author: SPEAR, J.

text:
    STATE OF CONNECTICUT v. PATRICIA STERN
    (AC 20664)
    Spear, Mihalakos and Flynn, Js.
    Argued April 30
    officially released September 18, 2001

      Milo J. Altschuler, for the appellant (defendant).

      Bruce R. Lockwood, assistant state’s attorney, with whom, on the brief, were Mary M. Galvin, state’s attorney, and Kevin Lawlor, assistant state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant, Patricia Stem, appeals from the trial court’s judgment of conviction, rendered after a conditional plea of nolo contendere pursuant to General Statutes § 54-94a/ of operating a motor vehicle while under the influence of alcohol in violation of General Statutes (Rev. to 1997) § 14-227a. The defendant claims that the court improperly denied her motion to suppress the results of a blood alcohol test on the ground that her hospital records were obtained in the absence of (1) a search warrant as required by § 14-227a (If and (2) in the alternative, her voluntary consent. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of the defendant’s appeal. On June 18, 1997, at approximately 7:48 p.m., the defendant was driving a Ford Bronco in West Haven when she lost control of the vehicle and it struck a parked car. Officer Brian Faughnan of the West Haven police department was dispatched to the scene and found the Bronco lying upside down, on its roof, and the defendant sitting on the steps of a nearby church, bleeding from her mouth. When he spoke with the defendant, Faughnan detected an odor of alcohol emanating from her breath. The defendant told Faughnan that she was the operator and sole occupant of the Bronco. An eyewitness confirmed her statement.

While the defendant was being treated for her injuries inside an ambulance, Faughnan obtained a form authorizing the hospital to release her medical records in connection with the accident. He then filled out the form using information from her operator’s license, placed the form on a metal clipboard and asked her to sign it. He explained to her that she could sign the form voluntarily, but that if she did not want to, that would not be a problem, as he would apply for a search warrant to obtain the records. The defendant signed the form without objection. West Haven police subsequently obtained the defendant’s hospital records using the signed authorization form and, on the basis of her elevated blood alcohol content, applied for and obtained a warrant for the defendant’s arrest for driving while under the influence of intoxicating liquor in violation of § 14-227a.

After her arrest, the defendant filed a motion to suppress the chemical analysis of her blood alcohol content because the hospital did not release her records pursuant to a search warrant as required by § 14-227a (l). Following oral argument, the court issued a written memorandum of decision denying the motion to suppress on the ground that the defendant freely had consented to the release of her records when she signed the authorization form. The court discerned “no distinction between the obtaining of hospital records by consent from an injured operator suspected of operating under the influence of alcohol or drugs as opposed to consent freely given to enter one’s home.” The court reserved decision on the question of whether the defendant’s consent was voluntary. Thereafter, the court held a separate hearing on the consent issue and concluded in an oral ruling that the defendant’s consent was “free and voluntary.” The defendant then entered a written plea of nolo contendere to the charge of operating a motor vehicle while intoxicated. This appeal followed.

“As a preliminary matter, we set forth the standard of review. Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Internal quotation marks omitted.) State v. Clark, 255 Conn. 268, 279, 764 A.2d 1251 (2001).

I

The defendant first claims that the court improperly denied her motion to suppress because the search warrant requirement of § 14-227a (l) is mandatory and cannot be waived by a signed authorization form. She claims that the meaning of the statute is clear and unambiguous, and mandates that the chemical analysis of a blood sample taken from an injured operator is admissible in court only if obtained pursuant to a search warrant. We disagree.

We begin our analysis by noting that in its memorandum of decision, the court acknowledged the defendant’s statutory argument, but decided the motion on the basis of fourth amendment constitutional principles concerning the consent exception to the search warrant requirement. “This court has a basic judicial duty to avoid deciding a constitutional issue if a nonconstitutional ground exists that will dispose of the case. . . . The best teaching of this [cjourt’s experience admonishes us not to entertain constitutional questions in advance of the strictest necessity. . . . Appropriate deference to a coordinate branch of government exercising its essential functions demands that we refrain from deciding constitutional challenges to its enactments until the need to do so is plainly evident.” (Citation omitted; internal quotation marks omitted.) Kish v. Cohn, 59 Conn. App. 236, 242, 756 A.2d 313 (2000). We therefore affirm the trial court’s denial of the motion to suppress, not on the basis of constitutional principles, but on well established principles of statutory construction. See Lauver v. Planning & Zoning Commission, 60 Conn. App. 504, 511, 760 A.2d 513 (2000) (court may affirm proper result for different reason).

“Statutory interpretation is a matter of law over which this court’s review is plenary. ... In construing statutes, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Quigley-Dodd v. General Accident Ins. Co. of America, 256 Conn. 225, 232, 772 A.2d 577 (2001).

The relevant language of § 14-227a (I) provides that evidence derived from the chemical analysis of a blood sample indicating the amount of alcohol or drug in the blood of an injured motor vehicle operator shall be competent evidence to establish probable cause, and admissible and competent in any subsequent prosecution, if a police officer has applied for and a judge has issued a search warrant authorizing its seizure. See footnote 3. “While we generally will not look for interpretative guidance beyond the language of the statute when the words of that statute are plain and unambiguous . . . our past decisions have indicated that the use of the word ‘shall,’ though significant, does not invariably create a mandatory duty. ... In order to determine whether a statute’s provisions are mandatory we have traditionally looked beyond the use of the word ‘shall’ and examined the statute’s essential purpose. . . . The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience. . . . If it is a matter of substance, the statutory provision is mandatory. If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words. ... A statutory provision of this type directs what is to be done but does not invalidate any action taken for failure to comply. . . . Furthermore, if there is no language that expressly invalidates any action taken after noncompliance with the statutory provisions, the statute should be construed as directory.” (Citations omitted; internal quotation marks omitted.) State v. Trahan, 45 Conn. App. 722, 730-31, 697 A.2d 1153, cert, denied, 243 Conn. 924, 701 A.2d 660 (1997).

We conclude that a search warrant is not mandatory under § 14-227a (l). The United States Supreme Court has determined that a warrant requirement “interposes an orderly procedure under the aegis of judicial impartiality that is necessary to attain the beneficent purposes intended.” United States v. Jeffers, 342 U.S. 48, 51, 72 S. Ct. 93, 96 L. Ed. 59 (1951). The requirement of a search warrant in subsection (£) is thus designed to secure order and dispatch in achieving the statute’s essential propose of arresting and prosecuting injured motor vehicle operators who are suspected of being intoxicated. Moreover, because the requirement is stated in affirmative terms and contains no language expressly excluding evidence obtained without a warrant, it leaves the door open for admitting evidence acquired on the basis of consent. Furthermore, had the warrant requirement been mandatory, the legislature could have expressed that intention in more explicit terms by adding the word “only” before the word “if’ to introduce the four conditions required for the valid seizure and admissibility of hospital records. The legislature knows how to use limiting language when it chooses to do so. Vecca v. State, 29 Conn. App. 559, 564, 616 A.2d 823 (1992). It did not choose to do so here. Accordingly, the search warrant requirement in subsection (Z) is not mandatory under the test set forth in Trahan. That conclusion is consistent with our recent decision in State v. Szepanski, 57 Conn. App. 484, 490, 749 A.2d 653 (2000), where we stated that “§ 14-227a (Z) is permissive, not restrictive, in nature; [blood alcohol content] evidence is always admissible if obtained in conformity with its requirements, rather than inadmissible unless obtained in a manner satisfying all of its requirements.”

The legislative history of the provision also supports that conclusion and, equally significant, persuades us that the legislature did not intend to exclude consent as a possible basis on which to acquire hospital records under § 14-227a (Z). Subsection (Z) was added to the statute in 1986 to address the special problems and difficulties encountered in gathering evidence pursuant to subsection (c). See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 4, 1986 Sess., pp. 1364-65. Subsection (c) provided in relevant part that “evidence respecting the amount of alcohol or drug in the defendant’s blood or urine at the time of the alleged offense, as shown by a chemical analysis of the defendant’s breath, blood or urine shall be admissible and competent provided: (1) The defendant was afforded a reasonable opportunity to telephone an attorney prior to the performance of the test and consented to the taking of the test upon which such analysis is made . . . .” General Statutes (Rev. to 1985) § 14-227a, as amended by Public Acts 1985, No. 85-596. Under subsection (c), however, law enforcement authorities often were unable to establish the probable cause necessary to arrest suspected drunken drivers because injured drivers were transported to the hospital before police officers could conduct field sobriety tests or interview them. See Conn. Joint Standing Committee Hearings, supra, p. 1365. The requirements of obtaining consent and granting drivers the opportunity to contact an attorney before submitting to a blood test were especially unrealistic and difficult to satisfy in hospital emergency room situations, where drivers might be unconscious or their ability to follow instructions and respond to questions might be severely diminished due to trauma suffered in an accident. Id. In addition, hospitalized drivers aware of the “loophole” in subsection (c) regarding consent sometimes refused to submit to a blood test. Id., p. 1436. Accordingly, the purpose of subsection (l) was to allow the police, “notwithstanding the provisions of subsection (c),” to obtain test results from blood samples taken in the ordinary course of medical treatment for use in establishing probable cause to arrest such drivers, even without their consent or affording them the opportunity to contact an attorney. (Emphasis added.) Id., pp. 1367-68.

At no time was the search warrant requirement described as mandatory during hearings on the proposed amendment by the joint committee on the judiciary or during legislative debate. Indeed, consent was alluded to on several occasions as a possible means of obtaining the records under the proposed amendment. When Representative William L. Wollenberg asked state police Trooper Thomas Hogarty, representing then Commissioner of Public Safety Lester J. Forst, during a judiciary committee hearing whether blood samples and, by implication, test results, no longer could be obtained for evidentiary purposes on the basis of consent, Hogarty replied in the negative. Id., p. 1367. Hogarty later confirmed Representative Wollenberg’s understanding that under the proposed amendment, “[a] person may or may not consent.” Id., p. 1368. While debating the measure on the floor of the house, Representative Wollenberg also referred to the search warrant requirement as a safeguard rather than a mandatory requirement. 29 H.R. Proc., Pt. 13, 1986 Sess., p. 4669, remarks of Representative William L. Wollenberg. Our examination of the legislative history of subsection (I) thus indicates that the legislature contemplated the search warrant requirement as a means of protecting the rights of an injured operator where the operator could not, or would not, consent to release of the records.

Both the language and the legislative history of subsection (l) indicate that the purpose of the provision is not to eliminate consent as a means of obtaining test results, but to provide an alternative method of procuring the results when consent is not forthcoming. “The purpose of a search warrant is to ensure judicial authorization, in advance, of intrusions into constitutionally protected privacy.” State v. Eady, 249 Conn. 431, 449, 733 A.2d 112, cert, denied, 528 U.S. 1030, 120 S. Ct. 551, 145 L. Ed. 2d 428 (1999), quoting United States v. Green, 474 F.2d 1385, 1390 (5th Cir.), cert, denied, 414 U.S. 829, 94 S. Ct. 55, 38 L. Ed. 2d 63 (1973). “This court should interpret a statute without turning a blind eye to common sense . . . .” Fishbein v. Kozlowski, 252 Conn. 38, 55-56, 743 A.2d 1110 (1999) (Berdon, J., dissenting). To interpret the warrant requirement as prohibiting drivers from consenting to the release of their hospital records would lead to absurd consequences and bizarre results completely inconsistent with the statute’s clear purpose of obtaining records without intruding into an operator’s constitutionally protected privacy. See id., 55 n.l (Berdon, J., dissenting). Interpreting the statute to permit consent thus “attains a rational and sensible result that bears directly on the purpose the legislature sought to achieve.” (Internal quotation marks omitted.) Zoning Commission v. Fairfield Resources Management, Inc., 41 Conn. App. 89, 115, 674 A.2d 1335 (1996). Accordingly, we conclude that the defendant’s hospital records were obtained in conformity with the requirements of § 14-227a (I), and there is no need to consider the issue in light of fourth amendment principles.

The defendant cites several cases, including State v. Janson, 20 Conn. App. 348, 566 A.2d 1377 (1989), cert, denied, 213 Conn. 815, 569 A.2d 550 (1990), State v. Gilbert, 30 Conn. App. 428, 620 A.2d 822 (1993), affd, 229 Conn. 228, 640 A.2d 61 (1994), and State v. Corrigan, 40 Conn. App. 359, 680 A.2d 312, cert, denied, 239 Conn. 901, 682 A.2d 1007 (1996), for the proposition that the literal requirements of the statute always must be met. The defendant misconstrues those cases.

In Janson, we ruled that, there being nothing in the record to indicate the identity of the person who drew the defendant’s blood, the trial court improperly admitted into evidence the results of his blood test because the state had failed to satisfy the requirement of the statute that the blood be taken by a statutorily qualified person. State v. Janson, supra, 20 Conn. App. 352-53. The court stated that the “requirement directly promotes the underlying validity of the test itself and so must be strictly construed.” Id., 352. In a footnote, the court distinguished Janson from other cases in which we liberally construed the terms of § 14-227a (c) to admit into evidence tests that did not in all respects literally comply with subsection (c) requirements, so long as those requirements were in no way connected with promoting the underlying validity of the test. Id., 352 n.3. Here, strict construction of the statute as recommended in Janson is not necessitated, and a more liberal reading of the search warrant requirement in subsection (c) to permit consent as a means of obtaining hospital records is consistent with that case because the warrant requirement has no effect on the underlying validity of the test itself.

In Gilbert, we ruled that the statute is clear and unambiguous as to the admissibility of blood tests performed in a hospital, but we interpreted the provision regarding who could draw the blood to include a “medical technologist,” even though medical technologists were not specifically designated as one of the categories of persons qualified for that purpose under the statute. State v. Gilbert, supra, 30 Conn. App. 440-41. We agreed with the trial court that “a certified medical technologist is at least a qualified laboratory technician, [one of the listed categories,] in that the medical technologist’s training encompasses and exceeds that of a laboratory technician.” Id., 441. Although Gilbert does not involve the issue of obtaining a search warrant, the decision is instructive because it shows, as in Szepanski, that we sometimes have avoided a strict interpretation of subsection (T) in cases where a more liberal construction is reasonable and in conformity with its purpose.

Finally, we ruled in Corrigan that the sample of the defendant’s blood taken en route to the hospital was not admissible in a subsequent court proceeding as evidence of her blood alcohol content because subsection (V), at the time of the offense, required that the blood sample be taken “ ‘at a hospital.’ ” State v. Corrigan, supra, 40 Conn. App. 362. We concluded that the phrase “ ‘at a hospital’ ” is clear and unambiguous, and refers exclusively to the physical confines of the building’s structure. Id. We also were persuaded by the fact that subsection (l) was amended after the trial to include blood samples taken “ ‘while en route to a hospital,’ ” thus indicating that such results previously were inadmissible. Id., 363. Corrigan is inapposite, however, because here, the language describing the warrant requirement is more susceptible to interpretation under established principles of statutory construction, the legislative history of subsection (l) indicates that the requirement was not intended to exclude consent as a basis for obtaining hospital records and the relevant portion of the statute never has been amended.

II

In the alternative, the defendant claims that the court improperly (1) concluded that she freely and voluntarily signed the authorization form that was used to obtain her hospital records, and (2) shifted the burden of proof from the state to the defendant to show that her consent was not free and voluntary. We decline to review the first claim and disagree with the second.

A

The defendant first argues that the court’s ruling was not legally and logically consistent with the facts because Faughnan testified on at least five occasions that he advised the defendant that if she did not sign the authorization form, he would procure a search warrant to obtain her hospital records.

The following additional facts are necessary for our resolution of the defendant’s claim. At the hearing on the issue of consent, counsel for both parties made arguments as to whether the language Faughnan used in asking the defendant to sign the authorization form was coercive. In its oral decision, however, the court made specific findings only with respect to whether the defendant’s hospital records indicated that she suffered any type of head injury or head trauma that might have affected her judgment, and prevented her from signing a valid and voluntary consent. The court ultimately found, after reviewing the record, that the defendant’s injuries were not so severe as to prevent her from signing a valid and voluntary consent, and it never made a finding on the separate issue of whether Faughnan’s comments to the defendant asking her to sign the form might have been coercive.

“The question whether consent to a search has in fact been freely and voluntarily given, or was the product of coercion, express or implied, is ‘a question of fact to be determined from the totality of all the circumstances.’ ... As a question of fact, it is normally to be decided by the trial court upon the evidence before that court together with the reasonable inferences to be drawn from that evidence. . . . Such conclusions must be upheld unless they are legally or logically inconsistent with the facts found or unless they involve application of an erroneous rule of law material to the case.” (Citations omitted.) Dotson v. Warden, 175 Conn. 614, 619, 402 A.2d 790 (1978). Here, the court specifically found that the defendant’s injuries did not affect her judgment or prevent her from signing a valid and voluntary consent, but did not make a finding as to whether the officer’s request that she sign the authorization form was coercive. In the absence of a specific factual finding on the officer’s request, and in light of the defendant’s failure to file a motion seeking an articulation concerning that issue; Practice Book § 66-5; the record is inadequate for review. Practice Book § 61-10. We therefore decline to review the defendant’s claim.

B

The defendant also claims that the court made statements in its oral decision on the issue of voluntary consent that unlawfully shifted the burden to her to prove that her consent was not free and voluntary. We disagree.

In its oral decision, the court concluded that “[a] review of the medical records here reveals little to dissuade the notion that the defendant’s consent was free and voluntary.” The court also stated that “on the whole, the court is not persuaded that the defendant’s injuries, which were apparent . . . prevented her from signing a valid and voluntary consent.”

“The state has the burden to establish the voluntariness of the consent, and the trial court’s finding in that regard will not be upset by this court unless clearly erroneous.” (Internal quotation marks omitted.) State v. Cobb, 251 Conn. 285, 315, 743 A.2d 1 (1999), cert, denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000). We conclude that the court did not shift the burden of proof on the issue of voluntary consent. The defendant interprets the language at issue far too broadly. The court neither stated nor suggested that it was shifting the burden of proof to the defendant either during the hearing on the issue of voluntary consent or in its oral decision. Moreover, “[jjudges are presumed to know the law . . . and to apply it correctly.” (Internal quotation marks omitted.) Fenton v. Connecticut Hospital Assn. Workers’ Compensation Trust, 58 Conn. App. 45, 54, 752 A.2d 65, cert, denied, 254 Conn. 911, 759 A.2d 504 (2000). Furthermore, the parties themselves understood that the burden of proof was on the state and expressed that view to the court. The state argued at the hearing that “the state has shown — by more than the preponderance of the evidence — which is the standard of proof in these hearings--that [the defendant’s] consent was voluntary.” Defense counsel similarly argued that “the state has not sustained its burden on [the issue of consent] . . . .” The court did not disagree or take issue with counsels’ comments. For the defendant now to claim that the court shifted the burden of proof to her seems somewhat disingenuous. We therefore conclude that the court’s finding on the issue of voluntary consent was not clearly erroneous and that the court properly denied the motion to suppress.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-94a provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure, motion to suppress statements and evidence based on the involuntariness of a statement or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”

       General Statutes (Rev. to 1997) § 14-227a (a) provides: “Operation while under the influence. No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”

       General Statutes (Rev. to 1997) § 14-227a (Q provides: “Notwithstanding the provisions of subsection (c) of this section, evidence respecting the amount of alcohol or drug in the blood of an operator of a motor vehicle involved in an accident who has suffered or allegedly suffered physical injury in such accident, which evidence is derived from a chemical analysis of a blood sample taken from such person after such accident at the scene of the accident, while en route to a hospital or at a hospital, shall be competent evidence to establish probable cause for the arrest by warrant of such person for a violation of subsection (a) of this section and shall be admissible and competent in any subsequent prosecution thereof if: (1) The blood sample was taken for the diagnosis and treatment of such injury; (2) the blood sample was taken by a person licensed to practice medicine in this state, a resident physician or intern in any hospital in this state, a phlebotomist, a qualified laboratory technician, an emergency medical technician II or a registered nurse; (3) a police officer has demonstrated to the satisfaction of a judge of the Superior Court that such officer has reason to believe that such person was operating a motor vehicle while under the influence of intoxicating liquor or drug or both and that the chemical analysis of such blood sample constitutes evidence of the commission of the offense of operating a motor vehicle while under the influence of intoxicating liquor or drug or both in violation of subsection (a) of this section; and (4) such judge has issued a search warrant in accordance with section 54-33a authorizing the seizure of the chemical analysis of such blood sample.”

       The defendant suffered cuts, abrasions, the loss of several teeth and an injury to her pelvis.

       In State v. Szepanski, supra, 57 Conn. App. 486, a Massachusetts district attorney obtained the blood alcohol report at issue by means of a subpoena issued by a Massachusetts grand .jury and served on the hospital.

       The following colloquy occurred in relevant part:
      “Representative Wollenberg: This takes consent out of it?
      “Trooper Hogarty: No, we could still go with consent. . . .” Conn. Joint Standing Committee Hearings, supra, pp. 1367-68.

       We again note, however, that a similar outcome is achieved under both a statutory and constitutional analysis.

       At the time the decision in Gilbert was issued, qualified persons under § 14-227a (l) (2) included a “person licensed to practice medicine in this state, a resident physician or intern in any hospital in this state, a qualified laboratory technician, an emergency technician II or a registered nurse . . . .” (Internal quotation marks omitted.) State v. Gilbert, supra, 30 Conn. App. 440-41.


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF CONNECTICUT v. MARSHANT JONES
    (AC 20643)
    Lavery, C. J., and Schaller and Spear, Js.
    Submitted on briefs May 10
    officially released September 18, 2001

      Joseph Visone, special public defender, filed a brief for the appellant (defendant).

      Michael Dearington, state’s attorney, Timothy J. Sugrue, senior assistant state’s attorney, and David P. Gold, former supervisory assistant state’s attorney, filed a brief for the appellee (state).
   Opinion

SPEAR, J.

The defendant, Marshant Jones, appeals from the judgment of conviction, rendered after a combined court and jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (3), carrying a pistol without a permit in violation of General Statutes (Rev. to 1997) § 29-35 and criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c (a) (l). The defendant claims that the prosecutor violated his right to a fair trial during closing arguments by (1) commenting to the jury on the defendant’s failure to testify and (2) appealing to the jury’s sympathy for the injured victim. We affirm the judgment of the trial court.

The court and the jury reasonably could have found the following facts. In the early morning hours of July 13, 1998, the victim and her best friend, Tangy Rollor, left a dance club in Hamden. After driving around for a while, the two women stopped at a convenience store, where they met the defendant. The defendant, a friend of both women, asked the victim if he could use her telephone. She agreed, and they all went to the victim’s apartment in New Haven. Once in her apartment, the victim escorted the defendant into her bedroom, where the phone was located. After the defendant finished his call, he and the two women sat on the bed talking to one another.

During their conversation, the defendant took out a loaded handgun from his clothing, and began to wave and point it at the women. Both women pleaded with the defendant to stop playing and put away the gun. He refused to do so and eventually shot the victim in the right shoulder, severing her spinal cord. The victim collapsed to the floor and asked Rollor to call 911.

While waiting for the ambulance and the police to arrive, the defendant began pacing back and forth in the bedroom, apologizing to the victim and begging Rollor not to tell the police that he shot the victim. On hearing the police sirens, the defendant fled from the victim’s apartment. The police arrested the defendant on September 19, 1998, as he left a movie theater. He subsequently was convicted, and this appeal followed.

I

The defendant first claims that the prosecutor violated his privilege against self-incrimination as guaranteed by the fifth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut. Specifically, he claims that the prosecutor improperly invited the jury to draw an adverse inference against him solely because he exercised his right to a trial on the charge of carrying a pistol without a permit. The defendant bases his claim on remarks that the prosecutor made in his closing arguments. In response, the state asserts that the defendant’s rights were not violated because the two remarks at issue were harmless beyond a reasonable doubt. We agree with the state.

Although the defendant concedes that he failed to raise any objection to those statements at trial, he now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). “The first two Golding requirements involve whether the claim is reviewable, and the second two involve whether there was constitutional error requiring a new trial. . . . This court may dispose of the claim on any one of the conditions that the defendant does not meet.” (Internal quotation marks omitted.) State v. Sanko, 62 Conn. App. 34, 39, 771 A.2d 149, cert, denied, 256 Conn. 905, 772 A.2d 599 (2001). We conclude that the defendant’s claim satisfies the first two prongs of Golding because an adequate record exists to review his claim and the defendant alleges a constitutional violation. Although the claim is reviewable, we conclude that because the remarks were harmless beyond a reasonable doubt, the defendant’s constitutional right to a fair trial was not violated.

“It is well settled that comment by the prosecuting attorney ... on the defendant’s failure to testify is prohibited by the fifth amendment to the United States constitution. Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 14 L. Ed. 2d 106, reh. denied, 381 U.S. 957, 85 S. Ct. 1797, 14 L. Ed. 2d 730 (1965).” (Internal quotation marks omitted.) State v. Hicks, 56 Conn. App. 384, 393, 743 A.2d 640 (2000). When reviewing a claim that the prosecutor’s comments violated a defendant’s fifth amendment right to remain silent, “we ask: Was the language used manifestly intended to be, or was it of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify? . . . Further, in applying this test, we must look to the context in which the statement was made in order to determine the manifest intention which prompted it and its natural and necessary impact upon the jury. . . . Finally, [w]e also recognize that the limits of legitimate argument and fair comment cannot be determined precisely by rule and line . . . .” (Internal quotation marks omitted.) State v. Brown, 256 Conn. 291, 311, 772 A.2d 1107 (2001).

The defendant objects to the following two remarks the prosecutor made to the jury: “The defendant isn’t even admitting in this case he had a gun .... You should convict him of assault in the first degree because that’s what he’s guilty of, and he doesn’t even admit that he’s guilty of carrying a pistol without a permit.”

“[Bjefore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. . . . The state bears the burden of demonstrating that the constitutional error was harmless beyond a reasonable doubt. . . . That determination must be made in light of the entire record. . . . Stated another way, the question is whether it is reasonably possible that the court’s refusal affected the verdict.” (Citations omitted; internal quotation marks omitted.) State v. Conn, 234 Conn. 97, 113-14, 662 A.2d 68 (1995). We are convinced that the overwhelming strength of the evidence that the defendant possessed the gun without a permit renders the remarks harmless. Counsel for the defendant, in closing argument, virtually conceded that the state had proven every necessary element of each charge, except the “extreme indifference” element of the assault charge. The theory of the defense was that the incident was a “tragic accident” because the defendant “intended to wave the gun. He didn’t intend to fire that gun.” There was abundant evidence in support of each charge and there was no “reasonable possibility that the [remarks] complained of might have contributed to the conviction . . . .” (Internal quotation marks omitted.) Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).

Finally, the trial court gave the jury thorough and proper instructions on the defendant’s constitutionally guaranteed right to remain silent and the state’s burden to prove guilt beyond a reasonable doubt. We conclude that any possibly misleading effect of the prosecutor’s isolated remarks was cured by the court’s instructions. In the absence of contrary evidence, jurors are presumed to have followed the instructions given to them by the trial judge. State v. Morton, 59 Conn. App. 529, 537, 757 A.2d 667 (2000). We conclude that the prosecutor’s remarks did not impinge on the defendant’s constitutional right to a fair trial.

II

The defendant’s second claim, also unpreserved, is that the prosecutor violated his federal and state constitutional rights to a fair trial when he engaged in “an egregious pattern of appealing to the sympathy of the jurors” with comments about the victim. The state maintains that the comments of the prosecutor were brief and isolated, and, therefore, did not evince a pattern of misconduct that deprived the defendant of a fair trial. We agree with the state that the challenged remarks do not warrant a reversal of the defendant’s conviction.

“Our Supreme Court has previously acknowledged that prosecutorial misconduct can occur in the course of closing argument. ... It is well settled, however, that a defendant may not prevail under Golding . . . unless the prosecutorial impropriety was so pervasive or egregious as to constitute an infringement of the defendant’s right to a fair trial .... Finally, we must review the challenged comments in the context of the entire trial, with due regard to the extent to which the objectionable remarks were invited by defense conduct or argument.” (Citations omitted; internal quotation marks omitted.) State v. Saez, 60 Conn. App. 264, 267-68, 758 A.2d 894, cert, denied, 255 Conn. 905, 762 A.2d 912 (2000).

“[T]o determine whether claims of prosecutorial misconduct amounted to a denial of due process, we must decide whether the challenged remarks were improper, and, if so, whether they caused substantial prejudice to the defendant. ... To make this determination, we must focus on several factors: (1) the extent to which the misconduct was invited by defense conduct or argument; (2) the severity of the conduct; (3) the frequency of the conduct; (4) the centrality of the misconduct to the critical issues of the case; (5) the strength of the curative instructions adopted; and (6) the strength of the state’s case. . . . When a verdict is challenged on the basis of the prosecutor’s allegedly prejudicial remarks, the defendant bears the burden of proving the remarks prejudicial in light of the whole trial.” (Citations omitted; internal quotation marks omitted.) State v. Payne, 63 Conn. App. 583, 590, 777 A.2d 731, cert, granted on other grounds, 257 Conn. 904, 777 A.2d 195 (2001).

Applying those factors in this case, we are not persuaded by the defendant’s argument that the remarks of the prosecutor unduly appealed to the emotions and passions of the jurors. Our careful review of the record discloses that except for the bladder remark, the challenged comments were made only during the state’s rebuttal argument. The comments were in response to the defense attorney’s argument that “[e]verybody’s heart went out ... to [the victim].” The prosecutor stated that the jurors should not decide the case on the basis of sympathy and that the victim was not looking for sympathy. The alleged misconduct was not relevant to the only seriously contested issue in the case, namely, whether the shooting was reckless or accidental. We have previously noted that the state had a very strong case that was virtually conceded as to all charges except the reckless element of the assault charge.

The remarks did not demonstrate a pervasive pattern of misconduct and were not so blatantly egregious that they rose to the level of impinging on the defendant’s constitutional right to due process. Accordingly, we conclude that the defendant’s claim is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       The charges of assault in the first degree and carrying a pistol without a permit were tried to the jury, and the charge of criminal possession of a pistol or revolver was tried to the court.

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when ... (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person . . . .”

       General Statutes (Rev. to 1997) § 29-35 (a) provides in relevant part: “No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28. ...”

       General Statutes § 53a-217c (a) provides in relevant pari,: “A person is guilty of criminal possession of a pistol or revolver when such person possesses a pistol or revolver . . . and (1) has been convicted of a felony . . . .”

       The fifth amendment to the United States constitution, which is made applicable to the states by virtue of the fourteenth amendment, provides in relevant part: “No person . . . shall be compelled in any criminal case to be a witness against himself . . . .”

       The constitution of Connecticut, article first, § 8, provides in relevant part: “In all criminal prosecutions . . . [n]o person shall ... be deprived of life, liberty or property without due process of law . . . .”
      “Because the defendant has not briefed his claim separately under the Connecticut constitution, we limit our review to the United States constitution. We have repeatedly apprised litigants that we will not entertain a state constitutional claim unless the defendant has provided an independent analysis under the particular provisions of the state constitution at issue. . . . Without a separately briefed and analyzed state constitutional claim, we deem abandoned the defendant’s claim . . . .” (Internal quotation marks omitted.) State v. Reid, 254 Conn. 540, 553 n.6, 757 A.2d 482 (2000).

       The prosecutor made the following remarks to the jury in his rebuttal argument: “The defendant isn’t even admitting in this case he had a gun, because you know, everything in today’s world, it’s just you say, I’m sorry, and that’s it. Everything goes away. That’s what happens here. You say, oh, my God, when something happens. You call it an accident. Geez, I didn’t mean it, and everything goes away. Did [the defendant] care about [the victim’s] life? If I stood here and gave this whole closing argument, as he did, his last — the last words he had in that room, how would each of you feel about it? Would I care about your life? I’m just waving this gun around. That’s all. That's caring for someone's life. What that is, is such extreme indifference to human life, that it actually should shock your conscience.” The prosecutor added: “You should convict him of assault in the first degree because that’s what he’s guilty of, and he doesn’t even admit that he’s guilty of carrying a pistol without a permit.” (Emphasis added.)

       In Golding, our Supreme Court held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       That principle is embodied in General Statutes § 54-84 (a), which provides in relevant part: “Any person on trial for crime . . . may testify or refuse to testify upon such trial. The neglect or refusal of an accused party to testify shall not be commented upon by the court or prosecuting official . . . .”

       Because the defendant does not present an independent state constitutional analysis of his claim, we confine our analysis to federal constitutional law. See State v. Kellman, 56 Conn. App. 279, 286 n.5, 742 A.2d 423, cert. denied, 252 Conn. 939, 747 A.2d 4 (2000).

       Without objection by the defendant, the prosecutor stated in his closing remarks: “The defendant was enjoying a movie at the cinema . . . and [the victim] is probably sitting in a rehabilitation room at Gaylord [Hospital] learning how to empty her bladder.” During rebuttal, the prosecutor stated: “[D]id everyone’s heart go out to [the victim]? Did the defendant’s heart go out to [the victim] as she pled with him to put the gun away? . . .
      “I also want you to remember that feeling you had when after you heard from Ms. Rollor, and you heard from [a police officer], who talked about trying to get a response with the sternum rub, and then I asked the sheriff, would you ask [the victim] to come in, and then you realized what this case was all about as she came through the door. This is a young woman who had a night where her child was sleeping elsewhere that night, had a night to go dancing with friends, and she did that. ... To say that our hearts go out to [the victim], in a sense, it’s really an insult to her. I don’t really think that she wants your heart to go out to her. She’s not sitting in the back here looking for sympathy from you or anything like that. You know, if you want to do something for her in this case, make a donation to spinal cord research, but she’s not going to walk any better, no matter what your verdict is in this case. So, you shouldn’t decide this case on sympathy, because she doesn’t want it. But, by the same token, you can’t feel any sympathy for [the] defendant, either . . . .”

       There were no curative instructions because the defendant’s claim was not brought to the attention of the trial court.


author: PETERS, J.

text:
    IN RE VINCENT D.

    (AC 20273)
    Spear, Mihalakos and Peters, Js.
    Argued May 29
    officially released September 18, 2001

      Susanne D. McNamara, for the appellant (respondent mother).

      Maureen D. Regula, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.
      Reporter of Judicial Decisions

   Opinion

PETERS, J.

Pursuant to General Statutes (Rev. to 1997) § 17U-112, a hearing on a petition to terminate parental rights has two separate phases, the adjudicatory phase and the dispositional phase. In re Eden F., 250 Conn. 674, 688, 741 A.2d 873 (1999). The principal issue in this appeal is whether the trial court may permit foster parents who are prospective adoptive parents to participate, in some fashion, in the dispositional phase of a termination proceeding. Also at issue is what weight a court, in the adjudicatory phase, must give a respondent’s significant efforts to achieve rehabilitation. We affirm the judgment of the court in all respects.

PROCEDURAL HISTORY

On June 22, 1998, the commissioner of children and famihes (commissioner) filed a petition to terminate the parental rights of the respondents with respect to their minor son, Vincent. After a three day evidentiary hearing, the court granted the petition.

On appeal, the mother claims that the trial court improperly (1) allowed the foster parents to intervene by permitting them to observe the trial and to comment, and (2) found that she had failed to achieve sufficient personal rehabilitation within the meaning of § 17a-112 (c) (3). We disagree.

FACTUAL HISTORY

The relevant facts are as follows. Bom abroad, the mother came to the United States when she was six years old and attended school in this country until the eleventh grade. Vincent is the mother’s third child. In 1984, the mother had given birth to a son. Having married the respondent father in 1989, she gave birth to their daughter in 1991.

The father had a long history of using marijuana and cocaine. Until he introduced the mother to crack cocaine in 1994, she had used only alcohol and marijuana. She became addicted and started using drugs several times a week for the next two years.

On September 1, 1996, the mother gave birth prematurely to Vincent in the bathtub of her home. At the hospital, both Vincent and the mother tested positive for cocaine. The commissioner obtained an order for temporary custody of all three of the mother’s children. On October 28,1996, Vincent was adjudicated neglected and committed to the care and custody of the department of children and families (department) for one year.

At the time of the neglect adjudication, the court, pursuant to General Statutes § 46b-129 (b), imposed certain expectations on the parents to facilitate reunification of the child with the family. The court required the parents (1) to participate in individual counseling and drug and alcohol counseling, (2) to secure and maintain housing and income and (3) to refrain from involvement in the criminal justice system. The court also ordered the parents to take other “specific steps,” with the department’s assistance, to further the goal of reunification by obtaining parents and couples counseling, by successfully completing substance abuse treatment and by submitting to random drug tests.

The department provided assistance to enable the parents to meet the court’s expectations. It referred them to drug treatment centers, job training programs, individual and couples counseling, psychological evaluations, parenting classes and a family reunification program.

The mother took commendable and significant steps toward meeting the court’s expectations. She complied with all of them except for maintaining adequate housing and income. Taking advantage of various substance abuse programs, she has been drug free since November of 1996. She completed an outpatient substance abuse program in 1997, and no further treatment was recommended. At the department’s referral, she obtained further substance abuse counseling in 1998. She also participated in Narcotics Anonymous and Alcoholics Anonymous meetings, individual and couples counseling and parenting classes.

The mother has maintained contact with Vincent. From early 1997 to mid-1999, Vincent’s sister was placed in the same foster home as Vincent. During that time, the mother frequently telephoned the foster home. Her calls ceased, however, when her daughter left the home. Nonetheless, the mother regularly attended visitation meetings with Vincent and her other children. Unfortunately, Vincent often was absent from visitation due to the department’s transportation problems. With the assistance of a parent aide provided by the department in April of 1999, the mother’s parenting skills improved and Vincent became more responsive to her.

The father, however, did not meet the expectations of the court with respect to his drug addiction. Although he successfully completed several substance abuse programs, he continued to test positive for marijuana and cocaine. He missed numerous appointments for drug tests. He did, however, attend relapse prevention sessions, parenting classes and couples counseling.

With regard to housing and income, issues that the court described as “critical,” the prospects for progress were unclear. Contrary to the advice of the department, the parents lived together until they lost their home in September of 1997 for failure to make mortgage payments. After failure of interim efforts to obtain separate accommodations, the parents again shared housing from June, 1998, to August, 1999. It was not until one month before the termination hearing that the mother moved out and took steps to obtain a divorce.

The mother’s financial ability to care for Vincent was equally uncertain. The mother had no consistent source of income until she secured a part-time job about six months prior to the termination hearing. The father apparently remained employed in the moving business, but he did not provide the department with documentation of such employment.

From the time of Vincent’s initial removal from his parents’ home, he has lived with the same foster parents, who now wish to adopt him. Bom prematurely with cocaine in his system, he was ill and developmental!^ delayed during the first year of his life. Living in the foster home, Vincent has developed well and has become healthy. He has become part of the foster family, enjoying a positive relationship with the family’s two biological daughters, his foster grandmother and his foster grandfather.

INTERVENTION

The first issue on appeal is whether the court properly granted the foster parents’ motion to participate in the termination proceeding on a limited basis. Prior to the commencement of the termination hearing, on September 15, 1999, Vincent’s foster parents filed a motion to intervene. At the hearing, after oral argument on the motion, the court granted the foster parents permission to observe and to comment through counsel on disposition, only. The court stated expressly that standing to comment “is not the same thing as intervention . . . .” To protect the rights of Vincent’s parents, the court’s order spelled out limitations on the foster parents’ participation in the termination hearing. The court precluded counsel for the foster parents from questioning any of the witnesses. The court sequestered the foster mother from the courtroom until after the conclusion of her testimony. Although the court permitted the foster father to be in the courtroom throughout, he was directed not to discuss the proceedings with the foster mother until the completion of her testimony.

In our review of the propriety of the court’s order, we must determine whether the order was an abuse of its discretion. In re Baby Girl B., 224 Conn. 263, 277, 618 A.2d 1 (1992); Horton v. Meskill, 187 Conn. 187, 197, 445 A.2d 579 (1982). In our evaluation of the scope of the court’s discretion in a proceeding for termination of parental rights, the key question is whether the court’s order permitted participation by foster parents in the adjudicatory or in the dispositional phase of the termination hearing.

I

The mother claims that the court abused its discretion by permitting the foster parents to exercise improper influence in the adjudicatory phase. We disagree.

A hearing on a termination of parental rights petition consists of two phases, adjudication and disposition. In re Eden F., supra, 250 Conn. 688; In re Tabitha P., 39 Conn. App. 353, 360, 664 A.2d 1168 (1995). In the adjudicatory phase, the court must determine whether the commissioner has proven, by clear and convincing evidence, a proper ground for termination of parental rights. In re Eden F, supra, 688. In the dispositional phase, once a ground for termination has been proven, the court must determine whether termination is in the best interest of the child. Id., 689.

It is well established that persons interested in the prospective adoption of a child have no right to intervene in the adjudicatory stage of a termination proceeding. In re Baby Girl B., supra, 224 Conn. 275; see also In re Juvenile Appeal (Docket No. 10718), 188 Conn. 259, 262, 449 A.2d 165 (1982). The technical reason for their exclusion is that, despite their obvious concern about the outcome of a termination proceeding, they have no personal legal interest at stake and, therefore, are not entitled to intervene. In re Baby Girl B., supra, 275-76. The functional reason for their exclusion is that “ [p] etitions for termination of parental rights are particularly vulnerable to the risk that judges or social workers will be tempted, consciously or unconsciously, to compare unfavorably the material advantages of the child’s natural parents with those of prospective adoptive parents and therefore to reach a result based on such comparisons rather than on the statutory criteria [that govern the adjudication of parental rights].” In re Juvenile Appeal (Anonymous), 177 Conn. 648, 672-73, 420 A.2d 875 (1979); see Smith v. Organization of Foster Families for Equality & Reform, 431 U.S. 816, 834-35, 97 S. Ct. 2094, 53 L. Ed. 2d 14 (1977).

Although foster or preadoptive parents are barred from inteivening in the adjudicatory phase of termination proceedings, neither our statutes nor our case law bar such intervention in the dispositional phase of such proceedings. In re Baby Girl B. recognized that once a ground for termination has been shown to exist, “the suitability and circumstances of adoptive parents, in an appropriate proceeding, [may] be considered.” (Internal quotation marks omitted.) In re Baby Girl B., supra, 224 Conn. 275. Notably, that court, while upholding the trial court’s denial of the preadoptive parents’ motion to intervene in the adjudicatory stage, recognized the trial court’s ruling that the preadoptive parents could intervene at the dispositional stage. Id., 272 n.8. It would serve no purpose to preclude persons with significant knowledge of and experience with the child from assisting the court’s determination of the placement that best protects the best interest of the child.

Without disputing these principles, the mother argues that the court in fact improperly considered, during the adjudicatory phase, statements made by the foster mother about Vincent’s health and well-being. Her claim of impropriety is twofold. She contends that the court, immediately prior to the adjudicatory part of its decision, improperly found that Vincent had become part of his foster family. The mother further maintains that the very presence of the foster parents during the adjudicatory phase improperly influenced the court to rule against her in determining whether she successfully had achieved rehabilitation. We are not persuaded.

Both of these claims founder on the fact that they lack support in the record. First, the court was not asked to rule on the propriety of the foster mother’s testimony or to articulate the use that the court had made of it. Even now, the mother does not argue that the foster mother should not have been permitted to appear as a witness for the commissioner. Second, the court was not asked to comment on the effect on its deliberations of the limited role played by the foster parents. Even if the mother’s claim were recast into a claim of prejudice, it would still fail because she has offered no evidentiary basis for a finding of prejudice.

To the contrary, all the evidence of record indicates that the foster parents’ limited participation in the termination proceeding occurred in the dispositional phase. The foster parents’ motion to intervene was interpreted by their own counsel as manifesting only a desire to be heard with regard to the disposition of Vincent’s future status. The court expressly acknowledged that it had no authority to permit any form of intervention in the adjudicatory phase. Finally, in granting the foster parents’ motion in part, the court expressly limited its order to permit the foster parents to “observe and have standing to comment on disposition.” (Emphasis added.) Other than the foster mother’s testimony as a witness, the foster parents did not participate in the termination proceedings except for their comments with respect to disposition made toward the end of the trial.

II

In addition to her argument that the foster parents cast an impermissible shadow on the adjudicatory phase of the termination proceedings, the mother also argues that their participation violated applicable procedural norms. We agree with the mother that punctilious adherence to procedural guidelines is an important predicate of a termination of her parental rights. See Anonymous v. Norton, 168 Conn. 421, 425, 362 A.2d 532, cert, denied, 423 U.S. 935, 96 S. Ct. 294, 46 L. Ed. 2d 268 (1975). We disagree that the record discloses any such procedural irregularity.

The substance of the mother’s argument in support of a demonstrated failure to adhere to applicable procedural guidelines is addressed to claims of impropriety that we already have rejected in part I of this opinion. Furthermore, the mother does not explain why her claims of procedural irregularity should be reviewed on appeal when they were not raised at trial. Presumptively, our law is to the contrary. See Practice Book § 60-5; see, e.g., Il Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502, 540, 757 A.2d 1103 (2000); Statewide Grievance Committee v. Egbarin, 61 Conn. App. 445, 451-52, 767 A.2d 732, cert, denied, 255 Conn. 949, 769 A.2d 64 (2001).

We are persuaded that the court did not abuse its discretion in permitting foster parents to participate, to a limited degree, in the dispositional phase of proceedings to terminate the parental rights of the mother. The court’s carefully nuanced response to the foster parents’ motion to intervene demonstrates that the court took all relevant considerations into account and acted accordingly.

PERSONAL REHABILITATION

The second issue on appeal is whether the court properly found that the commissioner had proved, by clear and convincing evidence, that the mother’s parental rights should be terminated because of her failure to achieve rehabilitation as required by § 17a-112 (c) (3) (B). The mother claims that the evidence of record does not support such a finding. We disagree.

“On appeal, we review a trial court’s finding that a parent has failed to rehabilitate herself in accordance with the rules that apply generally to a trier’s finding of fact. We will overturn such a finding of fact only if it is clearly erroneous in light of the evidence in the whole record.” (Internal quotation marks omitted.) In re Eden F., supra, 250 Conn. 705. “We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. . . . [0]n review by this court every reasonable presumption is made in favor of the trial court’s ruling.” (Internal quotation marks omitted.) Id., 705-706; see also In re Roshawn R., 51 Conn. App. 44, 51, 720 A.2d 1112 (1998).

Pursuant to § 17a-112 (c) (3) (B), the failure of a parent to achieve sufficient personal rehabilitation is one of six grounds for termination of parental rights. This ground has been established if the parent of a child, after a judicial finding of neglect, fails to achieve a degree of rehabilitation sufficient to encourage the belief that at some future date within a reasonable time, considering the age and needs of the child, the parent could assume a responsible position in the life of that child. In re Eden F., supra, 250 Conn. 706; In re Sheila J., 62 Conn. App. 470, 479-80, 771 A.2d 244 (2001).

The mother argues that the court improperly based its decision, in part, on the fact that she continued to live with Vincent’s father when he was using drugs. She asserts that their separation was neither one of the court ordered expectations, nor one of the specific steps imposed on her by the department. The mother suggests that the court may consider only her compliance with expectations expressly ordered by the court or imposed by the department. She further argues that successful fulfillment of such expectations is dispositive proof of personal rehabilitation. We are not persuaded.

In determining whether a parent has achieved sufficient personal rehabilitation, a court may consider whether the parent has corrected the factors that led to the initial commitment, regardless of whether those factors were included in specific expectations ordered by the court or imposed by the department. See In re Michael M., 29 Conn. App. 112, 125, 614 A.2d 832 (1992); see also In re Migdalia M., 6 Conn. App. 194, 206, 504 A.2d 533, cert, denied, 199 Conn. 809, 508 A.2d 770 (1986). Accordingly, successful completion of expressly articulated expectations is not sufficient to defeat a department claim that the parent has not achieved sufficient rehabilitation. In the mother’s case, her drug use was the primary factor that led to Vincent’s initial commitment to the department. It was, therefore, not improper for the court, in assessing the mother’s rehabilitation, to consider her failure to reside in a drug free environment, despite her success in overcoming her own drug habit.

We would be more sympathetic to the mother’s plight if the department had given her ambiguous instructions about what she had to do to regain custody of Vincent. The court, however, found to the contrary. Specifically, it found that, during the commitment period, the mother had received explicit advice from the department, which she understood, that regaining custody of her child depended on her living apart from Vincent’s father until he was drug free.

Despite the assistance offered by the department, the mother lived with the father, who continued to be a drug user, for protracted periods of time, from October of 1996 to September of 1997, and again from June of 1998 to August of 1999. Coupled with the fact that the mother’s drug use had caused Vincent’s drug addiction, this evidence supported the court’s finding that the mother had not succeeded in achieving rehabilitation.

The mother further argues that the court improperly found that she had failed to demonstrate that she maintained access to adequate housing and to a consistent income stream. The court’s finding in this respect properly was based on its review of the entire period of Vincent’s commitment to the department, not merely the mother’s situation at the time of trial.

With respect to the mother’s housing arrangements, the court criticized her recurrent failure to separate from the father, which continued until one month before the termination hearing. Her subsequent housing with a friend had uncertain prospects because, at the time of trial, a judgment of strict foreclosure had entered against that property.

The court further determined that the mother’s employment record showed that her employment had not been steady. Although she had been employed for much of the commitment period, she had held a regular part-time position for only six months.

The mother argues that these findings either are clearly erroneous or should be set aside by a plain error review. Although the court might have drawn different inferences from the facts of the mother’s economic situation, it was not required to do so. Indeed, the court acknowledged that its decision in the mother’s case was a much closer call than its decision in the father’s case. The court cannot be faulted for accepting the commissioner’s argument that the mother had not achieved sufficient rehabilitation until she found stable housing and established an adequate income record that was demonstrably reliable for the future.

Our review of the court’s detailed memorandum of decision persuades us that the court properly found that the commissioner had met the heavy burden of establishing that, because of the mother’s failure to achieve rehabilitation in a timely manner, her parental rights should be terminated. The court noted that, despite this termination, the foster parents “have pledged to have Vincent maintain contact with his biological family.” See Michaud v. Wawruck, 209 Conn. 407, 415, 551 A.2d 738 (1988). In sum, the court’s decision to terminate the mother’s parental rights was not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1997) § 17a-112 (c) provides in relevant part: “The Superior Court, upon hearing and notice . . . may grant a petition [lor termination of parental rights] if it finds by clear and convincing evidence (1) that the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts ... (2) that termination is in the best interest of the child, and (3) that over an extended period of time . . . (B) the parent of a child who has been found by the Superior Court to have been neglected or uncared for in a prior proceeding has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .”

       Although the court granted the commissioner’s petition with regard to the respondent father, he has not appealed from that judgment.

       The mother did not maintain a relationship with the father of her first son.

       General Statutes (Rev. to 1997) § 46b-129 (b) provides in relevant part: “If the court . . . vests in a suitable agency or person the child’s or youth’s temporary care or custody, the court shall provide to the commissioner and the parent of the child or youth specific steps which the parent may take to facilitate the return of the child or youth to the custody of such parent. . . .”

       Throughout Vincent’s commitment, the department advised the mother that, to get her children back, she should not live with the father until he was drug free. The mother indicated that she understood this advice and, if forced to choose between her husband and her children, she would choose her children.

       After the loss of the family home, the mother moved in with her own mother in an elderly housing complex that did not allow residence by children. The father initially moved in with his sister and subsequently lived in several different places.

       The mother found housing with a friend, but on September 13, 1999, judgment of strict foreclosure entered against the owner of that property.

       Though the hearing consists of two phases, a bifurcation of the proceeding is not required. In re Tabitha P. supra, 39 Conn. App. 360 n.6.

       The mother relies on In re Juvenile Appeal (Docket No. 10718), supra, 188 Conn. 259, to suggest that foster parents may not be permitted to intervene at any stage of a termination of parental rights proceeding. It is important to note that that case was decided in 1982, prior to the addition, in 1983, of the dispositional phase to the termination proceeding. See Public Acts 1983, No. 83-478, § 1. Therefore, we consider In re Juvenile Appeal (Docket No. 10718) in the context in which it was decided, as applying to termination proceedings that consisted only of adjudication.

       The mother cites General Statutes § 46b-122 to support the contention that foster parents should be excluded from termination of parental rights proceedings. General Statutes § 46b-122 provides in relevant part, however, that “[a]ny judge hearing ajuvenile matter shall, during such hearing, exclude from the room . . . any person whose presence is, in the court’s opinion, not necessary . . . .” Because the statute uses discretionary language, it cannot be construed to preclude the limited foster parent participation that the court deemed to be appropriate under the circumstances of this case.

       In her testimony, the foster mother opined that Vincent “would be devastatedif he were permanently removed from [the foster parents’] home.”

       The mother has not cited any rule of law that creates a presumption of prejudice under the circumstances of this case.