her were neither timely nor appropriate. We disagree. “[Reasonable efforts means doing everything reasonable, not everything possible.” (Internal quotation marks omitted.) Id., 192. The record reveals the following efforts by the department. Specific steps to enable the respondent to regain custody of her child were ordered on October 21, 2005, and October 12,2006. Pursuant to these steps, the department implemented a treatment plan and offered the respondent numerous services, including supervised visitation at the ’r Kids Family Center in New Haven, supervised visitation in her home, group parenting education, one-on-one parenting education, substance abuse screening, anger management counseling, two psychological evaluations, individual therapy, couples therapy, dialectical behavior therapy (DBT), domestic violence counseling, supportive housing assistance, a referral to the bureau of rehabilitative services for work training and placement, and the assistance of the state’s Birth to Three program. The treatment plan adopted by the department was reviewed every six months and was modified to incorporate the recommendations of forensic psychologist Michael Haymes. The record does not reveal any significant delays or inadequacies in the rehabilitative services offered to the respondent and contains ample support for the court’s finding that the department made reasonable efforts to reunify her with her child.

The respondent next claims that the court improperly determined that she had failed to achieve a sufficient degree of personal rehabilitation pursuant to § 17a-112 (j) (3) (B). “[I]n assessing rehabilitation, the critical issue is not whether the parent has improved her ability to manage her own life, but rather whether she has gained the ability to care for the particular needs of the child at issue.” (Internal quotation marks omitted.) In re Shyliesh H., 56 Conn. App. 167, 180, 743 A.2d 165 (1999). In this case, the court found that the respondent had “made progress in all of the areas of her life regarding rehabilitation” but had not consistently demonstrated that she could provide for herself or for the child. After his first meeting with the respondent in May, 2006, Haymes opined that the chances of the respondent rehabilitating to the point of being able to be a responsible parent were “a bit of a long shot. In February, 2007, Haymes conducted a second psychological evaluation of the respondent and noted that she had “not really been able to achieve much” since their last meeting. On September 25, 2007, Haymes testified that “I don’t think that it makes sense in terms of the child’s age and needs to have her wait any longer [for the respondent to be able to parent her].”

The record also reveals that by the end of trial, supervised visitation at the ’r Kids Family Center had been temporarily suspended because the respondent missed several visits. Additionally, the respondent was non-compliant with the program offered by the bureau of rehabilitative services, was noncompliant with the requirements of her probation and was in danger of losing her housing assistance. Consequently, the court’s determination that the respondent had failed to achieve a sufficient degree of rehabilitation pursuant to § 17a-112 (j) (3) (B) is well supported by the record.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court terminated the parental rights of the child’s father in the same proceeding. He has not appealed from the judgment of termination. We therefore refer to the respondent mother as the respondent in this opinion.

       General Statutes § 17a-I01g permits the commissioner to remove a child from unsafe surroundings under a ninety-six hour hold.

       On October 13, 2005, the court granted the petitioner, the commissioner of children and families, temporary custody of the child, and on January 9, 2006, the child was adjudicated neglected.

       General Statutes § 17a-112 CD provides in relevant part: “The Superior Court, upon notice and hearing . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that (1) the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent in accordance with subsection (a) of section 17a-111b ... (2) termination is in the best interest of the child, and (3) . . . (B) the child (i) has been found by the Superior Court ... to have been neglected or uncared for in a prior proceeding . . . and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent 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 . . . .”

       The respondent does not challenge the court’s determination that termination was in the child’s best interest.

       The respondent also asks us to note “the ‘scrupulous’ standard of review set forth by Justice Schaller in In re Melody L., 290 Conn. 131, 174-209, 962 A.2d 81 (2009) (Schaller, J., concurring). It is not clear to us what ‘scrupulous review’ means. Moreover, this purportedly more rigorous level of factual review has not been endorsed by our Supreme Court for termination of parental rights cases. Accordingly, we are without authority to apply it now.” (Internal quotation marks omitted.) In re Sole S., 119 Conn. App. 187, 191 n.6, 986 A.2d 351 (2010).

       No treatment for substance abuse was recommended.

       The respondent was diagnosed with major depressive disorder, attention deficit hyperactivity disorder and borderline personality disorder.

       DBT was recommended to treat the respondent’s borderline personality disorder.

       The petitioner submitted evidence that the child suffered from developmental delays caused by microcephaly. The Birth to Three program offers early childhood intervention services for children under three years of age that show significant delays in development. Although the respondent initially rejected the assistance of the Birth to Three program, the child’s foster mother continued to work closely with the organization, and, as a result, the child made significant strides in her development.

       The respondent argues that the department unreasonably delayed in referring her to DBT as recommended by Haymes. The record does not support her claim. Haymes evaluated the respondent on April 4, 2006. His report was drafted on May 5, 2006, and filed with the court on May 9, 2006. In August, 2006, the department referred the respondent to a DBT program offered by Yale-New Haven Hospital Adult Psychiatric Ambulatory Program. Following an intake interview, the supervising physician determined that Yale’s program was not appropriate for the respondent. The department then referred the respondent to a DBT program at the Hill Health Center’s Northside outpatient services program in New Haven, and the respondent enrolled in the DBT session that began in May, 2007. However, Northside’s DBT program has an attendance policy. The respondent missed three or four sessions in violation of the policy, and, as a result, she was discharged from the program. She was, nevertheless, invited to participate in the next DBT session starting in September, 2007, and offered stress management counseling sessions by Northside in the interim.

       “The statute requires a court to find, by clear and convincing evidence, that the level of rehabilitation a parent has achieved falls short of that which would reasonably encourage a belief that at some future date she can assume a responsible position in [the] child’s life. ... In making its determination, the court may rely on events occurring after the date of the filing of the petition to terminate parental rights when considering the issue of whether the degree of rehabilitation is sufficient to foresee that the parent may resume a useful role in the child’s life within a reasonable time.” (Citation omitted; internal quotation marks omitted.) In re Sole S., supra, 119 Conn. App. 192 n.8.

       The respondent also claims that the court applied the wrong standard of review to reach its determination that the respondent had not achieved a sufficient degree of personal rehabilitation pursuant to § 17a-112 (j) (3) (B). This claim is without merit. The court cites and applies the correct standard of review on pages eight and nine of its decision: Section 17a-112 “requires the court to find, by clear and convincing evidence, that the level of rehabilitation he or she has achieved, if any, falls short of that which would reasonably encourage a belief that, within a reasonable time, he or she can assume a responsible position in the child’s life. . . . The court finds, by clear and convincing evidence, that [the respondent] has failed to achieve a sufficient degree of 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 . . . .” (Citations omitted.)


author: LAVINE, J.

text:
    DAVID M. LEHN, ADMINISTRATOR (ESTATE OF RICHARD AIELLO) v. MARCONI BUILDERS, LLC, ET AL.
    (AC 29889)
    Bishop, Lavine and Dupont, Js.
    Argued September 15, 2009
    officially released April 20, 2010

      John A. Farnsworth, for the appellant (plaintiff).

      Terrance D. Lomme, for the appellees (defendants).
   Opinion

LAVINE, J.

The plaintiff, David M. Lehn, administrator of the estate of Richard Aiello, appeals from the judgment of the trial court, Holzberg, J., opening the judgment rendered against the defendants, Marconi Builders, LLC (Marconi Builders), and James P. Marconi. On appeal, the plaintiff claims that, under General Statutes § 52-212a, the court lacked authority to open the judgment. We disagree and therefore affirm the judgment of the trial court.

The following facts and procedural history are relevant to the plaintiffs appeal. On July 25, 2006, the plaintiff commenced the present action in his fiduciary capacity to recoup funds the defendants allegedly owe the estate of Aiello. The complaint alleges in part that, between April 12, 1999, and December 15, 2004, Aiello lent the defendants more than $600,000, and that the defendants failed to repay approximately $270,000, plus interest.

Attorney Terrance D. Lomme filed an appearance on behalf of both defendants on August 22, 2005. On October 31, 2005, the plaintiff filed a motion for default for failure to plead against Marconi Builders. The assistant court clerk granted the motion for default on November 3, 2005. One year later, on October 10, 2006, the plaintiff filed a motion for default for failure to plead against Marconi, which was granted by the clerk on October 11,2006. On December 29,2006, the plaintiff filed a motion for judgment after default as to both defendants. The defendants filed an objection to the motion for judgment on Friday, January 12, 2007. The court, Aurigemma, J., granted the plaintiffs motion for judgment after default on January 16, 2007, and notice of the judgment was sent to the parties on January 17, 2007. In their objection, the defendants represented, in part, that they had filed a motion to open the default. On the order page of the defendants’ objection to the motion for judgment are the hand-written words: “Overruled. There is no motion to open default in file— [d]efault entered in October [2006].” The order is signed by Judge Aurigemma. Notice of the order overruling the defendants’ objection was sent on January 16, 2007.

The defendants, however, had filed a motion to open the default for failure to plead on January 12, 2007. On January 29, 2007, the court, McWeeny, J., summarily granted the motion to open the default for failure to plead. On February 16, 2007, the plaintiff replied to the defendants’ special defenses. The plaintiff filed in seriatim three motions to exempt the case from the dormancy list.

Later, the parties learned that the clerk of the trial court considered judgment to have entered in the plaintiffs favor on January 16, 2007, and that the court’s file was closed. On March 28, 2008, the defendants filed a motion to clarify and to open the January 16, 2007 judgment. The plaintiff filed an objection to the motion to open the judgment on April 8, 2008, contending that the court lacked jurisdiction to open the judgment pursuant to § 52-212a. On April 28, 2008, Judge Holzberg granted the defendants’ motion to open the judgment. The plaintiff appealed.

On appeal, the plaintiff claims that pursuant to § 52-212a, the court lacked authority to open the judgment because the defendants’ motion to open was filed more than four months after judgment was rendered. We first address the applicable standard of review. “Whether a court retains continuing jurisdiction over a case is a question of law subject to plenary review. . . . Whether a court properly exercised that authority, however, is a separate inquiry that is subject to review only for an abuse of discretion.” (Citation omitted.) Rosado v. Bridgeport Roman Catholic Diocesan Corp., 276 Conn. 168, 211, 884 A.2d 981 (2005).

General Statutes § 52-212a provides in relevant part “[u]nless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. . . . The parties may waive the provisions of this section or otherwise submit to the jurisdiction of the court . . . .”

“[T]he substantive provisions of § 52-212a are fully enforceable as a limitation on the authority of the trial court to grant relief from a judgment after the passage of four months. Thus construed, § 52-212a operates as a constraint, not on the trial court’s jurisdictional authority, but on its substantive authority to adjudicate the merits of the case before it. . . . [A] trial court judgment rendered after the expiration of an applicable statutory time limitation is not void for want of jurisdiction of the court to render it . . . but . . . unless the party against whom it is rendered consents to its being entered or waives the objection [the judgment] is erroneous.” (Internal quotation marks omitted.) Kim v. Magnotta, 249 Conn. 94, 104, 733 A.2d 809 (1999).

The case of Sicaras v. Hartford, 44 Conn. App. 771, 778, 692 A.2d 1290, cert. denied, 241 Conn. 916, 696 A.2d 340 (1997), is instructive to the resolution of the plaintiffs claim on appeal. In Sicaras, the parties settled their dispute on the day trial was to begin, and the court ordered the plaintiff to file a withdrawal. Id., 774-75. Eleven months later, the defendants filed motions to restore the case to the docket as a precursor to filing a motion to enforce the parties’ settlement agreement. Id., 773. The trial court granted the motion to restore. Id. This court concluded that the trial court had authority to restore the case to the docket, because the plaintiff, George W. Sicaras, had waived the four month limitation of § 52-212a “by requesting, in his opposition to the defendants’ motion [to enforce the settlement agreement], that the case be restored to the docket.” Id., 779.

On appeal here, the defendants claim that the plaintiff waived his right to object to their motion to open the judgment when he replied to the special defenses alleged with their answer, which accompanied their motion to open the default. “ [ W] aiver involves the intentional relinquishment of a known right. . . . There cannot be a finding of waiver unless the party has both knowledge of the existence of the right and intention to relinquish it. . . . Moreover, a party claiming waiver has the burden of proving it.” (Citations omitted; emphasis added; internal quotation marks omitted.) Citicorp Mortgage, Inc. v. Tarro, 37 Conn. App. 56, 60, 654 A.2d 1238 (1995). “It is significant to note that when such a claim [of waiver] is made, the individual conduct of each party becomes a relevant factor for our consideration.” Snow v. Calise, 174 Conn. 567, 573, 392 A. 2d 440 (1978). “Waiver is a question of fact . . . .” (Citation omitted.') Capozzi v. Liberty Mutual Fire Ins. Co., 32 Conn. App. 250, 257, 629 A.2d 424 (1993), aff'd, 229 Conn. 448, 642 A.2d 1 (1994).

In this case, the plaintiff stated in his objection to the motion to open the judgment that the court lacked jurisdiction pursuant to § 52-212a. In his articulation; see footnote 7 of this opinion; Judge Holzberg found that the plaintiff had waived his right to raise the claim under § 52-212a and stated that “the plaintiff never objected to Judge McWeeny’s ruling, nor did [he] seek to reargue it . . . [and] the plaintiff, de facto, acknowledged the propriety and effect of Judge McWeeny’s ruling by filing a reply to the special defenses and a claim to the trial list, thereby waiving any subsequent claim that the judgment had not in fact been reopened . . . .”

We review a trial court’s finding of waiver under the clearly erroneous standard. See Grey v. Connecticut Indemnity Services, Inc., 112 Conn. App. 811, 815, 964 A.2d 591 (2009). In this case, we cannot conclude that the court’s finding of waiver is clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       On February 7, 2005, the plaintiff was appointed administrator of the estate of Richard Aiello, who died on December 17, 2004.

       The complaint sounded in three counts: breach of contract as to the defendants jointly and separate counts of ur\just enrichment as to Marconi Builders and Marconi.

       In their motion to open the default, the defendants stated that there “are currently two actions with essentially the same [p]laintiffs and [defendants . . . [o]ur records indicate that an [a]nswer was prepared for both actions and that they were both submitted to the [c]ourt and opposing counsel [and that] apparently the [a]nswer for this matter was never received by the [c]ourl or opposing counsel . . . .” The defendants attached an answer and special defense to the motion to open default.

       None of the parties sought an articulation from Judge McWeeny for the basis of his order granting the motion to open the default judgment.

       In granting the defendants’ motion to open the judgment, Judge Holzberg stated: “You know, my sense of it is that we ought to follow the admonition . . . which is that the rules of practice are to be construed to make sure that justice is done. It seems to me that ... it would be a hypertechnical interpretation of the rules, given Judge McWeeny’s ruling on this matter, to suggest that the defendant ought not have his day in court, particularly, when he’s appeared. He’s pled, and it seems to me that whatever issue— objections might be raised, are that the defendants] [are] entitled to have this case heard and determined and, therefore, the motion to open is granted . . . .”

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

       Following argument before us, we sua sponte ordered the trial court “to further articulate, on or before January 8, 2010, the basis of its April 28, 2008 decision granting the defendants’ March 25, 2008 motion to reopen in light of the provision in ... § 52-212a that ‘the parties may waive the provisions of this section or otherwise submit to the jurisdiction of the court . . .’ given the plaintiffs April 8, 2008 objection to motion to reopen.”

       “Withdrawals are analogous to final judgments.” Sicaras v. Hartford, supra, 44 Conn. App. 775.

       As our Supreme Court explained in Kim v. Magnotta, supra, 249 Conn. 104, the question is whether the trial court had the authority to open the judgment more than four months after it was entered.


author: HENNESSY, J.

text:
    IN RE LUKAS K.

    (AC 30671)
    Bishop, DiPentima and Hennessy, Js.

      Argued November 10, 2009
    officially released April 20, 2010

      Mildred Doody, for the appellant (respondent).

      Frank A. Manfredi, for the appellee (petitioner).

      Denise Ansell, 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.

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

HENNESSY, J.

The respondent father appeals from the judgment of the trial court terminating his parental rights with respect to his minor son, Lukas K., rendered after a petition was brought by the petitioner mother pursuant to General Statutes § 45a-717 (g) (2) (A) and (C). The respondent claims that the court improperly (1) denied his motion for a continuance and a transcript, (2) denied him an opportunity to participate in the trial through videoconferencing, (3) denied his motion in limine, (4) terminated his parental rights on the basis of no ongoing parent-child relationship where this ground was not proven by clear and convincing evidence, and (5) terminated his parental rights on the basis of abandonment where this ground was not proven by clear and convincing evidence. We affirm the judgment of the trial court.

The following facts and procedural history, as found by the trial court, are relevant to our review. The petitioner and the respondent met approximately ten years prior to trial when he was incarcerated in Tennessee. During his incarceration, the petitioner and the respondent communicated by letters and by telephone. In March, 2004, the respondent was released from prison, traveled to New Hampshire, where the petitioner and her relatives were residing, and developed a relationship with the petitioner that lasted through October, 2004.

In November, 2004, the respondent was arrested for burglary occurring on June 13, 2004, tampering with witnesses or informants occurring on November 5, 2004, theft by unauthorized taking occurring on November 5, 2004, theft by unauthorized taking occurring on November 12,2004, and escape occurring on November 29, 2004. On May 17, 2005, the respondent entered state prison in New Hampshire.

Approximately one month later, in June, 2005, Lukas was bom. Since his birth, Lukas has resided with the petitioner and his two older half sisters bom to the petitioner from an earlier relationship. In October, 2005, the petitioner met her current husband. They moved in together in April, 2006, and were married one month later in May, 2006. The petitioner’s husband, Lukas’ stepfather, is the only father that Lukas has known, and Lukas relates to him as his father. His stepfather provides for and meets the needs of Lukas. As such, the petitioner, the stepfather, the two half sisters, Lukas and á child of the petitioner and the stepfather, bom subsequént to their marriage, live as an integrated functioning family.

The respondent admits that he has never seen or had contact with Lukas. Furthermore, the respondent admits that at this time, due to Lukas’ young age, Lukas has no knowledge that the respondent is his biological father. The respondent has never paid child support.

On April 16, 2007, the petitioner filed a petition to terminate the parental rights of the respondent in Probate Court, alleging that the respondent had abandoned Lukas. Subsequently, the Probate Court granted the respondent’s motion to transfer the case to the Superior Court for juvenile matters. On April 17, 2008, the Superior Court granted the petitioner’s motion to amend her petition to add the second ground that no ongoing parent-child relationship exists between the respondent and Lukas. Due to negotiations over a potential consent agreement between the parties, the court granted a continuance on June 18, 2008. The court noted that if an agreement was not reached, the case would proceed to trial at the earliest available date. Because a consent agreement was not reached, the case proceeded to trial.

At trial on December 10, 2008, the petitioner, her attorney, the attorney for Lukas and the attorney for the respondent appeared before the court. The respondent was incarcerated in New Hampshire at the time of trial and only available to participate by telephone for approximately thirty minutes. The issues before the court were whether the respondent’s parental rights should be terminated on the basis of one or both of the alleged grounds and whether termination of the respondent’s parental rights was in the best interest of Lukas. Additionally, after the petitioner rested her case, the respondent’s counsel moved for a continuance and requested a transcript of the day’s proceedings so that he could advise his client adequately on whether he should testify. The court denied those requests. In a memorandum of decision filed December 15, 2008, the court found by clear and convincing evidence that Lukas had been abandoned by the respondent, that there was no ongoing parent-child relationship between the respondent and Lukas and that it was in the best interest of Lukas to terminate the parental rights of the respondent.

Pursuant to § 45a-717 (e), a department of children and families (department) social worker prepared a social study. The respondent admitted to the department’s social worker that he was incarcerated in New Hampshire as a result of a burglary and a dispute with a neighbor and that he had been sentenced to four to nine years. Additionally, the respondent admitted that “he has been arrested many times in the past both for federal offenses and crimes committed in . . . Tennessee. He said that he was incarcerated ‘in the [S]outh for strong arm robbeiy, conspiracy to possess stolen firearms and eighteen or nineteen violations of probation in Tennessee.’ ” The respondent claimed that he had not been convicted of any crimes against women and children but that “he had a bad temper when it comes to men . . . .”

The court found that during the respondent’s 2004 relationship with the petitioner, he abused, threatened and committed domestic violence against the petitioner both before and after she became pregnant with Lukas. The respondent’s abuse, however, was not targeted only at the petitioner. The respondent also twice struck one of Lukas’ half sisters. As a result, both of Lukas’ half sisters are afraid of the respondent. Furthermore, the respondent has also threatened to kill the petitioner. The petitioner’s mother overheard such threats two or three times. Although the petitioner ended her relationship with the respondent in October, 2004, the respondent has threatened from prison to send his family after the petitioner. Additional facts will be set forth as necessary.

I

The respondent first claims that the court violated his rights to procedural due process when it denied his motion for a continuance and a transcript. We do not agree.

On appeal, the respondent framed the court’s denial of his motion for a continuance and a transcript as a due process violation—a constitutional claim that the respondent alleges he raised at trial. Although the record reveals that the respondent’s counsel made an oral motion for a continuance and a transcript request, counsel did not expressly state the existence of a due process claim, and it does not appear that the court treated it as such. In these circumstances, it is evident that the respondent’s constitutional claim does not fit within the parameters of this court’s holding that it will hear a claim only if “it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim.” (Internal quotation marks omitted.) In re Candids E., 111 Conn. App. 210, 215 n.7, 958 A.2d 229 (2008).

In the alternative, however, the respondent seeks review of this claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Under Golding, a party “can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the [respondent] of a fair trial; and (4) if subject to harmless error analysis, the [petitioner] has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the [respondent’s] claim will fail. The appellate tribunal is free, therefore, to respond to the [respondent’s] claim by focusing on whichever condition is most relevant in the particular circumstances.” (Emphasis in original.) Id.

Although the record is adequate for review, in order to reach the merits of the respondent’s claim on appeal, we first must determine whether, under the facts of this case, he has met his burden of proving that the denial of the requested continuance and a transcript is a claim of constitutional magnitude. “In general, a claim that a court improperly denied a motion for a continuance is not a constitutional claim, but rather one that rests in the discretion of the trial court. ... If the denial of the continuance is directly linked, however, to a constitutional right, then due process rights are implicated, and the claim is of constitutional magnitude. . . .

“In In re Shaquanna M., [61 Conn. App. 592, 605-608, 767 A.2d 155 (2001)], we held that due process rights were violated when the court denied the respondent a continuance to obtain new counsel for her children after the individual who had been serving as their attorney and guardian ad litem had died. In re Shaquanna M. involved a denial of a continuance in a proceeding to terminate parental rights. As the proceeding to terminate parental rights implicated the respondent’s constitutional right to maintain a relationship with her children, we assessed the court’s denial of the continuance pursuant to a procedural due process standard and not the general abuse of discretion standard.” (Citations omitted.) Foster v. Foster, 84 Conn. App. 311, 317, 853 A.2d 588 (2004).

Similarly, the present case involves a petition to terminate the respondent’s parental rights, and the respondent’s motion for a continuance and a transcript is directly linked to a constitutional right. It is clear that “[t]he right of a parent to raise his or her children has been recognized as a basic constitutional right.” (Internal quotation marks omitted.) In re Tremaine C., 117 Conn. App. 521, 529, 980 A.2d 317, cert. denied, 294 Conn. 920, 984 A.2d 69 (2009). Thus, the first two Golding conditions are met, and we next consider whether a constitutional violation clearly exists and whether the respondent was clearly deprived of his right to a fair trial.

The respondent’s claim fails under the third Golding prong because the constitutional violation does not clearly exist, and the respondent was not clearly deprived of a fair trial. “The United States Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), established a three part test to determine whether the actions of the court violated a party’s right to procedural due process. The three factors to be considered are (1) the private interest that will be affected by the state action, (2) the risk of an erroneous deprivation of such interest, given the existing procedures, and the value of any additional or alternate procedural safeguards, and (3) the government’s interest, including the fiscal and administrative burdens attendant to increased or substitute procedural requirements. . . . Due process analysis requires balancing the government’s interest in existing procedures against the risk of erroneous deprivation of a private interest inherent in those procedures.” (Internal quotation marks omitted.) In re Tremaine C., supra, 117 Conn. App. 529-30. “The bottom-line question is whether the denial rendered the trial fundamentally unfair in view of the Mathews factors.” In re Shaquanna M., supra, 61 Conn. App. 606.

As stated previously, the respondent’s interest in retaining his parental rights as to Lukas is constitutionally protected. A petition to terminate parental rights threatens the respondent’s constitutionally protected interest. Accordingly, the first factor of the Mathews balancing test weighs in favor of the respondent. See In re Candids E., supra, 111 Conn. App. 216-17.

We next turn to a consideration of “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards . . . .” Mathews v. Eldridge, supra, 424 U.S. 335. The respondent argues that the risk of erroneous deprivation is heightened because denying the incarcerated respondent’s motion for a continuance also denied him an opportunity to be heard and to address the petitioner’s claims against him. According to the respondent, his request for a continuance and a transcript would have afforded him a valuable, practicable procedural safeguard. By refusing these requests, the respondent alleges, the court denied him a meaningful opportunity to be heard and, thus, deprived him of a fundamental requirement of due process. We are not persuaded.

We begin by noting that the respondent was represented throughout the trial by counsel. This court has stated that “[i]t is in the interest of justice to ensure that any parent caught in the throes of a termination proceeding be present, or at least represented by counsel, from the beginning of the hearing. . . . There can be, however, circumstances in a termination hearing in which the mere presence, alone, of a respondent’s counsel, is not sufficient for a court to proceed in the respondent’s absence. . . . ” (Citation omitted; emphasis added; internal quotation marks omitted.) In re Candids E., supra, 111 Conn. App. 217. This is not such a circumstance. See id.

Here, the court granted the respondent a continuance on June 18, 2008, so that the parties could pursue a consent agreement. In granting the continuance, the court stated: “[I]f there isn’t . . . consent, I will proceed with the trial, regardless of what may, unfortunately, be impediments . . . .” When settlement efforts failed, the court specifically continued the case to a “ ‘firm and final trial date’ ” in December based on the respondent’s representation that he would be able to attend a hearing in person if it were scheduled in or after November, 2008. This representation, however, proved false. On September 25, 2008, the respondent was denied parole because he tested positive for heroin metabolite and had “two majors” in 2008. Consequently, both the respondent and his counsel were aware in September, given the respondent’s continued incarceration in New Hampshire, that he would not physically be able to attend the trial. Regardless of this knowledge, the respondent and his counsel failed to notify the court, failed to request another continuance in advance of trial and failed to pursue any pretrial discovery options.

As a result, on the basis of matters solely within his control, the respondent was incarcerated at the time of trial and was only available to participate by telephone for approximately thirty minutes-the maximum time allowed by the out of state prison facility. Despite the respondent’s failure to appear personally, the court, as well as the petitioner’s counsel, offered the respondent the opportunity to testify telephonically out of order. The attorney for the respondent rejected this offer because he wanted the respondent to hear his arguments regarding three pretrial motions. The court denied all of these motions and, subsequently, given what the court heard at trial and what the respondent would stipulate to, denied the motion for a transcript and any further delay caused by allowing the respondent to testify in the future.

In reliance on In re Jonathan P., 23 Conn. App. 207, 214, 579 A.2d 587 (1990), the respondent argues that the opportunity to provide spontaneous input into his counsel’s cross-examination and recross-examination of the petitioner’s witnesses is important enough to warrant due process protection. The respondent’s reliance on In re Jonathan P., however, is misplaced. “The respondent’s due process rights were violated in that case because the respondent, who was incarcerated, was prevented from participating in the termination of parental rights trial on the basis of state sanctioned action. . . . In [In re Jonathan P.], the respondent had not been transported by the department of correction to court even though a habeas writ had been issued for him to be present that morning.” (Citation omitted.) In re Tremaine C., supra, 117 Conn. App. 532. In the present case, even though the respondent was incarcerated, the state did not prevent him from appearing in court. See id.

The present case is more analogous to McDuffee v. McDuffee, 39 Conn. App. 412, 664 A.2d 1164 (1995), in which the plaintiff challenged the court’s denial of a continuance for a custody hearing because she was involved in a criminal matter in a different state. See In re Tremaine C., supra, 117 Conn. App. 533. “In McDuffee, we stated: ‘The plaintiffs claim that her due process rights were violated is without merit. She confuses her own inaction in failing to arrange to be present or to provide testimony at the hearing with an affirmative action by the trial court denying her the right to be present. This is a private custody dispute, and the court did nothing to prevent the plaintiff from appearing. The record is devoid of any indication that the plaintiff availed herself of any of the procedures that would have allowed her to provide evidence or to be present. We conclude, therefore, that the trial court did not violate the plaintiffs due process rights.’ ” Id.

Correspondingly, although the respondent in this case knew he could not physically attend the trial, he did not avail himself of any of the procedures that would have allowed him to provide evidence or to telephoni-caily provide testimony at the start of the trial. Furthermore, the respondent waited until the day of trial to make his request for a continuance. There was simply no affirmative act by the court to deny the respondent the opportunity to be present at the termination proceedings. Conversely, the court specifically had continued the trial date based on the respondent’s representation that he could attend in December. Under these facts, we conclude that the second factor of the Mathews balancing test weighs in favor of the petitioner.

Our consideration of the third factor under the Mathews balancing test, the function involved and the fiscal and administrative burdens placed on the court in granting a continuance and a request for a transcript, is complicated by the lack of a record before us. Specifically, the record is devoid of information concerning the length of time it would have taken to prepare a transcript of the December 10, 2008 proceedings and, additionally, how long it would have taken to send a copy to the respondent in New Hampshire for his review. It is the respondent’s burden to provide an adequate record for review. See Eremita v. Morello, 111 Conn. App. 103, 107, 958 A.2d 779 (2008). It is not the court’s duty to inquire about transcript preparation time. On the other hand, the court does have an interest in managing its docket as well as protecting the rights of all the parties—particularly when the court already had granted a continuance in the past and valuable resources had been allocated throughout the proceedings.

As applied to the specific facts of this case, the Mathews balancing test does not support the respondent’s due process claim. Accordingly, because we cannot conclude that the court’s denial of the respondent’s request for a continuance and a transcript rendered the trial fundamentally unfair, the respondent has not shown that a constitutional violation clearly exists. Thus, his claim fails under the third prong of Golding.

II

The respondent next claims that the court violated his procedural due process rights when it denied him the opportunity to participate at trial using videoconference technology. We disagree.

The following additional facts are necessary for our resolution of the respondent’s claim. On March 28,2008, the respondent’s counsel filed a motion for order to allow the respondent to participate at trial by videocon-ference. The respondent’s counsel argued in the motion, as well as before the court on April 17, 2008, that the court’s failure to provide the respondent with access to videoconference technology at trial would violate his procedural due process rights as mandated by the fourteenth amendment to the federal constitution and the constitution of Connecticut. After hearing the respondent’s arguments, the court allowed the parties to file supplemental briefs to further explore the alleged due process implications of videoconference access.

On December 1, 2008, the respondent filed a motion for a pretrial hearing to consider, inter alia, the motion for order filed on March 28, 2008. In addition, because the December trial was to take place at the Middletown courthouse where videoconference access was not available, the respondent also filed a motion for a change of venue to avail the respondent of his alleged right to participate by videoconference at a different courthouse in Connecticut that had access to the requisite technology.

At trial on December 10,2008, the respondent’s counsel presented a letter from the warden of the New Hampshire prison where the respondent was incarcerated. The court allowed the letter to be admitted as an exhibit. The warden’s letter states that there are hearing rooms available for videoconferencing but that those rooms are used primarily within the facility for parole board and sentence review hearings. The letter goes on to state: “However, if you are successful in your argument to use video-conferencing, you may contact my office, prior to the [c]ourt scheduling a date, and request if there is a Monday or a Wednesday that is available for the hearing. The room is frequently booked, and therefore unavailable to schedule for longer trials.”

After admitting the warden’s letter and listening to additional pretrial motions, the court denied all of the respondent’s motions. With regard to the videoconference argument in particular, the court stated that there is no case in Connecticut that holds that failure to provide videoconferencing is a denial of due process. Additionally, the court stated that “there is no Practice Book authority allowing videoconferencing in juvenile or child protection cases, and, therefore, the position of the judicial branch is that the court is without authority on its own to conduct or hold such videoconferencing.”

To begin our analysis, it is clear that the respondent adequately preserved this constitutional claim. Because the respondent is raising an alleged procedural due process violation directly linked with a petition to terminate his parental rights, its resolution is a question of law for which our review is plenary. See In re Sha-quanna M., supra, 61 Conn. App. 600.

The proper legal framework from which to analyze a procedural due process claim is to consider the factors in Mathews v. Eldridge, supra, 424 U.S. 319. See part I of this opinion. The respondent’s interest in retaining his parental rights as to Lukas is constitutionally protected. The risk of an erroneous deprivation of such interest, however, given the existing procedures, does not weigh in favor of the respondent. Despite representations that he could attend a trial in December—thus, negating the need for videoconferencing altogether— the respondent’s parole was denied on the basis of his own actions. At trial, not only could the respondent have testified telephonically, but his attorney was present throughout the hearing. Furthermore, in proceeding with the trial on the merits, the court required the petitioner to prove by clear and convincing evidence the ground for termination, as well as that it was in Lukas’ best interest for the respondent’s parental rights to be terminated. See In re Candids E., supra, 111 Conn. App. 217.

Additionally, even if the court had granted the respondent’s motion to order videoconferencing, there is simply no evidence in the record to conclude that the respondent would unquestionably have had access to the prison’s videoconferencing equipment or, alternatively, that the trial would not have been delayed indefinitely due to scheduling problems at the prison. Consequently, applying all the Mathews factors, we conclude that the respondent’s due process rights were not violated by the court’s refusal to grant his motion to order that he have videoconferencing access at trial.

Ill

The respondent next claims that the court abused its discretion in denying his motion in limine. We disagree.

The respondent’s motion in limine, filed on March 28,2008, sought to exclude evidence of the respondent’s criminal history prior to the start of the relationship between the petitioner and the respondent because it was not relevant to the present proceedings. Furthermore, the respondent argued that the prejudicial effect of such evidence far outweighed any probative value.

At trial, the respondent renewed his motion by specifically trying to exclude from evidence the petitioner’s certified copies of the respondent’s past criminal history that he believed dated back to 1995. The court subsequently denied the motion, and the case proceeded to trial. In its memorandum of decision, the court found the respondent’s criminal history to be both relevant and probative information.

“Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. ... All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative.” (Internal quotation marks omitted.) In re Angellica W., 49 Conn. App. 541, 549, 714 A.2d 1265 (1998); see also Conn. Code Evid. § 4-1. Furthermore, “[o]ur standard of review regarding challenges to a trial court’s evidentiary rulings is that these rulings will be overturned on appeal only where there was an abuse of discretion and a showing ... of substantial prejudice or injustice. . . . Additionally, it is well settled that even if the evidence was improperly admitted, the [party challenging the ruling] must also establish that the ruling was harmful and likely to affect the result of the trial.” (Internal quotation marks omitted.) In re Anna Lee M., 104 Conn. App. 121, 126, 931 A.2d 949, cert. denied, 284 Conn. 939, 937 A.2d 696 (2007).

We conclude that the court did not abuse its discretion in determining that the evidence was relevant and that the probative value of the respondent’s criminal history outweighed any prejudicial effect. Evidence of a continuing course of conduct that clearly showed that the respondent was not able to support an ongoing parent-child relationship as required by § 45a-717 (g) (2) (C) is certainly relevant in a termination of parental rights proceeding. Furthermore, it is also clear that the respondent was not substantially prejudiced by these exhibits, nor has he adequately shown that the court’s ruling was likely to affect the result of the trial. Accordingly, this claim fails.

IV

Finally, the respondent claims that the court improperly terminated his parental rights on the basis of a finding of abandonment pursuant to § 45a-717 (g) (2) (A) and on a finding of no ongoing parent-child relationship pursuant to § 45a-717 (g) (2) (C). The legal framework for deciding termination petitions is well established. “[A] hearing on a petition to terminate parental rights consists of two phases: the adjudicatory phase and the dispositional phase. During the adjudicatory phase, the trial court must determine whether one or more of the . . . grounds for termination of parental rights set forth in [§ 45a-717 (g) (2)] exists by clear and convincing evidence. ... If the trial court determines that a statutory ground for termination exists, then it proceeds to the dispositional phase. During the dispositional phase, the trial court must determine whether termination is in the best interests of the child.” (Citation omitted; internal quotation marks omitted.) In re Davonta V., 285 Conn. 483, 487, 940 A.2d 733 (2008). We conclude that the court’s decision to terminate the respondent’s parental rights was proper.

Before analyzing the respondent’s specific claims, we note our standard of review. “It is axiomatic that a trial court’s factual findings are accorded great deference. Accordingly, an appellate tribunal will not disturb a trial court’s finding [regarding the] termination of parental rights . . . unless that finding is clearly erroneous. ... A finding is clearly erroneous when either there is no evidence in the record to support it, or the reviewing court is left with the definite and firm conviction that a mistake has been made. . . .

“On appeal, our function is to determine whether the trial court’s conclusion was factually supported and legally correct. ... In doing so, however, [g]reat 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.” (Citation omitted; internal quotation marks omitted.) Id., 488.

A

The respondent first claims that the court improperly terminated his parental rights on the basis of no ongoing parent-child relationship because this ground was not proven by clear and convincing evidence. We disagree.

Pursuant to § 45a-717 (g) (2) (C), the court may approve a petition terminating the parental rights if it finds, on clear and convincing evidence, that the termination is in the best interest of the child and that “there is no ongoing parent-child relationship which is defined as the relationship that ordinarily develops as a result of a parent having met on a continuing, day-to-day basis the physical, emotional, moral and educational needs of the child and [that] to allow further time for the establishment or reestablishment of the parent-child relationship would be detrimental to the best interests of the child . . . .”

We have determined that under this part of the statute the court undertakes a two-pronged analysis. “First, there must be a determination that no parent-child relationship exists, and second, the court must look into the future and determine whether it would be detrimental to the child’s best interest to allow time for such a relationship to develop. ... In In re Jessica M., 217 Conn. 459, 586 A.2d 597 (1991), our Supreme Court defined an ongoing parent-child relationship as it applies to noncustodial parents. The court stated that termination of a noncustodial parent’s rights requires a finding that the child has no present memories or feelings for the natural parent.” (Citation omitted; internal quotation marks omitted.) In re Christian P., 98 Conn. App. 264, 269, 907 A.2d 1261 (2006).

In its memorandum of decision, the court found that the respondent had admitted that no parent-child relationship exists. Additionally, the court found that Lukas “has no emotional bond with [the respondent], whom he has never seen and about whom, because he is three years old, he is not aware.” In addressing the second required step of the analysis, the court recognized that it “must look into the future and determine whether it would be detrimental to the child’s best interest to allow time for such a relationship to develop. Since the [respondent] may be incarcerated through November, 2013, although he could be paroled earlier than such date [and because] Lukas believes that the stepfather is his ‘real father’, and he is not aware of the [respondent]; and since Lukas perceives his mother, his stepfather, his older half sisters and his new half sister as his family, it would be detrimental to his best interests to allow time for such [a] new relationship to develop.”

Consequently, the court found, by clear and convincing evidence, that there is no ongoing parent-child relationship between the respondent and Lukas. In light of the facts found by the court, it is also evident that to allow further time for the establishment of a parent-child relationship would be detrimental to the best interest of Lukas. The findings of fact amply support the court’s conclusion on this issue.

B

The respondent next claims that the court improperly terminated his parental rights on the basis of abandonment because this ground was also not proven by clear and convincing evidence. We do not agree.

Pursuant to § 45a-717 (g) (2) (A), the court may grant a petition terminating the parental rights if it finds, on clear and convincing evidence, that the termination is in the best interest of the child and that “the child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child . . . .” We have stated that “[abandonment focuses on the parent’s conduct. ... A lack of interest in the child is not the sole criterion in determining abandonment. . . . Attempts to achieve contact with a child, telephone calls, the sending of cards and gifts, and financial support are indicia of interest, concern or responsibility for the welfare of a child. . . . Abandonment occurs where a parent fails to visit a child, does not display love or affection for the child, does not personally interact with the child, and demonstrates no concern for the child’s welfare.” (Internal quotation marks omitted.) In re Angellica W., supra, 49 Conn. App. 551. “While [a] respondent’s imprisonment alone does not constitute abandonment, it does not excuse his failure to attempt either to contact or to visit with his children.” (Internal quotation marks omitted.) In re Ashley E., 62 Conn. App. 307, 315, 771 A.2d 160, cert. denied, 256 Conn. 910, 772 A.2d 601 (2001).

“Moreover, we have identified the minimal parental obligations for determination of whether abandonment has occurred. ‘The commonly understood general obligations of parenthood entail these minimum attributes: (1) express love and affection for the child; (2) express personal concern over the health, education and general well-being of the child; (3) the duty to supply the necessary food, clothing and medical care; (4) the duty to provide an adequate domicile; and (5) the duty to furnish social and religious guidance.” (Internal quotation marks omitted.) In re Angellica W., supra, 49 Conn. App. 551. In its memorandum of decision, the court not only recognized the previously mentioned parental obligations, but went on to state that “[a] parent must maintain a reasonable degree of interest in the welfare of his or her child. Maintain implies a continuing, reasonable degree of concern. . . . [Additionally] [t]he [respondent’s] self-created fact of incarceration for a child’s entire life to date is not a valid excuse for failing to perform the foregoing parental responsibilities and duties . . . .” (Citations omitted.)

After considering the evidence, the court found that “Lukas was bom in June, 2005. He is three and one-half years old. Regardless of the [respondent’s] natural feelings for [Lukas], he is not now and in the past has not been a part of his son’s world. His son has achieved stability, continuity and permanency with the only family he knows without input, support and contact from [the respondent]. . . . [Thus, the court concluded that] [t]he concept of parental abandonment set forth in . . . § 45a-717 (g) (2) (A) and applied in the circumstances of the instant case and the timing of this [termination of parental rights] trial comports with the statutory policies set forth [previously].” (Citations omitted.)

We conclude that the court properly found that the respondent abandoned Lukas. The court’s finding that the respondent failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of Lukas is supported by clear and convincing evidence. Thus, the respondent’s claim fails.

The judgment is affirmed.

In this opinion the other judges concurred.

       Specifically, the respondent’s counsel at trial made an oral motion for a transcript of the proceedings that day so that counsel “could at least have some written record [that he] could send to [the respondent] for his review and [so that counsel] could engage in extensive telephone conferences with him for preparation of his testimony. And [although counsel is aware that it is] an encumbrance on the court in terms of further delay in these proceedings, but [nonetheless counsel thinks that his client] has the right to testily or decide or elect not to testify, at least, based upon the review from the presentment of evidence against him.”
      Furthermore, the respondent’s counsel argued that his client would suffer detriment if the court decided to push the case along without a continuance and the production of a transcript and, last, that it was a question of fundamental fairness to provide a transcript so that he could properly advise his client. The court, in turn, summarily denied the respondent’s motion. Given these facts, we conclude that simply stating that a motion for a transcript implicates fundamental fairness is not enough to preserve a constitutional claim, especially when it is not clear that the court treated it as such. Cf. In re Candids E., 111 Conn. App. 210, 214 n.7, 958 A.2d 229 (2008) (merits of respondent’s due process claim clearly raised and addressed by court).

        Golding review applies in civil as well as criminal cases. Perricone v. Perricone, 292 Conn. 187, 212 n.24, 972 A.2d 666 (2000).

       Although the termination proceeding in this case was initiated by a private party as a prelude to an adoption petition by the stepfather, rather than by a state agency, the challenged state action remains essentially the same: the respondent resists the imposition of an official decree extinguishing, as no power other than the state can, his parent-child relationship with Lukas. See M.L.B. v. S.L.J., 519 U.S. 102, 116 n.8, 117 S. Ct. 555, 136 L. Ed. 2d 473 (1996).

       After making this argument, the respondent then proceeded to argue in his brief that because he was denied the opportunity to present evidence in his defense, the court made an adverse inference in concluding that it was his personal choices and circumstances that prevented him from developing a relationship with Lukas. Because the court did not warn the respondent that an adverse inference would be made on the basis of the respondent’s failure to testify, the respondent argues that he could not make an informed choice regarding the presentation of his defense. This argument lacks merit. Such notice is required only if a court is inclined to draw an adverse inference. In re Samantha C., 268 Conn. 614, 674, 847 A.2d 883 (2004). No evidence supports the respondent’s assertion that the court made, or was inclined to make, an adverse inference on the basis of the respondent’s failure to testify. Rather, the court relied on clear and convincing evidence in arriving at its determinations.

       Additionally, it also important to note that in proceeding with the trial on the merits, the court required the petitioner to prove by clear and convincing evidence not only the ground for termination, but that it was in Lukas’ best interest for the respondent’s parental rights to be terminated. See In re Candids E., supra, 111 Conn. App. 217.

       The “two majors” refer to major disciplinary reports filed against the respondent while he was in prison.

       Immediately after denying the respondent’s motions, the court reiterated: “I just will say one more time, the reason that the trial was continued to today was [that] there was a representation by the [respondent] that the [respondent], if the trial were continued, would be able to be here physically today.”

       On March 6, 2009, the respondent sought an articulation of the court’s denial of his oral motion for a transcript and for a continuance. The court denied the respondent’s motion for articulation on April 1, 2009, because the court set forth the reasons for its denial in the court’s December 15, 2008 memorandum of decision. The respondent did not seek review of the court’s denial of his motion for articulation.

       The respondent potentially could be incarcerated in New Hampshire until 2013.

       We note that the commissioner of children and families may also bring a petition to terminate parental rights, when the child is in the custody of the department, based on a finding of abandonment pursuant to General Statutes § 17a-112 Q) (3) (A) or the absence of an ongoing parent-child relationship pursuant to § 17a-112 (j) (3) (D). Other than the addition of the word “continuing” in § 45a-717 (g) (2) (C), the language of § 17a-112 (j) (3) (A) and (D) is nearly identical to the language in § 45a-717 (g) (2) (A) and (C).
      Accordingly, we have applied the same analytical framework and meaning of abandonment and no ongoing parent-child relationship for petitions to terminate parental rights pursuant to either § 17a-112 (j) (3) (A) and (D) or § 45a-717 (g) (2) (A) and (C). Compare In re Ashley E., 62 Conn. App. 307, 314, 771 A.2d 160 (applying abandonment under § 45a-717 [f] [1], currently § 45a-717 [g] [2] [A]), cert. denied, 256 Conn. 910, 772 A.2d 601 (2001) and In re Valerie D., 223 Conn. 492, 531, 613 A.2d 748 (1992) (applying no ongoing parent-child relationship under § 45a-717 [f] [3], currently § 45a-717 [g] [2] [C]) with In re S.D., 115 Conn. App. 111, 122, 972 A.2d 258 (2009) (applying abandonment under § 17a-112 [j] [3] [A]) and In re Christian P., 98 Conn. App. 264, 269-70, 907 A.2d 1261 (2006) (applying no ongoing parent-child relationship under § 17a-112 [j] [3] [D]).

       In the present case, for the respondent to prevail, he “must successfully challenge both of the bases of the judgment terminating [his] parental rights. In re Kezia M., 33 Conn. App. 12, 17, 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993). If either of the grounds on which the trial court relied are upheld on appeal, the termination of parental rights must stand.” In re Angellica W., supra, 49 Conn. App. 550.

       Additionally, as part of the dispositional phase, the court must consider and make written findings concerning the six factors set out in § 45a-717 (h). The court’s memorandum of decision articulates the requisite findings as to each applicable statutory factor, and the respondent does not take issue with the court’s dispositional phase determination by challenging those findings. Rather, it appears that the respondent is challenging only the court’s adjudicatory phase determinations.