author: SCHALLER, J.

text:
    IN RE ANNA LEE M. ET AL.

    (AC 27730)
    Schaller, Bishop and Haiper, Js.

      Argued May 30
    officially released October 2, 2007

      Thomas C. Simones, for the appellant (respondent mother).

      Susan T. Pea,riman, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (petitioner).

      Pamela J. Cabrera, for the minor children.

      Brian T. Griffin, guardian ad litem for the minor children.

       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

SCHALLER, J.

The respondent mother appeals from the judgments of the trial court rendered in favor of the petitioner, the commissioner of the department of children and families, terminating her parental rights with respect to A, T and D, her three children. The respondent claims that the court (1) improperly admitted evidence of her prior history with the department of children and families (department), (2) improperly admitted evidence of her alleged commission of social security fraud and bigamy, (3) abused its discretion in permitting cross-examination of the respondent to go beyond the scope of the proceedings, (4) improperly relied on sworn statements made by the respondent’s fifth husband that had not been properly authenticated during the trial, as a basis for its judgments, (5) improperly concluded that the department had used reasonable efforts to reunify the respondent and her children, (6) improperly concluded that the respondent had failed to achieve sufficient personal rehabilitation and (7) improperly concluded that it would be in the best interests of the children to terminate her parental rights because of the strong bond still present between the respondent and her children. We affirm the judgments of the trial court.

The following facts and procedural history are relevant to the resolution of the respondent’s appeal. In December, 2003, W, the respondent’s fifth husband, was admitted to Rockville General Hospital. During his stay at this hospital, W admitted that he sexually abused T. The respondent stated to an employee of the department that she was aware of that abuse but that she and her children continued to reside with W. In January, 2004, A admitted that she also had been sexually abused by W. In February, 2004, the petitioner insisted that the respondent obtain a restraining order against W to prohibit him from residing in the home, as it would jeopardize the safety of the children. Although the respondent obtained the restraining order, W was seen at the residence on March 2, 2004. The following day, the petitioner invoked a ninety-six hour hold on A, T and D pursuant to General Statutes § 17a-101g.

On March 5, 2004, the petitioner obtained orders of temporary custody for the children from the court, C. Taylor, J., and filed neglect petitions on behalf of the children. On August 3, 2004, the court adjudicated the children neglected. The court, however, ordered specific steps for the respondent to take for the purpose of reunification with her children.

The petitioner filed petitions for termination of parental rights on June 6, 2005, with respect to all three children on the ground that the respondent was “unable or unwilling to benefit from reunification services in that, despite the services offered to her, she has failed to change her circumstances to become a viable resource for said children.” Over the course of several days, beginning in April, 2006, the court, Bear, J., held a hearing on the petitions for termination.

Although the court acknowledged the bond between the respondent and her children in its memorandum of decision, it nonetheless found that the respondent failed to achieve sufficient rehabilitation for the puipose of reunification with her children and that termination of her parental rights was in their best interests. The court rendered judgments accordingly, and this appeal followed. Additional facts will be set forth as necessary.

I

Because the respondent’s first four claims on appeal are essentially evidentiary challenges to the court’s rulings, they share the same standard of review. “Our standard of review regarding challenges to atrial 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 Stacy G., 94 Conn. App. 348, 353, 892 A.2d 1034 (2006).

A

Admission of Evidence Concerning Respondent’s Prior History with the Department

The respondent’s first claim is that the court improperly relied on her prior history with the department in reaching its decision with regard to termination of her parental rights. Specifically, she argues that the court should not have considered documentary evidence, namely, a social study previously prepared by the department that concerned termination of her parental rights as to her two oldest children, who are now adults and were not parties to these proceedings. The respondent claims that because the court sustained her objection to testimony by a social worker of the department regarding the information contained in the social study concerning the older children, the court’s consideration of the information in the social study was improper. We are not persuaded.

The social study at issue was filed with the court on June 14, 2005. This study described the respondent’s histoiy with the department, which began in October, 1987. At the start of the trial, the court admitted the social study as a full exhibit, without any objection from the respondent. Stefania Agliano, a social worker with the department, testified concerning the investigations she did in accordance with this social study, specifically, allegations that the respondent’s two oldest children were the victims of physical, sexual and ritualistic, occult like abuse that had occurred in the respondent’s home. Although there had been no objection to the admission of the social study as a full exhibit, the respondent’s counsel objected to this portion of Agliano’s testimony. Counsel for the petitioner argued that Agliano’s testimony was relevant evidence as to the respondent’s failure to achieve rehabilitation. The court sustained the objection.

The respondent argues that the court improperly admitted this study because, in its memorandum of decision, the court discussed certain portions of the study as it related to the respondent’s two oldest children. “Whenever evidence is admitted without objection, the trier of fact can rely on its contents for whatever they are worth on their face. ... In order to preserve an evidentiary ruling for review, trial counsel must object properly.” (Internal quotation marks omitted.) Lambert v. Donahue, 78 Conn. App. 493, 501, 827 A. 2d 729 (2003). The respondent cannot now claim that the court improperly admitted the social study when she failed to object to its admission during the hearing. Additionally, in its memorandum of decision, the court mentioned the social study to demonstrate that the respondent has had a “history of making sexual and physical abuse allegations against at least four of her five spouses,” when there was evidence that she also abused her children.

In order for the court to make a determination as to the respondent’s prospects for rehabilitation, the court was required to obtain “a historical perspective of the respondent’s child caring and parenting abilities.” In re Tabitha P., 39 Conn. App. 353, 361, 664 A.2d 1168 (1995). “Because the parent-child relationship is at issue, all relevant facts and family history should be considered by the trial court when deciding whether to terminate the respondent’s parental rights. . . . The parent-child relationship presents an ongoing dynamic that cannot be frozen in time. The entire picture of that relationship must be considered whenever the termination of parental rights is under consideration by a judicial authority.” In re Brianna F., 50 Conn. App. 805, 814, 719 A.2d 478 (1998). Finally, “[t]o preclude consideration of the facts existing at the time of [a prior termination of parental rights proceeding] would not allow for a comprehensive analysis of the parent-child relationship.” Id., 818.

Social studies submitted by the department may be used by the court in both the adjudicatory and dispositional phases of a termination of parental rights hearing. In re Tabitha P., supra, 39 Conn. App. 368. In admitting into evidence the study prepared by the department, the court concluded that the report was relevant and not prejudicial to the respondent. See In re Angellica W., 49 Conn. App. 541, 549, 714 A.2d 1265 (1998). We conclude that the court did not abuse its discretion in determining that the evidence was relevant and that the probative value of the report outweighed any prejudicial effect.

B

Admission of Evidence Concerning Allegations of Social Security Fraud and Bigamy

1

The respondent’s next claim is that the court improperly admitted into evidence, as a full exhibit, a copy of the disability report she filed in connection with her application for social security disability benefits. In addition to the disability report, the exhibit at issue also included an investigative report prepared by an inspector with the Social Security Administration that contained evidence of the respondent’s arrest on an outstanding warrant for social security fraud. Specifically, the respondent argues that this exhibit should not have been admitted because she had not been convicted of social security fraud, the evidence was only “minimally relevant” to the termination proceedings in this case and the court made assumptions about her on the basis of the information found in this exhibit. We disagree.

The petitioner sought admission of this exhibit because it was part of a larceny investigation conducted by an inspector with the Social Security Administration and the police department. According to the investigative report found in the exhibit, various charges of fraud were made against the respondent from December, 2002, until June, 2005, on the ground that she made false statements to social security investigators regarding her sources of income and her capacity to work. As a result of these charges, the respondent was arrested in January, 2006, on an outstanding warrant for social security fraud, specifically, for larceny in the first degree and making false statements.

We have recognized that the court may consider the respondent’s prior arrests, even if they did not result in convictions, when assessing the respondent’s ability to provide a safe and secure home for the children and to provide the necessary care for them. See In re Helen B., 50 Conn. App. 818, 827-31, 719 A.2d 907 (1998) (holding that court did not abuse discretion in admitting evidence of respondent’s prior arrests that did not result in convictions because court considered evidence in determination of best interest of child). Contrary to the respondent’s argument, the court did not rely on the exhibit at issue to make a determination as to whether the respondent had committed a crime. Rather, the court found on the basis of the information in the disability report, as well as the respondent’s subsequent arrest for social security fraud, that if either set of circumstances was true, she was not in a position to have her children returned to her. As the court stated: “[I]f the [respondent’s] description of her disabling conditions remains accurate, she clearly is unable appropriately to parent her children. Instead, if they were returned to her, they would be parenting and caring for her .... Assuming that the mother lied to the Social Security Administration to obtain disability benefits, as can be seen from [the department] and other contrary reports of her and the fourth husband’s behavior and the [respondent’s] statements, this is cumulative confirmation that the [respondent] is not credible and that her claims concerning the children and her alleged positive relationship with them should not be given any meaningful weight.” (Emphasis added.)

It is clear from these comments that the court considered the exhibit in order to determine whether the petitioner had proved by clear and convincing evidence that a statutory ground for termination of parental rights existed and not to determine whether the respondent had committed a crime. We conclude, therefore, that the court did not abuse its discretion in admitting evidence of the respondent’s request for social security disability benefits and her subsequent arrest for social security fraud.

2

In a similar vein, the respondent argues that evidence related to her prior arrest on a charge of bigamy should not have been admitted because she was never convicted. We disagree.

On December 31, 2002, during a hearing before a probate judge concerning the status of her fifth marriage, the respondent indicated that she already had been granted a divorce from her fourth husband. The probate judge sought to confirm this information with the Superior Court and soon discovered that the statement was false because the respondent was still married to her fourth husband. On the basis of this evidence, the respondent later was arrested on a bigamy charge. The bigamy charge was nolled because the respondent’s marriage to her fourth husband was not valid, as he was still married to another woman when he married the respondent.

The court admitted, as a full exhibit and without any objection from either party, evidence indicating that the respondent’s divorce from her fourth husband had not yet been finalized at the time she married her fifth husband. Because the bigamy charge was never prosecuted, however, the respondent now argues that admission of this exhibit “serve[d] only to demean the character of the respondent and deny her rights under the law.”

As noted in part I A, “ [w]henever evidence is admitted without objection, the trier of fact can rely on its contents for whatever they are worth on their face. . . . In order to preserve an evidentiary ruling for review, trial counsel must object properly.” (Internal quotation marks omitted.) Lambert v. Donahue, supra, 78 Conn. App. 501. Because the respondent did not object to the admission of this exhibit, we conclude that the court properly considered it in support of its findings with regard to the petitions for termination of her parental rights.

C

Scope of Cross-Examination of Respondent During

Trial

The respondent’s next claim is that the court improperly permitted the petitioner’s counsel to cross-examine her on issues that were not raised during direct examination. In her brief, the respondent refers to two instances during which the court allowed cross-examination of her to go beyond the scope of the direct examination: (1) when she was questioned concerning her alleged physically violent relationship with her fourth husband; and (2) when she was questioned concerning her “cans for cancer” activities. We conclude that the court’s rulings with regard to these matters were proper.

1

During the hearing, the court, over objection, permitted the respondent to be cross-examined concerning whether a violent relationship existed between her and her fourth husband. The respondent argues that the court’s ruling was improper because this line of questioning was not brought up during direct examination. The record reveals, however, that on direct examination, the respondent was asked whether she attended domestic violence counseling sessions. The respondent testified that she did in fact attend these sessions, which were provided to her by the department.

Cross-examination on the issue of domestic violence was proper because the respondent’s testimony on direct “opened the door” to later inquiry on that topic. See New London Federal Savings Bank v. Tucciarone, 48 Conn. App. 89, 95, 709 A.2d 14 (1998) (“[a] party who initiates discussion of an issue, whether on direct or cross-examination, is said to have ‘opened the door’ to inquiry by the opposing party, and cannot later object when the opposing party so questions the witness”). The respondent’s argument, therefore, that the petitioner’s inquiry on this issue was beyond the scope of the direct examination has no merit. We conclude that the court did not abuse its discretion in permitting cross-examination of the respondent on this issue.

2

The respondent also challenges the court’s ruling with regard to her objection to questions concerning her claims that she needed cancer surgery and her solicitation of funds from the years 2000 through 2005 to pay for this surgery. Although the petitioner argued that this line of questioning pertained to the respondent’s credibility, the respondent claims that it was beyond the scope of the direct examination. We disagree.

“The trial court has broad discretion in determining whether cross-examination is beyond the scope of the direct examination.” Larensen v. Karp, 1 Conn. App. 228, 230, 470 A.2d 715 (1984). Additionally, “[i]t is well settled that the scope of the cross-examination of a witness is limited by the scope of the direct examination unless there is an attack on the credibility of that witness.” (Emphasis added; internal quotation marks omitted.) Friezo v. Friezo, 84 Conn. App. 727, 730, 854 A.2d 1119, cert. denied, 271 Conn. 932, 859 A.2d 930 (2004). Finally, “[t]he extent of cross-examination of a witness with regard to that person’s credibility is within the discretion of the trial court.” (Internal quotation marks omitted.) Hammer v. Mount Sinai Hospital, 25 Conn. App. 702, 722, 596 A.2d 1318, cert. denied, 220 Conn. 933, 599 A.2d 384 (1991).

The respondent testified that she conducted a “cans for cancer” drive at some point during the years 2000 through 2005. She further testified that during her solicitation of funds for cancer, she told people that she could not have cancer surgery because she did not have any health insurance. Finally, the respondent testified that as late as 2003, she was diagnosed with breast cancer. After this line of questioning, the petitioner’s counsel sought to introduce, as an exhibit, laboratory results that were prepared for the respondent. The court admitted this exhibit in full, without any objection from either party. In its memorandum of decision, the court found that the laboratory results contained a report of “no malignancy.”

When the respondent objected to this line of questioning, the court noted that the evidence was admissible because it was relevant as to the respondent’s credibility. In light of the evidence in the record, we conclude that the court did not abuse its discretion in making that evidentiary ruling.

D

Court’s Reliance on Statement Made to Police by Respondent’s Fifth Husband

The respondent’s next claim is that the court, in its memorandum of decision, improperly relied on portions of a sworn statement made by W to the police. Specifically, the respondent argues that this statement, which the court found to be inadmissible hearsay because it could not be authenticated, should not have been considered by the court in its decision with regard to her parental rights. Although we determine that the court improperly referred to the statement in its memorandum of decision, we conclude that the respondent has failed to establish that this error was harmful.

On the third day of the termination of parental rights hearing, the petitioner sought to introduce into evidence a sworn statement that W had made to the police on October 23, 2003. In this statement, W allegedly admitted to the police that he drank between one pint and one quart of vodka daily. The court did not admit the statement into evidence because W was not under subpoena, he did not attend the termination of parental rights hearing and he had not been called as a witness by either party. The court, however, permitted cross-examination of the respondent concerning alleged facts related to this sworn statement. The petitioner’s counsel asked the respondent whether she was “aware that during the time [W] was in her home, he had told police he was drinking between a pint and a quart of vodka a day . . . .” The respondent answered that she “[had] no knowledge of that” but that she “knew very clearly [W] had an alcoholism problem.” She further testified that she “knew he was drinking a lot.”

The respondent now challenges the portion of the court’s memorandum of decision in which the court found: “[The respondent’s] fifth husband, who lived with her and the children, was drinking between one ;pint and one quart of vodka daily, but she was unaware of this.” (Emphasis added.)

The court’s finding as to the amount of vodka W consumed was incorrect because it was based on a document that was not in evidence. The court’s finding on this matter, however, was harmless because of the other testimony the petitioner elicited from the respondent on this issue. The specific amount of alcohol her fifth husband drank was immaterial because the respondent testified that she knew “very clearly” that W had a problem with alcoholism and that he drank heavily. Additionally, the court’s finding as to the specific amount of alcohol W consumed on a daily basis was immaterial because the court further found that the respondent was “generally aware of the fifth husband’s alcohol problem.” The respondent’s argument loses sight of the fact that, for the purpose of the court’s ultimate determination regarding whether her parental rights should be terminated, the relevant testimony elicited from the respondent was that she permitted someone who she knew very clearly had a problem with substance abuse to reside in her home with her children. Because the court found that the respondent generally was aware of her fifth husband’s drinking problem, it was appropriate for the court to consider this as a factor when assessing the respondent’s progress toward rehabilitation. In light of the other testimony elicited from the respondent on this issue, the respondent has failed to establish that the court’s finding as to the amount of alcohol W consumed on a daily basis was harmful.

II

With regard to the respondent’s three remaining claims, “[o]ur standard of review on appeal from a termination of parental rights is whether the challenged findings are clearly erroneous. . . . The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous. ... On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. . . . Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling.” (Internal quotation marks omitted.) In re Christian P., 98 Conn. App. 264, 268, 907 A.2d 1261 (2006).

“The 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 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 interest of the child.” (Internal quotation marks omitted.) In re Shaun B., 97 Conn. App. 203, 206-207, 903 A.2d 246 (2006).

Upon reviewing the detailed decision of the court and the evidence contained in the whole record, we conclude that the court’s findings that the department made reasonable efforts to reunify the respondent with her children, that the respondent had not achieved sufficient personal rehabilitation and that termination was in the best interests of A, T and D were not clearly erroneous. Having so concluded, we now consider each of the respondent’s remaining claims.

A

Reunification Efforts Made by the Department

The respondent next claims that the department failed to use reasonable efforts to help her reunite with her family. Specifically, she claims that “[o]nce the professional supervision associates refused to continue the visits . . . the [department] had the duty to seek alternate supervisory aid for the respondent.” We are not persuaded.

The court found that the department provided the respondent with parental education programs, psychological evaluations, substance abuse evaluations, domestic violence counseling programs, individual counseling sessions for both her and the children and medical and dental services for the children. The department also provided the respondent with supervised visitation sessions with the children. Bonnie Glasser, a social worker with the department, testified that an organization known as Amps, Inc. (Amps), was chosen to monitor the visitation sessions, because Amps was the only organization that could provide the department with the highest level of professional supervision for the respondent’s visits with her children. In July, 2004, Amps commenced weekly visits for the respondent and her children. In September, 2004, however, Amps reduced the visitation schedule to alternate weeks due to the respondent’s “inappropriate interaction” with the children during the visits. In February, 2005, Amps notified the department that it planned to terminate the visits because Amps could not keep the children safe as a result of the respondent’s “verbally aggressive” behavior and her failure to abide by the visitation rules.

The respondent does not direct us to any case law to support her argument that the department had a “duty” to seek alternate supervisory aid for her. It is clear from the record, however, that the department used reasonable efforts to reunify the respondent with her children.

The record indicates that there was no “alternate supervisory aid” available to the department. Glasser testified that there was no other visitation center that could provide a higher level of supervised visitation comparable to Amps, and, for that reason, the department asked Amps to resume visitation sessions for the respondent and her children a second time. Due to the department’s efforts, Amps resumed the visits and scheduled them for once a month. Again, the respondent did not follow the visitation guidelines. During a visit in May, 2005, Amps staff reported that the respondent was whispering to. her children and attempted to give a gift to D. Such conduct was prohibited, and, as a result, Amps cancelled the visit that was scheduled for June, 2005. Finally, in August, 2005, Amps again notified the department that the visitation sessions were going to be terminated. Amps concluded that it could not keep the children safe, in response to what transpired during the respondent’s visit in July, 2005. This time, however, Amps terminated the sessions permanently because it did not believe the visits were therapeutic or otherwise helpful.

The court found that the petitioner “alleged and proved, by clear and convincing evidence, that [the department] made reasonable efforts to reunify the children with the [respondent] through the offer of and the provision of services . . . and . . . the [respondent] was unable to benefit from the services to the point where she could be considered a parental resource for reunification.” We conclude, in light of the evidence in the entire record, that the court’s findings are not clearly erroneous.

B

Rehabilitation of Respondent

The respondent also claims that the court improperly found that she had failed to achieve personal rehabilitation because she was “by and large cooperative and compliant in the obligations imposed upon her.” We disagree.

At the time the court adjudicated the children to be neglected, it also ordered the respondent, inter alia: (1) to participate in parenting and individual counseling programs, (2) to abstain from further involvement with the criminal justice system, (3) consistently and timely to address the physical, educational, medical or emotional needs of her children, (4) immediately to advise the department of any changes in the composition of her household to ensure the safety of the children and (5) to visit the children as often as the department permitted. The record reveals that the respondent did not fully comply with these specific steps ordered by the court.

Although the court found that the respondent completed a parent education family management program, it also found that she did not fully complete the parenting component that followed each supervised visitation session. The court further found that the respondent also did not comply with the specific order to abstain from further involvement with the criminal justice system because she was arrested for social security fraud and on “criminal lockout charges,” as she had been renting a room in her home to a boarder and evicted him illegally.

The court found that the respondent also did not consistently and timely address the physical, educational, medical or emotional needs of her children, nor did she immediately advise the department of any changes in the composition of her household to ensure the safety of the children, as she did not notify the department that she had a boarder living in her home for a time. Additionally, the respondent did not visit the children as often as the department permitted because she refused to cooperate with Amps’ visitation rules and guidelines, and her failure to cooperate ultimately led to the termination of her visitation privileges.

The respondent had ample time to use the support services provided by the department to achieve rehabilitation so that she could be reunified with her children. Although the petitioner’s custody of A, T and D began in March, 2004, the petitioner first filed a petition for termination of parental rights in June, 2005, more than one year after the children were placed under the department’s care, and the hearing on the petitions for termination of parental rights did not commence until April, 2006. Due to the respondent’s lack of cooperation with the department’s efforts at reunification during this two year period of time, however, the respondent failed to achieve sufficient rehabilitation. As the court found, although the respondent attended individual counseling sessions with two therapists, she “refuse[d\ to accept her role and responsibility in connection with the neglect of the children, so she is unable to make progress toward the goals of the therapy.” (Emphasis added.)

We conclude that, on the basis of the evidence before it, the court properly found that the petitioner had established, by clear and convincing evidence, that the respondent failed to achieve sufficient personal rehabilitation for the purpose of reunification with her children.

c

Trial Court’s Findings as to the Best Interests of A, T and D

The respondent’s final claim is that the court improperly found that the termination of her parental rights was in the best interests of her children because of the “bond that is still apparent between the respondent and her children . . . .” We are not persuaded.

At this point, we must reiterate the rule that a court must consider the best interests of the children when deciding whether parental rights should be terminated. In re Shaun B., supra, 97 Conn. App. 206-207. Although the court found that A, T and D had a bond with the respondent that “continued through the end of the trial,” the court also found that “[t]he forensic psychiatrist and the forensic psychologist opined that from the perspective of the children, their enmeshment with the [respondent] was harmful and destructive, and was manipulated by the [respondent] to serve her needs. . . . The forensic psychiatrist concluded, inter alia, that the [respondent] is an intelligent, organized, verbally adept woman who has pursued her own interests and emotional needs at the expense of her . . . children .... [The respondent] is seen quite consistently as neglecting her children’s needs to their substantial detriment. [The respondent] has an entirely self-centered and unidirectional relationship with her children. Her central position is for her children to meet her needs, regardless of the consequences to the children.” (Citation omitted; internal quotation marks omitted.)

Finally, the court expressly indicated that it considered other factors as part of its findings that the respondent’s parental rights should be terminated, including “each of the children, his or her age, experiences, needs, sense of time, relationships with the [respondent] and foster parents, need for safety, security, stability and permanency, previous victimization by the [respondent] and the partners she chose, the [respondent’s] lack of any reasonable likelihood of rehabilitation and the general totality of circumstances.” In light of the facts and circumstances presented, and making every reasonable presumption in favor of the court’s rulings, we conclude that the court’s findings were legally correct and factually supported and, thus, not clearly erroneous.

The judgments are affirmed.

In this opinion the other judges concurred.

       The respondent father of A, T and D, who was also the respondent mother’s fourth “husband,” was involved in these proceedings until his death on November 11, 2005. We therefore refer in this opinion to the respondent mother as the respondent.
      We also note that the respondent’s fourth “husband” was married to another woman at the time he married the respondent, and so his marriage to the respondent, therefore, was not a legal marriage. For convenience, however, we refer to him throughout this opinion as the respondent’s fourth husband.

       The respondent also challenged the court’s judgments on the ground that the issue of whether she was mentally competent to stand trial was never raised. Specifically, the respondent claims that although the petitioner presented evidence during the trial with regard to her mental disability and whether she had taken responsibility for her actions concerning A, T and D, “no party . . . asked whether or not the respondent could [mentally take responsibility for her actions].” (Emphasis added.)
      It is the appellant’s responsibility to provide an adequate record for review. Practice Book § 61-10. Additionally, it is well established that “[w]e will not decide an appeal on an issue that was not raised before the trial court. . . . To review claims articulated for the first time on appeal and not raised before the trial court would be nothing more than a trial by ambuscade of the trial judge.” (Internal quotation marks omitted.) Histen v. Histen, 98 Conn. App. 729, 737, 911 A.2d 348 (2006); McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn. App. 486, 526-27, 890 A.2d 140, cert. denied, 277 Conn. 928, 895 A.2d 798 (2006); see also Practice Book § 60-5. Because the respondent failed to raise this issue before the trial court, we decline to review the merits of her claim.

       The court stated that the oldest child reported to the department that the respondent and the respondent’s fourth husband physically abused him and threatened him with stun guns and that the respondent forced him to say that he was being sexually abused by the respondent’s third husband.

       In her brief, the respondent admits that her arrest would have been minimally relevant on the issue of whether she violated a court-ordered specific step requiring her to have no contact with the criminal justice system.

       The court, in admitting the exhibit at issue, stated to the petitioner: “I’m going to let you try your case in the way that you’ve chosen. I will make every effort to be absolutely fair, as I always do, to hear both sides. So, taking it from the perspective that this is something the [petitioner] really wants to have before me for whatever weight, if any, I decide to give it, I’ll overrule the objection and allow you to try your case within reason the way in your professional expertise you see fit.” The respondent argues that the court’s statement was “an obvious example of judicial abrogation of power” because the exhibit was not relevant, and she had not been convicted.
      We note that the court did not rule on the relevance of the exhibit when the respondent objected to its admission. Even if the court’s ruling was improper, however, for the reasons set forth in part I A, we conclude that the respondent has failed to demonstrate that the court’s ruling was harmful. “ [W]hen a trial court’s evidentiary ruling is deemed to be improper, we must determine whether that ruling was so harmful as to require a new trial. . . . In other words, an evidentiary ruling will result in a new trial only if the ruling was both wrong and harmful. . . . Harmful error occurs in a civil action when the ruling would likely affect the result.” (Citation omitted; internal quotation marks omitted.) Puchalski v. Mathura, 82 Conn. App. 272, 275, 843 A.2d 685 (2004).

       In any event, it is clear from the record that the court did not use this evidence to demean the respondent’s character by noting that she had been arrested again on another charge. In its memorandum of decision, the court discussed this exhibit in support of its finding that the respondent was “caught in a substantive, material lie made in court to a Probate Court judge.” The evidence was relevant as to the respondent’s credibility because of her false statement to the probate judge, not simply because of her arrest.

       During the direct examination of the respondent, the court stated that it would give the respondent leeway with regard to her testimony so that she could be heard without interruption. The court also stated that it would give the petitioner the same level of leeway: “I’ll give you leeway on cross-examination so that if there is anything in the way of the direct [that] comes in that you need to explore beyond the usual cross-examination parameters, I'll give you a chance to do that.” Neither party objected to this procedure.

       Additionally, in overruling the respondent’s objection, the court reiterated that it would give the petitioner’s counsel leeway on cross-examination because it gave the respondent leeway on direct examination.

       The department paid for the respondent’s therapy sessions because her insurance would not cover them.

       Glasser testified that T told one of his teachers that he was approached by the respondent and her fourth husband outside of a 7-Eleven store that was near his foster home, a few days before a scheduled visit at Amps. When an Amps facilitator told the respondent and her fourth husband that the visit would have to end so that Glasser could speak with the parents about their earlier unsupervised visit with T, the parents refused to leave. Finally, rather than speaking with Glasser about the 7-Eleven incident, the respondent and her fourth husband ran out of the Amps facility, got into their car and sat there.

       The president of Amps testified that during a visit in July, 2005, the respondent told the children that “she had made a mistake, that she had thought they needed a father but she was wrong about that, they only needed a mother, and then proceeded to tell the children that she was dating somebody by the name of Mark, and he liked children and maybe he’d be their new father.” After learning this information, Amps decided that the visitation sessions could not continue.

       As part of the specific steps toward rehabilitation, the respondent was ordered to have “[n]o involvement/future involvement with the criminal justice system.”

       Although the respondent was arrested in January, 2005, on criminal lockout charges, the department first learned that the respondent had a boarder and that she subsequently was arrested for illegally evicting him on October 19, 2005.


source: Caselaw Access Project

author: McLACHLAN, J.

license: Public Domain

text:
    ROBERT M. BROWN v. COMMISSIONER OF CORRECTION
    (AC 27425)
    Flynn, C. X, and Bishop and McLachlan, Js.
    Argued May 29
    officially released October 9, 2007

      Mary H. Trainer, special public defender, for the appellant (petitioner).

      Michele C. Lukban, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Angela R. Macchiarulo, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

McLACHLAN, J.

The petitioner, Robert M. Brown, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly concluded that his defense counsel, Kenneth W. Simon, was effective in representing him. Specifically, the petitioner contends that his counsel was ineffective because he failed to have DNA evidence properly tested for exculpatory evidence. We affirm the judgment of the habeas court.

The following facts and procedural history are pertinent to the resolution of the petitioner’s appeal. The petitioner was convicted after a jury trial of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), burglary in the first degree in violation of General Statutes § 53a-101 (a) (1) and three counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a). This court reversed the judgment of the trial court. See State v. Brown, 41 Conn. App. 317, 675 A.2d 1369 (1996). Our Supreme Court reversed the judgment of this court and affirmed the trial court’s judgment. State v. Brown, 242 Conn. 445, 700 A.2d 1089 (1997).

On March 25, 2002, the petitioner filed an amended petition for a writ of habeas corpus, in which he raised several claims of ineffective assistance of trial counsel. A habeas trial was held on April 28 and May 11, 2005. Subsequently, on October 13, 2005, the habeas court issued a memorandum of decision denying the petitioner the relief he sought and finding that he failed to meet his burden of proving ineffective assistance of trial counsel. This appeal followed.

The petitioner’s ineffective assistance of counsel claims stem from his trial counsel’s tactical decisions surrounding a pair of jeans worn by the victim on the day she was assaulted sexually. During the criminal trial, both the prosecutor and the defense believed that the victim’s jeans, which had been collected by the Suffield police after she was assaulted, were lost. In the middle of the trial, counsel learned that the jeans had been recovered and were located at the Suffield police department. State v. Brown, supra, 242 Conn. 452-54. The jeans were tested, and seminal fluid was found on the jeans. Id., 452. Consequently, the petitioner moved for a twenty-one day continuance in order to have DNA testing performed. Id., 453. The court denied the motion, stating that “from its knowledge of DNA testing, it was highly pessimistic of any meaningful results from the test .... In denying the continuance, however, the court indicated that after the verdict was returned, the [petitioner] should file a motion for a new trial and that, in connection with that motion, the court would order the testing of the jeans. The court also stated that it would delay sentencing until the testing on the jeans had been completed.” (Internal quotation marks omitted.) Id., 454. The court further stated that “if the DNA test produces a result one way or the other, we can make sure that justice is served at that point, and the net impact will not be a delay at all. And, indeed, it will resolve the matter quicker than continuing this case, which would, in essence, be a mistrial. And I don’t think it would be fair to bring a jury back in a month or two months.” (Internal quotation marks omitted.) Id. Thereafter, the petitioner presented his defense. Id., 455.

Near the close of trial, outside the presence of the jury, counsel for both the state and the petitioner updated the court regarding the stain on the jeans. As the Supreme Court recounted in its decision disposing of the petitioner’s direct appeal: “The state represented to the court that some preliminary blood grouping testing had been done on the jeans but that, because the victim and the [petitioner] shared the same blood grouping, the results were inconclusive with respect to identifying the [petitioner] as the depositor of the stain. The state also noted that blood subgrouping tests, which might provide more useful results, could be done but that such testing would take an additional two to three days. . . . The [petitioner] then renewed his motion for a continuance. . . . The court again denied the [petitioner’s] motion for a continuance [stating that its decision was based] on the theory that subsequent testing will be done in the context of the court’s orders in conjunction with a motion for a new trial, because [as the court stated] I think we have a fair and complete set of evidence that both parties were prepared to try the case on. . . . And if there is, indeed, evidence of significance that did not come before them, we’ll deal with that in a motion for a new trial. . . .

“Shortly thereafter, the jury was brought in and closing arguments were presented by counsel. In closing, the [petitioner] emphasized to the jury the lack of scientific evidence connecting him to the crime. . . . The following day, the jury returned a verdict of guilty on all counts.” (Internal quotation marks omitted.) State v. Brown, supra, 242 Conn. 456-58.

“[M]ore than eight months after the jury had returned its verdict, the state and the [petitioner] appeared in court to be heard concerning the [petitioner’s] motion for a new trial. The parties at that time presented a written stipulation to the court regarding the testing of the jeans. They stipulated that, during the pretrial stages of the [petitioner’s] case, they both had believed that the jeans in question had been lost by the Suffield police department and that the availability of the jeans did not come to their attention until the middle of trial. They further stipulated that a cutting from the stained area of the jeans found to contain seminal fluid protein was sent to the Federal Bureau of Investigation (FBI) laboratory in Washington, D.C., for RFLP DNA testing, but that the DNA was either insufficient or too degraded to yield results. A second cutting from the stained area of the jeans was subsequently sent to the FBI laboratory with a request that both cuttings be subjected to PCR DNA testing. The results of those tests revealed that the [petitioner] could not be excluded as the depositor of the fluid on the first cutting from the stained area, but that he could be excluded as the depositor of the fluid on the second cutting. The parties stipulated that the victim, her husband, who at the time of the assaults had been her boyfriend, and the [petitioner] were all possible donors of the DNA detected in [the first] cutting. . . .

“In explaining the meaning of the written stipulation to the court, defense counsel stated: I think that what this stipulation that we’ve offered to Your Honor essentially boils down to mean [is] that the bottom line is an inconclusive result. This does not exonerate [the petitioner]. It does not identify [the petitioner] as being the depositor of that stain. I think that, essentially, that’s what our stipulation means and should mean to you.” (Emphasis added; internal quotation marks omitted.) Id., 462-64.

In the petitioner’s amended petition for a writ of habeas corpus, he raised the claim that his “[t]rial counsel did not adequately investigate DNA evidence as it related to [the] [petitioner's case.” During the habeas hearing, however, this claim was neither raised nor addressed, and no evidence was adduced about the claim. Instead, at the habeas hearing, the petitioner asserted that his trial counsel was ineffective because he failed to argue that the DNA results were exculpatory. The court ruled only on that issue. The petitioner now contends, for the first time on appeal, that his trial counsel was ineffective because he failed to have DNA evidence properly tested for exculpatory evidence. Therefore, the claim was not presented to the habeas court to be adjudicated.

We are not bound to consider an issue “unless 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. . . . The issue . . . was never raised before the habeas court, and it was not discussed in its memorandum of decision. We therefore decline to review the petitioner’s claim . . . because [t]o review the petitioner’s [claim] now would amount to an ambuscade of the [habeas court].” (Citation omitted; internal quotation marks omitted.) Hunnicutt v. Commissioner of Correction, 83 Conn. App. 199, 203, 848 A.2d 1229, cert. denied, 270 Conn. 914, 853 A.2d 527 (2004). Here, the petitioner, in the habeas hearing, never raised the issue of whether his trial counsel was ineffective for failure to have further tests conducted on the second cutting to exclude the husband, nor was this issue addressed in the court’s memorandum of decision. We therefore decline to review the petitioner’s claim regarding the alleged ineffectiveness.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court thereafter granted his petition for certification to appeal.

       On April 15,1994, the petitioner was sentenced to fifty-one years incarceration, execution suspended after thirty-nine years, and five years probation.

       There was a ten year lapse in time between the incident and the criminal trial.

       RFLP stands for restriction fragment length polymorphism. See State v. Brown, supra, 242 Conn. 462 n.19.

       PCR stands for polymerase chain reaction. See State v. Brown, supra, 242 Conn. 463 n.20.

       More specifically, the petitioner claims that his trial counsel was ineffective when he failed to have testing further conducted on the second cutting to exclude the husband. The petitioner asserts that if the husband had been excluded from the second cutting, it would be the key piece of information that could determine that the first cutting was exculpatory.

       Even if the amended petition could be read as raising this claim, in fact it was neither raised nor addressed in any way at the hearing. Accordingly, it was abandoned. See Knight v. Commissioner of Correction, 81 Conn. App. 163, 164 n.1, 838 A.2d 1023 (declining to review challenges to counsel’s pretrial investigation because claims specifically abandoned at habeas trial), cert. denied, 268 Conn. 905, 845 A.2d 407 (2004). If the petitioner believed, however, that the claim was somehow encompassed in the habeas decision, he should have filed a motion for articulation of the habeas opinion. See Zahringer v. Zahringer, 262 Conn. 360, 370, 815 A.2d 75 (2003) (“Our rules regarding the need to seek an articulation of the factual basis of the trial court’s decision are well settled. It is the responsibility of the appellant to move for an articulation in order to clarify the basis of the trial court’s decision should such clarification be necessary for effective appellate review of the issue on appeal. ... It is, therefore, the responsibility of the appellant to move for an articulation or clarification of the record when the trial court has failed to state the basis of a decision. . . . These rules have equal import when the appellee seeks to affirm the judgment on an alternate ground.” [Citations omitted.]).


text:
    GROTON POLICE DEPARTMENT v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (AC 27389)
    (AC 27390)
    Schaller, McLachlan and West, Js.

      Argued April 16
    officially released October 9, 2007

      Victor R. Perpetua, appellate attorney, for the appellant in AC 27389 (named defendant).

      James W. Parker, for the appellant in AC 27390 (defendant S).

      Michael P. Carey, for the appellee (plaintiff).
   Opinion

SCHALLER, J.

These two appeals arise from the judgment of the trial court sustaining the administrative appeal of the plaintiff, the town of Groton police department. In both appeals, the defendants, the freedom of information commission (commission) and S, claim that the court improperly concluded that police records pertaining to the plaintiffs investigation of the alleged sexual abuse of S’s minor child were exempt from disclosure under the state Freedom of Information Act (act), General Statutes § 1-200 et seq. We affirm the judgment of the trial court.

The following factual and procedural history is relevant to our resolution of the defendants’ appeals. On November 18, 1998, S requested a copy of the police reports concerning allegations that her minor child had been sexually assaulted. The plaintiff denied her request on the ground that the police reports contained uncorroborated allegations of criminal activity. On December 15, 1998, S filed a complaint with the commission. The hearing officer agreed with the plaintiff and issued a report recommending that the complaint be dismissed. The commission conducted an in camera inspection and subsequently ordered the plaintiff to disclose the police reports to S, finding that the allegations were corroborated.

The plaintiff commenced an administrative appeal to the Superior Court. On February 13, 2001, the court, Dyer, J., issued a memorandum of decision remanding the matter to the commission. The court, sua sponte, raised the applicability of General Statutes § 17a-101k (a), which provides in relevant part: “The Commissioner of Children and Families shall maintain a registry of the commissioner’s findings of abuse or neglect of children .... The information contained in the registry and any other information relative to child abuse, wherever located, shall be confidential, subject to such statutes and regulations governing their use and access as shall conform to the requirements of federal law or regulations. Any violation of this section or the regulations adopted by the commissioner under this section shall be punishable by a fine of not more than one thousand dollars or imprisonment for not more than one year.” (Emphasis added.)

The court concluded that “the issue must be resolved because of the important public policy of protecting the welfare of children, and because the ordered disclosure may be violative of the law mandating the confidentiality of child abuse records wherever located.” (Internal quotation marks omitted.) Nevertheless, because the applicability of § 17a-101k had not been argued or considered, the court remanded the matter for further proceedings.

Following the remand order, the hearing officer concluded that § 17a-101k exempted the record from disclosure and recommended that S’s complaint be dismissed. The commission rejected the hearing officer’s report, as well as a second report that also recommended dismissing S’s complaint. On December 23, 2004, the hearing officer issued a third report, this time recommending that the record be released in a redacted form. On February 9, 2005, the commission voted to adopt the hearing officer’s third report.

The commission found that the police records sought by S constituted “information relative to child abuse, wherever located” within the meaning of § 17a-101k (a). It further found that because S, the parent of the victim, requested the information, there was an implied waiver of the confidentially requirement of § 17a-101k. The commission also determined that the allegations contained in the report were corroborated. Accordingly, the commission concluded that the plaintiff improperly had withheld the police report and that it should have been released, subject to certain redactions.

In a petition filed March 30, 2005, the plaintiff appealed to the Superior Court, arguing that the commission’s order to release the police reports should be vacated. On January 31, 2006, the court, Pinkus, J., issued a memorandum of decision sustaining the plaintiffs appeal. The court concluded that the commission improperly had determined that there had been an implied waiver of § 17a-101k. The court further was concerned that “the implied waiver of confidentiality, if allowed, would open these records to members of the general public.” These appeals followed.

I

It will be helpful to set forth the legal principles that guide the resolution of both appeals before us. Our legislature passed the act in 1975. Rules Committee of the Superior Court v. Freedom of Information Commission, 192 Conn. 234, 240, 472 A.2d 9 (1984). The act is “our right-to-know law, providing for disclosure of public information . . . (Internal quotation marks omitted.) Chapin v. Freedom of Information Commission, 22 Conn. App. 316, 320, 577 A.2d 300, cert. denied, 216 Conn. 814, 580 A.2d 56 (1990). Our Supreme Court has “stated that the [act] expresses a strong legislative policy in favor of the open conduct of government and free public access to government records. ... At the time of its unanimous passage by the General Assembly, the act was noted for making sweeping changes in the existing right to know law so as to mark a new era in Connecticut with respect to opening up the doors of city and state government to the people of Connecticut. . . . The general rule under the act is disclosure.” (Citations omitted; internal quotation marks omitted.) Board of Trustees v. Freedom of Information Commission, 181 Conn. 544, 550, 436 A.2d 266 (1980); see also Chairman v. Freedom of Information Commission, 217 Conn. 193, 196, 585 A.2d 96 (1991) (act makes disclosure of public records statutory norm).

Our legislature, however, has balanced this general rule with the need to exempt certain records from disclosure to the public. See, e.g., Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 302 n.14, 914 A.2d 996 (2007). General Statutes § 1-210 (b) enumerates various exemptions from disclosure. Additionally, documents that are not “public records” are not subject to disclosure pursuant to § 1-210 (a). See Fromer v. Freedom of Information Commission, 90 Conn. App. 101, 109, 875 A.2d 590 (2005). Finally, as provided by the first sentence of § 1-210 (a), the act recognizes that federal law and other state statutes may exclude certain records. See Commissioner v. Freedom of Information Commission, 204 Conn. 609, 621-22, 529 A.2d 692 (1987).

We now set forth the applicable standard of review. “Ordinarily, [o]ur resolution of [administrative appeals] is guided by the limited scope of judicial review afforded by the Uniform Administrative Procedure Act; General Statutes § 4-166 et seq.; to the determinations made by an administrative agency. [W]e must decide, in view of all the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily or illegally, or abused its discretion. . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts. . . . Although the interpretation of statutes is ultimately a question of law ... it is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement.

“A reviewing court, however, is not required to defer to an improper application of the law. ... It is the function of the courts to expound and apply governing principles of law. . . . We previously have recognized that the construction and interpretation of a statute is a question of law for the courts, where the administrative decision is not entitled to special deference. . . . Questions of law [invoke] a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . Because this case forces us to examine a question of law, namely, the construction and interpretation of [statutes] as well as the standard to be applied, our review is de novo.” (Citations omitted; internal quotation marks omitted.) Director, Retirement & Benefits Services Division v. Freedom of Information Commission, 256 Conn. 764, 770-72, 775 A.2d 981 (2001). In other words, the issue before us is one of statutory construction.

Our Supreme Court previously has instructed that “in construing statutes, [the] fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Loughlin v. Loughlin, 280 Conn. 632, 641-42, 910 A.2d 963 (2006); Tracy v. Scherwitzky Gutter Co., 279 Conn. 265, 273, 901 A.2d 1176 (2006). “In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) Kinsey v. Pacific Employers Ins. Co., 277 Conn. 398, 405, 891 A.2d 959 (2006); Carmel Hollow Associates Ltd. Partnership v. Bethlehem, 269 Conn. 120, 129, 848 A.2d 451 (2004).

“Courts may not by construction supply omissions ... or add exceptions merely because it appears that good reasons exist for adding them. . . . The intent of the legislature, as [our appellate courts have] repeatedly observed, is to be found not in what the legislature meant to say, but in the meaning of what it did say. ... It is axiomatic that the court itself cannot rewrite a statute to accomplish a particular result. That is a function of the legislature.” (Emphasis added; internal quotation marks omitted.) Doe v. Norwich Roman Catholic Diocesan Corp., 279 Conn. 207, 216, 901 A.2d 673 (2006). Mindful of these tenets of statutory construction, we turn to the specifics of each appeal.

II

AC 27390

In the appeal designated AC 23790, S challenges the decision of the court sustaining the plaintiffs appeal. Specifically, S argues that §§ 17a-101k and 1-210 (b) (3) (F) both seek to maintain confidentiality concerning child abuse records and, therefore, must be read together to create a consistent body of law. She further maintains that the court interpreted § 17a-101k too broadly by concluding that the police records were confidential and not subject to disclosure under the act. We are not persuaded.

As we noted previously, § 1-210 (b) sets forth certain exemptions from the general rule of public disclosure under the act. Specifically, § 1-210 (b) provides in relevant part: “Nothing in the Freedom of Information Act shall be construed to require disclosure of . . . (3) Records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of . . . (F) the name and address of the victim of a sexual assault under section 53a-70, 53a-70a, 53a-71, 53a-72a, 53a-72b or 53a-73a, or injury or risk of injury, or impairing of morals under section 53-21, or of an attempt thereof . . . .”

Section 17a-101k provides in relevant part that any information, wherever located, regarding information of child abuse shall be confidential, subject to federal law and regulations. This statutory language has not been the subject of substantial judicial inteipretation. Our Supreme Court has stated that “[a]ny information that is gathered concerning the reports of suspected abuse ... is prohibited from public disclosure.” Ward v. Greene, 267 Conn. 539, 553-54, 839 A.2d 1259 (2004).

The plaintiff refers to the commission’s prior consideration of the scope of § 17a-101k. For example, in Pflederer v. Dept. of Public Health, FIC 1997-230 (February 11, 1998), the commission stated that § 17a-101k provides “a broad grant of confidentiality with respect to information pertaining to child abuse.” (Emphasis added.) See also LaPointe v. Dept. of Human Resources, FIC 93-213 (June 22,1994) (concluding identical language in General Statutes [Rev. 1995] § 17a-101 [g] constituted “broad grant of confidentiality” as to information pertaining to child abuse); DeRosa v. Dept. of Health Services, FIC 92-12 (February 26, 1992) (same). The plaintiff contends that the commission’s interpretation of language contained in § 17a-101k in the present case to allow for disclosure is contrary to these decisions.

S essentially argues that the court’s interpretation of § 17a-101k creates a conflict with § 1-210 (b) (3) (F) and seeks to “nullify the commissioner’s clear authority ... to determine whether the disclosure of certain law enforcement records is permissible as long as the ‘names and addresses of the victim of injury or risk of injury’ are not disclosed.” Put another way, S claims that in order to effectuate both statutes, the commission must balance the two statutes. In our view, however, the court properly determined that the mandate set forth in § 17a-101k controlled the resolution of the plaintiffs appeal.

The statutes in question, although overlapping in some respects, afford different protection from disclosure to different classes of persons. First, § 1-210 (b) (3) (F) prevents disclosure, under the act, of the names and addresses of any victim of a sexual assault under General Statutes §§ 53a-70, 53a-70a, 53a-71, 53a-72a, 53a-72b or 53a-73a, regardless of age, whereas the confidentiality requirement contained in § 17a-101k offers protection only to children whom have been abused. Second, § 1-210 (b) (3) (F) prevents the disclosure of the names and addresses of victims of sexual assault and risk of injury unconditionally, while the protection afforded by § 17a-101k is subject to conditions set forth in federal law.

In our view, § 17a-101k falls within the opening sentence of § 1-210 (a), which provides in relevant part that “[e]xcept as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency . . . shall be public records . . . .” General Statutes § 1-210 (a). In other words, because § 17a-101k mandates confidentiality of information regarding child abuse, records of child abuse, wherever located, are exempted from the general rule of disclosure. We conclude, therefore, that the court properly interpreted the relevant statutes and concluded that the police records sought by S were not subject to disclosure.

Ill

AC 27389

In the appeal designated AC 27389, the commission appeals from the decision of the court sustaining the plaintiffs appeal. Specifically, the commission argues that the court should have concluded that the confidentiality provision of § 17a-101k was implicitly waived by S when she requested the police records. We disagree.

At the outset, we note that our jurisprudence recognizes the applicability of waiver with respect to the act and the disclosure of information. For example, General Statutes § 1-214 (b) provides in relevant part: “Whenever a public agency receives a request to inspect or copy records contained in any of its employees’ personnel or medical files and similar files and the agency reasonably believes that the disclosure of such records would legally constitute an invasion of privacy, the agency shall immediately notify in writing (1) each employee concerned, provided such notice shall not be required to be in writing where impractical due to the large number of employees concerned and (2) the collective bargaining representative, if any, of each employee concerned. . . .” General Statutes § 1-214 (c) affords such an employee the opportunity to file a written objection; otherwise, the information is subject to disclosure. Furthermore, the employee may authorize disclosure of the information, even if his or her collective bargaining representative has submitted a written objection. General Statutes § 1-214 (c).

Another example of waiver in the context of the act is found in General Statutes § 10-151c. This statute exempts records of teacher performance and evaluation from disclosure under the act because they are not considered public records. It also expressly permits a teacher to waive the exemption. “Any records maintained or kept on file by any local or regional board of education which are records of teacher performance and evaluation shall not be deemed to be public records and shall not be subject to the provisions of section 1-210, provided that any teacher may consent in writing to the release of such teacher’s records by a board of education. Such consent shall be required for each request for a release of such records. ...” (Emphasis added.) General Statutes § 10-151c. In both examples, the subject of the records sought, rather than the requestor, has the authority to waive the nondisclosure protection.

The matter before us, however, presents an unusual situation in which the subject of the information sought and the requestor are the same person; S acted in a dual capacity as both the decision maker for her child and as a member of the general public seeking information. Mindful of this anomaly, we must determine whether S could implicitly waive the protections afforded to her child by the sweeping scope of § 17a-101k.

As a preliminary manner, it will be helpful to set forth the background regarding confidentiality of records of child abuse. Congress enacted the Child Abuse Prevention and Treatment Act, authorizing grants to states for child abuse and neglect prevention and treatment programs. See 42 U.S.C. § 5106a et seq. One of the requirements in order for a state to be eligible for such a grant is a confidentiality provision. See 42 U.S.C. § 5106a (b) (2) (A) (v). This statute is implemented by regulations. See, e.g., State v. Runge, 317 Md. 613, 619, 566 A.2d 88 (1989); see also Cure v. State, 600 So. 2d 415, 417 (Ala. Crim. App.), cert. denied, 600 So. 2d 421 (1992). Specifically, 45 C.F.R. § 1340.14 (h) (i) (1) provides that “[t]he State must provide by statute that all records concerning reports and reports of child abuse and neglect are confidential and that their unauthorized disclosure is a criminal offense.” The regulations further permit a state, in its discretion, to authorize by statute disclosure to a defined class of persons and agencies, including “[a] child named in the report or record alleged to have been abused or neglected or (as his/her representative) his/her guardian or guardian ad litem . . . .” 45 C.F.R. § 1340.14 (h) (i) (2) (ix).

Our legislature, in enacting § 17a-101k (a), used unrestricted language that states that “any other information relative to child abuse, wherever located, shall be confidential” and is only “subject to such regulations governing their use and access as shall conform to the requirements of federal law or regulation.” In other words, the General Assembly has not employed the permissive discretion, as authorized by the federal government, to allow for disclosure to any of the persons or agencies listed in the regulations. Additionally, our Supreme Court has stated that “[a]ny information that is gathered concerning the reports of suspected abuse . . . is prohibited from public disclosure.” Ward v. Greene, supra, 267 Conn. 553-54. Given this context, which clearly favors confidentiality, we now turn to the question of waiver.

We begin by addressing the status of S as a requestor of the records through the act. The commission found that S implicitly waived the confidentiality provision of § 17a-101k by requesting the police records of the alleged sexual abuse of her child. The issue of whether a record is disclosable under the act “does not depend in any way on the status or motive of the applicant for disclosure, because the act vindicates the public’s right to know, rather than the rights of any individual.” Chief of Police v. Freedom of Information Commission, 252 Conn. 377, 387, 746 A.2d 1264 (2000); see also Pane v. Danbury, 267 Conn. 669, 680, 841 A.2d 684 (2004) (legislature enacted act for benefit of general public, which desires information regarding conduct of its government); Bona v. Freedom of Information Commission, 44 Conn. App. 622, 630, 691 A.2d 1 (1997) (act provides public with right to know government information). It is clear, therefore, that S’s status as the parent of the alleged victim is immaterial to the request for the police records under the act. We agree with the statement of the court that “S is not seeking the information as a parent.” By invoking the act to request the records, S is not seeking the records as a parent but, rather, as a member of the general public. This case, therefore, is unlike the situation in which an employee or teacher, the subject of the requested information, waives nondisclosure protection. We conclude, therefore, that S’s status as a parent, in the context of her request pursuant to the act, has no bearing on the issue of whether she had waived the confidentiality requirement of § 17a-101k and was therefore entitled to the police records. Additionally, we note that both S and the commission conceded that if the police reports were disclosed to her, they would be available to the general public. Under these circumstances, a decision by the commission recognizing waiver would be, in effect, allowing a member of the general public to waive the protection of § 17a-101k, which would be a bizarre result. “It is axiomatic that the law favors rational and sensible statutory construction, and that the courts interpret statutes to avoid bizarre or nonsensical results.” (Internal quotation marks omitted.) State v. Nixon, 92 Conn. App. 586, 595 n.7, 886 A.2d 475 (2005); see Blasko v. Commissioner of Revenue, 98 Conn. App. 439, 457, 910 A.2d 219 (2006).

We conclude, therefore, that the court properly determined that S could not waive the confidentiality provision set forth in § 17a-101k.

The judgment is affirmed.

In this opinion the other judges concurred.

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse, we decline to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

       General Statutes § 1-210 (b) provides in relevant part: “Nothing in the Freedom of Information Act shall be construed to require disclosure of . . . (3) Records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of . . . (G) uncorroborated allegations subject to destruction pursuant to section 1-216 .. . .”

       See General Statutes §§ 1-206 (d) and 4-183 (a).

       For example, if the disclosure of personnel and medical facts would result in an invasion of personal privacy, then such records are exempt from the act. General Statutes § 1-210 (b) (2).

       “The [commission] has full authority to determine the existence of public records and the propriety of their disclosure.” Board of Education v. Freedom of Information Commission, 208 Conn. 442, 454, 545 A.2d 1064 (1988); see also Perkins v. Freedom of Information Commission, 228 Conn. 158, 166, 635 A.2d 783 (1993).

       General Statutes § 1-210 (b) provides in relevant part: “Nothing in the Freedom of Information Act shall be construed to require disclosure of . . . (2) Personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy . . .
      Our Supreme Court has slated that “[t]he person claiming exemption based upon § 1-210 (b) (2) must meet a twofold burden of proof. First, the person claiming the exemption must establish that the files are personnel, medical or similar files. . . . Second, the person claiming the exemption under § 1-210 (b) (2) must also prove that disclosure of the files would constitute an invasion of personal privacy.” (Citation omitted; internal quotation marks omitted.) Director, Retirement & Benefits Services Division v. Freedom, of Information Commission, supra, 256 Conn. 773-74; see also Perkins v. Freedom of Information Commission, 228 Conn. 158, 168, 635 A.2d 783 (1993).

       We note that 42 U.S.C. § 5106a (b) (2) (A) provides in relevant part: “(v) methods to preserve the confidentiality of all records in order to protect the rights of the child and of the child’s parents or guardians, including requirements ensuring that reports and records made and maintained pursuant to the purposes of this subchapter and subchapter III of this chapter shall only be made available to ... (T) individuals who are the subject of the report; (II) Federal, State, or local government entities, or any agent of such entities, having a need for such information in order to carry out its responsibilities under law to protect children from abuse or neglect; (ID) child abuse citizen review panels; (TV) child fatality review panels; (V) a grand jury or court, upon a finding that information in the record is necessary for the determination of an issue before the court or grand jury; and (VI) other entities or classes of individuals statutorily authorized by the State to receive such information pursuant to a legitimate State purpose . . . .”
      None of the parties argued or addressed the applicability of this statutory language in this court. Our Supreme Court recently has stated: “We long have held that, in the absence of a question relating to subject matter jurisdiction, the Appellate Court may not reach out and decide a case before it on a basis that the parties never have raised or briefed. Fort Trumbull Conservancy, LLC v.Alves, 262 Conn. 480, 522, 815 A.2d 1188 (2003) (Borden, J., concurring and dissenting); see Lynch v. Granby Holdings, Inc., 230 Conn. 95, 98-99, 644 A.2d 325 (1994). To do otherwise would deprive the parties of an opportunity to present arguments regarding those issues. Lynch v. Granby Holdings, Inc., supra, 99.” Sabrowski v. Sabrowski, 282 Conn. 556, 560, 923 A.2d 686 (2007); State v. Dalzell, 282 Conn. 709, 715, 924 A.2d 809 (2007).

       Section 1340.14 (h) (2) of title 45 of the Code of Federal Regulations provides: “If a State chooses to, it may authorize by statute disclosure to any or all of the following persons and agencies, under limitations and procedures the State determines:
      “(i) The agency (agencies) or organizations (including its designated multidisciplinary case consultation team) legally mandated by any Federal or State law to receive and investigate reports of known and suspected child abuse and neglect; (ii) A court, under terms identified in State statute; (iii) A grand jury; (iv) A properly constituted authority (including its designated multidisciplinary case consultation team) investigating a report of known or suspected child abuse or neglect or providing services to a child or family which is the subject of a report; (v) A physician who has before him or her a child whom the physician reasonably suspects may be abused or neglected; (vi) A person legally authorized to place a child in protective custody when the person has before him or her a child whom he or she reasonably suspects may be abused or neglected and the person requires the information in the report or record in order to determine whether to place the child in protective custody; (vii) An agency authorized by a properly constituted authority to diagnose, care for, treat, or supervise a child who is the subject of a report or record of child abuse or neglect; (viii) A person about whom a report has been made, with protection for the identity of any person reporting known or suspected child abuse or neglect and any other person where the person or agency making the information available finds that disclosure of the information would be likely to endanger the life or safety of such person; (ix) A child named in the report or record alleged to have been abused or neglected or (as his/her representative) his/her guardian or guardian ad litem; (x) An appropriate State or local official responsible for administration of the child protective service or for oversight of the enabling or appropriating legislation, carrying out his or her official functions; and (xi) A person, agency, or organization engaged in a bonafide research or evaluation project, but without information identifying individuals named in a report or record, unless having that information open for review is essential to the research or evaluation, the appropriate State official gives prior written approval, and the child, through his/her representative as cited in paragraph (i) of this section, gives permission to release the information.”

       We note that § 49-5-40 (b) of the Official Code of Georgia Annotated (2006) provides: “Each and every record concerning reports of child abuse . . . which is in the custody of the department or other state or local agency is declared to be confidential, and access thereto is prohibited except as provided in Code Section 49-5-41 and Code Section 49-5-41.1.” This expansive protection is similar to that afforded by General Statutes § 17a-101k.
      Section 49-5-41 (c) of the of the Official Code of Georgia Annotated (2006) provides that “[t]he department or a county or other state or local agency may permit access to records concerning reports of child abuse and may release information from such records to the following persons or agencies when deemed appropriate by such department ... (4) An agency or person having the legal custody, responsibility, or authorization to care for, treat, or supervise the child who is the subject of a report or record . . . .” The Georgia statutory scheme further provides an example of meeting the federal requirements and allowing access for parents of alleged victims of abuse. Our General Assembly may want to consider a similar framework to allow, in the appropriate circumstances, persons similarly situated to S access to such records.

       We note that § 17a-101-6 (a) of the Regulations of Connecticut State Agencies, governing the department of children and families, provides in relevant part: “(2) Additional persons eligible only for routine access to the registry include the following: (A) Any person named in the report or record who is alleged to be abused or neglected; if the person named in the report or record is a minor or is otherwise incompetent, his guardian ad litem or conservator; (B) A parent, guardian of other person responsible for the welfare of a child named in a report or record or their attorney except that the name or names of persons reporting the incidents of alleged abuse shall not be discharged . . . .” In other words, this regulation affords S access to information contained in the registry maintained by the department of children and families but does not extend to police reports pertaining to allegations of child abuse maintained by the plaintiff.

       As we previously indicated, our law recognizes that information that is not available to the public may be disclosed after waiver by an individual. Unlike the situation involving an employee’s personnel or medical file, or a teacher’s evaluation, there is no established procedure for a determination of the validity of a purported waiver of § 17a-101k. For example, § 10-151c expressly states that a teacher may disclose his or her performance evaluations by writing to the board of education. There is no such provision in § 17a-101k. Additionally, our legislature has not provided access to records of child abuse to any person or agency, despite the discretion to do so by the federal regulation. Finally, we note that the alleged victims are not the only parties protected by this statute; other persons named in such reports have privacy interests at stake as well. For example, our Supreme Court has staled that the confidentiality statute is likely designed to protect the accused abuser. See Ward v. Greene, supra, 267 Conn. 555. Depending on the facts and circumstances of each case, siblings, other family members, day care providers and those subjected to false or unsubstantiated allegations also may have privacy interests. It is clear that S’s waiver could not include all of these parties.