author: SULLIVAN, J.

text:
    IN RE SENA W.

    (AC 35756)
    Beach, Alvord and Sullivan, Js.

      Argued November 13
    officially released December 26, 2013

      Michael L. W., self-represented, the appellant (respondent father).

      Michael Besso, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).

         In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79a-12, 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.

       December 26, 2013, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

SULLIVAN, J.

The respondent father, proceeding self-represented, appeals from the judgment of the trial court terminating his parental rights with respect to his minor child, Sena W. The respondent claims that (1) the court made factual findings not supported by the record, (2) the performance of his counsel was deficient, (3) the court improperly denied his motion to transfer guardianship of Sena to her paternal grandmother, and (4) the court’s finding that the Department of Children and Families (department) made reasonable efforts to reunify him with Sena was clearly erroneous. We affirm the judgment of the trial court.

The court found the following facts. The respondent met Sena’s mother in 2009. As articulated by the court, “their relationship included domestic violence, drug use, criminal activity, and eventually parenthood.” Sena was bom on February 3, 2011. Her mother was twenty-one at the time of her birth, and the respondent was forty-two. They were residing together at the time of Sena’s birth. Sena was bom testing positive for cocaine. On February 7, 2011, the petitioner, the Commissioner of Children and Families (commissioner), filed a neglect petition on Sena’s behalf and sought an order of temporary custody. On that date, the court granted temporary custody of Sena to the commissioner and set specific steps for reunification with her parents. Sena has remained in the care and custody of the commissioner ever since.

Subsequently, the respondent failed to appear at three scheduled substance abuse evaluations, failed to comply with court-ordered hair toxicology testing, and failed to comply with the department’s referral to parenting education classes. The court further found that the respondent’s supervised visitations with Sena were “marked [by] his absences and his bellicosity as well as inappropriate parenting. . . . [Argumentative and disruptive behaviors as well as missing one-third of the scheduled visits led to a motion to suspend visits and end . . . supervision . . . [which] was granted by the court on May 19, 2011.” In June, 2011, the respondent was sentenced to four years of incarceration.

On September 20, 2011, both parents submitted pleas of nolo contendere and Sena was adjudicated neglected and committed to the care and custody of the commissioner. Specific steps for reunification were given to the respondent on that date and acknowledged by him. As stated by the court, “[the respondent’s] presenting issues, as reflected in [these] reunification steps, were his long history of substance abuse, his criminal activities, his anger management and domestic violence concerns, his lack of parenting skills, and his overriding mental health needs.”

The commissioner filed a petition to terminate the parental rights of both parents on October 27, 2011. As to the respondent, the commissioner alleged as the sole ground for termination a failure to achieve personal rehabilitation pursuant to General Statutes § 17a-112. A hearing on the petition was held for six days over a period of five months, during which the court heard testimony from eleven witnesses. On May 3, 2013, the court, Driscoll, J., denied the respondent’s motion to transfer guardianship of Sena to her paternal grandmother, granted the commissioner’s petition, and rendered judgment terminating the respondent’s parental rights pursuant to General Statutes § 17a-112 (j) (3) (B) (i), for failure to achieve personal rehabilitation. This appeal followed. Additional facts and procedural history will be presented as necessary.

I

As his first claim, the respondent challenges factual findings made by the court. Specifically, the respondent challenges the court’s finding that the respondent was argumentative with staff during supervised visitations with Sena at Nutmeg Family Services (Nutmeg), and once improperly tried to feed two month old Sena an egg. We are not persuaded.

“Our standard of review on appeal from a termination of parental rights is limited to whether the challenged findings are clearly erroneous. ... A finding is clearly erroneous when there is no evidence in the record to support it, or the reviewing court is left with the definite and firm conviction that a mistake has been made. . . . [Gjreat weight is given to the judgment of the trial court because of the [trial court’s] opportunity to observe the parties and the evidence. . . . [An appellate court does] not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. . . . [Rather] every reasonable presumption is made in favor of the trial court’s ruling.” (Internal quotation marks omitted.) In re Valerie G., 132 Conn. App. 652, 656-57, 34 A.3d 398 (2011), cert. denied, 303 Conn. 937, 36 A.3d 696 (2012); see also In re Alison M., 127 Conn. App. 197, 207, 15 A.3d 194 (2011).

The finding of the court now challenged by the respondent reads in full: “On April 14,2011, [the respondent] and mother became embroiled in an argument verging on physical violence prior to [the respondent] leaving [the supervised visitation]. On May 5, 2011, two months after Sena’s birth, [the respondent] brought an egg and strawberry banana baby food to feed the child. He became argumentative and strongly resistant to the supervisor’s insistence that introduction of these foods into Sena’s diet be done with the pediatrician’s approval.” The respondent asserts that the court’s factual findings are clearly erroneous because the record indicates that he did not become angry with the mother on April 14, 2011, but on a different day, and that he became angry with the mother and not with a worker of Nutmeg. Additionally, the respondent acknowledges that he made a “bad choice” to feed Sena an egg, “but did not repeat.”

These factual findings now challenged by the respondent are only two findings among pages of inappropriate behavior detailed by the court. Nevertheless, even if we were to assume that these two findings were essential to the court’s finding of failure to achieve personal rehabilitation, we are not persuaded that these challenged findings of the court are clearly erroneous; on the contrary, the record supports each finding. First, the termination social study created by the department, admitted as an exhibit at trial, provides that: “[D]uring a supervised visit held on April 14, 2011 . . . [the respondent] and mother began to argue, escalating to a point where the visitation worker became concerned that it was going to become physical. . . . [The respondent] also demonstrated a limited understanding of child development and appropriate care for a child Sena’s age as evidenced by his attempt to feed two month old Sena, eggs and strawberry banana baby food. On May 5, 2011 the undersigned worker attempted to meet... to address the concern of prematurely giving food to an infant. . . . [The respondent] was argumentative.” Second, these events are also detailed in Nutmeg’s supervised visitation forms, also admitted as an exhibit at trial, in which Nutmeg staff recorded the events of each of the respondent’s visits and detailed any concerns. Finally, these events are detailed in the testimony of Monique Mooney, owner of Nutmeg, and Christina Little, a department social worker and author of the termination social study. While the respondent now asserts that each one of these entries is wrong, and that he learned from his mistakes, the record fails to support such claims.

As a result, on the basis of the record before us, we cannot conclude that the court’s findings were clearly erroneous. There was sufficient evidence to support the court’s factual findings and we are not left with a definite and firm conviction that a mistake has been made.

II

The respondent next claims that the performance of his counsel at the termination of parental rights trial was constitutionally deficient. Specifically, the respondent alleges that his counsel did not receive the commissioner’s exhibits until the day of trial, did not review these exhibits, and did not review the evaluation of Kelly Rogers, a psychologist, prior to his testimony. The respondent also alleges that counsel failed to prepare the respondent’s older daughter as a witness, caused family members to wait days to testify, failed to prepare witnesses to testify, and “failed to allow respondent to study and examine reports to build [a] defense.” We are not persuaded.

Ordinarily, we would not review the respondent’s claim because it was not raised at trial, and therefore, the record is inadequate to review the claim. See In re Dylan C., 126 Conn. App. 71, 90-91, 10 A.3d 100 (2011). Furthermore, the respondent’s claim that he was prejudiced by counsel’s alleged conduct is merely the statement of a legal conclusion and is not adequately briefed. Id.; see also In re Jah’za G., 141 Conn. App. 15, 36, 60 A.3d 392, cert. denied, 308 Conn. 926, 64 A.3d 329 (2013). Nonetheless, the evidence on the face of the record demonstrates that the respondent has failed to establish that he received incompetent representation at his termination of parental rights trial.

“In Connecticut, a parent who faces the termination of his or her parental rights is entitled, by statute, to the assistance of counsel. . . . Because of the substantial interests involved, a parent in a termination of parental rights hearing has the right not only to counsel but to the effective assistance of counsel. ... In determining whether counsel has been ineffective in a termination proceeding, we have enunciated the following standard: The range of competence . . . requires not errorless counsel, and not counsel judged ineffective by hindsight, but counsel whose performance is reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in [that particular area of the] law .... The respondent must prove that [his] attorney fell below this standard of competency and also that the lack of competency contributed to the termination of parental rights.” (Citations omitted; internal quotation marks omitted.) In re Amanda A., 58 Conn. App. 451, 459-60, 755 A.2d 243 (2000). “In making such a claim, it is the responsibility of the respondent to create an adequate record pointing to the alleged ineffectiveness and any prejudice the respondent claims resulted from that ineffectiveness.” In re Christopher C., 129 Conn. App. 55, 59, 20 A.3d 689 (2011). “In absence of findings by the trial court in this regard, we directly review the trial court record.” In re Jah’za G., supra, 141 Conn. App. 36; see also In re Dylan C., supra, 126 Conn. App. 90-91; In re Christopher C., supra, 58-59.

In regard to the respondent’s assertion that counsel did not receive the commissioner’s exhibits until trial and failed to review them, the record indicates that, although counsel did not receive the exhibits until the day of trial, he did review them. Specifically, the court granted a recess from trial to allow counsel to review the exhibits, and upon returning, counsel stated that he needed time to review the exhibits with the respondent but did not indicate that he himself needed more time. On the basis of our review, we conclude that the respondent’s remaining claims of his counsel’s inadequacies are not supported by the record. The respondent has not established that his attorney fell below the standard of competency. In re Amanda A., supra, 58 Conn. App. 459-60; see also In re Dylan C., supra, 126 Conn. App. 93 (“[T]he respondent has not identified where in the record, and we find nowhere in the record, that [he] alerted the court to [his] dissatisfaction with counsel and asked the court to appoint new counsel. . . . The record discloses that the respondent’s parental rights were terminated on the strength of the petitioner’s case . . . .” [Footnote omitted.]).

Ill

The respondent claims that the court improperly denied the respondent’s motion to transfer guardianship of the child to the paternal grandmother. Specifically, the respondent challenges the court’s finding that the grandmother declined to serve as a resource when contacted by the department in 2011, citing her age an impediment. The respondent further argues that the court’s denial of his motion to transfer guardianship was an abuse of discretion. Because the court’s factual finding was not clearly erroneous, we are not persuaded that the court’s denial of the respondent’s motion was a clear abuse of discretion.

The following additional facts and procedural history are relevant to this claim. On July 27, 2011, prior to her voluntary relinquishment of parental rights, Sena’s mother filed a motion for a transfer of guardianship to Sena’s paternal grandmother. This motion was adopted by the respondent on August 24,2012, at the commencement of his termination of parental rights trial and was consolidated with trial.

The court found, in its May 3, 2013 written decision, that “[p]atemal grandmother, while well-intentioned, is not suitable. She was seventy-six years old at the time of trial, living alone in senior housing, and in declining health. She could not stand up to her son. She could not set boundaries for her son. . . . [The respondent’s] niece testified as to her willingness to assist her grandmother, but her assistance would be limited and insufficient. Grandmother was anxious and tearful at meetings with [the department]. She has little interaction with Sena during her visits, often sitting in a chair and watching her. She ends every visit early. Recently the child became distraught at one visit and grandmother did not know how to console the child, though the child was consoled by a total stranger. Grandmother is doing what her son tells her to do, not necessarily because it is right for Sena, but because he demands it. Sena needs permanency and stability. . . . The plan to transfer guardianship to paternal grandmother for the near term offers only a future of instability and poor parenting.”

First, the respondent challenges the court’s finding that, “[w]hen contacted by [the department] in 2011 with respect to being a resource, grandmother declined and indicated that her age was an impediment.” The respondent asserts that this finding was clearly erroneous because the grandmother testified that she was never asked by the department to serve as a resource. A review of the record indicates that the grandmother did testify that she was never asked by the department to be a foster placement. On the other hand, Little, a social worker for the department, testified that the department asked the grandmother about becoming a placement resource in March of 2011, and that the grandmother responded that she was not in a position to care for Sena due to her age. As a result, the record indicates that there was evidence before the court that the paternal grandmother declined to serve as a foster resource. As the court chose to credit this testimony over conflicting testimony from the grandmother herself, and because “[i]t is well established that [i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony”; (internal quotation marks omitted) In re Davonta V., 285 Conn. 483, 488, 940 A.2d 733 (2008); we cannot say that the court’s finding was clearly erroneous.

Next, the respondent claims that the court should have granted his motion to transfer guardianship to the paternal grandmother. Specifically, the respondent asserts that the court improperly relied upon the grandmother’s age, and that the court impermissibly failed to credit testimony that indicated that she has a family network to assist in the upbringing of Sena.

“Questions of custodial placement generally are resolved by a factbound determination of what is in the best interest of the child ... as shown by a fair preponderance of the evidence. ... To determine whether a custodial placement is in the best interest of the child, the court uses its broad discretion to choose a place that will foster the child’s interest in sustained growth, development, well-being, and in the continuity and stability of its environment. . . . We have stated that when making the determination of what is in the best interest of the child, [t]he authority to exercise the judicial discretion under the circumstances revealed by the finding is not conferred upon this court, but upon the trial court, and ... we are not privileged to usurp that authority or to substitute ourselves for the trial court. . . . Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference. . . . In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did. . . . [G]reat weight is given to the judgment of the trial court because of [the court’s] opportunity to observe the parties and the evidence. . . . [Appellate courts] are not in a position to second guess the opinions of witnesses, professional or otherwise, nor the observations and conclusions of the [trial court] when they are based on reliable evidence.” (Citation omitted; internal quotation marks omitted.) In re Valerie G., supra, 132 Conn. App. 662-63.

Here, contrary to the respondent’s assertion, the age of the paternal grandmother was not the sole basis for the court’s denial of the respondent’s motion; instead, the court’s opinion is clear that, while her age was one factor, the court found the paternal grandmother inadequate as a potential guardian primarily out of a concern for her declining health, the negative influence over her held by the respondent, and Sena’s need for permanency and stability. Furthermore, the court acknowledged the willingness of extended family to assist, but determined that assistance would be limited and insufficient. Viewing the record as a whole, we are persuaded that the court carefully reviewed the evidence presented by all of the parties and decided reasonably that vesting guardianship of Sena in her paternal grandmother was not in Sena’s best interest.

IV

As his final claim, the respondent asserts that the department did not make reasonable efforts to reunify him with his child, as required by § 17a-112 (j) (1). Specifically, the respondent asserts that the department failed to adequately accommodate visitation and notification with his incarceration and “did not take into account [the respondent’s] right to raise daughter.” The commissioner responds that this claim is moot because the respondent has failed to challenge the court’s finding that he was unable to benefit from reunification efforts. We agree with the commissioner.

Section 17a-112 (j) provides in relevant part: “The Superior Court, upon notice and hearing as provided in sections 45a-716 and 45a-717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that (1) the [department] has made reasonable efforts to locate the parent and to reunify the child with the parent in accordance with subsection (a) of section 17a-111b, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts . . . (Emphasis added.) Here, the court found, by clear and convincing evidence, that (1) the department made reasonable efforts to reunify the respondent with his child and (2) the respondent was unwilling or unable to benefit from those efforts.

The claim now raised by the respondent was addressed by our Supreme Court in In re Jorden R., 293 Conn. 539, 979 A.2d 469 (2009). Interpreting the language of § 17a-112 (j) (1), the court stated: “Because the two clauses are separated by the word ‘unless,’ this statute plainly is written in the conjunctive. Accordingly, the department must prove either that it has made reasonable efforts to reunify or, alternatively, that the parent is unwilling or unable to benefit from reunification efforts. Section 17a-112 (j) clearly provides that the department is not required to prove both circumstances. Rather, either showing is sufficient to satisfy this statutory element.” (Emphasis in original.) Id., 552-53.

Here, the respondent has not challenged the court’s finding that he was unable or unwilling to benefit from reunification efforts. This unchallenged finding provides an independent basis for meeting the requirement of § 17a-112 (j) (1). See id., 556; In re Christopher C., 134 Conn. App. 464, 467-69, 39 A.3d 1122 (2012). As a result, review of the respondent’s claim that the department failed to make reasonable efforts to reunify the respondent with his child would be improper because it cannot afford him any practical relief, and therefore, is moot. See In re Jorden R., supra, 293 Conn. 557; In re Christopher C., supra, 469. Accordingly, because it is “not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practice relief can follow”; (emphasis omitted; internal quotation marks omitted) In re Alison M., supra, 127 Conn. App. 206; we decline to review this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The parental rights of Sena’s mother were terminated by her consent on August 24, 2012. She is not a party to this appeal. Accordingly, we refer in this opinion to the respondent father as the respondent, and to the respondent mother as mother.

       General Statutes § 17a-112 reads in relevant part: “Q) The Superior Court, upon notice and hearing as provided in sections 45a-716 and 45a-717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that (1) the [department] has made reasonable efforts to locate the parent and to reunify the child with the parent in accordance with subsection (a) of section 17a-lllb, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts ... (2) termination is in the best interest of the child, and (3) . . . (B) the child (i) has been found by the Superior Court or the Probate Court to have been neglected or uncared for in a prior proceeding . . . .”

       Specifically, the court determined, “In sum, [the respondent] failed to comply with any of [the department’s] services or significant special specific step other than visitation, and that service was suspended due to [the respondent’s] inappropriate behaviors and failure to appear. [The respondent] was incarcerated in June, 2011, and may remain so until 2015. The department can provide no services while [he] is in jail, and there was no credible testimony that the services provided will assist [him] when he is released. There was not even consistent testimony as to what services [he] has engaged in while incarcerated. He has not completed a long-term substance abuse program with any lasting success at any time in his life. His prognosis for success is very poor.
      “[The department] made reasonable efforts to reunify Sena with [the respondent] and [he] was unable or unwilling to benefit from those efforts. . . . [The respondent] has not shown the wherewithal to meet his own needs. He has shown no ability to meet his daughter’s needs while he is incarcerated, and he has no present parenting skills.
      “The department has demonstrated that there is no reason to encourage the belief that within a reasonable time, if ever, [the respondent] could assume a responsible position in his daughter’s life. The adjudicatory grounds have been proven by clear and convincing evidence.” The court determined that it was in the best interest of Sena to terminate the respondent’s parental rights to free Sena for adoption.

       The respondent also asserts that, at trial, counsel for the commissioner impermissibly objected during testimony in attempt to “stop fact finding.” As the respondent’s allegation lacks legal support and substantive analysis, and the record indicates that counsel was objecting to the form of the question, in that the respondent’s counsel incorrectly identified the author of a document, we conclude that this allegation is without merit.

       The respondent also challenges four other findings of the court that are either inadequately briefed or without merit. First, the respondent challenges the court’s finding that “[a]t one point, the [department] worker was advised by paternal grandfather to avoid meeting [the respondent] at the next visit for the worker’s own safety.” The respondent asserts that this finding is based upon an impermissible reliance on hearsay testimony that was admitted in violation of the respondent’s rights under the sixth amendment. A review of the record indicates that the court admitted this testimony not for the truth of the matter asserted, in that the respondent actually did threaten the worker’s safety, but that it was admitted solely as evidence that the department received such a call. To the extent that the respondent asserts a violation of Ms constitutional rights, the respondent has failed to provide analysis or substantive discussion. “Where a claim receives only cursory attention in the brief without substantive discussion, it is deemed to be abandoned.” In re Shyliesh H., 56 Conn. App. 167, 181, 743 A.2d 165 (1999). The respondent’s challenge is inadequately briefed and is deemed abandoned. See In re Amanda A., 58 Conn. App. 451, 458-59, 755 A.2d 243 (2000).
      Second, the respondent asserts that Kelly Rogers, a psychologist, testified that he met with two prison counselors, and that “[s]uch communications are absolutely privileged.” The respondent failed to properly cite where in the transcript Rogers testified about meeting with prison counselors. While the respondent cites one case, Cabrera v. Cabrera, 23 Conn. App. 330, 580 A.2d 1227, cert. denied, 216 Conn. 828, 582 A.2d 205 (1990), and General Statutes § 52-146c, wMch establishes the psychologist-patient privilege, this claim lacks factual support, analysis, and substantive discussion. We decline to review tMs claim because it is considered abandoned. See In re Amanda A., supra, 58 Conn. App. 458-59; see also In re Isaiah J., 140 Conn. App. 626, 638-39, 59 A.3d 892 (“In [the respondent’s] brief of tMs claim, the respondent addresses none of the evidence presented at trial with specificity. The respondent’s argument is a series of statements paraphrasing the nature of the claim. Because [c]laims on appeal that are inadequately briefed are deemed abandoned ... we are not required to review this claim” [Citation omitted; internal quotation marks omitted.]), cert. denied, 308 Conn. 926, 64 A.3d 333, cert. denied sub nom. Megan J. v. Katz, U.S. , 134 S. Ct. 317, 187 L. Ed. 2d 224 (2013).
      Third, the respondent asserts that “nowhere in the transcript did [Rogers] recommend termination.” It is unclear, however, why the respondent makes tMs claim because the court did not make a finding that Rogers recommended termination. Further, the respondent failed to cite, and we find no reference, to the court terminating the respondent’s parental rights upon the basis of such a recommendation by Rogers. Accordingly, tMs claim is without merit.
      Fourth, the respondent challenges the court’s finding that Ms mother declined guardiansMp of Sena and indicated to the department that her age was an impediment. We address tMs challenge m part El of tMs oprnion.

       The respondent also requests a review of conflict of interest pursuant to General Statutes § 46b-129. The respondent asserts that a conflict exists because Sena’s attorney and guardian ad litem, Priscilla Hammond, “has dealt with family of mother on a professional level wMch had custody of mother during court case in past.” The respondent also asserts that he “was not allowed to be involved with consent of mother to her rights. Respondent must be involved in all of case.” The respondent has failed to brief, however, how Hammond’s representation amounted to a conflict of interest that adversely affected his interest. We therefore decline to review this claim. See Bove v. Bove, 128 Conn. App. 811, 817, 20 A.3d 31 (“Although we are solicitous of [self-represented] litigants, the rules of practice cannot be ignored completely. . . . We have considered [this claim] and conclude that [it is] inadequately briefed [and] the record on which to review . . . the [claim] is inadequate . . . .” [Citation omitted.]), cert. denied, 302 Conn. 904, 23 A.3d 1244 (2011).

       Primarily, the respondent “is not sufficiently convinced that [the] trial court did in fact protect [the] constitutional rights of [the] family.” The respondent’s concern is briefed not with substantive discussion and analysis but instead by a series of statements asserting the importance of family integrity. As a result, this claim is insufficiently briefed and deemed abandoned. See In re Isaiah J., supra, 140 Conn. App. 638-39.


source: Caselaw Access Project

author: LAVINE, J.

license: Public Domain

text:
    RECALL TOTAL INFORMATION MANAGEMENT, INC., ET AL. v. FEDERAL INSURANCE COMPANY ET AL.
    (AC 34716)
    Lavine, Keller and Sullivan, Js.

      Argued October 11, 2013
    officially released January 14, 2014

      Edmund M. Kneisel, pro hac vice, with whom were Lawrence G. Rosenthal, and, on the brief, Matthew T. Wax-Krell, and Brian K. Epps, pro hac vice, for the appellants (plaintiffs).

      MelicentB. Thompson, with whom was Eric S. Lank-ton, for the appellee (named defendant).

      Robert D. Laurie, with whom, on the brief, was Elizabeth F. Ahlstrand, for the appellee (defendant Scottsdale Insurance Company).
   Opinion

LAVINE, J.

This breach of an insurance contract dispute involves the interpretation of a personal injury clause in a commercial general liability policy. The plaintiffs, Recall Total Information Management, Inc. (Recall) and Executive Logistics, Inc. (Ex Log), appeal from the grant of summary judgment in favor of the defendants, Federal Insurance Company (Federal) and Scottsdale Insurance Company (Scottsdale). On appeal, the plaintiffs claim that the trial court improperly construed the insurance contract at issue by concluding that (1) the defendants did not have a duty to defend, and (2) the losses associated with a data-loss incident were not personal injuries. We affirm the judgment of the trial court.

The following facts, as agreed to in the parties’ stipulation of facts, are germane to the resolution of this appeal. In October, 2003, Recall entered into a vital records storage agreement with International Business Machines (IBM) whereby Recall agreed to transport and store various electronic media belonging to IBM. In February, 2006, Recall entered into a subcontract with Ex Log to provide transportation services for the electronic media. Under the subcontract with Recall, Ex Log was required to maintain various insurance policies, including a $2 million commercial general liability policy and a $5 million umbrella liability policy, all naming Recall as an additional insured. The defendants issued the required insurance.

On February 23, 2007, Ex Log dispatched a transport van to move computer tapes (tapes) from an IBM facility in New York to another location. During transport, a cart containing the tapes fell out of the back of the van near a highway exit ramp. The parties agree that approximately 130 of the tapes were removed from the roadside by an unknown person and never recovered.

The tapes that were never recovered contained employment-related data for some 500,000 past and present IBM employees. This information included social security numbers, birthdates, and contact information. After being notified that the tapes had been lost, IBM immediately took steps to prevent harm from any dissemination of this personal information. These steps included notification to potentially affected employees and the establishment of a call center to answer inquiries regarding the lost data. IBM also provided those who could be affected by the loss with one year of credit monitoring to protect against identity theft. IBM claimed a total of more than $6 million in expenses for the mitigation measures it took and entered into a negotiated settlement with Recall for the fall amount of the loss.

Thereafter, Recall sought indemnification from Ex Log. Ex Log then filed claims against the policy, but the defendants denied coverage. Following the denial of coverage, Recall and Ex Log entered into a settlement agreement and on June 22, 2009, Ex Log signed a promissory note in favor of Recall for $6,419,409.79 and assigned all of its rights under the policy to Recall.

The plaintiffs commenced the present action against the defendants on July 24, 2009. The complaint alleged several counts, including breach of an insurance contract. The defendants filed motions for summary judgment with respect to the count alleging breach of an insurance contract on the ground that, as a matter of law, they had no duty to defend and that the plaintiffs’ loss was not covered by the policy. The trial court granted the motions for summary judgment, concluding that the defendants had not waived their coverage defenses and that the plaintiffs’ losses were not covered under either the property damage or the personal injury provisions of the policy.

With respect to whether the defendants had waived their coverage defenses, the trial court concluded that, under the policy, the defendants only had a duty to defend against a “suit.” The trial court found that the term “suit” was unambiguous and declined to interpret that term to include mere negotiations. The trial court then turned to whether the loss associated with the lost tapes was covered under the terms of the policy. The trial court addressed whether the loss was covered under the property damage provision of the policy and determined that the data loss constituted intangible property, which was expressly excluded from coverage.

Next, the trial court addressed whether there was coverage under the personal injury provision of the policy. The trial court noted that the plaintiffs did not allege that the information contained on the tapes was ever accessed by anyone following the incident in which the tapes were lost. Accordingly, the trial court reasoned: “[Tjhere has also been no injury to a person. IBM paid notification costs, but IBM is not a person and there is no allegation that its right to privacy was violated. Additionally, there is no evidence—even now, some four years after the incident—that any person suffered identity theft or that the privacy of any IBM employee was violated as a result of the loss or theft of the data tapes.” The trial court then rendered summary judgment in favor of the defendants. The plaintiffs filed a motion for reargument, which was denied. This appeal followed.

On appeal, the plaintiffs contend that the trial court erred when it construed the policy and concluded that (1) the defendants did not have a duty to defend, and (2) the loss of the tapes did not constitute a personal injury. We disagree.

“Our standard of review of a trial court’s decision to grant a motion for summary judgment is well established. . . . The judgment sought shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... A material fact is a fact that will make a difference in the result of the case. . . . The facts at issue are those alleged in the pleadings. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. . . . [T]he party adverse to such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts. . . .

“While the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion ... a party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment. ... On appeal, however, the burden is on the opposing party to demonstrate that the trial court’s decision to grant the movant’s summary judgment was clearly erroneous.” (Citations omitted; internal quotation marks omitted.) Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn. App. 582, 590-91, 715 A.2d 807 (1998). Finally, “ [o]ur review of the trial court’s decision to grant [a] motion for summary judgment is plenary. . . . Moreover, [construction of a contract of insurance presents a question of law for the court which this court reviews de novo.” (Citation omitted; internal quotation marks omitted.) R. T. Vanderbilt Co. v. Continental Casualty Co., 273 Conn. 448, 456, 870 A.2d 1048 (2005).

I

We first address the issue of whether the defendants have waived their coverage defenses. The plaintiffs contend that the trial court erred in ruling that the defendants did not have a duty to defend. The trial court found, on the basis of the policy, that the defendants had not breached their duty to defend, and consequently, had not waived their coverage defenses pursuant to our Supreme Court’s ruling in Black v. Goodwin, Loomis & Britton, Inc., 239 Conn. 144, 160, 681 A.2d 293 (1996) (when insurer breaches duty to defend, insurer will be bound when insured enters into settlement agreement in good faith). On the basis of our own construction of the policy, we agree with the trial court.

“Where, as in the present case, an insured alleges that an insurer improperly has failed to defend and provide coverage for underlying claims that the insured has settled the insured has the burden of proving that the claims were within the policy’s coverage . . . .” Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., 249 Conn. 36, 55, 730 A.2d 51 (1999).

The policy provides, in relevant part, that: “[sjubject to all of the terms and conditions of this insurance, we will have the right and duty to defend the insured against a suit, even if such suit is false, fraudulent, or groundless.” The policy defines a “suit” as “a civil proceeding in which damages, to which this insurance applies are sought . . . [and] includes arbitration or other dispute resolution proceeding ... to which the insured must submit or does submit with our consent.”

The plaintiffs’ claim is based on the following additional facts. Following the incident in which the tapes were lost, IBM retained a consultant and took remedial actions. IBM also made a demand against Recall on March 30, 2007, for all of the costs that it incurred or would incur in connection with the lost tapes. Recall, as an additional insured under Ex Log’s policy, notified the defendants of IBM’s demand; however, both of the defendants denied coverage and declined to participate in the negotiations between IBM and Recall. On April 28, 2008, the negotiations concluded and Recall agreed to reimburse IBM $6,192,468.30.

Recall maintains that it engaged in nearly two years of settlement negotiations—first with IBM, then with Ex Log—and that such negotiations constituted a “suit” or “other dispute resolution proceeding,” which the defendants had a duty to defend. The plaintiffs argue that because the defendants have breached their duty to defend, they are liable for the full amount of Recall’s settlement with IBM. We do not accept this unduly broad reading of the policy.

“[Construction of a contract of insurance presents a question of law for the court which this court reviews de novo. ... An insurance policy is to be interpreted by the same general rules that govern the construction of any written contract .... In accordance with those principles, [t]he determinative question is the intent of the parties, that is, what coverage the . . . [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy. ... If the terms of the policy are clear and unambiguous, then the language, from which the intention of the parties is to be deduced, must be accorded its natural and ordinary meaning. . . . Under those circumstances, the policy is to be given effect according to its terms. . . . When interpreting [an insurance policy], we must look at the contract as a whole, consider all relevant portions together and, if possible, give operative effect to every provision in order to reach a reasonable overall result. ...

“In determining whether the terms of an insurance policy are clear and unambiguous, [a] court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity .... Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms. ... As with contracts generally, a provision in an insurance policy is ambiguous when it is reasonably susceptible to more than one reading. . . . Under those circumstances, any ambiguity in the terms of an insurance policy must be construed in favor of the insured because the insurance company drafted the policy. ... This rule of construction may not be applied, however, unless the policy terms are indeed ambiguous.” (Internal quotation marks omitted.) National Grange Mutual Ins. Co. v. Santaniello, 290 Conn. 81, 88-89, 961 A.2d 387 (2009).

On the basis of a plain reading of the policy, we cannot conclude that the term “suit” or phrase “other dispute resolution proceeding” was meant to encompass the mere negotiations that took place in this case. First, the plaintiffs fail to cite any authority for this interpretation. Second, such an interpretation would create internal inconsistency within the policy as it would merge the term “claim” with “suit.” For example, under the express terms of the policy, the insured owes a duty to the insurer to provide notice of both “claims” and “suits,” but the insurer only has the duty to defend against “suits.” Our Supreme Court has held that “a demand letter from a potential plaintiff in a personal injury action is a claim. Such a demand letter falls short of a suit, broadly defined as ‘an attempt to recover a right or claim through legal action’ . . . because it has no immediate legal effect and therefore cannot be considered legal action.” (Citation omitted; emphasis omitted.) R.T. Vanderbilt Co. v. Continental Casualty Co., supra, 273 Conn. 469.

Thus, to construe “suit” to include mere negotiations following a demand, would obliterate the distinction between “suit” and “claim.” This construction must be rejected. “A construction of an insurance policy which entirely neutralizes one provision should not be adopted if the contract is susceptible of another construction which gives effect to all of its provisions and is consistent with the general intent.” (Internal quotation marks omitted.) Hansen v. Ohio Casualty Ins. Co., 239 Conn. 537, 548, 687 A.2d 1262 (1996).

We also share the concern articulated in the trial court’s memorandum of decision: “If the [settlement negotiations were] found to be an ‘other dispute resolution proceeding,’ every discussion, however informal, between an insured and a third party could be deemed a dispute resolution proceeding.” We decline to give the word “suit” such an expansive reading so at odds with its usual usage.

Finally, even if the phrase “other dispute resolution proceeding” included the negotiations that took place in the present case, this alone would not trigger the duty to defend as the policy requires that the defendants consent to the proceeding. As there is no genuine issue of material fact that the defendants did not consent to the negotiations, the duty to defend was not triggered. We agree with the trial court that the defendants have not breached their duty to defend and thus have not waived their coverage defenses.

II

We next address the plaintiffs’ claim that the trial court erred in its interpretation of the policy. The plaintiffs maintain that the personal injury provision in the policy covered the cost of notifying the affected employees following the loss of the tapes. Specifically, the plaintiffs claim that (A) the loss of the tapes constitutes personal injury as defined in the policy, and (B) the loss of the tapes triggered the remedial provisions of certain state privacy laws, such that personal injury can be presumed. We disagree.

A

In determining whether the trial court properly concluded that there was no coverage under the personal injury provision of the policy, we must examine the language of the policy as it applies to the facts alleged in the pleadings and averred in the parties’ affidavits submitted in conjunction with the summary judgment proceedings. See Missionaries of the Co. of Mary, Inc. v. Aetna Casualty & Surety Co., 155 Conn. 104, 110, 230 A.2d 21 (1967). In interpreting the language of the policy, we rely on the principles of construction as set forth in part I of this opinion.

The policy provides, in relevant part: “[W]e will pay damages that the insured becomes legally obligated to pay by reason of liability: imposed by law; or assumed in an insured contract; for advertising injury or personal injury to which this coverage applies.” The policy defines “personal injury” as: “injury, other than bodily injury, property damage or advertising injury, caused by an offense of . . . electronic, oral, written or other publication of material that . . . violates a person’s right to privacy.” (Emphasis added.)

Turning to the complaint, the plaintiffs allege: “[b]y virtue of the loss and theft of the IBM tapes . . . the personal information that was stored on the tapes, including social security information and other private data, has been published to the thief and/or other persons unknown . . . thereby subjecting [the plaintiffs] to potential claims and liability . . . including liability for the cost of notifying the persons whose data was lost and for providing credit monitoring services to persons who requested it.” (Emphasis added.)

On the basis of our review of the policy, we conclude that personal injury presupposes publication of the personal information contained on the tapes. Thus, the dispositive issue is not loss of the physical tapes themselves; rather, it is whether the information in them has been published. The plaintiffs contend that the mere loss of the tapes constitutes a publication, and has alleged that the information was published to a thief. The plaintiffs have failed to cite any evidence that the information was published and thereby failed to take their allegation beyond the realm of speculation. See, e.g., Norse Systems, Inc. v. Tingley Systems, Inc., supra, 49 Conn. App. 591 (speculation or conjecture will not overcome motion for summary judgment). As the complaint and affidavits are entirely devoid of facts suggesting that the personal information actually was accessed, there has been no publication.

The plaintiffs argue that the trial court used an improper definition of publication when it construed the definition of personal injury. In its memorandum of decision, the trial court held that publication required communication “to a third party,” adopting the definition of publication our Supreme Court has instructed we use in the defamation context. See Springdale Donuts, Inc. v. Aetna Casualty & Surety Co. of Illinois, 247 Conn. 801, 810, 724 A.2d 1117 (1999).

The plaintiffs urge that we adopt the definition of publication set forth in Webster’s Third New International Dictionary, which defines publication as the “communication (as of news or information) to the public.” Even if we accept this definition, however, our analysis would remain unchanged. Regardless of the precise definition of publication, we believe that access is a necessary prerequisite to the communication or disclosure of personal information. In this regard, the plaintiffs have failed to provide a factual basis that the information on the tapes was ever accessed by anyone.

There is nothing in the record suggesting that the information on the tapes was ever accessed by anyone. A letter from IBM to the affected employees, a copy of which accompanied the affidavit of Dawn Zanfardino, a data privacy manager at IBM, stated: “We have no indication that the personal information on the missing tapes, which are not the type that can be read by a personal computer, has been accessed or has been used for any improper purpose.” Moreover, because the parties stipulated that none of the IBM employees have suffered injury as a result of the tapes being lost, we are unable to infer that there has been a publication. As there is no genuine issue of material fact that there was publication, we agree with the trial court that the settlement Recall reached with IBM was not covered under the policy’s personal injury provision. See QSP, Inc. v. Aetna Casualty & Surety Co., 256 Conn. 343, 356, 773 A.2d 906 (2001) (“[w]here a plaintiff cannot prove a fundamental element of the underlying tort, e.g., defamation, a claim for personal injury coverage will be denied”).

B

Finally, the plaintiffs claim that certain statutes required IBM to notify its affected employees of the data loss and that the triggering of those statutes are “presumptive invasions of privacy.” Essentially, the plaintiffs contend that when such a notification statute is triggered, there has been an invasion of privacy. We disagree with this logic.

The plaintiffs cite two statutes, one in New York; N.Y. Gen. Bus. Law § 899-aa (2) (McKinney 2005); and one in Connecticut; General Statutes § 36a-701b; both of which require certain actions be taken when personal information is compromised.

In this case, IBM claims to have suffered a loss of more than $6 million related to the alleged compliance with these notification statutes. While we do not speculate as to whether these expenditures were required by law, we conclude that they do not constitute a personal injury as defined in the policy. These notification statutes simply do not address or otherwise provide for compensation from identity theft or the increased risk thereof, they merely require notification to an affected person so that he may protect himself from potential harm. Accordingly, merely triggering a notification statute is not a substitute for a personal injury. See, e.g., QSP, Inc. v. Aetna Casualty & Surety Co., supra, 256 Conn. 376 (coverage cannot extend to “other torts, not specifically enumerated, which bear [only] some similarity to those Usted in the pohcy” [internal quotation marks omitted]). We therefore conclude that the trial court properly granted the defendants’ motions for summary judgment.

The judgment is affirmed.

-In this opinion the other judges concurred.

       Sinclair Risk and Financial Services, LLP, was a defendant before the trial court but is not a party to this appeal.

       Federal issued a commercial general liability policy containing a per occurrence limit of $1 million and an aggregate limit of $2 million. Scottsdale issued a commercial liability umbrella policy containing a per occurrence limit of $4 million. Although these are two separate policies, the relevant provisions are nearly identical. For the purposes of this opinion, we use the term “poMey” in the singular and quote the language from the policy issued by Federal.

       In addition to providing credit monitoring to the affected employees, IBM provided credit restoration to some of its employees. The parties agree that no identity theft incident could be traced to the loss of the IBM tapes, however.

       This determination is not challenged on appeal.

       We interpret the court’s statement to mean that IBM is not a person for the purposes of privacy law. See 3 Restatement (Second), Torts, Invasion of Privacy § 6521, comment (c), p. 403 (1977) (“[a] corporation, partnership or unincorporated association has no personal right to privacy”).

       The parties stipulated that the remaining counts alleged against the defendants are not viable in the absence of a breach of an insurance contract. The trial court rendered judgment in accordance with the parties’ stipulation. Thus, there has been a final judgment for the purposes this appeal. See Practice Book § 61-3.

       The settlement agreement between IBM and Recall specifically did not waive Recall’s liability to IBM for “any future claim by IBM for indemnity from Recall for monetary damages paid by IBM . . . .”

       We observe that the term publication may cany slightly different meanings depending on the particular privacy right at issue. As the precise definition of publication is not essential to our disposition of this appeal, we express no opinion as to whether the trial court properly adopted the definition as set forth in Springdale Donuts, Inc., and in the context of defamation.

       Indeed, there is nothing in the record that suggests the unknown party even recognized that the tapes contained personal information.


author: FLYNN, J.

text:
    STATE OF CONNECTICUT v. MYCALL OBAS
    (AC 34598)
    DiPentima, C. J., and Sheldon and Flynn, Js.

      Argued October 22, 2013
    officially released January 14, 2014

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom were Sean McGuinness, deputy assistant state’s attorney, and, on the brief, Stephen J. Sedensky III, state’s attorney, for the appellant (state).

      Neal Cone, senior assistant public defender, with whom was Rosemarie Chapdelaine, senior assistant public defender, for the appellee (defendant).
   Opinion

FLYNN, J.

At the heart of the case before us is the defendant’s request to be exempted from continued registration as a sex offender pursuant to General Statutes § 54-251. The defendant, Mycall Obas, was convicted of one count of sexual assault in the second degree in violation of General Statutes (Rev. to 2001) § 53a-71 (a) (1), resulting from a 2002 offense when he was age eighteen, committed against a minor, age fifteen, who could not by law consent. The court granted the defendant’s motion made approximately seven years after his guilty plea and sentencing, which, among other things, had imposed that condition of probation. Pursuant to General Statutes § 54-96, the state requested permission to appeal from the granting of the defendant’s motion, which the court denied. The state now appeals from that denial of the right to appeal, as well as the court’s judgment granting an exemption from registering and releasing the defendant of certain other conditions imposed at his sentencing. It does so on grounds that (1) permission to appeal was improperly denied and (2) any exemption from registration must be made at the time of the defendant’s sentencing, or not at all. As a third reason for appeal, the state argues that registration as a sex offender and the condition of no unsupervised contact with any minor under sixteen years of age was part of the plea bargain struck on December 11, 2003, and that, once the court accepted it, as a contract, the court was without authority to change it in a later proceeding. We disagree and conclude that although the right to appeal was improvidently denied to the state, the court had authority to grant the exemption and modification of the defendant’s probationary conditions. Accordingly, we affirm that aspect of the judgment of the trial court.

The following facts and procedural history inform our review. The defendant pleaded guilty to one count of sexual assault in the second degree on December 11, 2003. The plea stemmed from a 2002 incident when the defendant was eighteen years old and a high school senior. The victim was a fifteen year old student who attended the same school as the defendant. According to the prosecutor, the victim never complained that her sexual involvement with the defendant was not consensual.

The defendant cooperated fully with the police investigation and agreed to testify against his codefendant at trial. As part of the plea agreement struck between the defendant and the state, the defendant received a ten year sentence of imprisonment, suspended after the mandatory minimum nine months, followed by ten years of probation. The prosecutor explained to the court: “The conditions would be: to register as a sex offender, that’s a ten year registration .... [The] sex offender evaluation and any treatment deemed necessary. No contact with any individual under, unsupervised contact, with anyone under [sixteen] and no contact, whatsoever, directly or indirectly with the victim.” There was no agreement between the defendant and the state that the defendant would never seek modification of the conditions of probation.

Following the prosecutor’s recitation of the underlying facts, plea agreement, and recommendation for a split sentence followed by probation with special conditions, the court canvassed the defendant.

“The Court: You’ve heard the agreed upon recommendation, which is ten years, execution suspended after nine months, which is a mandatory minimum, ten years of probation, standard issues—standard conditions of probation, special conditions of sex offender evaluation and treatment, as deemed necessary and appropriate by Probation. Registration under sex offender status for [ten] years, no contact with the victim and no unsupervised contact with anyone under the age of [sixteen] years of age. Do you understand that to be the agreed upon recommendation?

“The Defendant: Yes, Your Honor.”

The court accepted the defendant’s plea and imposed sentence in accordance with the agreed upon disposition. The defendant was ordered, “[i]n addition to the standard conditions of probation,” to register as a sex offender for a period of ten years, to undergo sex offender evaluation and treatment as deemed necessary, to have no unsupervised contact with anyone under age sixteen and to have no contact with the victim.

Upon his release from custody in November, 2004, the defendant began reporting to the Office of Adult Probation, registering as a sex offender and receiving sex offender treatment. He violated his probation in 2005 by failing to report a change of address following his parents’ eviction from their home. For this violation, two additional years were added to his probation. Since the 2005 violation, the defendant has reported timely to his assigned probation officer, has continued to receive sex offender treatment, and has not engaged in any additional criminal activity. He earned a high school diploma, enrolled in community college and has maintained a full-time job.

In 2011, the defendant filed a motion to modify the conditions of his probation. Specifically, the defendant asked that the term of his probation be reduced and that the order that he register as a sex offender be terminated. As a predicate for the hearing on the defendant’s motion, the court ordered him to undergo an additional psychosexual evaluation. The evaluation concluded that the defendant presented a low risk of reoffending and that he “would not be one whom the community should fear.” (Internal quotation marks omitted.) Three separate probation status reports authored by the defendant’s supervising officer in the sex offender unit lauded his rehabilitation and raised no objection to the defendant’s requested modification.

Following contested hearings on January 31, 2012, and April 20, 2012, the court, Blawie, J., exempted the defendant from the continued obligation to register as a sex offender under § 54-251. Pursuant to § 54-251 (b), the court made findings that the defendant was under nineteen years of age at the time of the offense and that registration was not required for public safety. The court also modified the probation condition prohibiting unsupervised contact with anyone under age sixteen to allow such interactions but only to the extent approved by the Office of Adult Probation. In addition, the court allowed the defendant to travel to South Africa as approved by the Office of Adult Probation. The court denied that part of the defendant’s motion in which he sought to reduce his probation from twelve years to ten years.

The state filed a motion requesting permission to appeal from the trial court’s modification order. The trial court denied the state’s request, but the state nonetheless filed this appeal. The trial court, sua sponte, issued a memorandum of decision on May 30, 2013, articulating the reasoning for its decision. The state takes the view that this action by the court was extraordinary since neither party requested an articulation. However, our Supreme Court has explained: “Although we encourage trial courts to issue memoranda of decision at the time of rendering judgment, we recognize that under certain circumstances it is permissible to render a judgment and thereafter issue a memorandum of decision.” Lauer v. Zoning Commission, 246 Conn. 251, 261, 716 A.2d 840 (1998). “A memorandum of decision becomes imperative when an appeal is taken because it provides . . . the appellate court with the basis of the trial court’s underlying reasoning for its decision.” Id., 260.

A memorandum of decision is particularly helpful here because our case law counsels a reviewing court to look to the memorandum in considering whether the trial court’s denial of the state’s request for permission to appeal constitutes an extreme abuse of discretion. See State v. Peeler, 271 Conn. 338, 409, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d 110 (2005).

I

We turn first to whether the court improperly denied the state certification to appeal, and conclude that it did.

Section 54-96 provides: “Appeals from the rulings and decisions of the Superior Court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the Supreme Court or to the Appellate Court, in the same manner and to the same effect as if made by the accused.” The statutory language appears clear on its face to permit appeals by the state only “with the permission of the [court] . . . .’’However, our state’s highest court in State v. James, 261 Conn. 395, 408 n.18, 408-409, 802 A.2d 820 (2002), essentially adopted the reasoning of Justice Shea’s dissenting opinion in State v. S &R Sanitation Services, Inc., 202 Conn. 300, 313-16, 521 A.2d 1017 (1987). In S & R Sanitation Services, Inc., Justice Shea opined: “To the extent that the [majority] opinion may rely on the elaborate discussion by the trial court of the grounds upon which it dismissed the information as its statement of ‘considered reason^]’ for denying permission to appeal, the implication is that, so long as the memorandum of decision gives more than cursory treatment to the issues, a trial judge has absolute discretion to deny permission to appeal under the statute. The legislature could never have intended to vest in a trial judge such arbitrary authority to preclude appellate review of his own decisions. It is fundamental that one cannot be a judge in his own case. Unless this principle is deemed to have been wholly disregarded in § 54-96 by making the trial judge’s determination conclusive, so long as the record demonstrates that sufficient judicial effort has been devoted to the issues, a denial of permission to appeal cannot properly be based upon the trier’s view that his judgment is correct and that any appeal therefrom would be fruitless.” Id., 314-15 (Shea, J., dissenting).

In State v. Peeler, supra, 271 Conn. 408, our Supreme Court set forth the appropriate standard to review appeals where the trial court has denied the state the right to appeal pursuant to § 54-96. “As a general proposition ... § 54-96 authorizes the state to appeal questions of law in a criminal case only if the trial court grants permission to appeal. Section 54-96, however, does not preclude an appeal by the state when the denial was so arbitrary as to constitute an extreme abuse of discretion rendering the denial ineffective. In such cases the statute’s condition requiring the court’s permission to appeal cannot serve to insulate a trial court from review by this court; rather, the statute as a whole remains operative to allow appeal by the state. . . . Although we accord great deference to the trial court’s discretionary rulings on these matters, that does not mean that its decision is shielded from our scrutiny. . . . Section 54-96 does not deprive this court of jurisdiction simply because the trial court gave considered reasons when it denied the state permission to appeal. . . . Confidence in our judicial system would be severely eroded if the trial court had the authority to dismiss [the penalty phase] against [a] defendant . . . on an unsound premise, and could then insulate its decision from appellate review. . . . Consequently, this court will review a trial court’s decision denying the state an appeal and will not uphold the denial if the record manifests a clear and extreme abuse of discretion or [if] injustice appears to have been done.” (Citations omitted; internal quotation marks omitted.) Id., 408-409.

“[I]n the context of evaluating whether a court has abused its discretion in denying requests for certification or permission to appeal, we repeatedly have applied the criteria set forth in Lozada v. Deeds, 498 U.S. 430, 432, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991). See, e.g., State v. James, [supra, 261 Conn. 405-10] (denial of state’s request for permission to appeal from court’s ruling that police lacked probable cause to arrest); Seebeck v. State, 246 Conn. 514, 534, 717 A.2d 1161 (1998) (denial of request for certification to appeal from denial of petition for new trial); Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994) (denial of petition for certification to appeal from denial of writ of habeas corpus). The Lozada inquiry was established in order to determine whether a petitioner has made the requisite substantial showing of the denial of a federal right for the issuance of the required certificate of probable cause to appeal the denial of federal habeas relief .... In Lozada, the United States Supreme Court held that the required substantial showing was made if the petitioner [1] demonstrate [s] that the issues are debatable among jurists of reason; [2] that a court could resolve the issues in a different manner; or [3] that the questions are adequate to deserve encouragement to proceed further. ... In the federal courts, the probable cause certificate serves the same policy goal as the granting of permission for certification to appeal does in Connecticut, namely, to screen out frivolous appeals while still protecting the litigants’ statutory right to appellate review of adverse determinations. . . . [Consequently], we held that the Lozada criteria w[ere] appropriate in evaluating an abuse of discretion in which the state sought permission to appeal under . . . § 54-96. State v. James, supra, [405-10]. Thus, [we have made] clear that when a petitioner presents an issue on appeal that satisfies any one of the Lozada criteria, that petitioner ought to have that issue considered on appeal.” (Internal quotation marks omitted.) State v. Peeler, supra, 271 Conn. 409-10.

We conclude from all of this that despite the statutory language of § 54-96 permitting the state to appeal “with the permission of the [court],” that the state, after requesting permission to appeal, may directly appeal a question of law without the permission of the court when permission is expressly denied. On appeal, the reviewing court will determine whether the trial court’s denial constituted an extreme abuse of discretion or would work an injustice using the alternatives found in the Losada criteria. Even if the state was improvidently denied the right to appeal, the judgments may be affirmed if the facts and law so warrant that result. See, e.g., Gibson v. Commissioner of Correction, 118 Conn. App. 863, 864, 986 A.2d 303 (concluding habeas court abused its discretion by denying certification to appeal, but affirming the court’s decision on the merits), cert. denied, 295 Conn. 919, 991 A.2d 565 (2010).

We first analyze each of the state’s appellate issues in light of the criteria set forth in Losada, and conclude they both deserve appellate review. See Lozada v. Deeds, supra, 498 U.S. 432. Losada counsels that appellate review should be permitted if a substantial showing is made that the issues are debatable among jurists of reason, that a court could resolve the issues in a different manner, or that the questions are adequate to deserve encouragement to proceed further. Id.; see also State v. James, supra, 261 Conn. 404.

Two issues of law were raised by the state before the trial court, neither of which previously has been decided by the Connecticut Supreme or Appellate Courts. First, is the issue of whether § 54-251 (b) permits granting an exemption from registration after the sentence has begun, in accordance with a plea agreement, by modifying a probationary term requiring registration. Second, is the issue of whether the plea agreement barred later modification of the sex offender registration requirement and the condition of no unsupervised contact with minors under sixteen. These are questions of law on which our state’s court of last resort has not ruled, both debatable among jurists of reason and, both deserving encouragement to proceed farther. See State v. James, supra, 261 Conn. 404. We therefore conclude that the court’s denial of the state’s request for permission to appeal was improvident, and we review and decide each of the legal issues raised by the state in turn.

II

We next address the state’s claim that § 54-251 (b) does not permit the court to grant the defendant’s request for an exemption from the registration requirements for sex offenders approximately seven years after the defendant initially was required to register. We disagree.

This claim presents a question of statutory construction, over which we exercise plenary review. See State v. Burns, 236 Conn. 18, 22, 670 A.2d 851 (1996). Section 54-251 (a) provides in relevant part: “Any person who has been convicted or found not guilty by reason of mental disease or defect of a criminal offense against a victim who is a minor or a nonviolent sexual offense, and is released into the community on or after October 1, 1998, shall, within three days following such release or, if such person is in the custody of the Commissioner of Correction, at such time prior to release as the commissioner shall direct, and whether or not such person’s place of residence is in this state, register such person’s name, identifying factors, criminal history record, residence address and electronic mail address, instant message address or other similar Internet communication identifier, if any, with the Commissioner of Emergency Services and Public Protection, on such forms and in such locations as the commissioner shall direct, and shall maintain such registration for ten years except that any person who has one or more prior convictions of any such offense or who is convicted of a violation of subdivision (2) of subsection (a) of section 53a-70 shall maintain such registration for life. ...”

Subsection (b) of § 54-251 provides for an exemption: “Notwithstanding the provisions of subsection (a) of this section, the court may exempt any person who has been convicted or found not guilty by reason of mental disease or defect of a violation of subdivision (1) of subsection (a) of section 53a-71 from the registration requirements of this section if the court finds that such person was under nineteen years of age at the time of the offense and that registration is not required for public safety.”

The state argues that an exemption from registration must be strictly construed because there is no language within § 54-251 (b) expressly authorizing a court to grant an exemption once registration has commenced, and thus the court had no power to do so because the court cannot supply omissions in or add exceptions to a statute. The state further argues that the text of the statute must be considered in relation to other statutory provisions. The state argues that because § 54-251 (a) requires registration within three days of release into the community or if “in the custody of the Commissioner of Correction, at such time prior to release as the commissioner shall direct,” that provision, when considered with § 54-251 (d), which requires notice of any exemption application both to the Office of Victim Services and the Department of Correction, shows that the legislature expected that an application for exemption would be filed before the defendant was released from confinement and was required initially to register. It maintains that if the defendant may be granted an exemption seven years after he had been released from confinement and had commenced registering, it would not be logical to notify both the Office of Victim Services and the Victim Services Unit within Department of Correction. The state urges that logic dictates that the Commissioner of the Victim Services Unit of the Department of Correction would not receive statutorily mandated notice of any exemption application, unless the defendant was required to file notice before release from confinement. We do not accept the state’s faulty premise. It wrongly assumes that all defendants who are required to register will be imprisoned for their offenses. The state’s logic fails because registration also is required for offenses that would not require a defendant to be jailed. For example, conviction of a crime such as public indecency, in violation of General Statutes § 53a-186—a misdemeanor, for which a mandatory minimum term of imprisonment is not required and which is sometimes punished only with a fine rather than incarceration—still requires that the Commissioner of Correction be notified. A person who is never jailed for conviction of a sexual offense has no confinement to prison, and therefore is never released from confinement. Yet, he is not barred from seeking an exemption from required registration. We therefore reject this argument because of its faulty premise.

The state also makes the argument that the statute does not contain language explicitly permitting a later exemption from registration, and thus such a later exemption is not permitted. We do not agree. Like the requirement in § 54-251 (a) of registration of sex offenders, many distinct statutes use the phrase or some variation of the phrase “may exempt.” Although these statutes do not authorize a later exemption expressly, the context in which this language appears in the statutory text, the statutory subject matter, and the statutory purpose and relation to other statutes suggest, as to some of them, that the legislature did not necessarily intend to require that the exemption needed to be granted concomitant to the underlying statutory obligation taking effect. This is evident, even though there is no language in these statutes expressly authorizing an application for exemption to be made after a point in time when it otherwise initially would have been available. We list a few of those statutes that are illustrative of this point.

For example, General Statutes § 12-8 In permits municipalities to “provide an exemption” to businesses that offer child care services to residents of the municipality from paying property tax on up to 100 percent of the assessed value of the property of the business used in providing day care services and up to 10 percent of the balance of the assessed value of the business. Nothing in the text of the statute, or the context in which this language appears, suggests that the exemption must be granted when the business begins offering child care services, or else it is forfeited in perpetuity. The property used may increase in value and hence, its new assessment may necessitate a new, but later, request for exemption. There is a legislative purpose encouraging such facilities for the proper care of small children of working parents. It is equally served whether the exemption is sought after such a facility has first paid property tax in an initial tax year or it later seeks exemption for future years.

likewise, General Statutes § 22-339b (a) requires owners or keepers of canines and cats of three months of age or older to have such animals vaccinated against rabies. These inoculations must be repeated periodically during the life of a canine or cat. However, subsection (b) states that the State Veterinarian or Commissioner of Agriculture “may grant an exemption” from vaccination if it is determined that that vaccination would be harmful to the animal. The purpose of this statute is to permit exempting an animal from vaccination at any time when it would be harmful to the animal. The statute does not require that the exemption be obtained concomitant to the requirement to vaccinate (i.e., when the owner or keeper first takes possession of a healthy animal). A young pup may tolerate what an old dog cannot.

Finally, General Statutes § 34-229 (a) requires foreign limited liability companies (LLC) registered or that regularly transact business in the state to electronically file an annual report with the Secretary of the State. However, the Secretary of the State “may grant an exemption” to this requirement if good cause is shown. Nothing in the statute precludes a company from seeking an exemption from this requirement after it has electronically filed the report for several years. A good cause may arise in a subsequent year long after the out-of-state LLC has filed electronically. We reject the state’s argument that the lack of express language in § 54-251 (b) authorizing an exemption does not permit a defendant to request an exemption after he has commenced his obligation to register as a sex offender. Section 54-251 (b) must be viewed in the context of the probation statute, General Statutes § 53a-29, which has as its purpose rehabilitation of a defendant. See State v. Faraday, 268 Conn. 174, 180, 842 A.2d 567 (2004). If that rehabilitative purpose is accomplished, an exemption from registration may be justified, even though rehabilitation had not occurred when the defendant was first placed on probation. “[W]e read each statute in a manner that will not thwart its intended purpose or lead to absurd results.” (Internal quotation marks omitted.) State v. Pommer, 110 Conn. App. 608, 614, 955 A.2d 639, cert. denied, 289 Conn. 951, 961 A.2d 418 (2008). Furthermore, General Statutes § 53a-28 (d) expressly authorizes altering a period of probation.

We thus conclude that § 54-251 (b) permits a court to grant a criminal defendant’s request to have an exemption from the registration requirements for sex offenders after the obligation to register has commenced where the registration is made a special condition of probation, and the court finds that the defendant’s later rehabilitated status justifies modification. In the present case, the court found that the defendant had rehabilitated himself sufficiently so as to justify modification of the terms of his probation. We conclude that the court acted within its authority in so doing.

Ill

We next address the state’s claim that because the defendant’s guilty plea and the state’s recommended sentence resulted from a plea bargain, the court improperly granted the defendant’s motion to modify certain conditions of his probation requiring registration as a sex offender in the statewide registry compiled pursuant to § 54-251 (b), and modifying the restriction that he have no unsupervised contact with minors under sixteen unless approved by the Office of Adult Probation. Specifically, the state argues that “under circumstances such as the present case, where the defendant, as part of the plea bargained agreement, specifically agreed to abide by [these] conditions, the trial court, under well-established principles of contract law, should not have permitted the defendant, after having received the benefits of the agreement, to request [modification].” We reject the state’s argument.

To the extent that a plea agreement is akin to a contract; see State v. Garvin, 242 Conn. 296, 314, 699 A.2d 921 (1997); it is a contract between the defendant and the state—not between the defendant, the state and the court. See Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971) (describing plea of guilty as “a promise or agreement of the prosecutor” to defendant). As the state itself acknowledges in its brief, “the [s]tate and the defendant are bound by the clear and unambiguous terms of the plea bargain agreement”; “[t]he trial court, however, is not a party to the agreement . . . .” The requirements imposed on the defendant to register as a sex offender and not to have unsupervised contact with children under age sixteen were imposed as special conditions of the defendant’s probation.

With that understanding in mind, we now proceed to analyze our law governing probation. General Statutes § 53a-30 (c) provides in relevant part: “At any time during the period of probation or conditional discharge, after hearing and for good cause shown, the court may modify or enlarge the conditions [of probation], whether originally imposed by the court under this section or otherwise . . . .” (Emphasis added.)

The meaning of the term “modify” is to make less extreme. Merriam-Webster’s Collegiate Dictionary (11th Ed. 2011). The meaning of the term “enlarge” is to expand or make larger in scope. Id. Thus, in context, modify must mean the opposite of enlarge, meaning that the court is empowered to reduce or lessen the conditions or period of probation.

It is well settled that the trial court maintains discretion to supervise and, as appropriate, to enlarge or modify the terms of a probationer’s probation. See State v. Faraday, supra, 268 Conn. 180-81 (“[w]hen the court imposes probation, a defendant thereby accepts the possibility that the terms of probation may be modified or enlarged in the future pursuant to [General Statutes] § 53a-30” [internal quotation marks omitted]); State v. Thorp, 57 Conn. App. 112, 117, 120, 747 A.2d 537 (trial court’s approval of additional probation conditions requested by the Office of Adult Probation was not improper), cert. denied 253 Conn. 913, 754 A.2d 162 (2000); General Statutes § 53a-30 (c) (“[a]t any time during the period of probation . . . after hearing and for good cause shown, the court may modify or enlarge the conditions”).

In an earlier case, this court rejected an argument by a criminal defendant similar to that which the state urges upon us now. In State v. Crouch, 105 Conn. App. 693, 939 A.2d 632 (2008), the state urged this court to uphold a trial court’s enlargement of a plea bargained sentence. In Crouch, the defendant accepted a sentence that included a period of incarceration, followed by probation. Id., 695. After his release from custody, the state initiated proceedings to add a new condition of probation. The state sought to add sex offender evaluation and treatment, if deemed necessary, as a probationary condition. Id., 696. This proposed enlargement was not part of the agreed upon disposition between the defendant and the state. Id., 695-96.

On appeal, the defendant claimed that the court improperly allowed a special condition of probation to be added, in contravention of the terms of the plea agreement. Id., 698. The state claimed that the enlargement was not improper because the additional condition was not expressly excluded from the terms of the defendant’s probation. Id. We said in Crouch that if a defendant accepts an offer of probation, he accepts “the possibility that the terms of his probation could be modified or enlarged in the future in accordance with the statutes governing probation.” (Internal quotation marks omitted.) Id., 699. Implicit in our holding in Crouch, which we make explicit today, is that when the state enters into a plea agreement that includes a period of probation, both the defendant and the state do so with the understanding that the terms of probation may be modified or enlarged in accordance with law, and that such a modification might include a reduction. In the present case, the state made its plea agreement with the defendant with the implicit understanding that the court might later exercise its statutory discretion to modify the terms of the defendant’s probation. The court acted within that statutory authority. For the foregoing reasons, we reject the state’s argument that the plea agreement divested the trial court of its authority to modify or enlarge the conditions of the defendant’s probation.

The judgment is reversed only with respect to the denial of the state’s request for permission to appeal; the judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       It is clear from our review of the entire canvass and the sentence imposed by the court that these last conditions were special conditions of probation.

       At the hearing on April 20, 2012, the defendant amended the request he made in his motion to the court. Rather than seeking to terminate the original ten year probation imposed by the sentencing court, the defendant instead asked the court to excise the two additional years added to his probation in 2005. Additionally, the defendant asked the court to allow him to have unsupervised contact with minors, to leave the country for a short period of time and to exempt him from future registration as a sex offender, pursuant to § 54-251 (b).

       We note that with respect to its decision granting the exemption, the trial court first told the state, “I’m prepared to be subject to review by a higher authority by the Appellate or Supreme Court,” but then later denied the state permission to appeal that very ruling.

       This argument does not take into account that a defendant still on probation may again find himself in the custody of the Commissioner of Correction, if some violation of probation is alleged and he is unable to post bond. In such a scenario, there is some purpose to notification of the Department of Correction’s Victim Services Unit.

       The state appears to have changed its position at oral argument, to the extent it argued: “The court could change [the agreed upon sentence] at the time of sentencing. But once the court accepted the disposition, it bound the state, the defendant, and the court to the disposition.” We reject both the state’s original and changed positions.

       In sentencing the defendant, the court stated: “Ten years execution suspended after the nine months, which is a mandatory minimum, ten years [of] probation. In addition to the standard conditions of probation, the defendant is to register as a sex offender for the ten years, sex evaluation . . . treatment as deemed necessary ... no unsupervised contact with anyone under the age of sixteen, no contact directly or indirectly with the victim.” (Emphasis added.)

       The state has displayed a flexible approach toward modification or enlargement of probation after a plea agreement has been accepted by the court. In its brief to this court in State v. Crouch, the state argued: “[A]t any time during an offender’s probation, a trial court may, after hearing and for good cause shown, modify or enlarge the conditions of probation. . . . Although a defendant is free to reject the offer of probation, if he accepts probation, he must accept all its conditions, including the inherent possibility that his probation may be modified at any time under [General Statutes] § 53a-30.” (Citations omitted; emphasis added.) State v. Crouch, Appellate Court Records & Briefs, October Term, 2007, State’s Brief, p. 18.

       Similarly, under the facts of this case, the court’s decision to modify probation is akin to the defendant receiving parole under General Statutes § 54-125. A defendant who has accepted a plea agreement that includes a definite period of incarceration does not forfeit his statutory right to petition the Board of Pardons and Paroles for parole. See State v. Andrews, 53 Conn. App. 90, 95-96, 729 A.2d 232 (1999), aff'd, 253 Conn. 497, 752 A.2d 49 (2000). The fact that a grant of parole means that the defendant would be incarcerated for less time than he bargained for does not vitiate the plea agreement.