author: DUPONT, J. LAVERY, J.,

text:
    MARIA FERNANDES v. EYVIND RODRIGUEZ ET AL.
    (AC 17646)
    Lavery, Hennessy and Dupont, Js.
    Argued December 10, 1998
    officially released August 10, 1999

      Meredith E. Russell, for the appellant (named defendant).

      Lois J. Lawrence, for the appellee (plaintiff).
   Opinion

DUPONT, J.

This is an appeal from a judgment of partition of real estate, in which the primary issue is whether the trial court could properly order the relief of a payment of money to the named defendant by the plaintiff and order the defendant to execute and deliver to the plaintiff a quitclaim deed to the subject premises. The defendant claims that the trial court had no statutory authority to render such a judgment because the court was limited to rendering a judgment ordering either partition in kind or a sale of the real estate. We hold that the trial court could properly render a judgment in this partition case that required the defendant to execute a quitclaim deed conveying the property to the plaintiff and the plaintiff to pay money damages to the defendant.

The plaintiff alleged in her complaint that she and the defendant hold title to certain real estate as joint tenants and that G.E. Capital Mortgage Services, Inc., has a thirty year mortgage on the real estate in the original amount of $36,000. The plaintiff sought a partition of the real estate or “[i]f a sale would better promote the interests of the coowners, then a sale of the premises and a division of the proceeds, after the payment of the expenses of the sale, between the parties according to their respective rights in the real estate.” In his answer, the defendant admitted that there was a mortgage and agreed to the plaintiffs claims for relief, stating that “the defendant agrees to a partition or sale of said property.” The complaint does not allege nor does the record indicate whether the defendant signed a promissory note in connection with his execution of the mortgage deed.

The defendant counterclaimed, alleging that the plaintiff was living rent free in one of the property’s three apartments, and that the plaintiff kept the net rental income of the remaining two apartments. He sought a money judgment in the amount of one half of the net rental income and one half of what should have been the rental of the apartment in which the plaintiff lived.

Certain facts are undisputed by the parties or were found by the trial court. The real estate was purchased by the parties as an investment in July, 1994, for $45,900. The parties intended to live together in one of the three apartments of the house located on the premises. The trial court found that the amount of the down payment plus closing costs equalled $14,892, and that the defendant’s net contribution to the closing costs and down payment was $1000. The court further found that the rental value of the apartment in which the plaintiff was living was $500, that the plaintiff kept detailed records of rents and expenses from the date of purchase to the date of the trial that showed a net profit for that period of $1556, that the defendant contributed little or nothing by way of repairs or management or upkeep of the building over the years, that the plaintiff did extensive clean up and repairs and has managed the property since the purchase, and that, of the net profit of $1556, the plaintiff had paid the defendant $479. Because the trial court found that the defendant could have lived in the apartment where the plaintiff resided for a three year period, the court concluded he was not entitled to be paid anything for the rental value of that apartment. The court stated that it did not find the defendant’s testimony credible and that it believed the testimony of the plaintiff.

The trial court, after making its findings, determined that the defendant should recover $1077 as his net share of the rental proceeds, be reimbursed the $1000 he paid toward the closing costs and receive 10 percent of the equity in the property. The trial court found 10 percent of the equity to be more than a fair share for the defendant because the $1000 paid toward the closing expenses was less than 10 percent of the total down payment and the closing expenses. In determining the amount of equity, the court found the value of the property to be $61,000 and the mortgage balance to be $25,282.40. The trial court concluded, on the basis of the facts found, that the defendant’s interest in the real estate was minimal and that, therefore, the defendant was not entitled to the remedy of a sale of the property. The trial court did not discuss partition in kind as a remedy. The court’s judgment was that the plaintiff pay the defendant $4605 and that the defendant execute and deliver to the plaintiff a quitclaim deed relinquishing all his right, title and interest in the property.

The defendant claims that the trial court (1) exceeded its authority in ordering a partition by payment of money, (2) improperly found certain material facts and (3) abused its discretion in accepting the opinion testimony of the plaintiffs real estate appraiser.

This is the only appellate case in Connecticut of which we or the parties are aware in which the relief obtained in a partition action was solely the payment of money in exchange for a conveyance of title. In only one case was an issue raised similar to the issue here. In Geib v. McKinney, 224 Conn. 219, 229-30, 617 A.2d 1377 (1992), the defendants argued that because the plaintiff had only a minimal interest in the subject real estate, a partition by sale would be an improper remedy in a partition action. That argument was not addressed, however, because the Supreme Court upheld the trial court’s reasonable finding that the plaintiff had more than a minimal interest. Because the plaintiff had more than a minimal interest, the court upheld the trial court’s order of a partition by sale.

We look to §§ 52-495 and 52-500 and cases decided pursuant to those statutes for guidance. There are conflicting cases that provide clues as to whether a trial court has such power in an action for partition. Some cases contain language indicating that a court is limited in partition actions to rendering a judgment of either partition in kind or partition by sale of the real estate. See Wilcox v. Willard Shopping Center Associates, 208 Conn. 318, 326, 544 A.2d 1207 (1988); Johnson v. Olmsted, 49 Conn. 509, 517 (1882). Johnson is a frequently quoted case in which the court stated that there are only two modes of relief in statutory actions for partition and that there is an undeniable right to obtain relief by use of the less injurious of the two modes. The case also states that the right of partition existed at common law and that the statutes providing for the cause of action recognize that right, leaving to be resolved by a court only the question of how partition can best be effectuated.

Another case recognizes that remedies other than sale or partition in kind were available in equity in partition actions. Penfield v. Jarvis, 175 Conn. 463, 467 n.4, 399 A.2d 1280 (1978). An action for partition ends with, and was intended to end with, a severance of undivided possession or a severance of title. The equitable procedure for partition of property included the ability to compel the execution of a conveyance, to decree pecuniary compensation for owelty or equality of partition, to compel an accounting and to compel discovery necessary to prove title. Id.

All of the cases previously cited involve situations in which all of the owners had more than minimal interests. The defendant argues that even if the relief afforded by the trial court in the present case is permissible where an owner has a minimal interest, his interest was more than minimal. Basically, the defendant contends that the trial court improperly found his interest to be minimal because it did not take the mortgage deed that he executed into account in valuing his interest. The trial court did not discuss the mortgage, other than to acknowledge it in establishing the equity of the parties in the real estate. The defendant did not introduce a promissory note into evidence and the record does not reveal whether he in fact signed one. The closing statement describes the defendant as a “borrower” and the mortgagee as a “lender.” The remedy of a mortgagee for nonpayment is either at law on a promissory note if the mortgagor has signed a note, or in equity for foreclosure of the mortgage. New Milford Savings Bank v. Jajer, 244 Conn. 251, 260, 708 A.2d 1378 (1998). Both remedies, although separate and distinct causes of action, may be pursued in a foreclosure suit. Hartford National Bank & Trust Co. v. Kotkin, 185 Conn. 579, 581, 441 A.2d 593 (1981). Whether the defendant might ever be required to make payment to the mortgagee if the plaintiff should default in payment was not an issue before the trial court. Also, there was no evidence that the defendant had signed a promissory note.

An action for partition at common law was equitable in nature, requiring courts to examine all relevant circumstances. Those equitable considerations are whether partition should be in kind or by sale, by adjusting unequal shares through payments to an owner or by giving an accounting. 7 R. Powell, Real Property (1977) § 607 (3). Because the remedy to be chosen by a court relates, in part, to a determination of whether one of the owners has a minimal interest, a trial court may properly consider the percentage of ownership of each. That question is different from what an appropriate distribution of the proceeds would be after a partition by sale has occurred. See Geib v. McKinney, supra, 224 Conn. 229-30.

It is not necessarily true that each tenant in common or joint tenant is entitled to an equal share in the real estate. Levay v. Levay, 137 Conn. 92, 96, 75 A.2d 400 (1950). In Levay, the defendant bid on the property, in which she had an undivided one-half interest, at a sale ordered in response to the plaintiffs action for partition. “The fund received from the sale will be the equivalent of the property .... Although each party was the owner of an undivided one-half interest in the property, it does not follow that he or she will necessarily be entitled to equal shares of the moneys obtained from the sale. Equities must be considered and, if established, must be liquidated before distribution is ordered.” (Citations omitted.) Id., 95-96.

Here, the trial court found that the evidence introduced by the plaintiff proved that the defendant’s interest was minimal and concluded that a sale would not be equitable. The defendant claims that the court could not end its inquiry with the conclusion that a sale was not an appropriate remedy, but had to determine also whether a partition in kind was warranted.

A partition in kind presents the same inequities as a sale when a coowner has only a minimal interest. A partition in kind presents other problems in this case as well. The judgment of partition by a court must take into account the particular situation of the parties, which includes the physical attributes of the real estate and the interests of the owners. Rice v. Dowling, 23 Conn. App. 460, 466-67, 581 A.2d 1061, cert. denied, 217 Conn. 805, 584 A.2d 1190 (1990). To determine the appropriate relief, the consequences of the relief and whether the relief is equitable must be considered. Id. In this case, the plaintiff had obtained an ex parte restraining order against the defendant, preventing him from entering the real estate, which order the defendant successfully vacated shortly thereafter. It is unlikely that the parties could cooperate peacefully in managing the property, even if a partition in kind, giving him a 10 percent interest could be accomplished. See Wilcox v. Willard Shopping Center Associates, supra, 208 Conn. 323-24. Because of the minimal interest of the defendant, coupled with the other factors here, partition in kind was not appropriate.

This is not a case in which partition in kind produces minor inequities that can be cured by an award of money damages. 7 R. Powell, supra, § 607 (4); see also Filipetti v. Filipetti, 2 Conn. App. 456, 479 A.2d 1229, cert. denied, 194 Conn. 804, 482 A.2d 709 (1984). Here, the inequities are not minor. We conclude that the trial court need not have addressed whether partition in kind was warranted because, by implication, once the interest of the defendant was found to be minimal, that remedy would be inequitable.

The question remaining is whether the remedy ordered by the trial court was proper, given its conclusion that the defendant’s interest was minimal. “The right to partition has long been regarded as an absolute right, and the difficulty involved in partitioning property and the inconvenience to other tenants are not grounds for denying the remedy. No person can be compelled to remain the owner with another of real estate, not even if he becomes such by his own act; every owner is entitled to the fullest enjoyment of his property, and that can come only through an ownership free from dictation by others as to the manner in which it may be exercised. Therefore the law afforded to every owner with another relief by way of partition . . . .’’(Internal quotation marks omitted.) Geib v. McKinney, supra, 224 Conn. 224.

In a situation where neither partition in kind or a sale is equitable because a coowner has only a minimal interest in the real estate, the trial court should be permitted to fashion an alternative equitable remedy because no owner can be compelled to continue ownership with another. “The determination of what equity requires in a particular case ... is a matter for the discretion of the trial court.” Kakalik v. Bernardo, 184 Conn. 386, 395, 439 A.2d 1016 (1981).

We recognize that if a sale is ordered in a partition action where one owner has a substantially greater interest than another, either could become the sole owner by making the highest bid at the sale. To mandate that a trial court, however, after concluding that a partition in kind is not warranted, must always order a partition by sale even if it concludes that partition by sale is also not equitable, would provide the court with a Hobson’s choice. Here, the trial court found that one owner had only a minimal interest in the property and that the other had a substantial interest and resided on the property. The court then concluded that a partition by sale was inequitable.

The right to partition was established by the common law, and is fortified by the use of equitable principles and by the statutes. The statutes governing partition are remedial in nature and should be liberally construed. Borzencki v. Estate of Stakum, 195 Conn. 368, 373, 489 A.2d 341 (1985). In essence, a complaint for partition seeks “no fault” relief. Once the cotenants or joint tenants determine they cannot coexist, the relief of severance of the ownership must be afforded, and the trial court must fashion an appropriate equitable remedy, if partition by sale or in kind would be inequitable. We do not disturb the black letter law that states that usually no remedy other than a partition by sale or in kind can be afforded in a partition action. We simply provide an exception for the limited situations such as the one of the present case, where one party’s interest is very minimal and the other resides on the premises.

The remaining two claims of the defendant relate to his counterclaim for one half of the rental value of the plaintiffs apartment and to his claim that his interest in the real estate was not minimal. We conclude, on the basis of the exhibits and the transcript, that the trial court’s finding that the defendant’s contribution to the purchase price and renovation of the premises was minimal should not be disturbed because the evidence supports the finding of fact.

The finding of the trial court that the defendant could have lived in an apartment on the premises led to its conclusion that the defendant was not entitled to one half of the rental value of that apartment and it is that finding and conclusion that the defendant vigorously attacks as improper. We agree with the defendant. The plaintiff testified that in September, 1995, she obtained an ex parte restraining order to prevent the defendant from entering the premises. She testified that she called the police in September, 1995, because of an argument the two had about his placement of a dead bolt on the apartment door. It appears from the transcript that at the time the police were called, the restraining order had been vacated. Given the plaintiffs testimony, even if the defendant’s testimony that the police officer told him to “get out and never come back” is not credited, we cannot conclude that the trial court’s finding that the defendant could have lived in the apartment was based on the evidence. Accordingly, we must remand the case so that the trial court can establish the amount of money the plaintiff must pay the defendant for one half of the rental value of the apartment in which the plaintiff lived.

The fair rental value of the premises was found by the trial court to be $500 per month. The defendant claims that there was no basis for the finding. The trial court relied on the testimony of a real estate appraiser witness called by the plaintiff and we will not disturb the court’s finding. The defendant did not object to the testimony of the plaintiffs expert witness, and we conclude that the trial court did not abuse its discretion in accepting the witness’ opinion.

The judgment is reversed only as to the amount to be paid to the defendant by the plaintiff and the case is remanded for further proceedings to determine the amount, in addition to the $4605 award, due the defendant from the plaintiff for one half of the fair rental value of the apartment in which the plaintiff resided from the time she began residency to the date judgment is rendered.

In this opinion HENNESSY, J., concurred.

LAVERY, J.,

dissenting. I respectfully disagree with the majority’s conclusion that, in a partition action, General Statutes §§ 52-495 and 52-500 authorize a trial court to order a remedy other than partition in kind or partition by sale of the real estate. The text of §§ 52-495 and 52-500, as well as precedent from our Supreme Court, establish that the trial court did not have the authority to order the defendant to execute a quitclaim deed to the plaintiff in exchange for a payment of money.

Section § 52-495 confers a right of partition to any person holding real property as a joint tenant, tenant in common, coparcener or tenant in tail. In those cases where the court finds that a sale of the property would better promote the interests of the owners, the court may order such a sale. General Statutes § 52-500; Delfino v. Vealencis, 181 Conn. 533, 536, 436 A.2d 27 (1980). The text of §§ 52-495 and 52-500 limits the remedies in a partition action to either partition in kind or partition by sale of the real estate. In Wilcox v. Willard Shopping Center Associates, 208 Conn. 318, 326, 544 A.2d 1207 (1988), our Supreme Court held that “a court is limited to rendering a judgment of either partition in kind or by sale of the real property; Klaus v. Klaus, 143 Conn. 218, 221, 121 A.2d 283 (1956); thus terminating the ownership relationship between the parties.” See Johnson v. Olmsted, 49 Conn. 509, 517 (1882). The legislature has not amended the text of §§ 52-495 and 52-500 since our Supreme Court’s decision in Wilcox.

I respectfully submit that the majority’s reliance on Geib v. McKinney, 224 Conn. 219, 227-30, 617 A.2d 1377 (1992), is misplaced. In Geib, our Supreme Court held that the trial court did not abuse its discretion by ordering a partition by sale. Id., 229. The court did not hold that if the plaintiff held less than a minimal interest in the real estate, §§ 52-495 and 52-500 authorized the trial court to order a remedy other than partition in kind or partition by sale. Geib did not contemplate a remedy other than partition in kind or partition by sale, nor did it overrule the decision in Wilcox or point to any amendment to §§ 52-495 and 52-500 that authorizes additional remedies.

In the present case, the trial court held that the plaintiff was not entitled to the remedy of partition by sale because, although he was a joint tenant, his equitable interest in the property was minimal. “Ordinarily, in a partition by sale, the claims of the parties as to their interests in the property are considered in connection with the distribution of the proceeds.” Gaer Bros., Inc. v. Mott, 147 Conn. 411, 415, 161 A.2d 782 (1960). “In a partition sale, even where each party may be the owner of an individual one-half interest in the property, it does not necessarily follow that he or she will be entitled to equal shares of the moneys obtained from the sale as the ‘[e]quities must be considered and, if established, must be liquidated before distribution is ordered. Rentz v. Eckert, 74 Conn. 11, 16, 49 A. 203 [1901].’ Levay v. Levay, 137 Conn. 92, 96, 75 A.2d 400 (1950) . . . (Citation omitted.) Hackett v. Hackett, 42 Conn. Sup. 36, 40, 598 A.2d 1112 (1990), aff'd, 26 Conn. App. 149, 598 A.2d 1103 (1991), cert. denied, 221 Conn. 905, 600 A.2d 1359 (1992). The trial court should have ordered a partition by sale and distributed the proceeds of the sale in accordance with the equitable interest of each party.

Assuming arguendo that §§ 52-495 and 52-500 authorize the trial court to order a remedy other than partition in kind or partition by sale when a party holds only a minimal interest in the real estate, I respectfully disagree with the majority’s conclusion that the trial court properly determined that the defendant held only a minimal interest. The trial court concluded that the defendant held a minimal interest in the property because the plaintiff contributed a substantial share of the closing costs, managed the property and performed cleaning and repair services for several weeks immediately following the date of purchase. A careful examination of each of those factors in light of the entire record, in conjunction with the trial court’s failure to consider the defendant’s obligation on the mortgage that encumbered the property, establish that its decision was improper.

The first factor that the trial court considered in reaching its conclusion was the amount each party contributed to the closing. The trial court found that the deposit and closing costs totaled $14,892. The plaintiff testified that the closing costs, deposit and water bill exceeded $12,000, but fell within the range of $13,700, and her third exhibit fixed these costs at $13,748.53. The Housing and Urban Development (HUD) settlement statement, which the plaintiff introduced as her second exhibit, establishes that the closing costs, deposit and water bill totalled $12,431.23. It is undisputed that the defendant contributed $4500 to the closing costs, and that at times subsequent to the closing the plaintiff loaned sums to the defendant.

The second factor that the trial court considered in reaching its conclusion was that the plaintiff managed the property. Although the record establishes that the plaintiff managed the property, it also discloses that she resided in the apartment without paying any rent. The plaintiff further testified that she collected $36,253 in rental income and expended $35,176 of that sum for various expenses associated with the property. The memorandum of decision does not disclose that she personally expended any funds for maintenance and repair. The third factor the trial court considered was the cleaning and repair services that the plaintiff rendered during the three month period immediately following the purchase of the property. The trial court credited the plaintiffs testimony, and the plaintiff testified that the defendant worked approximately five hours per day during that period.

Furthermore, in reaching its conclusion that the defendant held only a minimal interest in the property, the trial court did not consider the defendant’s obligation on the mortgage that encumbered the property. The third paragraph of the plaintiffs complaint provides in part: “G.E. Capital Mortgage Services, Inc., has a mortgage on this real estate which mortgage is [in] the original amount of $36,000 . . . .” The mortgage deed, which the plaintiff introduced into evidence, discloses that the plaintiff and defendant held title to the real estate as joint tenants with the right of survivorship. The plaintiffs testimony suggests that the defendant was obligated on the mortgage. The HUD settlement statement lists the plaintiff and defendant as borrowers and G.E. Capital Mortgage Services, Inc., as the lender, and the defendant signed the HUD statement in his capacity as a borrower. A 1996 mortgage interest statement, which the plaintiff introduced as an exhibit, also lists the plaintiff and defendant as borrowers and G.E. Capital Mortgage Services, Inc., as the lender. The plaintiff provided the trial court with ample evidence that the defendant was obligated on the mortgage. Despite this evidence, the trial court failed to consider the defendant’s obligation on the mortgage in reaching its conclusion that the defendant held only a minimal interest in the property.

The defendant, who in addition to contributing $4500 to the closing costs was also liable on a $36,000 mortgage on a $45,000 purchase, cannot be considered an investor with a minimum interest since the plaintiff could not have participated in the purchase without him. See footnote 2 of this opinion. After considering the three previously mentioned factors in light of the entire record, as well as the trial court’s failure to consider the defendant’s obligation on the mortgage, I would conclude that the trial court improperly determined that the defendant held only a minimal interest in the property.

       The defendants are Eyvind Rodriguez, the plaintiffs joint tenant in the property in question, and G.E. Capital Mortgage Services, Inc., the mortgagee of the property. The mortgagee neither filed an appearance nor participated in the trial and is not involved in this appeal. We refer in this opinion to Rodriguez as the defendant.

       General Statutes § 52-495 provides in relevant part: “Courts having jurisdiction of actions for equitable relief may . . . order partition of any real property held in joint tenancy . . . .”
      General Statutes § 52-500 (a) provides in relevant part,: “Any court of equitable jurisdiction may . . . order the sale of any property, real or personal, owned by two or more persons, when, in the opinion of the court, a sale will better promote the interests of the owners.”

       The mortgage deed was not introduced as an exhibit.

       According to a statement required by the federal Department of Housing and Urban Development (HUD) that was introduced as an exhibit, the closing costs were $11,162.46. Whether the closing costs were accurately stated by the trial court, however, does not change the amount of the defendant’s contribution to the payment of them.

       The HUD statement indicates that the down payment was $500.

       The defendant does not dispute the amount of the fair market value of the real estate or the amount of the mortgage balance.

       Usually, a mortgage which had applied to the undivided interest of both owners shifts to the interest assigned to an owner by the partition action. 7 R. Powell, Real Property (1977) § 607 (4).

       The plaintiff introduced her income tax returns, bills and statements of profit and loss.

       The defendant does not argue that a partition in kind would be more appropriate than a partition by sale, and we need not decide the issue of whether the trial court should have compared the equities as between the two. Geib v. McKinney, supra, 224 Conn. 228 n.8.

       In an action for partition, the option of dismissing the case ma.y not be available because the remedy is “compulsory.” Penfield v. Jarvis, supra, 175 Conn. 466.

       On direct examination, the plaintiff testified:
      “Q. And, by comparison what contribution in terms of man hours did [the defendant] make during those first three months?
      “A. He would average about five hours a day and he was tinkering. We argued about this. He would go up to the third floor and spot painted.”
      The plaintiff later offered conflicting testimony, claiming that the defendant did not perform any work during the last two months of this period:
      “Q. Now, during this three month period of time, you said a month, it took a month to get the third floor apartment habitable; is that the first one rented?
      “A. I do not know if it was the second or third.
      “Q. Okay. But, your first tenant came in after about a month?
      “A. Right.
      “Q. In the two months that followed that what role if any did [the defendant] play to get the remainder of the house habitable?
      “A. Nothing.”

       On direct examination, the plaintiff testified:
      “Q. When you found this property [the defendant] agreed to enter into an investment with you?
      “A. Initially my dad was going to sign for me, but he turned terminally ill and then he passed away in May. Then [the defendant] and I spoke and he said he would be willing to sign and come up with half the money.

        ‘Q. Okay. Now, you negotiated the deal and eventually there was a closing?
      ‘A. Right.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    FEDERAL INSURANCE COMPANY ET AL. v. GREGORY M. GABRIELE
    (AC 18959)
    Foti, Landau and Dupont, Js.
    Submitted on briefs June 9
    officially released August 10, 1999

      Lawrence S. Hillman filed a brief for the appellants ' (plaintiffs).
   Opinion

PER CURIAM.

The sole issue in this appeal is whether the trial court improperly denied the plaintiffs’ motion to open a judgment of dismissal, rendered pursuant to Practice Book § 14-3, as untimely. We conclude that it did and reverse the judgment of the trial court.

The plaintiffs commenced this negligence action against the defendant on May 7, 1996, seeking damages in connection with an automobile accident. The trial court dismissed the action as dormant on June 20,1997, for failure to prosecute said action with reasonable diligence. A notice of the June 20,1997 dismissal, dated June 27, 1997, was sent to the plaintiffs. The plaintiff's filed a motion to open the judgment of dismissal on October 27, 1997, claiming that good cause existed for opening the judgment and allowing the plaintiffs to pursue their action. The plaintiffs’ motion to open was denied by the trial court on December 2, 1997, notice being sent on December 12, 1997. The notice of the trial court’s denial of the plaintiffs’ motion to open the judgment stated: “Please be advised that the court (Moraghan, J.) entered the following orders on December 2, 1997: As to motion 102, motion to open judgment of dismissal, ‘Denied. Four month period has elapsed: 6/20 - 10/27.’ ” The plaintiffs filed a motion to reargue the trial court’s decision, which was denied by the trial court. The plaintiffs have appealed from the decisions of the trial court denying their motions to open the judgment of dismissal and to reargue.

The plaintiffs claim on appeal that the four month period in which to file a motion to open the judgment of dismissal commenced when notice of the judgment was issued, namely, June 27, 1997, and not June 20, 1997, the date the judgment was rendered. Therefore, the plaintiffs claim that because their motion to open was filed on October 27, 1997, four months from the date notice issued on the judgment, the trial court improperly denied the motion as untimely. We agree with the plaintiffs.

“Our courts have the inherent authority to open, correct or modify judgments, but this authority is restricted by statute and the rules of practice.” Ziruk v. Bedard, 45 Conn. App. 137, 138, 695 A.2d 4, cert. denied, 243 Conn. 905, 701 A.2d 339 (1997). For a trial court to open a civil judgment, a motion to open or set aside must be filed “within four months succeeding the date on which notice was sent.” Practice Book § 17-4 (a). “When a motion to open is timely filed, our review is limited to whether the court has acted unreasonably or has abused its discretion. . . . When the motion to open is not timely and the time limitation has not been waived, however, the trial court lacks jurisdiction to open the judgment.” (Citations omitted.) Ziruk v. Bedard, supra, 139. “Whether a party has been given notice is a question of fact . . . and where a trial court finds that notice has been given, we limit our review to whether that finding was clearly erroneous.” (Citations omitted.) Batory v. Bajor, 22 Conn. App. 4, 9, 575 A.2d 1042, cert. denied, 215 Conn. 812, 576 A.2d 541 (1990).

Here, the trial court denied the plaintiffs’ motion to open the judgment of dismissal, stating: “Denied. Four month period has elapsed: 6/20 -10/27.” The trial court, in effect, determined that it lacked jurisdiction to entertain the plaintiffs’ motion because the motion was not timely filed. Although the judgment of dismissal was rendered on June 20,1997, the date the trial court relied on as commencing the four month period, notice of that judgment was not sent until June 27, 1997. Therefore, the issue before us is whether the dispositive date for determining whether the plaintiffs filed their motion to open within the four month period is the date that notice of the judgment issued or the date that the judgment was rendered.

Practice Book § 17-4, formerly § 326, was amended in 1997 to provide that a motion to open or set aside a judgment must be filed “within four months succeeding the date on which notice was sent,” changing former § 326, which provided that a motion to open or set aside must be “filed within four months of the entry of judgment.” (Emphasis added.) Practice Book § 17-4 clarifies the issue of when the four month period commences by providing that the four month period does not commence until the date on which notice of the judgment is sent.

The plaintiffs’ motion, having been filed within four months succeeding the date on which notice was sent, was, therefore, timely filed. The trial court improperly relied on the date the judgment was rendered in determining whether the plaintiffs’ motion was filed within the four month time period, and, therefore, its finding that the motion was untimely cannot stand.

The judgment is reversed and the case is remanded for consideration of the merits of the plaintiffs’ motion to open the judgment of dismissal.

       Practice Book § 14-3 provides in relevant part: “(a) If a party shall fail to prosecute an action with reasonable diligence, the judicial authority may, after hearing, on motion by any party to the action pursuant to Section 11-1, or on its own motion, render a judgment dismissing the action with costs. . . .”

       The plaintiffs are the Federal Insurance Company and its insured, Kathleen M. Wallace.

       We do not consider the plaintiffs’ claim relating to the denial of their motion to reargue in view of our disposition of this case.

       The amendment became effective October 1, 1997. The plaintiffs filed their motion to open the judgment of dismissal on October 27, 1997.


author: SCHALLER, J.

text:
    IN RE ANTONY B. ET AL.

    (AC 18639)
    Landau, Schaller and Daly, Js.
    Argued February 16
    officially released August 17, 1999

      David Brian Carr, for the appellant (respondent mother).

      Donald R. Green, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Benjamin Zivyon and Susan T. Pearlman, assistant attorneys 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 parlies involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

SCHALLER, J.

The respondent mother appeals from the judgments of the trial court terminating her parental rights in her twin sons, A and T. The respondent claims that the trial court improperly (1) held that the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., does not apply to termination of parental rights proceedings, (2) found by clear and convincing evidence that the department of children and families (department) had made reasonable efforts at reunification and (3) found that it was in the children’s best interests to terminate the respondent mother’s rights instead of transferring guardianship. We affirm the judgments of the trial court.

The following facts are necessary to the resolution of this appeal. The respondent has suffered from psychiatric disorders since the 1980s when she was diagnosed with schizo-affective disorder. The respondent was placed on medication that, when taken as directed, improved her condition dramatically. While on the medication, the respondent was able to carry on a nearly normal lifestyle. The respondent received a bachelor of science degree at the University of Connecticut and was just two months short of receiving her nursing degree from Saint Francis Hospital and Medical Center when she stopped taking her medication in 1991. After she stopped taking her medication, her condition deteriorated and she found herself living in shelters.

The respondent gave birth to A and T prematurely at twenty-seven weeks of gestation on December 30, 1994. During the course of her pregnancy with the twins, she did not seek prenatal care and was living with the twins’ father. She moved out prior to the twins’ birth, however, because the father became physically abusive toward her. The respondent moved into a room in a homeless shelter that was frequently littered with empty alcoholic beverage bottles. When the respondent gave birth to the twins, she had to be placed in four point restraints and be sedated because she was abusive and actively psychotic. Upon her discharge, the respondent was resistant to treatment and failed to take part in the services offered by the department to allow her to take the twins home with her when they were well enough to be discharged. She appeared to be apathetic toward the twins’ condition and care.

The respondent, even after the twins’ birth, refused offers of assistance and failed to take her medication as prescribed. The commissioner of children and families (commissioner) sought and was granted an order of temporary custody of the twins on February 10, 1995. The commissioner placed A and T with the respondent’s brother and sister-in-law in Maine. The children are currently living with their aunt and uncle and have adjusted to their surroundings.

The respondent was admitted to Cedarcrest Regional Hospital, where she remained for a period of one month. She was diagnosed as having a schizo-affective disorder and that diagnosis has not changed over time. The respondent saw Elizabeth Villotas, a psychotherapist, from December, 1995, through May, 1997. Villotas stated that the respondent has a “psychotic illness of sufficient severity to require regular treatment and medication. She has delusional ideas and trouble keeping organized enough for her own care and is extremely unlikely to be able to do so for others, especially young children.” Villotas further testified that the respondent was probably in a violent relationship with the father and that there were concerns of domestic violence. The respondent was confused, sometimes admitting to the violence and, other times, denying that any violence occurred.

In addition to the concerns about the respondent’s volatile relationship with the father, Villotas suspected that the respondent was abusing alcohol. There were times when Villotas smelled alcohol on the respondent’s breath. The consumption of alcoholic beverages while taking her prescribed medications could cause serious sedation and further disorganization in the respondent’s life.

When the twins were six months old, the respondent was given strictly supervised visitation rights. At no time did the respondent participate in any medical appointments for the twins nor did she inquire as to their well-being. During her visits, the respondent had episodes where her eyes would roll back and she would appear to be completely unaware of her surroundings. When the respondent had these episodes, Kerry Bell, the social worker assigned to the case, would have to call out the respondent’s name to get her to become alert again. The respondent was holding the twins during one of these episodes and dropped one of them on the floor. The commissioner suspended visitation rights until the respondent obtained a note from a physician stating that she was able to continue with visitation.

In October, 1996, the commissioner transferred the respondent’s case to Daniel Huntley, a social worker. Huntley remained on this case and worked with the respondent for approximately eight months. Between October, 1996, and January, 1997, the respondent was pregnant with her third child, C. Catherine Foss, a home health nurse, assisted her with her pregnancy. Foss noticed evidence of domestic abuse during her visits. Additionally, a nurse at Saint Francis Hospital and Medical Center noticed bruises on the respondent’s chin, eyes and forearm. When questioned, the respondent admitted that the bruises were from incidents of domestic violence.

The attorney for the twins filed petitions to terminate parental rights on February 9, 1997, which the commissioner joined on March 14, 1997. The commissioner referred the respondent and the father to Catholic Family Services (agency), and in April, 1997, they began classes at the agency’s reunification program under the supervision of Isabel Perez. Perez described the reunification program as follows: “Parents come. They have opportunities to do different activities. It could be feeding—of course we have to take into consideration the age of the child. It could be feeding, holding the babies, changing them, playing with them. Using different games.” Perez stated that during the course of the program, the respondent’s interaction with the children was “limited to the welcome greetings. There was no . . . parent child interaction during [the visit].” Furthermore, Perez noticed no improvement in the respondent’s interaction over the course of two months. In fact, there never was a time that Perez felt that she could recommend to the department that the respondent should be given unsupervised visits.

Additionally, the respondent disclosed to Perez that she was suffering from instances of self-destructive behavior. Based on observations of the respondent, the decision was made by the agency to discontinue the reunification course with the respondent because “it was not the right program for [her].” The fact that the respondent suffered from a mental illness did not affect the agency’s decision to terminate her involvement with the reunification program.

The trial court appointed Robert Meier, a psychologist, to evaluate the respondent’s mental condition. In areport dated May 26,1997, Meier stated: “[Personality evaluation results present a profile that is consistent with individuals who have serious emotional problems. Those with this pattern generally lack self-confidence and self-esteem. They tend to be isolated from others, are distrustful, and are seriously lacking in social skills. Their lifestyles are often characterized as schizoid. Thinking is often autistic, fragmented and tangential. There is difficulty concentrating and feelings that things that are not real may be present.” Meier stated that when the respondent was on her medication, her condition was markedly improved, but that treatment was not perfect, and the respondent faced episodes where she lost concentration. According to Meier, such episodes might affect her ability to raise her children.

In June, 1997, the commissioner transferred the case to social worker Clordean Davis Mendes. During Mendes’ involvement with the respondent, obtaining stable, suitable housing remained a problem for the respondent. Furthermore, the respondent was still not faithfully taking her medication. The respondent also remained in the abusive relationship with the father.

During the course of the department’s involvement with the respondent, she has been offered psychiatric treatment, substance abuse counseling, housing assistance and assistance with getting out of her abusive relationship with the father. She refused most of the services offered, with the exception of the Catholic Family Services program. The respondent rejected the offers of department personnel to pick her up and drive her to specific counseling sessions. Additional facts will be set forth where necessary.

I

The respondent first claims that the trial court improperly held that the ADA does not apply and does not provide a defense to termination of parental rights proceedings. We disagree.

Whether the ADA applies to termination of parental rights proceedings appears to be an issue of first impression before either this court or our Supreme Court and presents a question of law, affording us plenary review. General Accident Ins. Co. of American v. Powers, Bolles, Houlihan & Hartline, Inc., 38 Conn. App. 290, 298, 660 A.2d 369, cert. denied, 235 Conn. 904, 665 A.2d 901 (1995).

The ADA provides: “[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. “ ‘[Disability’ means, with respect to an individual—(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual . . . .” 42 U.S.C. § 12102 (2). Congress took the uncommon step of codifying its legislative findings and found that “discrimination against individuals with disabilities persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services . . . .” (Emphasis added.) 42 U.S.C. § 12101 (a) (3). Furthermore, Congress found that “the Nation’s proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals . . . .” (Emphasis added.) 42 U.S.C. § 12101 (a) (8).

Because the appellate courts of Connecticut have not addressed the issue of the applicability of the ADA to termination of parental rights proceedings, we look to our sister states for guidance. The leading case is In re Torrance P., 187 Wis. 2d 10, 522 N.W.2d 243 (App. 1994). In In re Torrance P., the Wisconsin Court of Appeals held that “an alleged violation of the ADA is not a basis to attack [termination of parental rights] proceedings.” Id., 12. Rather, the Wisconsin court held that the proper test was whether the state had made the proper efforts under the Wisconsin termination statute, stating: “The County must show by clear and convincing evidence that ‘the agency responsible for the care of the child and the family has made a diligent effort to provide the services ordered by the court’ .... We held in In re D.P., 170 Wis. 2d 313, 331-32, 488 N.W.2d 133, 140 (Ct. App. 1992), that ‘diligent effort’ means ‘reasonable, earnest and energetic effort.’ ” (Citation omitted.) In re Torrance P., supra, 14. The Wisconsin court went on to discuss further Congress’ intent in enacting the ADA. “Congress did not intend to change the obligation imposed by unrelated statutes. [The father] may have a separate cause of action under the ADA based on the County’s actions or inactions; such a claim, however, is not a basis to attack the [termination] proceedings.” Id., 16.

In In re B.S., Juvenile, 166 Vt. 345, 351-52, 693 A.2d 716 (1997), the Supreme Court of Vermont held that termination proceedings are not “services, programs or activities within the meaning of Title II of the ADA .... Thus the anti-discrimination requirement does not directly apply to [termination] proceedings.” (Citation omitted; internal quotation marks omitted.) As in In re Torrance P., the Vermont court held that the mother whose rights had been terminated could have filed a separate ADA claim if the state had indeed violated her civil rights under the ADA. See also Stone v. Daviess County Director of Child Services, 656 N.E.2d 824, 830 (Ind. Ct. App. 1995) (state required no reunification efforts by department; therefore, ADA not defense to termination proceeding; “any alleged noncompliance with the ADA . . . would be a matter separate and distinct from the operation of our termination statute”); In re B.K.F., 704 So. 2d 314, 317 (La. App. 5 Cir. 1997), appeal denied, 709 So. 2d 779 (La. 1998) (termination proceedings not “services programs or activities” under ADA; therefore, ADA not defense to termination proceedings).

We conclude that the reasoning applied in In re Torrance P. is sound and we follow the Wisconsin court’s reasoning that the ADA neither provides a defense to nor creates special obligations in a termination proceeding. We further agree with the Supreme Court of Vermont’s decision in In re B.S., Juvenile, that a termination proceeding is not a “service, program or activity” under the ADA. The Wisconsin decision is especially persuasive because the Wisconsin termination statute, much like our own, sets forth the minimum efforts the state must make to reunify the children with the parent.

We note that, even if the ADA were an appropriate defense in termination proceedings, the parent’s rights are not absolute. See Wisconsin v. Yoder, 406 U.S. 205, 233-34, 92 S. Ct. 1525, 32 L. Ed. 2d 15 (1971) (parent’s constitutional rights may be overcome if health or safety of child in danger). Our Supreme Court has held that a parent’s rights can be terminated because of her mental condition, even if she is not at fault. “In weighing the interests of the child against the hardship imposed on the parent, the legislature may properly strike the balance at the point where the mental or physical deficiency, even though not involving fault, is so great as to render the parent incapable of measuring up to the child’s needs as those are delineated in § 17-43a (a)(3) [now § 17a-112 (c)].” In re Juvenile Appeal (83-BC), 189 Conn. 66, 78-79, 454 A.2d 1262 (1983). “Termination has been consistently recognized as being in the best interest of the child when the parent has a mental deficiency or illness which renders her unable to provide the child with necessary care.” In re Nicolina T., 9 Conn. App. 598, 605, 520 A.2d 639, cert. denied, 203 Conn. 804, 525 A.2d 519 (1987).

The trial court heard testimony from numerous social workers and health care professionals that the respondent had a permanent mental condition. The respondent neglected to take her medication as prescribed and, without that medication, she is unable to care for her children. The trial court properly held that the ADA was not a defense to the termination of parental rights proceeding.

II

The respondent next claims that the trial court improperly found that the department had made reasonable efforts at reunification as required by General Statutes § 17a-112 (c) (1). We disagree.

“On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. . . . Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling.” (Citations omitted; internal quotation marks omitted.) In re Eden F., 48 Conn. App. 290, 309, 710 A.2d 771, cert. granted on other grounds, 245 Conn. 917, 717 A.2d 234 (1998).

“Before a termination of parental rights can be granted, the trial court must be convinced that the department has made reasonable efforts to reunite the [children] with [their] family. The term reasonable efforts was recently addressed by this court: Turning to the statutory scheme encompassing the termination of the parental rights of a child committed to the department, the statute imposes on the department the duty, inter alia, to make reasonable efforts to reunite the child or children with the parents. The word reasonable is the linchpin on which the department’s efforts in a particular set of circumstances are to be adjudged, using the clear and convincing standard of proof. Neither the word reasonable nor the word efforts is, however, defined by our legislature or by the federal act from which the requirement was drawn. . . . [R]easonable efforts means doing everything reasonable, not everything possible.” (Internal quotation marks omitted.) In re Tabitha T., 51 Conn. App. 595, 600, 722 A.2d 1232 (1999).

In essence, similar to her first claim, the respondent claims that because of her mental illness, the department was required to provide additional reunification efforts than those provided to mentally healthy parents. We agree with the respondent that the department is required, pursuant to § 17a-112 (c) (1), to take into consideration her mental condition when determining what “reasonable efforts” to make at reunification. We conclude, however, that the trial court properly found that the steps taken by the department met the statutory mandate.

The respondent correctly states in her brief that the question of reasonableness is a question of fact to be determined by the trier. The trial court found: “There is no evidence that [the respondent] ever completed an alcohol assessment or treatment program, dealt with the domestic violence issues in her life, her transient housing or income until recently, when she became eligible for social security disability income. [The department] offered an alcohol assessment with Advanced Behavioral Health, but [the respondent] denied she had a problem and did not attend. [Bell], the [department] social worker, testified that she made two appointments for [the respondent] and provided her with information and offered transportation. [The respondent] did not attend, ‘she was agitated and all she wanted was an attorney.’ [Bell] then offered her transportation to an attorney which was also refused. [Bell] further testified that [the respondent] has been unable to maintain housing and had been intermittently homeless, living in shelters. . . . [The respondent] resisted discussing [domestic violence] issues in their therapy sessions. She has never been receptive to counseling and assistance for domestic violence.

“Visitation . . . confirmed the same behaviors. [The respondent’s] behavior was variable, sometimes she was able to interact on a limited basis, and sometimes she was not. Not only was her behavior unpredictable, but she . . . [was] not attentive to [her] children, their needs and safety ....

* * *

“[The respondent] rejected many of the services offered to her, rejected her need to be stabilized with the help of regular medication and did very little to attempt to rehabilitate herself. . . . [The respondent] did not choose to accept services from [the department].”

Testimony from Bell, Mendes, Huntley and Meier reflect that the department made numerous attempts at assisting the respondent and, specifically, attempted to treat the problems associated with her mental condition. While the respondent, in her brief, alleges that the efforts failed to equal “reasonable efforts,” she does not point to any additional efforts that the department could have made. Furthermore, the file and transcripts indicate that the respondent did not make the trial court aware that she demanded that a heightened standard should apply until after trial. The department is required only to make “reasonable efforts.” It is axiomatic that the law does not require a useless and futile act. See Connecticut Light & Power Co. v. Costello, 161 Conn. 430, 441, 288 A.2d 415 (1971). After a thorough review of the file and transcripts, we conclude that there is sufficient evidence on which the trial court reasonably found by clear and convincing evidence that the department made reasonable efforts at reunification considering her mental condition.

Ill

The respondent last claims that the trial court improperly found that it was in A’s and T’s best interests to terminate her parental rights instead of transferring guardianship. We are not persuaded.

“The state has a substantial interest in protecting minor children; Stanley v. Illinois, [405 U.S. 645, 649, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972)];Prince v. Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438, 88 L. Ed. 645 (1944); intervention in family matters by the state is justified, however, only when such intervention is actually in the best interests of the child, a standard long used in this state. . . . State v. Anonymous, 179 Conn. 155, 165, 425 A.2d 939 (1979); In re Juvenile Appeal (Anonymous), 177 Conn. 648, 661-62, 420 A.2d 875 (1979).” (Citation omitted; internal quotation marks omitted.) In re Juvenile Appeal (83-CD), 189 Conn. 276, 285, 455 A.2d 1313 (1983). Our Supreme Court has further recognized the “deleterious effects of prolonged temporary placement on the child . . . .” Id., 292. Because of these effects, time is of the essence. Id.

Meier testified that a transfer of guardianship would place A and T in possibly a temporary setting. Meier was concerned over the twins’ placement: “My concern about not having a permanent solution for the children is that at some point a year, two years, ten years from now the parents could change their minds, could then make a request that the children then be returned to them, could reopen the case and I think that would be very destructive to the children. My main focus in the interest of the children would be that the children have stability and consistency and permanency as soon as possible. ... I think the long-term risk of not having the children permanently placed somewhere opens the opportunity that their lives could be disrupted later in their lives.” The trial court further stated that it was concerned about the possible relitigation over the respondent’s parental rights in A and T if it ordered a transfer of guardianship as opposed to ordering termination of the respondent’s parental rights. The trial court found: “[B]ased on the evidence, that such lack of permanency in their placement is not in the twins’ best interests.”

General Statutes (Rev. to 1997) § 17a-112 (e) provides seven findings that the trial court must consider before it issues a termination order. In its memorandum of decision, the trial court made the seven findings required by § 17a-112 (e). The trial court found by clear and convincing evidence that the department made reasonable reunification and rehabilitation efforts. The trial court found that the children have good ties to their aunt and uncle while having only “tenuous ties” to the respondent. The trial court further found that the respondent has been unable to accomplish steps at rehabilitating herself. On the basis of these findings, which are not clearly erroneous, we will not disturb the trial court’s finding that termination of the respondent’s parental rights is in the best interests of A and T.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court also terminated the respondent father’s parental rights, but the respondent father is not a party to this appeal. We refer in this opinion to the respondent mother as the respondent.

       In the same action, the trial court committed the respondent’s youngest son, C, to the custody of the commissioner of the children and families for a period of twelve months until May 21, 1999. The disposition of C’s case is not at issue in this appeal.

       The department claims that the respondent did not raise her ADA defense at trial. After a thorough review of the transcripts and file, we agree. The trial court, however, allowed the parties to file supplemental trial briefs, in which the respondent raised the issue for the first time. The trial court’s memorandum of decision fully addresses the applicability of the ADA to the respondent’s case, and the respondent adequately briefed the issue. Furthermore, the commissioner does not claim that we should not review the respondent’s claim as inadequately preserved. We choose, therefore, to exercise our discretion and review the respondent's ADA claim.

       We have had before us two cases in which the respondents claimed that termination proceedings violated the ADA. In In re Jessica S., 51 Conn. App. 667, 674, 723 A.2d 356 (1999), we refused to review the respondent’s claim based on the ADA because it was not properly preserved. In In re Karrlo K., 44 Conn. Sup. 101, 669 A.2d 1249 (1994), aff'd, 40 Conn. App. 73, 668 A.2d 1353 (1996), the mother claimed “terminating the mother’s rights as a parent due to her mental disability would violate the [ADA].” The 1rial court did not address the question of whether the ADA specifically applied to termination of parental rights proceedings. Instead, it stated that it was applying strict scrutiny to the mother’s case. Id. We affirmed the trial court’s decision without further analysis, stating: “[T]hat memorandum addresses the arguments raised in this appeal . . . .” In re Karrlo K., 40 Conn App. 73, 75, 668 A.2d 1353 (1996).

       “The purpose of the [ADA] is to place those with disabilities on an equal footing, not to give them an unfair advantage.” Kornblau v. Dade County, 86 F.3d 193, 194 (11th Cir. 1996), citing In re Rubenstein, 637 A.2d 1131 (Del. 1994).

       We note that some states have held that the ADA applies to termination proceedings, but held that the state had met its burden under the ADA. See In Interest of C.M., 526 N.W.2d 562, 566 (Iowa App. 1994); In re Angel B., 659 A.2d 277, 279 (Me. 1995); In re Welfare of A.J.R., 78 Wash. App. 222, 230, 896 P.2d 1298, cert. denied, 127 Wash. 2d 1021, 904 P.2d 1157 (1995).

       The respondent mother in In re B.S., Juvenile, was “a moderately retarded woman.” In re B.S., Juvenile, supra, 166 Vt. 346. “The mother’s . . . claim of error is that the court improperly terminated her parental rights without addressing her claims under Title II of the [ADA]. . . . She relies on the fact that she is mentally retarded and mental retardation is a disability with the meaning of the ADA. . . . She argues that, with help, she has the capacity to care for her child and is therefore a qualified person eligible for accommodation under the ADA. . . . She claims that [the department of social and rehabilitation services (SRS)] has failed to accommodate her disability and, as a result, has discriminated against her in the provision of the services needed to parent her child.” (Citations omitted.) Id., 350-51.
      The Vermont, Supreme Court stated: “The issue is not, however, whether SRS properly treated the parents or treated them consistent with the requirements of the ADA. The issue instead is whether SRS’s alleged violation of requirements of the ADA may be raised as a defense to a [termination] petition. The family court ruled that ADA noncompliance is not a defense. We agree.” Id., 351.

       General Statutes (Rev. to 1997) § 17a-112 (c) provides in relevant part: “The Superior Court upon hearing and notice . . . may grant a petition filed pursuant to this section if it finds by a 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 . . . .” (Emphasis added.)

       Our holding in this case concerns only the applicability of the ADA to termination proceedings. As such, we do not suggest that the ADA does not apply to the reunification services and programs that the department must malee to meet the parents’ specialized needs. See In re B.S., Juvenile, supra, 166 Vt. 345; In re Torrance P., supra, 522 N.W.2d 243. Moreover, we note that § 17a-U2 requires the department to make reasonable efforts at reunification. This includes taking the parent’s mental condition into consideration. A failure to provide adequate services because of the parent’s mental condition would violate not only § 17a-112, but the ADA, 42 U.S.C. § 12132. Such a violation would give rise to a separate cause of action under the ADA. We emphasize, however, that the ADA does not give rise to an affirmative defense to the adjudicatory and dispositional phases of termination of parental rights proceedings. See State v. Valinski, 53 Conn. App. 23, 731 A.2d 311 (1998), cert. granted on other grounds, 249 Conn. 924, 733 A.2d 847 (1999) (authority to declare affirmative defenses rests with legislature).

       General Statutes (Rev. to 1997) § 17a-112 (e) provides in relevant part: “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended; (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (4) the feelings and emotional ties of the child with respect to his parents, any guardian of his person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (5) the age of the child; (6) the efforts the parent has made to afijust his circumstances, conduct, or conditions to make it in the best interest of the child to return him to his home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.”


text:
    DONNA J. EAST v. LISA M. LABBE ET AL.
    (AC 18320)
    (AC 18355)
    O’Connell, C. J., and Landau and Sullivan, Js.
    Submitted on briefs May 4
    officially released August 17, 1999

      Keith S. McCabe and Andrew A. Cohen filed a brief for the appellants (plaintiff and inteivening plaintiff).

      Ann Grunbeck Monaghan, James L. Brawley and Joel M. Fain filed a brief for the appellee (named defendant).
   Opinion

PER CURIAM.

These are consolidated appeals brought by the plaintiff, Donna J. East, and the intervening plaintiff, Easter Seal Society, Inc., from the judgment of the trial court granting summary judgment in favor of the named defendant. The sole issue on appeal is whether a golf cart is a “motor vehicle” for purposes of the “motor vehicle” exception to the exclusivity provision of the Workers’ Compensation Act. General Statutes § 31-293a. The trial court held that a golf cart is not a motor vehicle for that purpose. Accordingly, the trial court held that the plaintiff’s action was barred by the workers’ compensation statute. We affirm the judgment of the trial court.

The plaintiff and the defendant are coworkers in the employ of Easter Seal Society, Inc. The plaintiff was riding as a passenger in a golf cart operated by the defendant when it went out of control causing the plaintiff to be thrown from the cart. It is not disputed that the accident occurred in the course of the plaintiffs employment. The trial court concluded that § 31-293a bars the plaintiff from prosecuting this action against the defendant.

Our examination of the record and briefs persuades us that the judgment of the trial court should be affirmed. The issue regarding the underlying dispute was resolved properly in the trial court’s thoughtful and comprehensive memorandum of decision. See East v. Labbe, 46 Conn. Sup. 24, 735 A.2d 371 (1998). Because that memorandum of decision fully addresses the arguments raised in this appeal, we adopt it as a proper statement of the facts and the applicable law on those issues. It would serve no useful purpose for us to repeat the discussion contained therein. See In re Karrlo K., 40 Conn. App. 73, 75, 668 A.2d 1353 (1996).

The judgment is affirmed.

       The intervening-plaintiff, Easter Seal Society, Inc., was originally named as a defendant. Its motion for summary judgment in that capacity was granted without objection. We refer in this opinion to Lisa M. Labbe as the defendant.

       General Statutes § 31-293a provides in relevant part: “If an employee . . . has a right to benefits or compensation under this chapter on account of ipjury . . . caused by the negligence or wrong of a fellow employee, such right shall be the exclusive remedy of such injured employee . . . and no action may be brought against such fellow employee unless such wrong was wilful or malicious or the action is based on the fellow employee’s negligence in the operation of a motor vehicle as defined in section 14-1. . . .”