author: Lavery, J.

text:
    In re Romance M. In re Jason M. et al.
    (10511)
    (10568)
    Dupont, C. J., Lavery and Freedman, Js.

      Argued October 1, 1992 —
    decision released April 6, 1993

      Benjamin Zivyon, assistant attorney general, with whom were Dennis Antonacci, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Susan T. Pearlman and Diane W. Whitney, assistant attorneys general, for the appellantappellee (petitioner).

      Kathleen M. Harkins, with whom was Ronald Sobieraj, for the appellee-appellant (respondent).

      Barbara J. Claire, for the minor children.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 4166B.2, 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.

   Lavery, J.

These two appeals arise from petitions brought to the trial court by the commissioner of children and youth services (DCYS) to terminate the parental rights of Gail M. as to her four children.

Appeal 10568 is an appeal by Gail M. from the termination of her parental rights with respect to three of her children. Appeal 10511 is an appeal by the commissioner from the trial court’s decision not to terminate Gail M.’s parental rights with respect to the child Romance.

We will discuss each appeal separately, but the common factual underpinning to both appeals is the trial court’s factual findings concerning Gail M., the mother of the four children. The termination proceedings brought against Gail M. by the commissioner concerning all four children were heard at the same time, and all four petitions were decided by the trial court in one thoughtful and well reasoned memorandum of decision.

On July 15, 1991, the trial court terminated the parental rights of Gail M. as to three of the children because they were found to be neglected and uncared for and because Gail M. had failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of each child, she could assume a reasonable position in the life of each child. The trial court found that Romance was a neglected and uncared for child, and committed him to the department of children and youth services (DCYS) for eighteen months. The trial court refused to waive the one year period provided in General Statutes (Rev. to 1987) § 17-43a (c), now General Statutes § 17a-112 (c), before a termination proceeding can be brought after adjudication of a child as neglected and uncared for, and, therefore, did not reach the ground alleged for termination of parental rights regarding Romance.

The following essential facts are common to both appeals. Gail M., born on July 5, 1958, is the mother of four sons bom between February, 1981, and November, 1988. Gail M. has been an alcoholic since the age of fourteen. She is a high school graduate who attended community college for a period of time. After graduation from high school, Gail M. worked for three years as a clerical aid, and subsequently worked at night at a public library. She has a long history of active alcohol abuse during the lives of all of the children. In August of 1981, she entered a fourteen day inpatient treatment program conducted by SCADD, but she left prematurely. She was found at a gas station heavily intoxicated, and had to be returned to the detoxification unit.

In April, 1985, Gail M. asked DCYS to place her children in foster care because she was undergoing stress. She entered Pond House, a psychiatric facility, then returned to the SCADD program and began attending Alcoholics Anonymous (AA). Her children were returned to her in July, 1985. In March, 1986, she again asked DCYS to take her children, and she entered Norwich Hospital because she was experiencing auditory hallucinations. She was diagnosed as schizophrenic, undifferentiated type with alcohol problems. She was released to outpatient care at Lawrence and Memorial Hospital, assigned a psychiatric visiting nurse, and again began going to AA. Her children were returned to her in early 1987. On April 30, 1987, she requested DCYS to place the children in foster care, again citing stress. When the social worker for the agency arrived, she changed her mind and stated that she could handle the children. On the next day, May 1, 1987, she called DCYS and placed the children with the department. Since that date, the three oldest children have been in foster care. On the evening of May 1,1987, she was taken by the police to Lawrence and Memorial Hospital because she was exhibiting suicidal tendencies, and she was transferred to Norwich Hospital where she received medication and counseling. She was released to outpatient care on June 1, 1987. In July, 1987, she discontinued her outpatient counseling at Lawrence and Memorial Hospital, her medication and her participation in AA. In the same month, she was arrested for fighting. On October 31, 1987, she was admitted to Norwich Hospital due to her drinking and hallucinations. On November 4, 1987, she was discharged from the hospital because she would not cooperate in the required treatment.

On November 5,1987, DCYS brought Gail M. to Willie J. Coleman, a psychologist, for a psychological evaluation with her three children; she left during the evaluation. On December 1, 1987, the three children were committed to DCYS by judicial order. Gail M. set up a visitation schedule with her sons’ foster mothers. She refused both counseling and medication and was, therefore, denied unsupervised and overnight visitations with her children by DCYS. She agreed in July, 1988, to weekly counseling sessions with James J. Connelly, a psychologist. In August, 1988, Gail M. was allowed to take the three children for an unsupervised visit to a park for the day. In September, 1988, she was allowed to take the children for another unsupervised day visit. In October, 1988, Gail M. and the three children began biweekly family therapy sessions with Connelly. Concurrently, Gail M. continued her weekly sessions with him. In October, 1988, Gail M. informed DCYS that she was pregnant. She was allowed an overnight visit with the three children on November 4,1988. Gail M. gave birth to Romance on November 11,1988. On November 18,1988, Gail M. had an overnight visit with the three older children, and again diming the Thanksgiving holiday from November 23 to November 26, 1988.

On December 2,1988, Gail M. was intoxicated when she arrived to pick up the three older children for the weekend. She had brought Romance with her. Romance was not properly dressed for the winter weather. When Romance’s inadequate attire was brought to Gail M.’s attention, she angrily threw the baby to a thirteen year old. Gail M. and the four children were brought by the foster family to Gail M’s apartment where she passed out. The police were summoned and Gail M. was arrested. The four children were turned over to DCYS, who then brought the termination and coterminus petitions which are the subject of this appeal.

In re Jason M. et al.

The respondent first claims that the trial court incorrectly found by clear and convincing evidence that she had failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the ages and needs of her children, she could assume a responsible position in their lives. General Statutes (Rev. to 1987) § 17-43a (b) (3), now General Statutes § 17a-112 (b) (2). The findings of the trial court will be disturbed only if they are not supported by the evidence and are, in light of the evidence in the whole record, clearly erroneous. In re Luis C., 210 Conn. 157, 166, 554 A.2d 722 (1989). The statute in question 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. In this case, the trial court’s findings, which are supported by the record, show, in addition to the previously recited facts, that the court had the benefit of testimony from psychologists Robert D. Meier, Coleman, and Connelly, and from Michael A. Nelken, a psychiatrist. The court accepted as factual the following conclusions and recommendation of Meier in his report of July 12,1989. “It is expected that Gail M. will continue to show periods of relative stability followed by significant deterioration of the kind leading to placement of her children. The children are likely to experience disruption in their care and environment over the next several years. The prognosis for mother is very guarded with respect to any significant changes within the next two to three years, although periods of stability may be present.”

The trial court carefully analyzed and made findings based on substantial evidence in the record of the needs of the three older boys. The findings show that each has deeply rooted problems that require immediate attention, and that the respondent’s alcohol addiction is severe, impairing her ability to parent her children and exacerbating her psychiatric problems, and that she would be unable to care for her children in the next several years. We have reviewed the record, transcript, exhibits and briefs and are unable to conclude that the facts found by the trial court as set out in the memorandum of decision are clearly erroneous. We conclude that the trial court considered the relevant statutory criteria and that its findings were supported by clear and convincing evidence pursuant to General Statutes (Rev. to 1987) § 17-43a (b) (3).

The respondent next claims that the petitioner did not prove by clear and convincing evidence that termination is in the best interest of the children pursuant to General Statutes (Rev. to 1987) § 17-43a (d), now § 17a-112 (d). The trial court, in its memorandum of decision, made specific findings regarding the six statutory factors necessary in the adjudicatory phase for consideration in a proceeding to terminate parental rights. See footnote 4, supra. The trial court found that DCYS offered and provided many services to the respondent mother. The respondent violated court orders on several occasions by drinking during her visits with the children. The children have good relations with their foster mothers and are responsive to their mother, Gail M., and regard her as an authority figure. The children were born in 1981, 1984 and 1985. The mother has maintained contact with and interest in the children, but her severe addiction to alcohol, the poor prognosis for her successful rehabilitation, and her failure to recognize the problem and rehabilitate herself make it improbable that she will be able to take the children in the foreseeable future. Finally, up until 1988, DCYS’s goal was reunification of the family; the foster parents did not hinder Gail M.’s relationship with the children. It was not economic circumstances that prevented the respondent from maintaining a meaningful relationship with her children, but, rather, the respondent’s severe addiction to alcohol.

The trial court considered the relevant statutory criteria and its findings were supported by clear and convincing evidence pursuant to General Statutes (Rev. to 1987) § 17-43a (d). The trial court’s factual findings and conclusion are supported by the evidence in the record and are not clearly erroneous. The record unambiguously shows that DCYS gave Gail M. every opportunity available to rehabilitate herself so that she could regain custody of the three older children. The respondent challenged the trial court’s findings of five of the six statutorily established factors. We conclude that the findings of the trial court are supported by the evidence and we will not disturb them as they are not clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

The third claim of the respondent is that the trial court should not have admitted evidence of her treatment at a Connecticut alcohol and drug abuse commission (CADAC) facility in violation of her right to confidentiality under General Statutes § 17-155b and 42 U.S.C. § 290. It is pertinent to a discussion of this claim to note that during the termination proceedings on April 27,1990, Gail M.’s physical condition was such that the trial court asked Coleman, who was in the courtroom, to testify as to her condition then and there. Coleman concluded that Gail M. was intoxicated in the courtroom. The trial court found her in contempt and ordered her to enter a detoxification program for the full twenty-eight days. She entered the Boneski Treatment Center, which is a licensed public treatment facility as defined by General Statutes § 17a-621 (17), and is administered by CADAC. Pursuant to 42 USC § 290dd-3 (b), (c) and (d) and the applicable federal regulations, the trial court held a thorough and lengthy hearing in which it weighed the public interest in favor of disclosure against the potential injury to Gail M., to the physician-patient relationship and to the treatment services. After the hearing, the trial court ordered disclosure of some of the records, which Gail M. claims was improper. General Statutes § 17a-630 (c), formerly § 17-155b (b), which addresses the issue of confidentiality of records, prohibits: “disclosure of the identity, diagnosis or treatment of any such patient that would constitute a violation of federal statutes concerning confidentiality of alcohol or drug patient records and any regulations pursuant thereto, or as they may be amended from time to time, The commission shall adopt regulations to protect the confidentiality of information obtained by it.”

The applicable federal statute, 42 U.S.C. § 290 dd-3, sets out only three circumstances under which the records of the identity, diagnosis, prognosis or treatment of any patient that are maintained in connection with the performance of any program or activity relating to alcoholism or alcohol abuse, education, training, treatment, rehabilitation or research can be involuntarily disclosed. In all other instances, 42 U.S.C. § 290 dd-3 mandates that information concerning identity, diagnosis, prognosis, or treatment of any patient must remain confidential.

Paragraphs A and B of 42 U.S.C. § 290 dd-3 (b) (2) are inapplicable. The applicable paragraph, paragraph C as hereinafter set forth, requires a finding of good cause: “(C). If authorized by an appropriate order of a court of competent jurisdiction granted after application showing good cause therefor. In assessing good cause the court shall weigh the public interest and the need for disclosure against the injury to the patient, to the physician-patient relationship, and to the treatment services. Upon the granting of such order, the court, in determining the extent to which any disclosure of all or any part of any record is necessary, shall impose appropriate safeguards against unauthorized disclosure.”

42 C.F.R. § 2.63a (a) (2) states that the court may authorize disclosure if it is “necessary to protect against . . . child abuse and neglect . . . .

In State v. Rollinson, 203 Conn. 641, 656, 526 A.2d 1283 (1987), our Supreme Court held that: “The privilege which the defendant seeks to attach to his statements at the detoxification unit is a statutory privilege and not a constitutional one. Under the circumstances, the scope of our review of the ruling of the trial court is limited. The trial court’s ruling is analogous to the exercise of discretion that is required whenever the state seeks to introduce a defendant’s prior criminal behavior into evidence. When a trial court, recognizing the general rule excluding such evidence, determines nonetheless that in a particular case the probative value of prior crimes evidence outweighs its prejudicial effect, we reverse such a decision ‘only where abuse of discretion is manifest or where an injustice appears to have been done. . . .’ ” (Citations omitted.)

In this case, the trial court admitted only a small part of the Boneski treatment records after a review of all the documents in the record. The critical issue in this case is whether Gail M. has failed to achieve such a certain degree of “personal rehabilitation.” Her active alcoholism is a key element. The trial court ruled that Gail M.’s privilege must give way to the best interest of the children. The trial court determined that there was good cause for disclosure of the treatment information and that it was highly relevant to the issue of the respondent’s mental health, an issue that the respondent herself raised when she testified that she was capable of responsibly parenting her children. Under the applicable federal regulations, 42 C.F.R. 2.63 (a) (3), disclosure is allowed when “the patient offers testimony or other evidence pertaining to the content of the confidential communication.” We do not find that in weighing the relevant statutory criteria and making its determination that there was good cause for limited disclosure of confidential information, the trial court abused its discretion in admitting the evidence of Gail M.’s treatment at the Boneski Treatment Center. See In the Matter of Dwayne G., 97 Misc. 2d 333, 336, 411 N.Y.S.2d 180 (1978).

In addition, Gail M. claims that General Statutes §§ 52-146d and 52-146e were violated since she was interviewed at Boneski by a psychiatrist. We find this claim to be without merit. An exception to the confidentiality statute is contained in General Statutes § 52-146f (5), which provides that “(5) Communications or records may be disclosed in a civil proceeding in which the patient introduces his mental condition as an element of his claim or defense .... and the court or judge finds that it is more important to the interests of justice that the communications be disclosed than that the relationship between patient and psychiatrist be protected.” We conclude that when the mental health of a parent in a termination of parental rights case is an issue, as it is in this case, the best interest of the child requires that the privilege between psychiatrist and patient give way once it is shown to the trier of fact that the “communications and records” are relevant to the issues in the case. We further conclude that the trial court carefully reviewed the records and admitted only those relevant, and did not abuse its discretion in doing so.

Gail M. next claims that the trial court should not have admitted two service agreements dating back to 1981 because they are remote in time and not relevant. A review of the record shows that the agreements were relevant, and were not too remote in time, since Gail M.’s longstanding active alcoholism is a central issue in this case. The trial court did not abuse its discretion in admitting these agreements.

Gail M.’s final claim is that certain police reports were erroneously admitted. A review of the reports and the transcript shows that what was in the reports was the observation of the officers making the entries and that the entries in every aspect conformed to the business records statutory exception to the hearsay rule, contained in General Statutes § 52-180.

In re Romance

This is an appeal by the commissioner of children and youth services from the denial by the trial court of the termination petition of the parental rights of Gail M. regarding the child Romance pursuant to a coterminus proceeding brought under General Statutes (Rev. to 1987) § 17-43a (e), now § 17a-112 (e). The commissioner claims that the trial court (1) improperly refused to waive the one year waiting period by ignoring the totality of the circumstances up to the last day of trial and in failing to consider the best interests of the child, (2) should have first determined whether grounds for termination existed before reaching the issue of waiving the one year waiting period, (3) incorrectly failed to find that the commissioner met her burden of proof, and that the petition should have been granted, and (4) should not have considered the question of waiver because the amendment of the petition on March 29, 1990, takes it outside the operation of § 17a-112 (c). We affirm the judgment of the trial court.

There are additional facts relevant to this appeal. Romance was born to Gail M. on November 11, 1988. After his birth, he remained in her custody even though his three siblings had been adjudicated neglected and uncared for and committed to DCYS. Romance was removed from Gail M.’s custody on December 2,1988, as the result of an incident in which Gail M., while intoxicated, threw Romance, who was caught by a thirteen year old child. Shortly thereafter, Gail M. and her four children were brought back to her apartment, where she passed out. On January 5,1989, a coterminus petition was brought under General Statutes § 17-43a (e), now § 17a-112 (e).

The first claim of the commissioner is that because General Statutes § 17a-112 (c) empowers the court to waive the one year requirement of § 17a-112 (b) upon finding that such waiver is necessary to promote the best interest of the child, that statute raises a dispositive rather than an adjudicatory issue, and requires the court to consider the facts up to and including the last day of the trial.

The court found in its refusal to waive the one year requirement that up until the December 2, 1988 incident, DCYS had no plans to remove Romance from Gail M. When DCYS and Gail M. had met on November 21, 1988, for a treatment review, Romance was dressed appropriately. The court took into account all of the facts of the case, including a report from Coleman. The court especially took into account Meier’s report of March 31, 1989, an evaluation that was requested by DCYS to assist with decisions regarding Romance. The court set forth, verbatim, recommendations four and five of Meier’s report in its memorandum: “4. Since this evaluation was directed to address only her behavior with respect to Romance, her ability to care for this child has only been assessed during a limited period of time. It is therefore recommended that a service agreement be established with Gail M., spelling out clearly her responsibilities in terms of visiting the child, gaining greater responsibility for the care of the child, following through with alcohol and substance abuse treatment, and continuing in psychotherapy for a period of at least six months. If at the end of that time she has shown an inability to rehabilitate herself, it is recommended that consideration be given to placing Romance in a permanent home other than that of Gail M.

“5. It is recommended that a psychiatric consult be scheduled for Gail M. in order to assess the appropriateness of medication. If such a treatment is recommended, this should also be addressed by the service agreement.”

The trial court further found that the mother’s ongoing progress of treatment, as shown in DCYS’s treatment plans of May 1, 1988, and November 1, 1988, deteriorated following the filing of the eoterminus petition. The court implied in its memorandum that the commissioner should have withdrawn her petition to terminate, and followed Meier’s recommendations set forth above.

The procedure for termination of parental rights is statutory and must be strictly followed because it affects a constitutional liberty interest of the parent. The one year rule appears twice in the statutory scheme of termination, in General Statutes § 17a-112 (b) and again in § 17a-112 (c). It first appears in § 17a-112 (b) “with respect to any nonconsenting parent, over an extended period of time, which, except as provided in subsection (c) of this section, shall not be less than one year ... (3) the child has been denied, by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for his physical, educational, moral or emotional well-being.” The court must find that statutory grounds as alleged were met by clear and convincing evidence, and a condition precedent to finding that the grounds for termination as alleged exist is a finding that “with respect to any non-consenting parent over an extended period of time, which .... shall not be less than one year,” one or more of the four listed statutory criteria have been met. The decision of the court that the condition as to Romance did not exist for at least a year is an adjudicatory one. There is nothing, however, either in the statutory scheme or in the case law to prevent the trial court, once it comes to the conclusion that the ground alleged did not exist for a period of at least one year, from deciding under § 17a-112 (c) whether, under the totality of the circumstances, it is in the child’s best interest to waive the one year requirement. “Because the statute entrusts the decision concerning waiver to the discretion of the trial court, the only issue on appeal is whether the trial court abused its discretion.” In re Baby Girl B., 224 Conn. 263, 301, 618 A.2d 1 (1992). We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. In re Cynthia A., 8 Conn. App. 656, 660, 514 A.2d 360 (1986). The trial court, with great specificity, taking into account both Coleman’s and Meier’s reports, as well as all of the facts of the case, as they relate to both Romance and his three siblings, found from the totality of the circumstances that a waiver is not necessary to promote the best interest of the child. We find no basis for a conclusion of abuse of discretion on the record in this case.

DCYS next claims that the trial court should have determined whether the grounds alleged existed before reaching the issue of waiving the one year waiting period. We have already covered this issue and find no merit to the claim.

The commissioner next claims that the trial court’s findings support a conclusion that she met her burden of proof by clear and convincing evidence, and the petition should have been granted. This claim also is without merit. The only ground alleged is General Statutes § 17a-112 (b) (3): “[T]he child has been denied, by reason of an act or acts of parental commission or omission, the care, guidance, or control necessary for his physical, educational, moral or emotional well-being.” This ground was also alleged concerning Gail M.’s three older children. The trial court found the following on this allegation with regard to the three older children. “The children have remained in placement since the respondent voluntarily requested placement of the children on May 1,1987. Counsel was not appointed to represent her until October 14, 1987. Psychological evaluations to assist in determining what services should be implemented on behalf of the respondent and her children were not concluded until November of 1987. The fact that the respondent saw fit to attempt to work with DCYS towards the return of her children cannot be characterized as a failure to challenge the foster care placements. There is no clear and convincing evidence that the respondent failed to provide the proper care, guidance or control necessary for the physical, educational, moral or emotional well-being of her children during the periods of time that they were with her. The court concludes that DCYS has failed to prove this ground by clear and convincing evidence.”

The trial court’s decision regarding Romance M. is consistent with its decision concerning Gail M.’s older children. The trial court did not “misapply the facts to the statutory requirements,” nor were the conclusions drawn “inconsistent with the findings of fact” as alleged by the commissioner. The trial court did not reach a determination of whether the commissioner proved by clear and convincing evidence that Romance M. was denied, by acts of commission or omission, the care and control necessary to his well-being in light of its finding that a waiver was unnecessary. The statute mandates that the conditions exist for a minimum of one year. In the absence of a discretionary waiver of that one year requirement, the court could have found (a) that the grounds for termination were not proven by clear and convincing evidence or (b) that the grounds for termination had been proven but that they had not been in existence “over an extended period of time, which . . . shall not be less than one year.” General Statutes § 17a-112 (b). “Whether the grounds for termination [of parental rights] exist for not less than one year is a question of fact to be determined by the [trial] court from the facts and circumstances in any given case.” In re Saba P., 13 Conn. App. 605, 610, 538 A.2d 711, cert. denied, 207 Conn. 811, 541 A.2d 1241 (1988).

The trial court made the decision that the grounds existed for less than one year, and in its discretion did not waive the one year precondition of the existence of one of the four conditions. There was no abuse of the court’s discretion.

The commissioner’s final claim is that the March 29, 1990 amendment to the petition, made during the trial, took the case out of the one year statute. The amendment was offered by the commissioner and granted by the trial court over the objection of Gail M.

The amendment is as follows: “(1) On or about March 6, 1990, the respondent Gail M. was admitted to the Boneski Treatment Center and underwent alcohol detoxification.

“(2) On March 15, 1990, the respondent was scheduled to have a visit with two of her children at the office of DCYS. Even though the respondent confirmed with DCYS social worker on March 14,1990 that she [would] attend, she nonetheless failed to show or give an advance notice of her nonattendance.”

The amendment alleged additional facts, not additional grounds, and thus relates back to the date of the petition. “It is well settled that amendments, unless they allege a new cause of action, relate back to the date of the complaint.” Baker v. Baker, 166 Conn. 476, 486, 352 A.2d 277 (1974), and cases cited therein, overruled on other grounds, LaBow v. LaBow, 171 Conn. 433, 441, 370 A.2d 990 (1976).

In the adjudicatory phase of termination proceedings, the court determines the validity of the grounds alleged in the petition, and therefore is limited to events preceding the filing date of the petition. In the disposition phase, the court is concerned with what action should be taken in the best interests of the child, and in that phase the court is entitled to consider facts occurring until the end of the trial. In re Shannon S., 41 Conn. Sup. 145, 562 A.2d 79, aff’d, 19 Conn. App. 20, 560 A.2d 993 (1988). The facts alleged in the amended petition could not be considered in the adjudicatory phase, and the trial court correctly considered the waiver question. It must also be noted that, since the amendment applied to all four siblings, the court could use it in the dispositive phase of Romance’s three siblings. This was a joint trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 17á-112 (c), formerly § 17-43a (c), provides: “The court may waive the requirement that one year expire prior to the termination of parental rights if it finds from the totality of the circumstances surrounding the child that such a waiver is necessary to promote the best interest of the child.”

       SCADD, a program funded by the Connecticut alcohol and drug abuse commission, is the southeastern council on alcoholism and drug dependency.

       General Statutes § 17a-132 (b), formerly § 17-43a(b), provides: “The superior court upon hearing and notice, as provided in sections 45a-716 and 45a-717, may grant such 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 consenting parent, such parent has voluntarily and knowingly consented to termination of his parental rights with respect to such child or that, with respect to any nonconsenting parent, over an extended period of time, which, except as provided in subsection (c) of this section, shall not be less that one year ... (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 . . . .”

       General Statutes § 17a-112 (d), formerly § 17-43a (d), provides: “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (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.”

       42 C.F.R. § 2.63 provides: “confidential communications, (a) A court order under these regulations may authorize disclosure of confidential communications made by a patient to a program in the course of diagnosis, treatment, or referral for treatment only if: (1) The disclosure is necessary to protect against an existing threat to life or of serious bodily injury, including circumstances which constitute suspected child abuse and neglect and verbal threats against third parties; (2) The disclosure is necessary in connection with investigation or prosecution of an extremely serious crime, such as one which directly threatens loss of life or serious bodily injury, including homicide, rape, kidnapping, armed robbery, assault with a deadly weapon or child abuse with neglect . . . .”

       General Statutes § 52-146d provides: “privileged COMMUNICATIONS BETWEEN PSYCHIATRIST AND PATIENT. DEFINITIONS. . . .
      “(1) ‘Authorized representative’ means (A) a person empowered by a patient to assert the confidentiality of communications or records which are privileged under sections 52-146c to 52-146Í, inclusive, or (B) if a patient is deceased, his personal representative or next of kin, or (C) if a patient is incompetent to assert or waive his privileges hereunder, (i) a guardian or conservator who has been or is appointed to act for the patient, or (ii) for the purpose of maintaining confidentiality until a guardian or conservator is appointed, the patient’s nearest relative;
      “(2) ‘Communications and records’ means all oral and written communications and records thereof relating to diagnosis or treatment of a patient’s mental condition between the patient and a psychiatrist, or between a member of the patient’s family and a psychiatrist, or between any of such persons and a person participating under the supervision of a psychiatrist in the accomplishment of the objectives of diagnosis and treatment, wherever made, including communications and records which occur in or are prepared at a mental health facility;
      “(3) ‘Consent’ means consent given in writing by the patient or his authorized representative;
      “(4) ‘Identifiable’ and ‘identify a patient’ refer to communications and records which contain (A) names or other descriptive data from which a person acquainted with the patient might reasonably recognize the patient as the person referred to, or (B) codes or numbers which are in general use outside the mental health facility which prepared the communications and records;
      “(5) ‘Mental health facility’ includes any hospital, clinic, ward, psychiatrist’s office or other facility, public or private, which provides inpatient or outpatient service, in whole or in part, relating to the diagnosis or treatment of a patient’s mental condition;
      “(6) ‘Patient’ means a person who communicates with or is treated by a psychiatrist in diagnosis or treatment;
      “(7) ‘Psychiatrist’ means a person licensed to practice medicine who devotes a substantial portion of his time to the practice of psychiatry, or a person reasonably believed by the patient to be so qualified.”
      General Statutes § 52-146e provides: “disclosure op communications. (a) All communications and records as defined in section 52-146d shall be confidential and shall be subject to the provisions of sections 52-146d to 52-146j, inclusive. Except as provided in sections 52-146Í to 52-146Í, inclusive, no person may disclose or transmit any communications and records or the substance or any part or any resume thereof which identify a patient to any person, corporation or governmental agency without the consent of the patient or his authorized representative.
      “(b) Any consent given to waive the confidentiality shall specify to what person or agency the information is to be disclosed and to what use it will be put. Each patient shall be informed that his refusal to grant consent will not jeopardize his right to obtain present or future treatment except where disclosure of the communications and records is necessary for the treatment.
      “(c) The patient or his authorized representative may withdraw any consent given under the provisions of this section at any time in a writing addressed to the person or office in which the original consent was filed. Withdrawal of consent shall not affect communications or records disclosed prior to notice of the withdrawal.”

         General Statutes § 52-180 provides in pertinent part: “(a) Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event within a reasonable time thereafter. . . .
      “(d) The term ‘business’ shall include business, profession, occupation, and calling of every kind.”

       General Statutes § 17a-112 (e), formerly § 17-43a (e), provides: “Any petition brought by the commissioner of children and youth services to the superior court, pursuant to subsection (a) of section 46b-129, may be accompanied by a petition for termination of parental rights filed in accordance with this section with respect to such child, notwithstanding that such child has not been committed to the commissioner of children and youth services. Notice of the hearing on such petitions shall be given in accordance with sections 45a-716 and 45a-717. The superior court, after hearing, in accordance with the provisions of subsection (b) of this section, may, in lieu of granting the petition filed pursuant to section 46b-129, grant the petition for termination of parental rights as provided in section 45a-717.”

       See footnote 3, supra.

       See footnote 1, supra.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Bantam Supply Company, Inc. v. Rosalie Friedman
    (10468)
    Daly, O’Connell and Freedman, Js.
    Submitted on briefs December 14, 1992 —
    decision released January 12, 1993

      Mark V. Oppenheimer filed a brief for the appellant (defendant).

      Thomas F. Hogan filed a brief for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Andrea Orlovsky v. Daniel Orlovsky
    (11186)
    Daly, O’Connell and Freedman, Js.
    Submitted on briefs December 14, 1992 —
    decision released January 12, 1993

      Gary P. Cahill filed a brief for the appellant (defendant).

      Pasquale Young filed a brief for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Frank X. Lo Sacco v. William A. Longo et al.
    (11268)
    Daly, Laveky and Landau, Js.
    Argued December 7, 1992 —
    decision released January 12, 1993

      Frank X. Lo Sacco, pro se, the appellant (plaintiff).

      James M. Tanski, with whom, on the brief, were Lois B. Tamer and Caroline Schnog, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    City of Danbury v. Jorman M. Hovi, Trustee
    (11396)
    O’Connell, Foti and Heiman, Js.
    Argued January 5 —
    decision released January 26, 1993

      Jorman M. Hovi, pro se, the appellant (respondent).

      Richard R. Talbot, for the appellee (petitioner).
   Per Curiam.

The judgment is affirmed.


text:
    Janak S. Dave v. Dennis C. Cavanaugh et al.
    (11347)
    Dupont, C. J., O’Connell and Foti, Js.
    Argued January 5 —
    decision released January 26, 1993

      Scmatkuma V. Pandit, for the appellant (plaintiff).

      Robert W. Lotty, for the appellees (defendants).
   Per Curiam.

The judgment is affirmed.


text:
    Susan Fjelland et al. v. Michelle Celotto et al.
    (10970)
    Dupont, C. J., Daly and Freedman, Js.
    Argued January 5 —
    decision released January 26, 1993

      James T. Baldwin, for the appellants (defendants).

      Frank J. Mongillo, Jr., with whom was Thomas Virgulto, for the appellees (plaintiffs).
   Per Curiam.

The judgment is affirmed.


text:
    Joel Paul Berger et al. v. 280 Railroad Avenue Associates Limited Partnership et al.
    (11305)
    Dupont, C. J., La very and Freedman, Js.
    Argued January 6 —
    decision released January 26, 1993

      Paul L. Bollo, for the appellants (defendants).

      Louis Ciccarello, with whom, on the brief, was Benjamin Gershberg, for the appellees (plaintiffs).
   Per Curiam.

The judgment is affirmed.


text:
    Myrtle C. Mignosa v. Dominick Mignosa
    (11349)
    Foti, Lavery and Schaller, Js.
    Argued January 12 —
    decision released February 2, 1993

      Harold J. Geragosian, for the appellant (defendant).

      Timothy Sheehan, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Edward M. Keelan
    (10891)
    Laveky, Landau and Heiman, Js.
    Argued January 8 —
    decision released February 2, 1993

      Edward Keelan, pro se, the appellant (defendant).

      James A. Kitten, assistant state’s attorney, with whom, on the brief, was Mary M. Galvin, state’s attorney, and Frank McQuade, supervisory assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    Rose Innaco v. Peter Peterson et al.
    (10893)
    Lavery, Landau and Heiman, Js.
    Argued January 8 —
    decision released February 2, 1993

      John A. FloreJc, for the appellants (defendants).

      Stephen B. Alderman, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Marty Phillips v. David McDermott Chevrolet, Inc.
    (11243)
    Dupont, C. J., Daly and Foti, Js.
    Argued January 8 —
    decision released February 2, 1993

      Kenneth Wynne Bohonnon, for the appellant (defendant).

      Joanne S. Faulkner, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Duncan W. Caney v. Olf Veldhuis et al.
    (10703)
    Dupont, C. J., Lavery and Schaller, Js.
    Argued January 13 —
    decision released February 2, 1993

      Olf Veldhuis, pro se, and Lydia B. Veldhuis, pro se, the appellants (defendants).

      Kevin A. Coles, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    A. Abner Rosen et al. v. Kathleen Allen et al.
    (11328)
    Landau, Heiman and Freedman, Js.
    Argued January 12 —
    decision released February 2, 1993

      John J. Bennett, for the appellant (named defendant).

      Dean B. Kilbourne, for the appellees (plaintiffs).
   Per Curiam.

The judgment is affirmed.


text:
    Housatonic Bank and Trust Company v. Buselli Associates et al.
    (11223)
    Dupont, C. J., Lavery and Schaller, Js.
    Argued January 13 —
    decision released February 2, 1993

      Paul R. Kraus, for the appellants (defendants).

      Gale S. Kosto, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Edward Crouch
    (11113)
    Daly, Freedman and Cretella, Js.
    Argued January 11 —
    decision released February 2, 1993

      Stephen V. Moran, assistant public defender, for the appellant (defendant).

      Marjorie Allen Dauster, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Warren Maxwell, senior assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    John E. Fitzgerald et al. v. Richard Johnson
    (11041)
    Lavery, Landau and Freedman, Js.
    Argued January 15 —
    decision released February 9, 1993

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

      Andrew J. O’Keefe, with whom were Denise Rodosevich and, on the brief, Michael J. Walsh, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Arnold L. Beizer v. Donald Joslin
    (11140)
    Foti, Lavery and Schaller, Js.
    Argued January 14 —
    decision released February 9, 1993

      Mark R. Leder, for the appellant (plaintiff).

      M. Hatcher Norris, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Alice Ferraro, Trustee for Rose Hill Associates v. St. Vincent dePaul Society of Waterbury, Inc.
    (11226)
    Foti, Lavery and Schaller, Js.
    Argued January 14 —
    decision released February 9, 1993

      Mark Fitzhugh Lee, with whom, on the brief, was Debra Zappone, for the appellant (defendant).

      Eugene S. Melchionne, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Connecticut National Bank v. Paul Copp et al.
    (11450)
    Daly, Foti and Lavery, Js.
    Argued January 19 —
    decision released February 9, 1993

      Paul Copp, pro se, the appellant (named defendant).

      Jonathan A. Flatow, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed and the case is remanded for the purpose of setting a new sale date.


text:
    Janet K. Bernhard et al. v. Planning and Zoning Commission of the Town of Westport et al.
    (11274)
    Daly, O’Connell and Foti, Js.
    Argued February 8 —
    decision released March 2, 1993

      Christopher J. Smith, for the appellants (plaintiffs).

      Leo Nevos, with whom, on the brief, was Jamie K. Gerard, for the appellees (defendants 300 Post Road West Associates et al.).

      Patricia E. Curtin, for the appellee (named defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Salvatore J. Nicotra v. Bonnie F. Nicotra
    (10716)
    O’Connell, Lavery and Heiman, Js.
    Argued February 8 —
    decision released March 2, 1993

      Lisa Faris, with whom, on the brief, was Salvatore J. Nicotra, pro se, the appellant (plaintiff).

      Christine M. Gonillo, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Ruth Ipbach v. Michael Ipbach
    (11265)
    O’Connell, Foti and Landau, Js.
    Argued February 9 —
    decision released March 2, 1993

      Charlotte Croman, for the appellant (defendant).

      Lisa A. Faccadio, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Bridgeport Hospital v. Frank Colman et al.
    (11553)
    Lavery, Heiman and Schaller, Js.
    Argued February 8 —
    decision released March 2, 1993

      Kathryn L. Braun, with whom, on the brief, was Laurence V. Pamoffi for the appellants (defendants).

      Irwin J. Gordon, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Richard Johnson et al. v. Salvatore Ruotolo et al.
    (11275)
    Dupont, C. J., O’Connell and Schaller, Js.
    Argued February 10 —
    decision released March 2, 1993

      Frank P. Cannatelli, for the appellant (named defendant).

      Philip A. Giordano, for the appellees (plaintiffs).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Floyd Johnson
    (10252)
    Daly, O’Connell and Foti, Js.
    Argued February 8 —
    decision released March 2, 1993

      Ross M. Delaney, assistant public defender, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Kevin Murphy, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    Nicolaos Giotopulos v. Elaine Giotopulos
    (11387)
    Landau, Heiman and Freedman, Js.
    Argued February 10 —
    decision released March 2, 1993

      Nicolaos Giotopuios, pro se, the appellant (plaintiff).

      Barbara Binford, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Steve A. Charron
    (11456)
    O’Connell, Freedman and Schaller, Js.
    Argued February 18 —
    decision released March 16, 1993

      Eugene C. Cushman, special public defender, for the appellant (defendant).

      Lawrence J. Tytla, assistant state’s attorney, with whom, on the brief, was C. Robert Satti, Sr., state’s attorney, for the appellee (state).
   Per Curiam.

The defendant appeals from his conviction, after a jury trial, of the crime of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1). After thorough review of the record, transcripts and briefs and affording those claims that are properly before us the appropriate scope of review, we find the defendant’s assertions to be without merit.

The judgment is affirmed.


text:
    Vincent Marzano v. Manuel Luis
    (11472)
    Dupont, C. J., Foti and La very, Js.
    Submitted on briefs February 23 —
    decision released March 16, 1993

      Vincent Marzano, pro se, the appellant (plaintiff), filed a brief.

      Thomas L. Brayton III filed a brief for the appellee (defendant).
   Per Curiam.

The decision is affirmed.


text:
    Janak S. Dave v. Robert B. Yules et al.
    (11487)
    Daly, Foti and Freedman, Js.
    Argued February 24 —
    decision released March 16, 1993

      Sanatkumar V. Pandit, for the appellant (plaintiff).

      Brian W. Smith, for the appellees (defendants).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Franklin Daniels
    (11512)
    Daly, Landau and Freedman, Js.
    Argued February 19 —
    decision released March 16, 1993

      Gary A. Mastronardi, for the appellant (defendant).

      LeonF. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Brian Kennedy, assistant state’s attorney, for .the appellee (state).
   Per Curiam.

The defendant appeals from the judgment of conviction of one count of failure to display lights in violation of General Statutes § 14-96a (a) and one count of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a. The defendant’s conviction followed a conditional plea of nolo contendere pursuant to General Statutes § 54-94a, reserving the right to appeal the trial court’s denial of his motion to suppress “any and all fruits of his arrest on August 16, 1989.”

After thorough review of the record, transcripts and briefs in this matter, and affording the appropriate scope of review to the defendant’s claims, we find them to be without merit.

The judgment is affirmed.


text:
    Essex Savings Bank v. Jeffrey W. Navin et al.
    (11196)
    Dupont, C. J., Landau and Heiman, Js.
    Argued February 22 —
    decision released March 16, 1993

      Kenneth R. Davis, for the appellant (named defendant).

      John S. Bennet, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.


text:
    Essex Savings Bank v. Martin Frimberger et al.
    (11624)
    O’Connell, Foti and Lavery, Js.
    Argued February 19 —
    decision released March 16, 1993

      John T. O’Reilly, pro se, the appellant (defendant).

      John S. Bennet, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.


text:
    The Ponds Homeowners Association, Inc. v. The Ponds, Inc., of Hotchkiss Grove et al.
    (11342)
    Heiman, Freedman and Schaller, Js.
    Argued February 23 —
    decision released March 16, 1993

      Thomas E. Crosby, for the appellants (defendants).

      Richard F. Connors, for the appellee (plaintiff).
   Per Curiam.

After thorough review of the record and briefs, and hearing oral argument, we conclude that the granting of the prejudment remedy by the trial court was supported by probable cause and its issuance was, therefore, not clearly erroneous. Anderson v. Nedovich, 19 Conn. App. 85, 91, 561 A.2d 948 (1989).

The order of the trial court granting the prejudgment remedy is affirmed.


text:
    Delores D. Stewart v. Leroy Stewart
    (10940)
    Dupont, C. J., Foti and Lavery, Js.
    Argued February 23 —
    decision released March 16, 1993

      Delores D. Stewart, pro se, the appellant (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Adam Gaski v. Gaski Realty, Inc., et al.
    (11336)
    Heiman, Freedman and Schaller, Js.
    Argued February 23 —
    decision released March 16, 1993

      Steven W. Varney, for the appellants (defendants).

      Constance L. Epstein,■ with whom, on the brief, were John Stephen Papa, Michael McDonnell, Ruth A. Tower and Bryan Meccariello, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Lisa Porto v. Yale New Haven Hospital
    (11376)
    Heiman, Freedman and Schaller, Js.
    Argued February 23 —
    decision released March 16, 1993

      Richard M. Franchi, for the appellant (plaintiff).

      Denise M. Bourque, with whom, on the brief, was Penny Q. Seaman, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Jon A. Baran
    (11066)
    Daly, Lavery and Freedman, Js.
    Argued February 9 —
    decision released March 16, 1993

      Jon A. Baran, pro se, the appellant (defendant).

      Paul J. Ferencek, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and CarlE. Taylor, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The defendant appeals from his conviction under General Statutes § 14-137 as implemented by § 14-137-1 of the'regulations of the motor vehicle commissioner, which prohibits the installation or operation of a radar detector on Connecticut highways. We adopt the reasoning of State v. Anonymous, 36 Conn. Sup. 551, 421 A.2d 867 (1980), which addressed the issues raised in this appeal involving the constitutionality of General Statutes § 14-137 and § 14-137-1 of the regulations of the motor vehicle commissioner.

We have reviewed the remaining issues and conclude that they are without merit.

The judgment is affirmed.


text:
    Jean Lanzo v. James Lanzo
    (11302)
    Dupont, C. J., Foti and Lavery, Js.
    Submitted on briefs February 23 —
    decision released March 16, 1993

      Morris I. Olmer filed a brief for the appellant (defendant).

      Jean Lanzo, pro se, the appellee (plaintiff), filed a brief.
   Per Curiam.

The judgment is affirmed.


text:
    Pamela Bates v. Loy Earl Bates III
    (11413)
    Foti, Heiman and Schaller, Js.
    Argued February 18 —
    decision released March 16, 1993

      Robert C. McCoy, for the appellant (plaintiff).

      RayrmmdL. Baribeault, Jr., with whom, on the brief, was Miriam Gardner-Frum, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Hartford Accident and Indemnity Company v. Henry Beckenstein
    (11246)
    Foti, Heiman and Schaller, Js.
    Argued February 18 —
    decision released March 16, 1993

      William P. O’Brien, for the appellant (defendant).

      Gregg D. Adler, with whom, on the brief, was Mary E. Kelly, for the appellee (intervening plaintiff Karen Miller).
   Per Curiam.

The defendant appealed from the judgment of the trial court, rendered after a jury trial, awarding the plaintiffs $50,000 in damages for injuries and losses caused by the defendant’s negligence. After thorough review of the record, transcripts and briefs and affording those claims before us the appropriate scope of review, we find the defendant’s claims to be without merit.

The judgment is affirmed.


text:
    Cadwell Hoerle et al. v. Arnold M. Davidson et al.
    (11443)
    Dupont, C. J., O’Connell and Lavery, Js.
    Submitted on briefs February 24 —
    decision released April 6, 1993

      Arnold M. Davidson, pro se, the appellant (named defendant) filed a brief.

      Bruce A. Zawodniak filed a brief for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed and the case is remanded for the purpose of setting a new law day.


text:
    Bank of Stamford v. Rosaria Alaimo et al.
    (10817)
    O’Connell, Lavery and Schaller, Js.
    Argued December 2, 1992
    decision released April 13, 1993

      Jules Lang, for the appellant (named defendant).

      Scott M. Harrington, with whom, on the brief, was Ellery E. Plotkin, for the appellee (substitute plaintiff).

      Reuben S. Midler, for Richard Testa (defendant).
   Lavery, J.

The issue presented by this case is whether a defendant, in a hearing on a motion for deficiency judgment after a judgment of foreclosure has entered, the law days have passed, and title has vested, can raise defenses that could have been raised and decided in the foreclosure hearing, but were not. The trial court answered this question in the negative and we agree.

The plaintiff was the holder of a note that was signed by Charles Alaimo, his mother Rosaria Alaimo, the named defendant and the sole appellant, Alaimo Excavating and Blasting, Inc., and Richard Testa as obligors. The purpose of the loan was to finance equipment of Alaimo Excavating and Blasting, Inc. The plaintiff, pursuant to the terms of the loan, received as collateral a UCC-1 agreement concerning certain equipment and a second mortgage on the defendant’s property at 16 Lounsbury Avenue in Norwalk. The defendant executed a mortgage deed and a subsequent modification that were both recorded. When all of the obligors on the note failed to make payments, the plaintiff’s predecessor brought foreclosure proceedings against the defendant. On March 18, 1991, the trial court entered a default for failure to appear and rendered judgment of strict foreclosure. On May 6,1991, attorneys entered an appearance for the defendant. Subsequent to the attorneys’ appearance, the plaintiff moved to open the judgment and extend the law date and moved to cite in the tenants in possession on the premises being foreclosed so that ejectment could be pursued as part of the foreclosure action. The judgment was opened, and the law day was extended, and title passed to the plaintiff on August 8,1991. During that period of time, the defendant was represented actively by counsel who represented the defendant in a prejudgment attachment, and on her behalf filed a cross complaint against Charles Alaimo and Richard Testa and initiated prejudgment attachment proceedings against them. The plaintiff timely moved for a deficiency judgment. At the time of the hearing on the motion for deficiency judgment on October 21, 1991, new counsel appeared for the defendant, and the defendant requested a continuance, which was granted.

The defendant filed an objection to the motion for deficiency judgment, a motion to disgorge title, and a motion to dismiss. She subpoenaed officers of the plaintiff bank to produce bank records pursuant to the motion to disgorge the title. In addition, the defendant filed a lis pendens on the foreclosed property, claiming title pursuant to the motion to disgorge title. The plaintiff filed an objection to the motions as well as a motion to quash the subpoena and to discharge the lis pendens.

In the motion to disgorge and the motion to dismiss, the defendant claimed that the mortgage and the mortgage modification were invalid and unenforceable because the documents had not been contemporaneously witnessed and acknowledged as required by General Statutes § 47-5, and because the defendant had executed the documents without knowledge of their contents while under duress and as a result of undue influence. In addition, the defendant claimed that since the plaintiff had failed to take steps to ensure that the documents were properly executed and part of a bona fide loan, and since it had improperly accepted the documentation without meeting the defendant or having the documents executed in its presence, the plaintiff should be required to restore the property to the defendant. The motion to dismiss alleges that the default judgment against the defendant was obtained on the basis of a faulty military affidavit of the deputy sheriff and a faulty return of service. The return stated that the abode of the defendant was the foreclosed premises when her abode was actually at Tierney Street, Norwalk. The defendant reasons that since process was never served at the place of abode or personally, the court lacked personal jurisdiction and the judgment was void.

The defendant made an offer of proof that the defendant did not enter into the transaction knowingly or with any understanding, that she had difficulty reading English, that she signed at her son’s request, that her son told her that the property was not at risk, that she was afraid to say no to her son, that the defendant did not meet anyone at the bank and did not go to the bank, and that the defendant signed the papers in front of only her son at her house at 26 Tierney Street in Norwalk.

The defendant contested neither the value of the plaintiff’s appraisal nor the stated debt. The court denied the defendant’s motions and granted the plaintiff’s motions to quash the subpoena and to discharge the lis pendens. The trial court ruled that the defenses should have been raised in an effort to defeat the judgment of foreclosure by attacking the underlying debt and mortgage rather than in the course of the deficiency proceedings. The court rendered a deficiency judgment in the amount of $222,411.04 from which this appeal was taken.

A mortgagor who files a foreclosure suit and who intends to bring a deficiency judgment authorized by General Statutes § 49-14 must allege facts sufficient, not only to justify the decree of foreclosure on the mortgage, but to support a judgment in personam against the particular defendant or defendants against whom a deficiency judgment will be sought. Smith v. Emerald Corporation, 6 Conn. Sup. 117, 121 (1938).

A defendant in a foreclosure action, against whom there appears in the complaint allegations sufficient to impose liability in personam based on the mortgage note, must interpose a defense to such complaint in the same manner as though he were served in a separate action to enforce such liability. Id., 122. In Smith, a well crafted and learned opinion, Judge Cornell wrote: “It is believed that the general scheme of the statute buttresses this conclusion. Its dominant purpose is to eliminate the necessity of two separate suits. . . . The proceedings supplementary to judgment of foreclosure are directed to one purpose only, viz., to the determination of the amount of the deficiency judgment to be rendered, and that, in turn, is usually limited to the fixing of the value of the property, since the mortgage debt as ascertained in the decree of foreclosure will ordinarily coincide with the debt predicated on the mortgage note or other obligation. All this presupposes that all questions of liability shall have been theretofore determined. This is the conviction expressed by then Associate Justice George W. Wheeler in his dissenting opinion in Suisman v. Gorentz, 90 Conn. 618, 620 [98 A. 89 (1916)], where it is said (p. 622) that in supplementary proceedings under the statute [General Statutes (1930 Rev.) § 5083] the court has ‘no duty save to find the difference between the appraisal value and the plaintiff s claim . . . and render judgment accordingly.’ Consistently with this, Justice Wheeler also says, in effect, that any defense to personal liability on the debt, note or other obligation cannot be raised in such supplementary proceedings. In holding that a defense of fraud attending the execution and delivery of mortgage notes was not available to prevent the entering of a deficiency judgment, he noted (p. 622): ‘They failed to make it in the foreclosure actions . . . .’While the majority failed to pass upon that question in the case mentioned, the dissenting opinion is significant.” (Citation omitted.) Smith v. Emerald Corporation, supra.

Judge Cornell’s analysis in Smith was echoed by a New York court in Griffo v. Swartz, 61 Misc. 2d 504, 306 N.Y.S.2d 64 (1969). In that case, the defendant attempted to assert the defense of laches in a deficiency proceeding, claiming that the delay in conducting the foreclosure sale created the deficiency. The court held that “[a] judgment of foreclosure and sale having been entered against the defendant, all matters of defense which were or might have been put forth and litigated in the foreclosure action are concluded. . . . [Findings of fact in a decree of foreclosure, showing defendants personally liable for any deficiency that may remain after a sale of the mortgaged premises, preclude defendants, on an application for a deficiency judgment, from presenting any defense which could or should have been interposed prior to the announcement of the decree, since the findings of fact in a mortgage foreclosure decree, on issues properly pleaded, are not reviewable on objections to a deficiency judgment . . . .” (Internal quotations marks omitted.) Id., 508-509.

In First Bank v. Simpson, 199 Conn. 368, 373, 507 A.2d 997 (1986), our Supreme Court said that in the hearing contemplated under § 49-14 to obtain a deficiency judgment, the court, after hearing the party’s appraisal, determines the value of the property and calculates any deficiency. This deficiency judgment procedure presumes the amount of the debt as established by the foreclosure judgment and merely provides for a hearing on the value of the property. The terms of the statute provide that if a deficiency is established, the court shall render “judgment for the plaintiff” and that “[t]he plaintiff in any further action upon the debt, note or obligation, shall recover only the amount of such judgment.” See footnote 3, supra. The limited role of deficiency proceedings is also recognized by the New Jersey courts. “In the deficiency the only matters to be considered by the court are the amount of the debt as adjudged by the chancery court and the amount by which it has been reduced by the application to it of the proceeds of the foreclosure sale.” 79-83 Thirteenth Ave., Ltd. v. DeMarco, 79 N.J. Super. 47, 55, 190 A.2d 391 (Law Div. 1963), aff’d, 83 N.J. Super. 497, 200 A.2d 506 (App. Div. 1964), aff'd, 44 N.J. 525, 210 A.2d 401 (1965).

In People’s Bank v. Bilmor Building Corporation, 28 Conn. App. 809, 822, 614 A.2d 456 (1992), we observed that “the procedure used to obtain a deficiency judgment [in a foreclosure action] is also part of the main action. See Practice Book § 528. Also, a request for a deficiency judgment in a foreclosure action is brought by written motion and not by service of process.”

Once title has passed in a strict foreclosure, as in this case, a final judgment has occurred that cannot be opened. Barclays Bank of New York v. Ivler, 20 Conn. App. 163, 166, 565 A.2d 252, cert. denied, 213 Conn. 809, 568 A.2d 792 (1989); Merry-Go-Round Enterprises, Inc. v. Molnar, 10 Conn. App. 160, 162, 521 A.2d 1065 (1987); see Meriden Savings Bank v. Sujdak, 124 Conn. 604, 610-11, 1 A.2d 134 (1938). Any claims by the defendant that were made or could have been made in the foreclosure proceeding cannot be relitigated in the deficiency hearing. For example, in Cronin v. Gager-Crawford Co., 128 Conn. 688, 693, 25 A.2d 652 (1942), our Supreme Court noted that it is “ ‘well established that since the confirmation of a foreclosure sale is the final determination by the court that the mortgaged property was sold at a fair price, the defense of inadequacy of price cannot be raised in subsequent proceedings, and for the purpose of a deficiency decree the price obtained at the sale is conclusive on the question of the market value of the property.’ ”

Some defenses may be raised to a motion for deficiency judgment, but not those that were or could have been raised in the foreclosure hearing. Maresca v. DeMatteo, 6 Conn. App. 691, 506 A.2d 1096 (1986) (defense of usury) (timeliness of the filing of a motion for deficiency judgment in a strict foreclosure); see also Baybank Connecticut, N.A. v. Thumlert, 222 Conn. 784, 610 A.2d 658 (1992) (the defense of laches as to the issue of timeliness in filing the motion for deficiency in a foreclosure by sale proceeding under General Statutes § 49-28); Society for Savings v. Chestnut Estates, Inc., 176 Conn. 563, 409 A.2d 1020 (1979) (the constitutionality of § 49-14). The Court of Appeals of Maryland in McKenna v. Sachse, 225 Md. 595, 602, 171 A.2d 732 (1961), discussing which defenses may be raised to a deficiency application, said “[t]he mortgagor, when pressed for a deficiency decree, may raise any ‘defense that could be made in an action at law on the covenants in the mortgage,’ . . . that is, any defense such as payment or release, or any other defense to the claim which has arisen since confirmation of the sale.” (Citation omitted.)

In this case, the trial court properly denied the defendant’s objection to the motion to dismiss since the defendant’s first set of attorneys, who filed their appearances on May 6, 1991, had thirty days under Practice Book § 114 to file a motion to dismiss for lack of personal jurisdiction or insufficiency of process or service of process. The defendant, through her first attorneys, filed cross claims against the defendants Testa and Charles Alaimo, but did not file a motion to dismiss based on Practice Book § 114. These personal jurisdiction claims were waived and barred by the foreclosure judgment and by the failure to comply with the rules of practice, and cannot be resurrected in the motion for deficiency judgment.

The motion to disgorge, in which the defendant is seeking to reopen the judgment of foreclosure and put the title to the premises back in the defendant, is based on the defendant’s allegations that the mortgage and its modification were invalid and unenforceable because the documents were not contemporaneously witnessed or acknowledged as required by General Statutes § 47-5, and that the defendant executed the documents under duress and under undue influence and without knowledge of their contents. The defendant was represented by counsel beginning on May 6, 1991. While the defendant was represented by counsel, the judgment was opened, tenants on the subject property were cited in, judgment was reentered, new law days were set and, on August 8, 1991, title to the premises was vested in the plaintiff. Viable defenses to the foreclosure action could have been raised by the defendant and were not; no appeal to the judgment of strict foreclosure was taken. The defendant is bound by the judgment of foreclosure as to the issues raised in the motion to disgorge. We have reviewed the motion to disgorge on the basis of the allegations contained therein. There is no such motion in the rules of practice or in our jurisprudence, and General Statutes § 49-15 prohibits any such motion in this controversy. The other claims of the defendant are similarly without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       The Federal Deposit Insurance Corporation has been substituted as plaintiff-appellee by motion.

       We will refer in this opinion to the named defendant as the defendant.

       General Statutes § 49-14 provides: “deficiency judgment, (a) At any time within thirty days after the time limited for redemption has expired, any party to a mortgage foreclosure may file a motion seeking a deficiency judgment. Such motion shall be placed on the short calendar for an evidentiary hearing. Such hearing shall be held not less than fifteen days following the filing of the motion, except as the court may otherwise order. At such hearing the court shall hear the evidence, establish a valuation for the mortgaged property and shall render judgment for the plaintiff for the difference, if any, between such valuation and the plaintiff’s claim. The plaintiff in any further action upon the debt, note or obligation, shall recover only the amount of such judgment.
      “(b) Upon the motion of any party and for good cause shown, the court may refer such motion to a state referee, who shall have and exercise the powers of the court with respect to trial, judgment and appeal in such case.
      “(c) Any party to a mortgage foreclosure who has moved for an appraisal of property for the purpose of obtaining a deficiency judgment, but has not been granted a deficiency judgment, or has not received full satisfaction of any deficiency judgment obtained subsequent to the filing of such motion, may make a motion to the court for a deficiency judgment as set forth in subsection (a) of this section. If such motion is made on or before November 1, 1979, such moving party shall be deemed to have complied with all of the requirements of subsection (a) of this section and shall be entitled to the benefit of any deficiency judgment rendered pursuant to said subsection (a).
      “(d) Any appeal pending in the supreme court with regard to any deficiency judgment or proceedings relating thereto shall be stayed until a hearing is held pursuant to subsection (a) of this section. Any appellant in such an appeal shall have the right for a period of thirty days after the rendering of judgment pursuant to subsection (a) of this section to amend his appeal. There shall be no stay of such an appeal if no motion has been filed pursuant to this section on or before November 1, 1979.”

       Practice Book § 528 provides: “Whenever a deficiency judgment is claimed in a foreclosure action, the party claiming such judgment shall file with the clerk of the court within the time limited by statute a written motion setting forth the facts relied on as the basis for the judgment, which motion shall be placed on the short calendar for an evidentiary hearing. Such hearing shall be held not less than fifteen days following the filing of the motion, except as the court may otherwise order. At such hearing the court shall hear the evidence, establish a valuation for the mortgaged property and shall render judgment for the plaintiff for the difference, if any, between such valuation and the plaintiff’s claim. The plaintiff in any further action upon the debt, note or obligation, shall recover only the amount of such judgment.
      “Upon the motion of any party and for good cause shown, the court may refer such motion to a state referee for hearing and judgment.”

       General Statutes § 49-28 provides: “when proceeds of sale will not pay in full. If the proceeds of the sale are not sufficient to pay in full the amount secured by any mortgage or lien thereby foreclosed, the deficiency shall be determined, and thereupon judgment may be rendered in the cause for the deficiency against any party liable to pay the same who is a party to the cause and has been served with process or has appeared therein, and all persons liable to pay the debt secured by the mortgage or lien may be made parties; but all other proceedings for the collection of the debt shall be stayed during the pendency of the foreclosure suit, and, if a deficiency judgment is finally rendered therein, the other proceedings shall forthwith abate. If the property has sold for less than the appraisal provided for in section 49-25, no judgment shall be rendered in the suit or in any other for the unpaid portion of the debt or debts of the party or parties upon whose motion the sale was ordered, nor shall the same be collected by any other means than from the proceeds of the sale until one-half of the difference between the appraised value and the selling price has been credited upon the debt or debts as of the date of sale; and, when there are two or more debts to which it is to be applied, it shall be apportioned between them.”

       At the time of the deficiency proceedings here, Practice Book § 114 provided: “Commencing on the return day of the writ, summons and complaint in civil actions, pleadings, including motions and requests addressed to the pleadings, shall first advance within thirty days from the return day, and any subsequent pleadings, motions and requests shall advance at least one step within each successive period of fifteen days from the preceding pleading or the filing of the decision of the court thereon if one is required, except that in summary process actions the time period shall be three days. The filing of interrogatories or requests for discovery shall not suspend the time requirements of this section unless upon motion of either party the court shall find there is good cause to suspend such time requirements.”

       General Statutes § 47-5 provides in pertinent part: “conveyances to BE IN WRITING AND ACKNOWLEDGED. CONVEYANCES PURSUANT TO POWER OF attorney, (a) All conveyances of land shall be: (1) In writing; (2) if the grantor is a natural person, subscribed, with or without a seal, by the grantor with his own hand or with his mark with his name annexed to it or by his attorney authorized for that purpose by a power executed, acknowledged and witnessed in the manner provided for conveyances or, if the grantor is a corporation or partnership, subscribed by a duly authorized person; (3) acknowledged by the grantor, his attorney or such duly authorized person to be his free act and deed; and (4) attested to by two witnesses with their own hands.”

       General Statutes § 49-15 provides: “opening of judgments of foreclosure. Any judgment foreclosing the title to real estate by strict foreclosure may, at the discretion of the court rendering the same, upon the written motion of any person having an interest therein, and for cause shown, be opened and modified, notwithstanding the limitation imposed by section 52-212a, upon such terms as to costs as the court deems reasonable; but no such judgment shall be opened after the title has become absolute in any encumbrancer.”


text:
    L & G Associates, Inc. v. Zoning Board of Appeals of the City of Danbury
    (10627)
    Daly, Heiman and Schaller, Js.
    Argued December 9, 1992
    decision released April 8, 1993

      Bruce L. Elstein, with whom was Henry Elstein, for the appellant (plaintiff).

      Daniel E. Casagrande, with whom, on the brief, was Richard R. Talbot, for the appellee (defendant).
   Per Curiam.

The plaintiff appeals from the judgment rendered in favor of the defendant in an action in which the plaintiff sought a judgment declaring that a 1978 use variance applied to its property. The trial court determined that a use variance granted by the defendant did not permit the plaintiff to construct a building on its property for business, banking or professional purposes but allowed the property to be used only incidentally to the construction of a commercial building on another parcel of land in accordance with the site plan filed with the original application for variances.

Our review of the entire record reveals that neither this court nor the trial court had jurisdiction to hear this matter. This court may raise the issue of subject matter jurisdiction sua sponte. “Jurisdiction of the subject matter is a question of law and cannot be waived or conferred by consent either in the trial court or here.” (Internal quotation marks omitted.) Serrani v. Board of Ethics, 225 Conn. 305, 308, 622 A.2d 1009 (1993).

Practice Book § 390 provides in pertinent part: “The court will not render declaratory judgments upon the complaint of any person . . . (d) unless all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof.” “Noncompliance with subsection (d) of Practice Book § 390 renders the declaratory judgment action void because the failure to comply with the notice requirement affects due process rights of persons not before the court and constitutes a substantial defect that deprives the court of subject matter jurisdiction.” Id., 309; Leoni v. Water Pollution Control Authority, 21 Conn. App. 77, 80, 571 A.2d 153 (1990). Section 390 (d) is not merely a procedural rule. Its purpose is to ensure that people’s due process rights shall not be judicially determined without providing them their day in court and an opportunity to be heard. Kolenberg v. Board of Education, 206 Conn. 113, 124, 536 A.2d 577, cert. denied, 487 U.S. 1236, 108 S. Ct. 2903, 101 L. Ed. 2d 935 (1988); Russo v. Watertown, 184 Conn. 30, 34, 441 A.2d 56 (1981).

There is no indication in the record that notice was given to all persons having an interest in the subject matter of the complaint. Those who were entitled to notice include not only those who are statutorily aggrieved, but also those who are classically aggrieved. Pierce v. Zoning Board of Appeals, 7 Conn. App. 632, 637-38, 509 A.2d 1085 (1986). Strict adherence to the notice requirements of § 390 (d) is required. Russo v. Watertown, supra, 33; Echo Four v. Hill, 3 Conn. App. 118, 122-23, 485 A.2d 926, cert. denied, 195 Conn. 801, 487 A.2d 564 (1985). Absent such notice, this court is without jurisdiction to hear this matter and the trial court was without jurisdiction to render declaratory judgment.

Our conclusion that the trial court lacked subject matter jurisdiction to render a declaratory judgment does not, however, require a dismissal of the action on remand. “A jurisdictional defect relating to notice can be remedied in any of the ways noted in Connecticut Ins. Guaranty Assn. v. Raymark Corporation, [215 Conn. 224, 230, 575 A.2d 693 (1990)]. Notably, the plaintiff may ask for an order of notice in order to comply with the procedural requirements of the Practice Book with respect to individuals whose identity might otherwise be difficult to ascertain. Once there has been compliance with § 390 (d), the trial court will have plenary authority to render whatever judgment it then deems appropriate. Id.” Serrani v. Board of Ethics, supra, 309-10; see id., 309 n.5.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.


author: Foti, J.

text:
    First Constitution Bank v. Harbor Village Limited Partnership et al.
    (11548)
    O’Connell, Foti and Laveby, Js.
    Argued February 19
    decision released April 13, 1993

      Jonathan D. Elliot, with whom was Monica M. Coper-tino, for the appellant (plaintiff).

      Jonathan S. Bowman, with whom was Paul S. Begemann, for the appellee (defendant Fairfield Dock Company, Inc.).
   Foti, J.

The plaintiff appeals from the judgment of strict foreclosure rendered after a determination of priority. The plaintiff asserts that the trial court improperly upheld the validity of the defendant’s mechanic’s lien (1) despite the fact that the recorded certificate contained no description of the property other than naming the town in which the property is located, and (2) despite the defendant’s failure to record and serve a notice of lis pendens, pursuant to General Statutes § 52-325, within one year of the date of the lien as contemplated by General Statutes § 49-39. The plaintiff also claims that the trial court improperly found that its mortgage did not have priority over the defendant’s mechanic’s lien under the doctrine of equitable subro-gation. We agree with the plaintiff’s first claim, that the insufficient property description invalidates the lien. Because this is dispositive of the appeal, we need not address the remaining claims.

First Constitution Bank (FCB) instituted the present action to recover sums due under a commercial revolving loan note, which was secured by a mortgage on certain parcels of land located in Greenwich and owned by Harbor Village Limited Partnership (Harbor Village) and William O. Rockwood, Jr., trustee. First Marine Corporation, the assignee of the mortgage, was substituted as the plaintiff.

The mortgaged property consists of six contiguous parcels located along the Mianus River on River Road in Greenwich. Three of the parcels are owned by Harbor Village; the other three parcels are owned by Rock-wood. Each parcel bears its own street address. The loan proceeds, in the amount of $21,500,000, were obtained for the purpose of financing the construction by Harbor Village of a marina facility and dockominium at the site of the six parcels. The loan was advanced by FCB in two stages. First, on or about December 29, 1988, FCB made a $11,451,500 bridge loan to Harbor Village so that it could pay off a prior loan by Mechanics and Farmers Bank (M & F), which had been secured by a mortgage recorded in 1987. As security for the bridge loan, M & F issued a letter of credit in the amount of $11,451,500 in favor of FCB. On May 8, 1989, Harbor Village and Rockwood executed a $21,500,000 promissory note to FCB, which in turn advanced $11,451,500, enabling Harbor Village to pay off the bridge loan. On the same day, the secured M & F mortgage was released, and Harbor Village granted a $21,500,000 mortgage to FCB.

On March 3, 1989, after the recording of the M & F mortgages but before the recording of the FCB mortgage, the defendant began rendering services and furnishing materials to the project and continued to do so until February 13, 1990. On April 16, 1990, the defendant filed a certificate of mechanic’s lien with the Greenwich town clerk. The lien certificate described the property as “situated in the Town of Greenwich, County of Fairfield and State of Connecticut, on a lot of land belonging to said HARBOR VILLAGE LIMITED PARTNERSHIP and WILLIAM ROCK-WOOD, JR., TRUSTEE, and bounded as follows: SEE EXHIBIT ‘A’ ATTACHED.” Only a two page document was filed; Exhibit A was not attached. The plaintiff claims that the property subject to the mechanic’s lien is not described as required by statute, and therefore the lien is invalid. We agree.

General Statutes § 49-34 sets forth the requirements for the validity of a mechanic’s lien, providing as pertinent: “A mechanic’s lien is not valid, unless the person performing the services or furnishing the materials, (1) within ninety days after he has ceased to do so, lodges with the town clerk of the town in which the building, lot or plot of land is situated a certificate in writing, which shall be recorded by the town clerk with deeds of land, (A) describing the premises, the amount claimed as a lien thereon, the name or names of the person against whom the lien is being filed and the date of the commencement of the performance of services . . . .” (Emphasis added.)

“Because the mechanic’s lien is a creature of statute, a lienor must comply with statutory requirements in order to perfect his claim.” H & S Torrington Associates v. Lutz Engineering Co., 185 Conn. 549, 553, 441 A.2d 171 (1981). The provisions of the statute creating the mechanic’s lien must be complied with in order to validate that lien. See City Lumber Co. of Bridgeport, Inc. v. Borsuk, 131 Conn. 640, 645, 41 A.2d 775 (1945); Swift & Upson Lumber Co. v. W. L. Hatch Co., 115 Conn. 494, 498, 162 A. 19 (1932); White v. Washington School District, 42 Conn. 541, 545 (1875).

“Although the mechanic’s lien statute creates a statutory right in derogation of the common law; Camputaro v. Stuart Hardwood Corporation, 180 Conn. 545, 550, 429 A.2d 796 (1980); Gruss v. Miskinis, 130 Conn. 367, 370, 34 A.2d 600 (1943); its provisions should be liberally construed in order to implement its remedial purpose of furnishing security for one who provides services or materials. . . . Our interpretation, however, may not depart from reasonable compliance with the specific terms of the statute under the guise of a liberal construction.” (Citations omitted.) Nickel Mine Brook Associates v. Joseph E. Sakal, P.C., 217 Conn. 361, 364-65, 585 A.2d 1210 (1991). While the statute’s remedial purpose warrants a generous construction, this “[gjenerosity of spirit does not . . . permit departure from reasonable compliance with the specific provisions of the statute.” Camputaro v. Stuart Hardwood Corporation, supra, 551. "We cannot . . . depart from the plain meaning of the words of the statute.” Stone v. Rosenfield, 141 Conn. 188, 191, 104 A.2d 545 (1954).

The language of General Statutes § 49-34 is plain and unambiguous. It requires the recorded certificate to describe the premises in order for the mechanic’s lien to be valid. In the present case, the certificate of lien recorded on the land records contained no description of the property purportedly subject to the lien other than an identification of the town in which the property was located. Therefore, the requirement of § 49-34 was not satisfied. Lack of prejudice to the plaintiff is irrelevant. Whether the plaintiff or anyone else was actually misled by the omission is of no consequence. Nor is the deficiency excused by the fact that the only land owned by Harbor Village and Rockwood was located on River Road and a reasonable party searching the records could conclude that a mechanic’s lien applied to that property. A substantial or reasonable compliance argument is also unavailing because here there was no compliance at all. " ‘[Wjhere the certificate is ... so grossly inaccurate as to show that there was no attempt to give an accurate and true description, then, if the statute means anything, the certificate ought to be held void, as no better than a total omission to attempt to comply with its provisions. ’ ” (Emphasis added.) Tramonte v. Wilens, 89 Conn. 520, 525, 94 A. 978 (1915); see also Rose v. Persse & Brooks Paper Works, 29 Conn. 256, 266 (1860) (description of property is required so that the public, by examining the record, may learn on what precise property the lien is claimed). The complete omission of a description of the property invalidates Fairfield’s lien.

The judgment is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

In this opinion the other judges concurred.

       The substitute plaintiff, First Marine Corporation, appeals as successor in interest to First Constitution Bank. We will refer to it in this opinion as the plaintiff.

       For purposes of this appeal, the term defendant refers only to Fair-field Dock Company, Inc.

       Following Harbor Village’s default, FCB began the present foreclosure action. The defendant filed its answer alleging the priority of its mechanic’s lien over the plaintiff’s mortgage. The defendant also began its own foreclosure of its lien, filing a notice of lis pendens on the land records and serving Harbor Village and Rockwood. The lis pendens contained the names of only some of the defendants, not including FCB; the caption contained the words “Et al.”

       The recording fees paid by Fairfield reflect that only two pages of the intended five page document were filed. The original two page certificate that was recorded was returned to Fairfield’s attorney. No action was taken to correct the error so as to comply with the statute.