author: Landau, J.

text:
    In re Michael M. et al.

    (10577)
    Foti, Landau and Freedman, Js.
    Argued June 8
    decision released September 15, 1992

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

      Mary-Arme Ziewacz Mulholland, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Landau, J.

On appeal, the respondent claims that: (1) the petitioner did not properly plead abandonment on the termination petitions, and, even if abandonment was pleaded properly, the petitioner failed to provide clear and convincing evidence that she had abandoned her children within the meaning of § 17-43a (b) (1); (2) the trial court improperly determined that she failed to rehabilitate herself within the meaning of § 17-43a (b) (2); and (3) the trial court improperly determined that there was no ongoing parent-child relationship between the respondent and her children within the meaning of § 17-43a (b) (4). We affirm the judgment of the trial court.

The following facts are pertinent to our resolution of this appeal. Michael M. was born on December 25, 1986, and Mamie M. was born on May 30, 1988. Both children resided with the respondent, their biological mother, until the spring of 1989. At that time, the department of children and youth services (DCYS), acting on the confirmation of a number of referrals received from various sources over the preceding five months, filed neglect petitions for both children. On June 15, 1989, both children were found, by default, to have been medically and physically neglected and were committed to the custody of DCYS for an initial period of eighteen months, pursuant to General Statutes § 46b-129.

Initially, both children were placed with the same foster parent, but Michael was removed from the home in September, 1989, because there was insufficient room there to accommodate him. Since being removed, Michael has resided with another foster parent.

During the period of the children’s commitment to DCYS, the respondent maintained only sporadic contact with DCYS and her children. She did not regularly telephone her children, she never sent them cards or gifts, and never provided the foster parents with a reliable telephone number to contact her. The respondent visited the children two or three times during the month of August, 1989. She visited both children around Thanksgiving of that same year, spent one day with Mamie and one weekend with Michael in January, 1990, and arranged a visit for Mamie’s birthday in May, 1990, but never appeared and did not call to explain her absence until some time later. The respondent had never been denied a requested visit and never stated that transportation problems were reasons for her failure to visit her children regularly.

The respondent contacted DCYS five times from the time the children were committed in June, 1989, until June, 1990, but never provided the children’s caseworker with a reliable way to contact her. The respondent’s first call to DCYS, in December, 1989, was to schedule an office visit with the children. Although an office visit was arranged, the respondent neither arrived at the scheduled time nor called to explain why she did not attend. She next contacted DCYS in January, 1990, to obtain the children’s addresses, which she had misplaced, and then in February, 1990, to find out the date of her February review. Although she was given the date of the review, she failed to attend. She contacted DCYS again in May, 1990, to request assistance in finding a job and an apartment. Her last contact with DCYS was in June, 1990, when she called to inform the caseworker that she had been convicted of assault and was incarcerated at the Connecticut Correctional Institution in Niantic for a period of five years to be suspended after three years, and to request prison visits with her children.

DCYS denied the respondent’s request for visitation because of the impending filing of the termination petitions and because of her failure to contact her children for the five months preceding her incarceration. On September 14, 1990, DCYS filed petitions for termination of the respondent’s parental rights for both Michael and Mamie, and the trial court ordered psychological evaluations of the respondent, Michael, Mamie and their respective foster parents. On October 4,1990, the trial court ordered monthly prison visits in Niantic.

David Mantell, the court-appointed psychologist, attempted to evaluate the parties on three occasions and filed three reports with the court. The only party who appeared for the first evaluation was Michael. All of the parties appeared for the second and third evaluations. Mantell found the respondent to be irrational and angry, with a “substantial history of psychosocial adjustment problems, antisocial behavior and a difficult personality . . . substantial history of substance abuse, violent behavior, and arrests.” He concluded that her behavior was ultimately self-defeating. He found that her prognosis for rehabilitation was poor given her reluctance to admit that her substance abuse contributed to her children’s commitment. Mantell was unable to make a clearer prediction as to the respondent’s capacity to rehabilitate herself because of her reluctance to participate in the evaluations. Mantell further found that Mamie’s foster mother clearly was her psychological parent, that Mamie had no ongoing relationship with the respondent, that Michael’s relationship with his foster mother was stronger than his relationship with the respondent and that he appeared to have multiple psychological parents. On the basis of those findings, Mantell recommended against continued visitation unless there was “a clear-cut plan to reunite the mother and the children along with a high level of probability that this can be accomplished within the reasonably near future.”

The respondent was present at the termination hearing, hummed loudly throughout most of the testimony presented by the petitioner and failed to testify on her own behalf. The only evidence she offered was the caseworker’s testimony relating to an injury to Mamie’s eye the respondent had observed during the last prison visit.

In its memorandum of decision, the trial court found that the petition pertaining to each child alleged that the reasons for the termination of the respondent’s parental rights had existed for more than one year, and that the respondent’s parental rights should be terminated for three of the four grounds specified in § 17-43a (b), namely: (1) each child had been abandoned by the respondent; (2) in a prior proceeding, each child had been found to have been neglected or uncared for, and that the respondent 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 each child, she could assume a responsible position in each child’s life; and (3) there was no ongoing parent-child relationship. The respondent appeals from this judgment terminating her parental rights as to her two children, Michael and Mamie.

“Our statutes define the termination of parental rights as ‘the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his parent . . . .’General Statutes § 45-61b (g). It is a most serious and sensitive realm of judicial action. Anonymous v. Norton, 168 Conn. 421, 430, 362 A.2d 532, cert. denied, 423 U.S. 935, 96 S. Ct. 294, 46 L. Ed. 2d 268 (1975). ... To justify the termination of parental rights in the absence of consent, one or more of the grounds set forth in General Statutes § 17-43a must be proven by clear and convincing evidence. In re Juvenile Appeal (84-3), [1 Conn. App. 463, 467, 473 A.2d 795, cert. denied, 193 Conn. 802, 474 A.2d 1259 (1984)]; see In re Juvenile Appeal (83-CD), 189 Conn. 276, 296, 455 A.2d 1313 (1983).” In re Juvenile Appeal (84-6), 2 Conn. App. 705, 707-708, 483 A.2d 1101 (1984), cert. denied, 195 Conn. 801, 487 A.2d 564 (1985).

“Section 17-43a carefully sets out . . . four situations that, in the judgment of the legislature, constitute ‘countervailing interests’ sufficiently powerful to justify the termination of parental rights in the absence of consent. [DCYS], in petitioning to terminate those rights, must allege and prove one or more of the statutory grounds. In contrast to custody proceedings, in which the best interests of the child are always the paramount consideration and in fact usually dictate the outcome, in termination proceedings the statutory criteria must be met before termination can be accomplished and adoption proceedings begun. No all-encompassing ‘best interests’ standard vitiates the requirement of compliance with the statutory criteria.” (Internal quotation marks omitted.) In re Luis C., 210 Conn. 157, 165, 554 A.2d 722 (1989), quoting In re Juvenile Appeal (Anonymous), 177 Conn. 648, 671-72, 420 A.2d 875 (1979).

I

The respondent first mounts a two-part challenge to the trial court’s finding that she abandoned her two children. The respondent initially claims that the petitioner did not properly plead abandonment in the petition for termination. In the alternative, she claims that, even if the petitioner did properly plead abandonment, the petitioner failed to provide clear and convincing evidence that she had abandoned her children. We disagree with both claims.

A

The first portion of the respondent’s claim is that abandonment was not properly pleaded because the paragraph on the face of the two petitions for termination alleging abandonment did not have a check in the box next to “mother,” and consequently the trial court lacked subject matter jurisdiction to consider the allegation. It is axiomatic that DCYS, in petitioning to terminate parental rights on the basis of abandonment, in the absence of consent, must allege and prove abandonment as set forth in § 17-43a (b) (1). The statutory criteria must be strictly complied with before termination can be accomplished. In re Juvenile Appeal (Docket No. 9489), 183 Conn. 11, 13, 438 A.2d 801 (1981); In re Juvenile Appeal (Anonymous), supra, 671.

The respondent notes correctly that a fundamental aspect of due process requires that a party be fully apprised of the allegations that he or she is facing and that strict adherence to the criteria of § 17-43a furthers this goal. We are also cognizant, however, of the presumption in favor of upholding a trial court’s ruling; State v. Jones, 205 Conn. 638, 660, 534 A.2d 1199 (1987); and the nonbinding effect of clerical defects where notice has otherwise been effectively given. Cassella v. Civil Service Commission, 4 Conn. App. 359, 370-71, 494 A.2d 909 (1985), aff'd, 202 Conn. 28, 519 A.2d 67 (1987).

Although the petitioner failed to check the appropriate box on the face of the petition, the accompanying document, entitled “Summary of Facts Substantiating the Termination Petition,” clearly alleged abandonment as to the mother, as did other portions of the petition itself. The summary of facts stated that “[t]he children have been abandoned by their mother Gwendolyn [M]. Since commitment on 6/15/89, mother has had minimal contact with her children or with DCYS regarding a plan for the children’s future.” Moreover, a review of the petition itself supports the conclusion that the respondent was on notice of the abandonment allegations against her. In the portion of each of the petitions where the petitioner is provided with the opportunity to allege specific misconduct in support of the allegations, the petitioner indicated that “Mother has had minimal contact with her child.” We conclude that the trial court properly found that the respondent was notified of the allegations of abandonment.

B

The second portion of this claim is that the petitioner failed to provide clear and convincing evidence that the respondent had abandoned her children. This claim necessarily involves a challenge to the trial court’s findings of fact and their application to its definition of abandonment. In re Rayna M., 13 Conn. App. 23, 36, 534 A.2d 897 (1987). We cannot retry the facts. In re Noel M., 23 Conn. App. 410, 418, 580 A.2d 996 (1990). On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. In re Juvenile Appeal (84-3), supra, 478, citing Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

Abandonment focuses on the parent’s conduct. In re Rayna M., supra. It is not the lack of interest alone that is the criterion in determining abandonment. Id., 37. Under General Statutes § 17-43a (b), abandonment is defined as the failure to maintain interest, concern or responsibility as to the welfare of the child. “ ‘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. In re Luke G., 40 Conn. Sup. 316, 323, 498 A.2d 1054 (1985). Where a parent fails to visit a child, fails to display any love or affection for the child, has no personal interaction with the child, and no concern for the child’s welfare, statutory abandonment has occurred. In re Juvenile Appeal (Docket No. 9489), [supra].’ . . . [Section] 17-43a (b) (1) does not contemplate a sporadic showing of the indicia of ‘interest, concern or responsibility for the welfare of a child.’ 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.’ ” In re Rayna M., supra, 37-38; In re Migdalia M., 6 Conn. App. 194, 208-209, 210, 504 A.2d 533, cert. denied, 199 Conn. 809, 508 A.2d 770 (1986).

The trial court found that (1) although prison visits had been denied by DCYS during the three months preceding the filing of these petitions, the absence of contact between the two children and their mother was not ascribable solely to this three month hiatus, (2) from the time of their commitment in June, 1989, until the time the respondent requested prison visits a year later, her contact with the children had been irregular and sporadic, (3) the respondent stopped seeing both children in January, 1990, and made no effort to contact either of them for the next five months, and (4) even before January of 1990, her conduct failed to demonstrate the “reasonable degree of interest, concern or responsibility” that would preclude the finding of abandonment under the statutory definition.

Those findings are amply supported by the record. In making those findings, the trial court relied on the testimony of Mamie’s foster mother and the children’s DCYS caseworker. The caseworker testified that she was assigned to Michael and Mamie’s case in October, 1989, that the respondent contacted her shortly thereafter to arrange an office visit with the children, but that she never appeared for the scheduled visit. She did not provide her with a home telephone number or call to explain her absence. When the respondent contacted her again in December to request the children’s addresses and telephone numbers, which she had lost, the caseworker informed the respondent that she could arrange for visits directly with the foster parents. She further testified that from the time the respondent had a one day visit with Mamie and one weekend visit with Michael, both in early January, 1990, the respondent did not see, speak with or arrange for a visit with the children until the end of May, 1990. Mamie’s foster mother testified that the respondent visited two or three times during July and August of 1989, once around Thanksgiving of 1989 and once in January, 1990. She also testified that the respondent did not contact her again until May, 1990, when she called to arrange a visit for Mamie’s birthday, but that she failed to appear or telephone to explain why she did not show up. During the intervening months the respondent rarely telephoned her children, never sent cards or attempted to keep in regular contact with them in any way.

Accordingly, we conclude that the trial court, following the mandates of General Statutes § 17-43a (b) (1), properly determined, on the basis of clear and convincing evidence, that the respondent had abandoned her two children.

II

The respondent next presents a two-part challenge to the trial court’s finding that she failed to rehabilitate herself within the meaning of General Statutes § 17-43a (b) (2). The respondent first argues that because she was unaware of the court’s expectations regarding her conduct, she could not be considered to have failed to rehabilitate herself. She also contends that the petitioner failed to provide clear and convincing evidence that she failed to rehabilitate herself within the meaning of the statute. We are not persuaded.

Section 17-43a (b) (2) empowers the trial court to grant a petition to terminate parental rights if it finds, upon clear and convincing evidence, that “ ‘the [parent] of a child who has been found by the superior court to have been neglected or uncared for in a prior proceeding [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, [the parent] could assume a responsible position in the life of the child.’ ” In re Sarah M., 19 Conn. App. 371, 376, 562 A.2d 566 (1989); Inre Rayna M., supra, 31.

“ ‘Personal rehabilitation’ as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as a parent.” In re Migdalia'M., supra, 203. The statute does not require the respondent to prove precisely when she will be able to assume a responsible position in her child’s life. Nor does it require her to prove that she will be able to assume full responsibility for her child, unaided by available support systems. Our Supreme Court has held that § 17-43a (b) (2) “requires the trial court to analyze the respondent’s rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable ‘within a reasonable time.’ ” In re Luis C., supra, 167. Moreover, the court must also consider the six factors in § 17-43a (d) when determining whether a parent has failed to achieve rehabilitation. In re Shavoughn K., 13 Conn. App. 91, 98, 534 A.2d 1243 (1987), cert. denied, 207 Conn, 805, 540 A.2d 374 (1988).

A

In the first part of her claim, the respondent argues that she never was notified of any court expectations and there cannot be a finding of failure to rehabilitate because she had no idea what was expected of her. It is undisputed that on the date of commitment the court failed to articulate expectations that would lead to reunification of the family, that the respondent was not present at the commitment, that she never provided DCYS with a reliable way to contact her, and that DCYS was unable to negotiate a service agreement with the respondent. The failure to articulate expectations or to convey them to the respondent, however, does not in and of itself preclude a finding of failure to rehabilitate.

The respondent fails to note that § 17-43a (b) (2) does not provide that in order to achieve personal rehabilitation a parent must meet the expectations of a court as ordered pursuant to a commitment hearing. See In re Juvenile Appeal (Docket No. 10718), 188 Conn. 259, 263 n.4, 449 A.2d 165 (1982). Nor have our courts required an articulation of expectations or strict compliance thereto as a condition precedent to a finding of failure to rehabilitate. See In re Shavoughn K., supra, 99-100.

Moreover, the respondent’s reliance on In re Migdalia M., supra, is wholly misplaced. She argues that because in that case we reversed the trial court’s termination of parental rights, on the basis of the parent’s failure to follow the court expectations, “[i]t is then only logical to conclude that where there are no court expectations that there then cannot be a finding of failure to rehabilitate.” Here, the failure to inform the respondent of the expectations and to have her sign the service agreement drafted by DCYS is inapposite because the trial court neither relied on nor even mentioned the expectations in reaching its conclusion. The trial court relied on the respondent’s failure to correct any of the factors that led to the initial commitment, not her failure to meet specific expectations. Thus, this portion of the respondent’s claim must fail.

B

In the second prong of this argument the respondent contends that the petitioner failed to establish by clear and convincing evidence thát she had failed to rehabilitate herself. A determination by the trial court under § 17-43a (b) (2) that the evidence is clear and convincing that the parent has not rehabilitated herself will be disturbed only if that finding is “ ‘not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, [supra], 221-22.’ ” In re Luis C., supra, 166, quoting In re Juvenile Appeal (84-3), supra, 478.

Our review of the record discloses that the trial court considered the statutory criteria of personal rehabilitation within the meaning of § 17-43a (b) (2) and the six factors listed in § 17-43a (d) and concluded properly that the petitioner had presented clear and convincing evidence that the respondent failed to rehabilitate herself as required under the statute. The trial court stated the ultimate issue as “whether the parent is more able to resume the responsibilities of parenting at the time of filing the termination petition than she was at the time of commitment.” In attempting to resolve this question, the trial court relied on the court-ordered evaluations and the trial testimony of Mantell, the court-appointed psychologist, that the respondent was reluctant to participate in the evaluation despite her knowledge that it was ordered by the court, that she refused to admit that her substance abuse contributed to the commitment of her children or that her children were neglected, and that she had a lengthy history of arrests. Mantell described the respondent as “an irritable, angry person with a substantial history of psychological adjustment problems, antisocial behavior and a difficult history” whose “behavior was often abrupt, stern and hostile” while interacting with her children. In his final report Man-tell concluded that “[t]he mother’s behavioral presentation does indicate immaturity, questionable judgment and partiality in her responses to her children as well as the general demeanor of a playmate rather than that of a nurturing and structuring parent.” He testified at trial that the respondent was irritable and impatient during her evaluation and refused to remain for the entire evaluation. He also testified that, given her failure to acknowledge the contribution of her substance abuse to the commitment of her children, the likelihood of her rehabilitation in terms of drug and alcohol abuse was poor. He concluded that these factors indicate that “at the time she was interviewed, that she still did not properly appreciate the importance of the kinds of habits she had, for breaking her relationship with her children, and causing her to [lose] custody of them.”

In its memorandum of decision, the court concluded that the respondent’s ability to care for the children had deteriorated from the time of their commitment and that, although the respondent claimed to have ceased using drugs, she did so only after she was incarcerated. Accordingly, the court found nothing in the evidence presented to permit an inference that within a reasonable time after the respondent’s release she would be any more capable of caring adequately for her two children than she had been during the year preceding their commitment or during the fifteen months subsequent thereto. Because we conclude that the trial court’s findings were supported by Mantell’s testimony, this prong of the respondent’s claim therefore also fails.

Ill

In her final claim, the respondent argues that the trial court improperly found, by clear and convincing evidence, that there was no ongoing parent-child relationship between the respondent and her children within the meaning of General Statutes § 17-43a (b) (4), and that to allow further time for the establishment of such a relationship would be detrimental to the best interests of the children. See General Statutes § 17-43a (b) (4). This part of the statute requires the trial court to make a two-pronged determination. 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 interests to allow time for such a relationship to develop. In re Juvenile Appeal (Anonymous), supra, 670; In re Juvenile Appeal (84-6), supra, 708; In re Juvenile Appeal (84-3), supra, 477. The “best interest” standard, therefore, does not become relevant until after it has been determined that no parent-child relationship exists. In re Juvenile Appeal (84-3), supra, 480.

Our Supreme Court has concluded that: “The statute’s definition of an ‘ongoing parent child relationship’ 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’ is inherently ambiguous when applied to noncustodial parents who must maintain their relationships with their children through visitation.” In re Jessica M., 217 Conn. 459, 467-68, 586 A.2d 597 (1991). When our Supreme Court first construed this statutory language, however, it resolved this ambiguity by holding that “[i]t is reasonable to read the language of ‘no ongoing parent-child relationship’ to contemplate a situation in which, regardless of fault, a child either has never known his or her parents, so that no relationship has ever developed between them, or has definitively lost that relationship, so that despite its former existence it has now been completely displaced.” In re Juvenile Appeal (Anonymous), supra, 670; In re Jessica M., supra, 468; In re Juvenile Appeal (84-6), supra, 708-709. This standard contemplates a relationship that has some positive attributes. In re Jessica M., supra, 470. In considering whether an ongoing parent child relationship exists, we must consider the feelings of the child. In re Megan M., 24 Conn. App. 338, 341, 588 A.2d 239 (1991); In re Juvenile Appeal (84-6), supra, 709.

This court, in In re Juvenile Appeal (84-6), supra, concluded that “in applying [the] definition [of no ongoing parent-child relationship] ... we focus on ‘the ultimate question [of] whether the child has no present memories or feelings for the natural parent.’ . . . Common sense and the avoidance of bizarre results dictate that we read the language in its ordinary meaning. ... As used here, ‘for’ means ‘what is said or felt in favor of someone or something: pro.’ Webster, Third New International Dictionary.” (Emphasis in original.) Thus the court concluded “that the phrase ‘feelings for the natural parent’ refers to feelings of a positive nature. It does not encompass . . . psychologically corrosive and destructive feelings . . . .’’Id.

With regard to Mamie, the trial court concluded that “there is clearly no relationship whatsoever between Mamie, who last lived with her mother at the age of thirteen months, and Gwen. Mamie refers to her [mother] as ‘some boy’ and evidences an unequivocal psychological bonding with her foster mother of the preceding year.” In reaching these conclusions, the trial court again relied primarily on the evaluations and testimony of Mantell. Mantell found “nothing . . . distinguishable about [Mamie’s] relationship with the mother that would help [Mantell] to describe it in ways that are different from the child’s relationship, for example, with [Mantell’s] colleague .... Or for that matter with [Mantell]. As far as the mother is concerned, [she] showed distinct disinterest in Mamie. And much of her behavior toward the child was either one of avoiding or ignoring the child or specifically rejecting her.” Mantell further noted that the respondent showed an interest in Mamie only when she learned that the evaluator was recording everyone’s actions. He found no evidence that the child had any sense of a relationship with the respondent, and based this finding, in part, on the fact that when, during the third evaluation, he asked Mamie to bring her mother to speak with him, Mamie returned with her foster mother, despite the fact that she had to walk right by the respondent to reach her foster mother, and that when Mamie was asked to say goodbye to her mother at the conclusion of the third evaluation she turned to her foster mother to say goodbye and appeared confused when she was told she had chosen the wrong person.

With regard to Michael, although the trial court noted that he had a clearer memory of his mother and a weaker bond with his foster mother, it concluded that “[e]ven Michael, by the time of the completed evaluation, did not display any positive feelings for his mother, nor . . . any present positive memories or emotional ties with her.” This conclusion is also supported by Mantell’s testimony and observations. At the beginning of the third evaluation, Michael’s foster mother pointed to the respondent and asked him who she was. Michael responded that he did not know. Later during the evaluation, when Mantell asked Michael to bring his mother to speak with him, Michael walked right past the respondent, looked at Mamie’s foster mother and his present foster mother, who were standing together, and returned with his present foster mother. Moreover, noting that Michael has many psychological mothers, including his present foster mother, Mantell indicated that the respondent and Michael interacted primarily as playmates and indicated that Michael’s foster mother had informed him that after each visit with the respondent, Michael’s behavior was disordered and took days to return to normal.

The court also found clear and convincing evidence that “[b]ased upon Gwen’s personal, psychological and legal situation, it is clear that to allow still further time for her to reestablish a parent-child relationship would be detrimental to each child.” Here, too, the record amply supports the trial court’s findings. Mantell testified that the respondent, when released from prison, would have a poor prognosis for maintaining a therapeutic relationship or counseling relationship necessary to learn proper parenting and that if Mamie was exposed to the respondent with any consistency “it could cause her to doubt herself and to feel disliked and unwanted, and so to develop unhealthy attitudes toward herself.” Mantell also recommended against allowing continued time for a parent-child relationship to develop between the respondent and Michael because “the arrangement of his life situation . . . provides a confusing array of possible identifications [and his] psychological parenthood . . . appears to be multiple.”

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1989) § 17-43a (b) (now § 17a-112) provides in pertinent part: “The superior court upon hearing and notice . . . may grant [a] petition [for termination] if it finds, upon clear and convincing evidence, that the termination is in the best interest of the child and that . . . with respect to any nonconsenting parent, over an extended period of time, which . . . shall not be less than one year: (1) The child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child; or (2) the parents of a child who has been found by the superior court to have been neglected or uncared for in a prior proceeding have failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, they could assume a responsible position in the life of the child; or . . . (4) there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day to day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child. . . .”

       On October 4, 1990, the trial court granted the department of children and youth service’s oral motion to amend the termination petitions to delete all references to the named father. The court found that the father had never legally acknowledged the paternity of the children and that the mother was the sole legal guardian.

       An initial hearing was scheduled for April 27, 1989. Although the respondent was notified of the hearing, she failed to appear. The hearing was continued twice and the court, suo motu, appointed counsel to represent her. The respondent failed to attend the commitment hearing, but was represented by counsel at the hearing.

       The monthly visits continued until the trial court issued its decision terminating the respondent’s parental rights.

       Additional facts will be referred to as they relate to the individual claims.

       The standard of “clear and convincing” burden of proof is constitutionally mandated. Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). It refers to a standard of proof that is between the standard required in an ordinary civil action and that required to find criminal guilt. Dacey v. Connecticut Bar Assn., 170 Conn. 520, 536-37, 368 A.2d 125 (1976). There must be “more than average certainty on the part of the fact finder.” Santosky v. Kramer, supra, 758; In re Juvenile Appeal (83-CD), 189 Conn 276, 297, 455 A.2d 1313 (1983); In re Juvenile Appeal (84-3), 1 Conn. App. 463, 468, 473 A.2d 795, cert. denied, 193 Conn. 802, 474 A.2d 1259 (1984).

       The question of subject matter jurisdiction may be raised at any time in the proceedings. In re Juvenile Appeal (85-BC), 195 Conn. 344, 363, 488 A.2d 790 (1985).

       “ ‘Due process,’ unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.” Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S. Ct. 1743, 6 L. Ed. 2d 1230 (1961). “[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972).

       We recognize that incarceration of a parent, alone, does not constitute abandonment or cause for termination of that parent’s rights. In re Juve

        nile Appeal (Docket No. 10155), 187 Conn. 431, 443, 446 A.2d 808 (1982); In re Juvenile Appeal (84-6), 2 Conn. App. 705, 711, 483 A.2d 1101 (1984), cert. denied, 195 Conn. 801, 487 A.2d 564 (1985).

       General Statutes (Rev. to 1989) § 17-43a (d) (now § 17a-112) provides: “Except in cases where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered or provided to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (3) the feelings and emotional ties of the child with respect to his parents, any guardian of his person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (4) the age of the child; (5) the efforts the parent has made to adjust his circumstances, conduct, or conditions to make it in the best interest of the child to return him to his home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (6) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.”

       The issue of whether parental rights should be terminated must be decided by the trial court on the basis of conditions existing at the time of the trial. In re Juvenile Appeal (83-DE), 190 Conn. 310, 318, 460 A.2d 1277 (1983).

       The testimony of professionals is given great weight in parental termination proceedings. See In re Nicolina T., 9 Conn. App. 598, 605, 520 A.2d 639, cert. denied, 203 Conn. 804, 525 A.2d 519 (1987).

       In In re Jessica M., 217 Conn. 459, 468 n.6, 586 A.2d 597 (1991), the Supreme Court defined “no ongoing parent-child relationship” in the context of General Statutes § 45-61f and concluded that, with regard to that language, §§ 45-61f and 17-43a (b) are identical because “[e]ach was enacted by Public Acts 1974, No. 74-164, and nothing in the legislative history suggests that they should be construed differently.”


source: Caselaw Access Project

author: Dupont, C. J.

license: Public Domain

text:
    Doreen Morelli v. Manpower, Inc.
    (11042)
    Dupont, C. J., Daly, Norcott, Lavery and Freedman, Js.
    Argued April 30
    decision released September 15, 1992

      William F. Gallagher, for the appellant (plaintiff).

      Glory Martyn Lena, for the appellee (third party defendant Sears, Roebuck and Company).
   Dupont, C. J.

The parties were ordered to appear at a motion calendar of this court on April 30, 1992, to give reasons why this appeal should not be dismissed for lack of a final judgment pursuant to Governors Grove Condominium Assn., Inc. v. Hill Development Corporation, 187 Conn. 509, 446 A.2d 1082 (1982). The sole issue of this appeal is whether the denial of a motion to open the dismissal of a civil action pursuant to Practice Book § 251 for a failure to prosecute with due diligence is an appealable final judgment. We conclude that it is not and that, therefore, we must dismiss the appeal for lack of a final judgment.

The plaintiff brought this negligence action against the defendant on August 23,1989. The plaintiff claimed that she was injured due to the negligence of a fellow employee while she was employed at Sears, Roebuck and Company. A motion to implead by the defendant, Manpower, Inc., was granted and a third party complaint against Sears, claiming breach of contract and indemnification, was filed. On April 17, 1991, the case appeared on the Superior Court dormancy calendar, with a notice that the action would be dismissed on June 28, 1991, if counsel failed to close the pleadings or appear on that date. On June 10, 1991, the plaintiff filed a motion to exempt the action from the dormancy calendar. On June 28, 1991, the action was dismissed pursuant to Practice Book § 251 for the failure of the plaintiff to prosecute with reasonable diligence. Subsequently, the plaintiff filed a motion to open the judgment of dismissal, which was denied. This appeal is from that denial.

In Governors Grove Condominium Assn., Inc. v. Hill Development Corporation, supra, the trial court dismissed a civil action under Practice Book § 251 on the basis of the plaintiffs’ failure to prosecute with due diligence. The plaintiffs did not file an appeal from the § 251 dismissal within the twenty day appeal period, and did not file any motion during the appeal period that, if granted, would have rendered the judgment or decision ineffective. See Practice Book § 4009. After the expiration of the appeal period, but within four months of the judgment, the plaintiffs filed a motion “to open [§] 251 dismissal.” The motion to open was denied and the plaintiffs filed an appeal from the denial of their motion to open.

As a threshold issue, the Governors Grove court considered whether the denial of the plaintiffs’ motion to open a Practice Book § 251 dismissal was an appealable final judgment. The court, relying on Nickerson v. Gachim, 183 Conn. 413, 439 A.2d 379 (1981), and Snow v. Calise, 174 Conn. 567, 570, 392 A.2d 440 (1978), stated that “the plaintiffs’ motion ‘to open [§] 251 dismissal’ is a motion to restore the case to the docket.” Governors Grove Condominium Assn., Inc. v. Hill Development Corporation, supra, 511. The court noted that, under Practice Book § 4009, such a motion, if filed within the twenty day appeal period, stays the expiration of the appeal period until twenty days after the issuance of notice of the decision on the motion, but that the decision on a motion to restore a case to the docket is not itself an appealable final judgment. Id., 512. The appealable final judgment was the judgment of dismissal. The timely filed motion to open that judgment could only extend the time within which to appeal the judgment but could not confer any additional rights of appeal.

Similarly, in the Nickerson case relied on by the court in deciding Governors Grove, the Supreme Court treated a motion to open a Practice Book § 251 dismissal as a request to restore the case to the trial list and stated that the “denial of a motion to open or restore a case to the trial list is not appealable.” Nickerson v. Gachim, supra, 416. It is important to note that both the Nickerson and Governors Grove cases involved § 251 judgments of dismissal that were rendered without regard to the merits of the plaintiffs’ claims.

In contrast to the Governors Grove line of Supreme Court cases, there exists another line of cases that hold that the denial of a motion to open a judgment rendered on the merits, whether filed within the twenty day appeal period or not, is an appealable final judgment in and of itself. See Norwich v. Lebanon, 193 Conn. 342, 346 n.4, 477 A.2d 115 (1984); State v. Fahey, 146 Conn. 55, 59, 147 A.2d 476 (1958). The court in Norwich v. Lebanon, supra, relying on State v. Fahey, supra, held that the denial of such a motion to open a judgment is an appealable final judgment. Norwich v. Lebanon, supra, 346 n.4. In Fahey, the court held that a denial of a motion to revoke an order of reference in a condemnation proceeding is an appealable final judgment because its denial effectively prevented the defendant from raising the merits of the issue of whether the public convenience and safety required a taking of his land by eminent domain. The court, however, did not state that the denial of the motion was appealable because it rested on a judgment involving the merits of the action. The case of Norwich v. Lebanon, supra, which used Fahey as its precedential guidepost, involved a denial of the opening of a judgment rendered on the merits. Norwich resolved a dispute over the taxability of land owned by Norwich but located in Lebanon. As in Fahey, the Norwich court did not articulate the reason for its holding that the denial of the motion was a final judgment.

The plaintiff argues that the more recent case of Norwich v. Lebanon, supra, rather than Governors Grove Condominium Assn., Inc. v. Hill Development Corporation, supra, controls our disposition of this case. We disagree.

Although the Governors Grove and Norwich cases appear to represent two conflicting lines of Supreme Court precedent, in our opinion they do not. Governors Grove applies to denials of motions to open Practice Book § 251 dismissals, whereas Norwich applies to denials of motions to open judgments rendered after a hearing on the merits.

It is clear that a judgment of dismissal under Practice Book § 251 is itself a final judgment for purposes of appeal. Jenkins v. Ellis, 169 Conn. 154, 159-60, 362 A.2d 831 (1975). What is not as clear from the case law is why, if no timely appeal is taken from the judgment of dismissal under § 251, the denial of a motion to open the judgment of dismissal is or should be treated differently, in terms of final judgment analysis, than the denial of a motion to open a judgment rendered on the merits of a case. We conclude that the distinction between these two lines of cases lies in the nature of the judgments involved.

This court and the Supreme Court have held that although a § 251 dismissal is itself an appealable final judgment, such a judgment is not an adjudication of the merits of the plaintiffs claims. Milgrim v. Deluca, 195 Conn. 191, 194-95, 487 A.2d 522 (1985); Grier v. West Haven Police Department, 8 Conn. App. 142, 510 A.2d 1376 (1986); Stephenson v. Evers, 5 Conn. App. 453, 499 A.2d 1167 (1985). Because a § 251 dismissal is not a final adjudication of the merits of the plaintiffs claims, it has been held that the judgment does not have a preclusive effect and the plaintiff is not prohibited from filing another action under the accidental failure of suit statute, General Statutes § 52-592. See Lacasse v. Burns, 214 Conn. 464, 572 A.2d 357 (1990); Gionfrido v. Wharf Realty, Inc., 193 Conn. 28, 34 n.6, 474 A.2d 787 (1984).

Gionfrido v. Wharf Realty, Inc., supra, involved a § 251 judgment of dismissal and the denial of a timely motion to open that judgment. The plaintiff filed an appeal from the § 251 judgment of dismissal. The Supreme Court held that the trial court did not abuse its discretion in rendering a judgment of dismissal and noted that the “plaintiff is not without remedy and, inter alia, may commence a new action pursuant to General Statutes § 52-592 . . . .” (Internal quotation marks omitted.) Id., 34 n.6. The Gionfrido court further noted that a judgment of dismissal for failure to prosecute is a matter of form. Id. Such a dismissal does not preclude a litigant from commencing another action on the same claim. Milgrim v. Deluca, supra, 195.

In a recent case, Skibeck v. Avon, 24 Conn. App. 239, 242-43, 587 A.2d 166, cert. denied, 219 Conn. 912, 593 A.2d 138 (1991), this court held that “ ‘a dismissal of an action pursuant to Practice Book § 251 constitutes a failure “for any matter of form” within the meaning of General Statutes § 52-592 (a)’ ... a plaintiff’s ability to rely on § 52-592 is limited to those cases where the § 251 dismissal is rendered after the case failed because of accident or simple negligence.” (Citation omitted.) By contrast, in the cases decided under the holding of Norwich and Fahey, the judgment that the party sought to open was a final adjudication on the merits, which judgment would have res judicata effect if that party sought to file another action.

We are unaware of any Connecticut case that discusses the reason for the differing results reached in the Governors Grove and Norwich cases. We have reasoned, however, that the rationale for the distinction between the finality of the denial of motions to open that rest on judgments rendered for administrative reasons and denials of motions to open that rest on judgments rendered on the merits is that in the former another day in court will likely be available, whereas in the latter no other review can be obtained.

Because we conclude that the denial of a motion to open a § 251 dismissal where no appeal has been taken from the dismissal is not a final appealable judgment, we dismiss this appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       This court has uniformly dismissed appeals from denials of motions to open Practice Book § 251 judgments of dismissal. This, however, is the first time we have issued a written decision on such a dismissal.

       The plaintiff claimed that she did not receive notice of the June 28, 1991 dismissal until November 19, 1991. The plaintiff’s counsel claimed that he became aware of the judgment of dismissal during a discussion with the defendant’s counsel regarding a pending motion for summary judgment dated July 2,1991, which was scheduled for hearing on the short calendar of November 25, 1991. The plaintiff filed a motion to open the judgment on November 21, 1991. A hearing on the plaintiffs motion to open was scheduled for December 2, 1991, but it was not acted upon on that date. A computer generated notice, dated December 18,1991, referring to a judgment dated December 5, 1991, was issued by the Superior Court clerk’s office and stated that the plaintiff’s motion to open the judgment was granted. Thereafter, the motion to open appeared on the December 9,1991 calendar and the trial court, Aronson, J., denied the motion to open. Notice of this decision was issued on December 9, 1991.
      The denial was based on Serrano v. Behar, 15 Conn. App. 308, 544 A.2d 250 (1988), which held that a trial court has no jurisdiction to open a judgment beyond the four month period described in General Statutes § 52-212a and Practice Book § 326. See also Van Mecklenburg v. Pan American World Airways, Inc., 196 Conn. 517, 494 A.2d 549 (1985).
      On January 10, 1992, the trial court issued a notice that stated that ‘‘[e]onflieting notices were sent on this motion. Motion to reopen denied 12/9/91 per Aronson, J. . . . Notice granting motion sent in error. This file is dead.”
      Although the trial court denied the plaintiff’s motion to open because she failed to comply with Practice Book § 326, and thereby ousted the trial court of jurisdiction, this court will first determine whether the Appellate Court itself has jurisdiction over this appeal.

       “[General Statutes] Sec. 52-592. accidental failure of suit; allowance of new ACTION, (a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits . . . because the action has been . . . defeated ... for any matter of form . . . the plaintiff . . . may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment. . . .”

       Although the plaintiff has not cited Jaquith v. Revson, 159 Conn. 427, 270 A.2d 559 (1970), we are aware that the denial of a motion to open a judgment of nonsuit is an appealable final judgment. The basis for the non-suit in that case was a failure to make a counterclaim more specific. The Supreme Court did not cite Jaquith in Governors Grove. Although there are differences between a § 251 judgment of dismissal and the judgment of nonsuit rendered in Jaquith, the former being a part of a court sponsored program designed to remedy docket congestion, and the latter being a sanction for failure to comply with an order of the court, the differences do not directly relate to the finality of judgments. It is not clear whether a plaintiff who has been nonsuited for failure to comply with a court order is able to bring a new action pursuant to General Statutes § 52-592. See Lacasse v. Burns, 214 Conn. 464, 473, 572 A.2d 357 (1990); Jaconski v. AMF, Inc., 208 Conn. 230, 235 n.4, 543 A.2d 728 (1988); Pavlinko v. Yale-New Haven Hospital, 192 Conn. 138, 144, 470 A.2d 246 (1984). Although a Jaquith-tjpe judgment of nonsuit does not rest on a judgment rendered on the merits, the Supreme Court may reason that, if a denial of a motion to open the judgment precludes further action, the denial should be appeal-able. Because the rationale of the distinction made in the present case may be weakened by Jaquith, we urge the Supreme Court to clarify this issue.


text:
    City of New Haven et al. v. Angelika Konstandinidis
    (10784)
    Norcott, Lavery and Landau, Js.
    Argued June 1
    decision released September 15, 1992

      Angelika Konstandinidis, pro se, the appellant (defendant).

      Michael Koenigsberg, deputy corporation counsel, for the appellees (plaintiffs).
   Landau, J.

The defendant, Angelika Konstandinidis, appeals from the October 28,1991 judgment of the trial court, Leheny, J., in a summary process action, awarding possession of the subject premises, 8 Orange Street in New Haven, to the plaintiff city of New Haven. Subsequent to the filing of this appeal, the city filed a motion to set an appeal bond pursuant to General Statutes § 47a-35a (b). In November, 1991, the trial court set a bond of $100,000. The defendant filed with this court a motion to review the trial court order setting the bond. This court granted the defendant’s motion for review and remanded the matter to the trial court to conduct a hearing and set a new bond.

On March 12, 1992, the trial court, Melville, J., ordered the defendant to post a bond, cash or surety, in the amount of $10,000 on or before March 23, 1992, and indicated that the failure of the defendant to post the set bond would result in the stay of execution being terminated. Although no motion for review of this order was filed, a motion for extension of time to post bond was filed on March 23, 1992. In response to this motion the trial court ordered that a surety bond in the amount of $10,000, or $2875 in cash, be deposited with the clerk’s office on or before noon on April 15, 1992, and stated that failure to do so would result in termination of the stay of execution as of 12:01 p.m. on that date. The court further ordered that if the bond was posted on that date, the defendant was to post an additional sum of $575 on May 1, 1992, and each month thereafter or the bond would be increased to $100,000 on June 1, 1992. All the other provisions of the March 12 order were to remain in force.

The defendant did not comply with the order and, on April 21,1992, appeared pro se, seeking, inter alia, a stay of execution of the bond. The stay was denied and a summary process execution for possession on the subject property issued. The defendant was evicted from the premises on May 27,1992, and on the following day the city moved to dismiss the defendant’s appeal, pursuant to Practice Book § 4056 on the ground that it had been rendered moot because the defendant failed to post bond as ordered by the court.

Where a tenant who is appealing from a summary process judgment in favor of the landlord has been evicted, and thus is no longer in possession of the premises, the matters on appeal are rendered moot. See Yankee Sailing Co. v. Yankee Harbor Marina, Inc., 5 Conn. App. 153, 157, 497 A.2d 93 (1985). Because this court does not entertain moot questions, “disconnected from the granting of actual relief or from the determination from which no practical relief can follow”; Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 (1944); the appeal must be dismissed.

The appeal is dismissed as moot.

In this opinion the other judges concurred.

       The defendant operated a restaurant on the first floor of the subject property.

       In September, 1989, the New Haven Redevelopment Agency condemned the property and offered the defendant a month to month tenancy for $525 per month with the condition that she be required to vacate the premises any time after December 27, 1989, with thirty days notice. The agency served the defendant with a notice to quit in January, 1991, and in March, 1991, initiated eviction proceedings to gain posession of the property.

       General Statutes § 47a-35a provides in pertinent part: “(a) When any appeal is taken by the defendant occupying a dwelling unit as defined by section 47a-l in an action of summary process, he shall, within the period allowed for taking such appeal, give a bond with surety to the adverse party to guarantee payment for all rents that may accrue during the pendency of such appeal ....
      “(b) In any other appeal the court on its own motion or on motion of the parties, may fix a sufficient bond with surety to the adverse party in such amount as it may determine.”

       Practice Book § 4046 provides that if an appeal is filed, the proceedings from which the appeal is filed shall be stayed until the final determination of the cause.


author: Landau, J. Lavery, J.,

text:
    Angelika Papagorgiou v. Angelo Anastopoulous et al.
    (10380)
    Norcott, Lavery and Landau, Js.
    Argued June 1
    decision released September 15, 1992

      Frank B. Velardi, Jr., for the appellants-appellees (defendants).

      Angelika Konstandinidis, pro se, the appellee-appellant (plaintiff).
   Landau, J.

This is the second appeal to this court relating to the resolution of the question of whether the plaintiff or the defendants held title to the property located at 8 Orange Street in New Haven, prior to the taking of the property by the city of New Haven by eminent domain in 1989. See Papagorgiou v. Anastopoulous, 23 Conn. App. 522, 582 A.2d 1181 (1990). There are two other actions involving this property presently pending in the courts. The first, which was argued with this appeal; New Haven v. Konstandinidis, 29 Conn. App. 139, 612 A.2d 822 (1992); is an appeal to this court from the granting of a summary process judgment of possession in favor of the city of New Haven against Angelika Papagorgiou, the plaintiff in this action. The other action, which has been stayed in the trial court pending disposition of this appeal, involves a challenge by the defendants in this action to the statement of compensation filed by the city of New Haven on August 11, 1989, in the condemnation proceeding. The plaintiff here, Angelika Papagorgiou, was permitted to intervene in the condemnation action because of her claim that she possessed equitable title to the property on the date of the condemnation.

In this case, the defendants appealed and the plaintiff cross appealed from the judgment of the trial court rendered after a remand ordered by this court. See Papagorgiou v. Anastopoulous, supra. On remand, the trial court determined that the defendants had breached the parties’ lease agreement in which the defendants leased the premises to the plaintiff with an option to purchase, as of May 21, 1987, the date on which the defendants received notice that the plaintiff was exercising the option clause in the lease. The court further determined that the taking of the property by the city of New Haven by eminent domain prevented the court from awarding the plaintiff relief on her claim for specific performance. Because the court concluded that it could not grant specific performance, it refused to “replace the defendants with the plaintiff in the condemnation proceeding.” The court then determined that “the appropriate remedy is monetary damages” and awarded the plaintiff money damages in the amount of $57,800 for breach of the lease agreement between the parties.

On appeal, the defendants dispute the trial court’s determination that the plaintiff validly exercised the option clause contained in the lease agreement between the parties and also challenge the court’s calculation of damages.

On the cross appeal, the plaintiff claims that “[a] decree giving her the right of ownership at the time of the taking, less the option price, would have placed her in the same position she would have been in had the defendants honored the contract.” She therefore seeks a judgment from this court declaring her the rightful owner of the property as of the date of the taking by the city of New Haven because she effectively exercised her option to buy on May 21, 1987. If the plaintiff prevailed on her cross appeal, she would be entitled to receive whatever amount of compensation is determined to be due in the condemnation action, less the amount of the option price of $90,000, which, she agrees, would be due the defendants. While the plaintiff acknowledges that the declaration of equitable title which she seeks disentitles her to the $40,000 portion of the court’s damage award, she argues that she is still entitled to receive the additional $17,800 for rent paid to the defendants and for the other expenses articulated by the trial court; see footnote 1, supra; because the court recognized that the plaintiff possessed equitable title as of the date of the exercise of the option, May 21, 1987.

We need not reach the merits of the parties’ appellate arguments because, under Practice Book § 4055, the defendants’ failure to file a brief on the plaintiff’s cross appeal has already resulted in the rendering of a judgment for the plaintiff on her cross appeal. The issues on the main appeal are rendered moot because the issues briefed by the defendants; see footnote 2, supra; have been resolved against them by their own inaction.

Mootness applies to situations where events have occurred during the pendency of an appeal that make an appellate court incapable of granting practical relief through a disposition on the merits. State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 181, 527 A.2d 688 (1987). “The standards governing mootness are well established. Because this court has no jurisdiction to give advisory opinions, no appeal can be decided on its merits in the absence of an actual controversy for which judicial relief can be granted. Sobocinski v. Freedom of Information Commission, 213 Conn. 126, 134-35, 566 A.2d 703 (1989); Shays v. Local Grievance Committee, 197 Conn. 566, 571, 499 A.2d 1158 (1985); Waterbury Hospital v. Connecticut Health Care Associates, 186 Conn. 247, 249-50, 440 A.2d 310 (1982); Connecticut Foundry Co. v. International Ladies Garment Workers Union, 177 Conn. 17, 19, 411 A.2d 1 (1979); Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 (1944).” Moshier v. Goodnow, 217 Conn. 303, 306-307, 586 A.2d 557 (1991). As a result of the defendants’ inaction and the subsequent judgment rendered in favor of the plaintiff, no controversy exists in this case.

Counsel for the defendants had been summoned to appear before this court on January 9, 1992, to explain why “the [cross] appeal should not be disposed of [pursuant to Practice Book § 4055] and why sanctions should not be imposed [pursuant to Practice Book § 4184] for failure to file the documents listed or to pursue the [cross] appeal with diligence.” The order further specified that the brief of the defendant crossappellee, which was due on December 4, 1991, was at issue in the hearing.

During the January 9 hearing, counsel for the defendants attributed his failure to file the brief solely to staffing problems in his office. At no time did he request permission not to file a brief on the cross appeal, nor did he argue that in his opinion a brief was unnecessary. He stated unequivocally that he would file a cross appellee’s brief “in two weeks.” This court accepted his assurance, and, over strong objection by the plaintiff’s counsel, allowed a two week extension to file the brief. The plaintiff argued that no extension of time should be permitted because the defendants had also previously failed to file timely its brief on the main appeal. This court issued its order on the same day as the hearing. The order clearly stated that “the brief of the defendant cross appellee must be filed on or before January 23, 1992, or the matter will be remanded to the trial court with direction to enter judgment on the cross appeal.” Notice of this order was mailed to the defendants’ counsel on January 9,1992.

At no time prior to January 23,1992, did counsel for the defendants request that this court reconsider or rescind the order of January 9,1992. Instead, he simply chose not to file the brief, despite his representation to the contrary. As a result of the defendants’ failure to file their brief, the matter was remanded to the trial court on January 30, 1992, with direction to render judgment for the plaintiff on the cross appeal. After judgment was rendered for the plaintiff, the defendants filed a motion to reconsider the entry of judgment on the basis of a claimed lack of notice. The defendants further represented in their motion to reconsider that the brief “will be ready for filing on February 5,1992, or February 6,1992, at the latest.” Because the defendants’ counsel had attended the hearing on this specific matter and had affirmatively represented to this court that he intended to file a brief “in two weeks,” the defendants’ claim of lack of notice was without merit and, as a result, the motion to reconsider was denied.

Once the trial court rendered judgment for the plaintiff on the cross appeal, she was entitled to the relief sought therein, a decree giving her the right of ownership at the time of the taking of the property by the city of New Haven, less the option price of $90,000, as well as damages in the amount of $17,800. In keeping with that judgment, the defendants are consequently entitled to the option price of $90,000, less the $17,800 due the plaintiff. At this time, it cannot be determined what amount, if any, the plaintiff will receive as equitable owner of the property. That question will be decided in the condemnation action, which has been stayed pending our decision in this matter.

The dissent argues that the issues on the main appeal do not become moot subsequent to the rendition of judgment for the plaintiff on the cross appeal. In reaching this conclusion, the dissent relies exclusively on the issues as framed by the plaintiff in her cross appeal, seemingly exalting form over substance. Unlike arbitration hearings, where the arbitrators are bound by the submissions, there is no such limitation on a direct appeal. Neither this court nor our Supreme Court is bound by the issues as framed by the parties in their statement of the issues. Rather, our analysis is addressed to the contents of the brief. This conclusion is further supported by our appellate courts’ routine refusal to consider issues not properly briefed, although properly listed in the statement of issues, concluding that such issues have been abandoned. Moreover, a review of the case history in this state reveals that, in determining what issues are to be addressed on appeal, it has been the practice to examine the contents of the brief rather than rely on the statement of the issues. See, e.g., Plateq Corporation v. Machlett Laboratories, Inc., 189 Conn. 438, 444-45, 456 A.2d 786 (1983) (court considered issues of remedial consequences to its earlier determinations although this issue was not in the defendant’s statement of the issues).

The defendants’ appeal is dismissed as moot.

In this opinion Norcott, J., concurred.

Lavery, J.,

dissenting. I respectfully disagree with

the majority’s conclusion that because judgment was rendered for the plaintiff on the cross appeal pursuant to Practice Book § 4055, the issues on the main appeal become moot.

The issues on the cross appeal set forth in the plaintiff appellee’s brief are: “(1) Did the court err in ruling that the plaintiff’s appropriate remedy for the breach of contract was damages? (2) Did the court err in arriving at a figure of $40,000 as the difference between the option price and the fair market value of the premises in determining damages, where there was no evidence before the court as to the fair market value of the premises at the time of the breach of contract?”

The issues in the cross appeal are thus limited to the remedy or damages that flow from a breach of contract. There must first be a finding of breach of contract before a court can reach the remedy or damages. A basic principle of law is that whenever one person has committed a wrong against another, the person wronged shall be awarded compensatory damages to the extent that he will be as well off as though the wrong had not been committed. Kenny v. Civil Service Commission, 197 Conn. 270, 276, 496 A.2d 956 (1985). This principle applies where there has been a breach of contract. Leventhal v. Stratford, 121 Conn. 290, 299, 184 A. 587 (1936).

The defendant appellant’s brief set forth the following issues: “1. Whether the trial court erred in finding that the plaintiff was entitled to exercise an option to purchase contained in a Lease Agreement subsequent to receipt of notices that the defendants had received an offer to purchase from a third party? 2. Whether the trial court erred in its award of damages to the plaintiff in the amount of $57,800.00?”

I believe this court must first find a breach of contract before we can award the remedy of damages on the cross appeal. Only after a breach is found may we then dispose of the matter of damages under Practice Book § 4055 as a sanction against the defendant-appellant for failing to file a brief on the cross appeal.

I take issue with the trial court’s finding of a breach of contract. The contract in this case was a lease with two option provisions. The first was an option to purchase at a fixed price, the second a right of first refusal to a bona fide offer. The issue presented is whether the lessee, who has not exercised the fixed price option, may purchase the property for the fixed price after he has been notified of a third party offer for an amount greater than the fixed price or whether the lessee must purchase, if he is to purchase at all, by exercising his right of first refusal by matching the offer of the third party?

The trial court found, on the basis of McDonald’s Corporation v. Lebow Realty Trust, 888 F.2d 912 (1st Cir. 1989), that the lessee may elect to purchase at the lower fixed option price. I believe, however, that under Texaco, Inc. v. Rogow, 150 Conn. 401, 409, 190 A.2d 48 (1963), Connecticut law dictates that when the holder of dual options receives notice from the lessor of an offer to purchase, the fixed price option is extinguished.

I would reverse on the claim of breach of contract and remand the matter to the trial court to make a finding on whether the offer to purchase by the third party was a bona fide offer. If it was a bona fide offer, I would render judgment on the appeal for the defendant-appellant. If it was not a bona fide offer, I would uphold the trial court’s result on the breach of contract claim and render judgment for the plaintiff-appellee on the cross appeal.

       The trial court calculated the amount of damages to be $40,000, “the difference between the fair market value of the property at the time of the breach and the price set in the fixed price option”; $12,275 for “rent paid to defendants after the breach . . .”; $4400 for “expenses properly incurred in preparing to take title, including the appraisal fee and points paid to the [Bank]”; and, finally, $1125 for an arbitrator’s fee.

       The issues raised in the defendants’ brief are: “1. Whether the trial court erred in finding that the plaintiff was entitled to exercise an option to purchase contained in a Lease Agreement subsequent to receipt of notices that the defendants had received an offer to purchase from a third party?
      “2. Whether the trial court erred in its award of damages to the plaintiff in the amount of $57,800.00?”

       Practice Book § 4055 provides in relevant part: “If a party shall fail to defend against [a cross] appeal with proper diligence, the [appellate] court may, on motion by any other party to the [cross] appeal or on its own motion, set aside in whole or in part the judgment under attack, with costs, and direct the entry of an appropriate final judgment by the trial court against the party guilty of the failure. . . .”

       Practice Book § 4184 provides in relevant part: “Actions which may result in the imposition of sanctions include, but are not limited to, the following: (1) Failure to comply with rules and orders of the court. . . .”

       Counsel for the plaintiff has since withdrawn from this appeal by virtue of the plaintiff s filing a pro se appearance in lieu of counsel, as provided by Practice Book § 4035.

       Also, where ambiguity in the language of the agreement exists, option contracts are generally strictly construed against the optionee. Smith v.

        Hervo Realty Corporation, 199 Conn. 330, 336, 507 A.2d 980 (1986); Pigeon v. Hatheway, 156 Conn. 175, 183, 239 A.2d 523 (1968).
      This rule of contract interpretation likewise leads to the conclusion that the notification of a bona fide offer to purchase by a third party for a greater amount extinguishes the optionee’s fixed price option to purchase because the agreement fails specifically to set forth the relationship between the fixed price option to purchase clause and the right of first refusal clause.


author: Daly, J.

text:
    Ronald J. Poisson v. Quality Electrical Contractors, Inc., et al.
    (10827)
    Daly, Foti and Landau, Js.

      Argued June 11
    decision released September 15, 1992

      Patrick W. Boatman, for the appellant (defendant Theodore F. Maher).

      Jeffery P. Apuzzo, for the appellee (plaintiff).
   Daly, J.

The defendant Theodore F. Maher appeals from the judgment rendered on a jury verdict in the plaintiff’s favor. Maher claims that the plaintiff was not entitled to recover in this shareholder derivative action on behalf of Quality Electrical Contractors, Inc., because the alleged acts of misconduct by Maher had occurred more than two years after the dissolution of the corporation.

The following facts taken from the parties’ pleadings are relevant to this appeal. The corporation was incorporated in April, 1979, by the plaintiff and the defendant who each owned 50 percent of the corporation’s stock. In the first count of the amended complaint, the plaintiff sought a court order that would distribute the corporate assets and dissolve the corporation. The second count of the complaint was in the nature of a shareholder derivative action against Maher. This count alleged that Maher breached his fiduciary duties owed to the plaintiff and the corporation for alleged misconduct that occurred on or after August, 1987. The plaintiffs complaint alleged that the corporation had been dissolved by forfeiture on March 5,1985. In his amended answer, Maher admitted that the corporation had been dissolved by forfeiture on that date.

At the close of the plaintiffs case-in-chief, Maher made a motion for a directed verdict. He argued that the plaintiff was not entitled to a judicial winding up of the corporation pursuant to General Statutes § 33-382 because the corporation had been dissolved by forfeiture. Maher argued that neither shareholder attempted to reinstate the corporation and, therefore, it no longer was a corporate entity under state law. Maher felt that an order winding up the corporation would be moot because most of the corporate assets had been disposed of toward the payment of corporate debts. The court agreed and directed a verdict in Maher’s favor.

As to the second count, Maher asserted that, even though both shareholders continued operating the corporation after its dissolution in March, 1985, this did not reinstate the corporate existence. According to Maher, both parties were limited to doing only those functions necessary to wind up the corporation upon receiving notice of dissolution. Therefore, the corporation, dissolved in March, 1985, had no claim against Maher for actions that took place in 1987. The plaintiff argued that a shareholder derivative action was allowed under Connecticut law on behalf of a dissolved corporation. The plaintiff claimed that because the corporate business was continued after dissolution, there existed a de facto corporation. The court denied Maher’s motion for a directed verdict on this count.

On August 15,1991, the jury returned a verdict for the plaintiff on count two for $53,000. The court divided the plaintiffs verdict in half because the plaintiff was a 50 percent shareholder of the corporation. The jury awarded Maher $17,555.71 on his counterclaim for contribution toward the payment of a corporate debt. The plaintiff ultimately was awarded $8949.

Maher filed a motion to set aside the verdict pursuant to Practice Book § 320. Maher did not raise any specific claims in this motion but noted that the motion to set aside the verdict was “in accordance with his motion for a directed verdict.” On October 22, 1991, the trial court heard argument on Maher’s motion to set aside the verdict. Maher again argued that there could not be a shareholder derivative action related to events that occurred after the dissolution of the corporation. After further argument, the trial court denied Maher’s motion to set aside the verdict. This appeal followed.

The plaintiff initially asserts that Maher is entitled only to plain error review because of his failure to list this claim in his motion to set aside the verdict. We disagree.

“It is an established rule of appellate practice in this state that in order to obtain a full review of claims of error in civil jury cases, parties must raise those errors with the trial court and file a motion to set aside the verdict.” Kolich v. Shugrue, 198 Conn. 322, 325, 502 A.2d 918 (1986). A motion to set aside the verdict is governed by Practice Book § 320 and General Statutes § 52-228b. The motion to set aside the verdict enables the trial court to address any claims of error before the commencement of the appellate phase of the proceedings. Id., 325-26.

According to Practice Book § 320, a motion to set aside the verdict has to be filed within five days after the verdict and “shall state the specific grounds upon which counsel relies.” The plaintiff argues that Maher did not preserve this claim properly in the motion to set aside the verdict because Maher only referred to his motion for a directed verdict, but did not specifically set out this claim in the motion to set aside the verdict. A general claim that the verdict is against the weight of the evidence or resulted from alleged errors by the trial court does not enable the trial court to rule on a claim before the appellate stage. Voight v. Selman, 14 Conn. App. 198, 200, 540 A.2d 104 (1988). In such a case, our review would be limited to the plain error standard. Id.

Here, there was a general claim listed in the motion to set aside that referred to the basis for the directed verdict that concerned whether the plaintiff could bring a shareholder derivative action. This claim was again presented at the hearing on the motion for the directed verdict. The trial court was given a “full opportunity” to examine the propriety of bringing a shareholder derivative action. Small v. South Norwalk Savings Bank, 205 Conn. 751, 759, 535 A.2d 1292 (1988), quoting Pietrorazio v. Santopietro, 185 Conn. 510, 515, 441 A.2d 163 (1981).

We conclude that if an appellant files a timely motion to set aside a verdict and the claims of error are presented at the hearing on the motion to set aside the verdict, the appellant will have properly preserved the claim for appellate review. The motion to set aside the verdict does not have to contain every precise claim of error. As long as the issues are presented to the trial court at the hearing on the motion or in a brief submitted in support of the motion to set aside the verdict, the trial court has an opportunity to review the claims before the beginning of the appellate process. Thus, the purpose of the rule will be satisfied.

Maher claims that the plaintiff could not bring a shareholder derivative action on behalf of a dissolved corporation for alleged misconduct that occurred almost two years after the dissolution of the corporation by forfeiture.

Maher focuses on the plaintiffs allegation that the corporation was dissolved by forfeiture on March 5, 1985. He argues that “there is nothing in the trial court record to the effect that after March 5, 1985, the corporate status of [Quality Electrical Contractors, Inc.,] was ever reinstated.” He also admitted, however, that Quality Electrical Contractors, Inc., “is a corporation duly organized under the laws of the state . . . .’’This admission that the corporation is duly organized under Connecticut law indicates that the corporate status may have been reinstated at the time of this action. Maher has failed to present the trial transcripts as to whether there was any evidence concerning the reinstatement of the corporation. The second count of the plaintiff’s complaint does not include an allegation that the corporation was dissolved by forfeiture on March 5,1985.

Maher’s claim that a derivative action is unavailable to a shareholder of a dissolved corporation for actions that occurred after the date of its dissolution cannot be reviewed on the merits because of his failure to provide an adequate appellate record. “We do not decide issues of law in a vacuum. In order to review an alleged error of law that has evidentiary implications, we must have before us the evidence that is the factual predicate for the legal issue that the appellant asks us to consider. It is the responsibility of the appellant to provide us with an appellate record that adequately supports his claim of error. Practice Book § [4061] . . . .” Taylor v. American Thread Co., 200 Conn. 108, 110, 509 A.2d 512 (1986).

Maher failed to refer to the record to explain the inconsistency between his claim that the corporation had been dissolved by forfeiture in 1985 and his admission that the corporation is duly organized under Connecticut law. The only transcripts submitted in this case concern the hearings on the motion for a directed verdict and the motion to set aside the verdict. We note that these transcripts were the only ones requested by Maher from the court reporter. There is no evidence concerning the corporation’s status during the time of his alleged misconduct. “Without the appropriate transcripts to provide us a record of what transpired at trial, we cannot, however, find error in the judgment of the trial court.” Id., 112.

The judgment is affirmed.

In this opinion the other judges concurred.

       Maher has also failed to follow the requirement of Practice Book § 4065 (c) that “[t]he statement of facts . . . shall be supported by appropriate references to the page or pages of the record or transcript upon which the party relies.” The violation of this requirement is another reason for declining appellate review of Maher’s claim. Taylor v. American Thread Co., 200 Conn. 108, 112, 509 A.2d 512 (1986); McGaffin v. Roberts, 193 Conn. 393, 399 n.6, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1747, 84 L. Ed. 2d 813 (1985).


text:
    Anilda Sanchez et al. v. Alfred Prestia et al.
    (10669)
    Dupont, C. J., Daly and Foti, Js.

      Argued May 6
    decision released September 15, 1992

      Dennis J. O’Brien, with whom were Karen Richards and David Stowe, for the appellants (plaintiffs).

      Harold J. Geragosian, for the appellee (named defendant).
   Dupont, C. J.

This action was brought under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes §§ 42-110a through 42-1 lOq, on behalf of a class of low income tenants who sought injunctive and monetary relief from their landlords for the landlords’ failure to obtain certificates of occupancy and their failure to maintain the housing in a habitable condition. The trial court, Goldstein, J., rendered a summary judgment in favor of the plaintiffs on the issue of liability on the CUTPA claim. The case was then tried to the court, Susco, J., on the issue of damages. The court awarded actual damages to individual class members, ranging from $30 to $760, and punitive damages to the class in the amount of $14,200.

The trial was completed on August 19,1990, but the trial court did not file its memorandum of decision rendering judgment until almost one year later, on August 6,1991. The defendant Alfred Prestía objected to the late filing and promptly moved to open and to set aside the judgment as violative of General Statutes § 51-183b, and to obtain an order for a new trial. The motion was granted and the judgment was set aside.

The plaintiffs claim that the trial court should not have set aside the judgment pursuant to § 51-183b because the statute (1) violates the separation of powers provision, article second, of the Connecticut constitution, (2) should not be applied to a hearing in damages in a class action brought under CUTPA, and (3) does not provide for the sanction of opening and setting aside the judgment.

The plaintiffs did not raise the first issue in the trial court, and the trial court had no hint that the plaintiffs would claim on appeal that the legislature had stepped into an area reserved exclusively for the exercise of judicial power. Although this claim would not ordinarily be reviewable; Practice Book § 4185; it is implicated in the plaintiffs’ other two claims. All three claims may be disposed of in a summary fashion because of the longstanding decisional acceptance of and adherence to this statute by our courts; see Waterman v. United Caribbean, Inc., 215 Conn. 688, 577 A.2d 1047 (1990); Frank v. Streeter, 192 Conn. 601, 472 A.2d 1281 (1984); Bogaert v. Zoning Board of Appeals, 162 Conn. 532, 294 A.2d 573 (1972); Hurlbutt v. Hatheway, 139 Conn. 258, 93 A.2d 161 (1952); Whitaker v. Cannon Mills Co., 132 Conn. 434, 45 A.2d 120 (1945); Spelke v. Shaw, 117 Conn. 639, 169 A. 787 (1933); Borden v. Westport, 112 Conn. 152, 151 A. 512 (1930); Cheshire Brass Co. v. Wilson, 86 Conn. 551, 86 A. 26 (1913); Lawrence v. Cannavan, 76 Conn. 303, 56 A. 556 (1903); and will be discussed together in this opinion.

After reviewing legislation, a court may conclude that the legislature did not have the authority to enact it because it interferes with the essential jurisdiction of a constitutional court. State v. Clemente, 166 Conn. 501, 514, 353 A.2d 723 (1974). This is not an instance in which such a conclusion can be drawn. The many prior statutory enactments culminating in § 51-183b had their origin in chapter 3 of the Public Acts of 1879. Waterman v. United Caribbean, Inc., supra, 691. The longstanding decisional acceptance of prior statutes and of § 51-183b makes it clear that § 51-183b is distinguishable from those statutes “pertaining to court ‘administration, practice, or procedure,’ which . . . have [been] held not to be binding on the constitutional courts . . . .” State v. James, 211 Conn. 555, 561, 560 A.2d 426 (1989), quoting Adams v. Rubinow, 157 Conn. 150, 156, 251 A.2d 49 (1968). The statute does not conflict with any rule of procedure or practice established by the judiciary. State v. James, supra, 562. In fact, compliance with the statute is carefully monitored by administrative judges and case flow managers. Furthermore, the plaintiffs challenge the imposition of the sanction for noncompliance with § 51-183b. The sanction of opening the judgment and granting a new trial is not in the statute but instead has been judicially created. In fact, this judicially created sanction for delay was recognized in Jaques v. Bridgeport Horse-Railroad Co., 43 Conn. 32 (1875) and “probably inspired the original [statutory] provision.” Waterman v. United Carribean, Inc., supra, 691.

We must therefore conclude that General Statutes § 51-183b does not violate the separation of powers provision of article second of the Connecticut constitution. It is a statute relating to the jurisdiction of the courts, a subject that is exclusively a province of the legislature. Article fifth, § 1, of the Connecticut constitution provides in part that “[t]he powers and jurisdiction of these courts shall be defined by law.”

Section 51-183b does not except from its reach cases that are concluded with a hearing in damages nor does it except class actions or any particular cause of action. It applies to all civil causes, and unless the parties waive its provisions, a trial court must render its decision within 120 days of the completion of the trial, which ends with the filing of briefs when requested. Frank v. Streeter, supra. The parties did not waive the provisions of the statute, and the court, therefore, lost jurisdiction of the parties at the expiration of the 120 days. Waterman v. United Caribbean, Inc., supra.

The plaintiffs correctly assert that the statute is silent as to the sanction for a violation of it. The statute is mute, but the holdings of the cases interpreting it are not. The consequence of the trial court’s failure to render a decision within the statutory time limit is the revocation of the judgment eventually rendered, and the concomitant necessity for a new trial. Waterman v. United Caribbean, Inc., supra; Frank v. Streeter, supra.

The judgment is affirmed.

In this opinion the other judges concurred.

       There were two defendants at trial but only the named defendant is involved in this appeal.

       General Statutes § 51-183b provides: “Any judge of the superior court and any state trial referee who has the power to render judgment, who has commenced the trial of any civil cause, shall have power to continue such trial and shall render judgment not later than one hundred and twenty days from the completion date of the trial of such civil cause. The parties may waive the provisions of this section.”

       The plaintiffs have appealed from the granting of the motion to open and to set aside the judgment. Although an order granting such a motion is not ordinarily a final judgment within the terms of General Statutes § 52-263, it is appealable if the appeal challenges the power of the court to act to set aside the judgment. Solomon v. Keiser, 212 Conn. 741, 745-47, 562 A.2d 524 (1989). The plaintiffs here challenge the power of the trial court pursuant to General Statutes § 51-183b to open a judgment. Such a challenge is appealable. Waterman v. United Caribbean, Inc., 20 Conn. App. 283, 285-86, 566 A.2d 443 (1989), rev’d on other grounds, 215 Conn. 688, 577 A.2d 1047 (1990).