text:
    SUSAN CIFALDI v. ANTHONY CIFALDI, JR.
    (AC 30109)
    Haiper, Alvord and Foti, Js.

      Argued September 23
    officially released December 8, 2009

      Linda H. Ursin, for the appellant (plaintiff).

      Matthew R. Potter, with whom, on the brief, was Melissa M. Donahue, for the appellee (defendant).
   Opinion

HARPER, J.

The matter before us stems from the parties’ divorce in 1993. The plaintiff, Susan Cifaldi, appeals from the judgment of the trial court denying her postjudgment request for an order that the defendant, Anthony Cifaldi, Jr., pay to the plaintiff her share of pension disbursements made to him. On appeal, the plaintiff claims that (1) the order requested was necessary to effectuate and to preserve the integrity of the original dissolution judgment and (2) the court improperly applied the defense of laches. After careful consideration of the plaintiffs claims, we hold that under the allocation of marital property per the marriage dissolution judgment, the plaintiff became entitled to a defined portion of the defendant’s pension benefits. The defendant has received the plaintiffs portion of his pension benefits. Therefore, the court should have fashioned an order compelling the defendant to pay the moneys to her. Additionally, we hold that the court improperly relied on laches as an alternate ground to deny the relief requested. Accordingly, the judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

The following facts and procedural history are relevant to the plaintiffs appeal. The parties’ marriage was dissolved on October 25, 1993. On that date, the court approved a separation agreement between the parties and incorporated the terms of the separation agreement into the dissolution judgment. Pursuant to that agreement, the parties agreed that two qualified domestic relations orders (QDROs) would be executed, assigning to the plaintiff a portion of the defendant’s pension benefits under two pensions. The first QDRO was to be entered “against [the defendant’s] Travelers [Corporation] pension, in an amount equal to one-half the benefits payable to [the defendant] as of the date of dissolution.” The second QDRO was to be entered “against [the defendant’s] military pension, in an amount equal to [five sixteenths] of the current value of said pension as of the date of judgment, whether or not vested.” The agreement further provided that “the court shall retain jurisdiction regarding the foregoing QDROs and of said pensions pursuant to the foregoing provisions so as to effectuate the foregoing terms and conditions.” The agreement stipulated that the “[plaintiffs attorney shall prepare said QDROs.”

In their respective briefs, both parties agree that the defendant retired in 2005 and began receiving retirement benefits from both the Travelers Corporation pension and the military pension shortly thereafter. The parties also agree that, as of the date the defendant retired, neither pension administrator had processed QDROs against the defendant’s pensions. As such, the payments the defendant began receiving from each pension included the portions that had been allocated to the plaintiff in the parties’ separation agreement.

Not having received her portion of the defendant’s pension benefits, the plaintiff filed a motion to open the judgment on February 1, 2008. In her motion to open the judgment, the plaintiff sought to require the defendant to sign new QDROs to be submitted to the administrators of the defendant’s pension plans so that she could begin to receive, prospectively, the payments promised to her under the dissolution judgment. The plaintiff also sought to require the defendant to “reimburse to [the plaintiff] the amount of payments retained by [the defendant] that are the property of [the plaintiff].” A hearing was held on April 8, 2008, regarding the motion to open the judgment. On that date, the plaintiff also filed a motion for contempt against the defendant. In the plaintiffs motion for contempt, she asked the court, in relevant part, to find the defendant in contempt for “failure to pay to [the] [p]laintiff the portion of his pension payments he has received that are the property of [the] [p]laintiff . . . .” The plaintiff also asked the court to order the defendant to pay to her an amount equal to the portion of his benefits that she would have received had the QDROs properly been in place at the time the defendant retired and began receiving benefits.

The court denied the plaintiffs requests that the defendant pay to the plaintiff her portion of his pension benefits. The court found that its decision declining to order the defendant to pay to the plaintiff her share of the pensions did not constitute a modification of the property settlement that had been incorporated into the dissolution judgment. As an alternate ground, the court went on to find that, even if the plaintiff were entitled to the moneys at issue, the defense of laches had been established, and the plaintiff was not entitled to the relief sought. The plaintiff appealed.

I

The plaintiff first claims that the order she requested, namely, that the defendant pay to her portions of the prior pension disbursements, was necessary to effectuate and to preserve the integrity of the dissolution judgment. We agree with the plaintiff.

We begin by setting forth our standard of review. “The standard of review in family matters is well settled. An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. . . . In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Kaczynski v. Kaczynski, 109 Conn. App. 381, 385, 951 A.2d 690 (2008), rev’d on other grounds, 294 Conn. 121, 981 A.2d 1068 (2009).

When an agreement of the parties to the dissolution of marriage is incorporated into the judgment, it becomes a contract of the parties. Sachs v. Sachs, 60 Conn. App. 337, 341-42, 759 A.2d 510 (2000). “[T]he construction of a written contract is a question of law for the court. . . . The scope of review in such cases is plenary. . . . Because our review is plenary, involving a question of law, our standard of review is not the clearly erroneous standard used to review questions of fact found by a trial court. Our review of the parties’ agreement is plenary . . . .” (Citations omitted; internal quotation marks omitted.) Id., 342. Thus, our review of whether the plaintiff was entitled to the pension payments under the separation agreement that was incorporated into the judgment by the parties is plenary.

As an initial matter, we must determine whether there was a distribution of property and whether this distribution has been violated. It is well established that pension benefits are a form of property under General Statutes § 46b-81. Our Supreme Court has held “that ‘property’ as used in § 46b-81, includes the right, contractual in nature, to receive vested pension benefits in the future.” Krafick v. Krafick, 234 Conn. 783, 798, 663 A.2d 365 (1995). There is no question that a party’s property interest in a pension is an important consideration in an allocation of property pursuant to a dissolution judgment. “Pension benefits are widely recognized as among the most valuable assets that parties have when a marriage ends. . . . Pension benefits are an economic resource acquired with the fruits of the wage earner spouse’s labors which would otherwise have been utilized by the parties during the marriage to purchase other deferred income assets. . . . Both [spouses] have the same retirement goals and expectancies regarding the pension benefits as they would if they provided for their later years by using wage income to purchase other investments. ... It would be unfair and contrary to the purpose of the statute to strip the nonemployee spouse of the value of the retirement asset by precluding [the trial court] from evaluating its worth prior to adjudicating the property rights of the estranged marriage partners.” (Citations omitted; internal quotation marks omitted.) Id., 796-97.

Section 12 of the parties’ separation agreement is titled “Pensions.” Subsection A of § 12 of the agreement states that “[a] [QDRO], shall enter, in favor of [the plaintiff], against [the defendant’s] Travelers [Corporation] pension, in an amount equal to one-half the benefits payable [to the defendant] as of the date of dissolution.” Subsection B of § 12 states that “[a] QDRO shall enter, in favor of [the plaintiff], against [the defendant’s] military pension, in an amount equal to [five sixteenths] of the current value of said pension as of the date of judgment, whether or not vested.” The clear import of § 12 of the agreement is that one half of the defendant’s pension from the Travelers Corporation, determined as of the date of judgment, and five sixteenths of the military pension, also valued as of the date of judgment, are the property of the plaintiff. A QDRO is merely an administrative tool used to effectuate the transfer of marital property, in this case pension benefits, from an employee to a nonemployee spouse. Given the well recognized importance of pension benefits as a piece of marital property, the obvious significance of pension benefits to any property allocation made as part of a dissolution judgment and the expectations of the parties to that judgment, we do not read the parties’ agreement in the case before us to make the vesting of the plaintiffs property interest in a portion of the defendant’s pension benefits to be in some way contingent on the successful processing of the QDROs. To put it simply, we conclude that the plaintiffs property interest in portions of the defendant’s pension benefits was not predicated on the processing of paperwork; the plaintiff cannot be deprived of this important asset on the basis of a mere administrative error. We hold that the plaintiff was entitled to her portion of the defendant’s pension benefits.

Having held that the defendant received marital property that belonged to the plaintiff, the remaining inquiry before us is whether the defendant is obligated to return the plaintiffs property. The defendant concedes in his appellate brief that the court lacks jurisdiction to modify property division orders. Our Supreme Court has held that “[b]y its terms, [§ 46b-81] deprives the Superior Court of continuing jurisdiction over that portion of a dissolution judgment providing for the assignment of property of one party to the other party under General Statutes § 46b-81.” Bunche v. Bunche, 180 Conn. 285, 289, 429 A.2d 874 (1980). The plaintiff essentially claims that the failure of the court to issue orders that were necessary to effectuate its original assignment of property in the parties’ marital dissolution action was tantamount to an impermissible modification of the original property division. We agree.

“A modification is [a] change; an alteration or amendment which introduces new elements into the details, or cancels some of them, but leaves the general purpose and effect of the subject-matter intact.” (Internal quotation marks omitted.) Roos v. Roos, 84 Conn. App. 415, 422, 853 A.2d 642, cert. denied, 271 Conn. 936, 861 A.2d 510 (2004). In keeping with this reasoning, we hold that when a party has been denied marital property to which the party is entitled as part of the allocation of property pursuant to a judgment of dissolution of marriage, and the aggrieved party seeks relief from the court, the court is under an affirmative obligation to issue financial orders effectuating the existing allocation of marital property to protect the integrity of the original judgment, subject to equitable defenses. To hold otherwise would allow a court to modify a property distribution simply by its own silence or inaction. See Rosato v. Rosato, 77 Conn. App. 9, 15, 822 A.2d 974 (2003) (reasoning that, where husband was in arrears in paying to wife her share of his pension payments, “[i]f the [trial] court had not determined an amount due . . . but simply had ordered payments prospectively . . . the court would have been in violation of § 46b-81, which requires that property orders be made at the time of marital dissolution”). Accordingly, the court should have granted the relief requested by ordering the defendant to return to the plaintiff her share of the defendant’s pension benefits that he had received.

II

We next address the issue of laches. Laches is an equitable defense that consists of two elements. “First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant. . . . The mere lapse of time does not constitute laches . . . unless it results in prejudice to the defendant ... as where, for example, the defendant is led to change his position with respect to the matter in question.” (Citation omitted; internal quotation marks omitted.) Burrier v. Burrier, 59 Conn. App. 593, 596, 758 A.2d 373 (2000). Thus, prejudicial delay is the principal element in establishing the defense of laches. Id.

“The standard of review that governs appellate claims with respect to the law of laches is well established. A conclusion that a plaintiff has been guilty of laches is one of fact .... We must defer to the court’s findings of fact unless they are clearly erroneous.” (Internal quotation marks omitted.) Caminis v. Troy, 112 Conn. App. 546, 552, 963 A.2d 701, cert. granted on other grounds, 291 Conn. 909, 969 A.2d 171 (2009). The court found that “[t]he defendant, because of the plaintiffs inaction or error, has paid taxes on the pension he received and would indeed be prejudiced now by having to return a portion of that income to the plaintiff . . . .” We disagree with the court’s finding that because the defendant has paid taxes on the pension payments he has received already, he would be prejudiced by being required to pay to the plaintiff the portion he received in error.

We first note that in our review of the record, we cannot find any evidence that the defendant has in fact paid taxes on the pension payments he received. Although the defendant’s attorney made statements to the effect that the defendant has paid taxes, “[t]he court [can] not properly rely on argument by the defendant’s attorney or on matters not in evidence in finding prejudice to the defendant.” Burrier v. Burrier, supra, 59 Conn. App. 597. Furthermore, even if we assume arguendo that the defendant has paid taxes on the pension benefits he received, no evidence was presented as to whether the defendant, upon demonstration that he had received income in error, would be able to recoup such taxes from the government. Additionally, the plaintiff, in argument before the court regarding her request for payment, conceded that “[t]here may need to be adjustments for . . . taxes.” The court could, as the plaintiff requested, determine the amount of taxes, if any, that the defendant paid on the oveipayments he received and reduce the plaintiffs remuneration accordingly. This would eliminate any potential claim of prejudice by the defendant. The mere fact that the defendant might have paid taxes on property he received in error does not immunize him from being required to repay the plaintiff altogether. We hold that because the defendant did not show prejudicial delay, it was clearly erroneous for the court to have found that he had established the defense of laches.

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

In this opinion the other judges concurred.

       “A QDRO is the exclusive means by which to assign to a nonemployee spouse all or any portion of pension benefits provided by a plan that is governed by the Employee Retirement Income Security Act, 29 U.S.C.§ 1001 et seq.” Krafick v. Krafick, 234 Conn. 783, 786 n.4, 663 A.2d 365 (1995).

       This refers to a Travelers Corporation pension plan in which the defendant was a participant. Due to a merger between the Travelers Corporation and Citigroup, the defendant’s Travelers Corporation pension is now administered by Citigroup. We will continue to refer to this pension as the Travelers Corporation pension throughout this opinion.

       This refers to a pension plan that the defendant was a part of through his military service. The defendant’s military pension is administered by the United States Department of Defense.

       There is some disagreement as to the reason why these QDROs were not processed by the pension plan administrators. The court file contains two QDROs dated October 25, 1993, signed by the plaintiff, the defendant and Judge Klaczak, who rendered the dissolution judgment. The plaintiff testified that she sent the signed QDROs by certified mail to the plan administrators in 1995 and received return receipts indicating that they had been delivered. The plaintiff testified that the return receipts were not available because she had lost them. As such, there are documents in the file showing that the plaintiff prepared the QDROs and that the defendant signed them; however, there is no documentary evidence to support the plaintiffs testimony that she actually submitted the QDROs.

       The court found that after the plaintiff filed her motion to open, a QDRO was signed by agreement of the parties, approved by the court and delivered to the Citigroup pension administrator. The court also noted that the parties had drafted a QDRO applying to the defendant’s military pension benefits and appeared likely to work out the terms of the QDRO to conform to the original judgment. Therefore, the only issue before us is the pension payments the defendant received before corrective QDROs were put in place to pay benefits to the plaintiff as per the dissolution judgment.

       We note that although the plaintiffs April 8, 2008 motion was captioned a motion for contempt, consistent with the relief sought therein, it would have been more accurate for the plaintiff to have captioned the motion as a motion for contempt and for order. Despite the inaccurate label, the court properly considered the substance of relief sought in the subject motion, which requested, in addition to an order for contempt, postjudgment orders for payment to the plaintiff of the portions of the defendant’s pensions to which she was entitled. See Bijur v. Bijur, 79 Conn. App. 752, 754 n.1, 831 A.2d 824 (2003).

       In any event, subsection E of § 12 of the agreement stated that the “[plaintiffs attorney shall prepare said QDROs.” The file contains two QDROs prepared by the plaintiffs attorney and signed by the parties and the court, dated October 25, 1993. Thus, even if the plaintiffs right to her share of the defendant’s pensions was subject to some sort of condition precedent, the plaintiff clearly satisfied that condition when her attorney prepared QDROs that were signed by the court and all parties.

       The plaintiff claims that she has brought an action at law, and, therefore, the court improperly applied the defense of laches, which is purely an equitable defense. “Laches is purely an equitable doctrine, is largely governed by the circumstances, and is not to be imputed to one who has brought an action at law .... It is an equitable defense allowed at the discretion of the trial court in cases brought in equity.” (Citation omitted; internal quotation marks omitted.) Giordano v. Giordano, 39 Conn. App. 183, 214, 664 A.2d 1136 (1995). The issue of whether the nature of the plaintiffs action is equitable or legal is a question of law, and, therefore, our review is plenary. See Weinstein v. Weinstein, 280 Conn. 764, 770, 911 A.2d 1077, after remand, 104 Conn. App. 482, 934 A.2d 306 (2007), cert. denied, 285 Conn. 911, 943 A.2d 472 (2008). We repeatedly have held that a court order designed to protect the integrity of the original judgment, which is what the plaintiff has requested here, is an exercise of the court’s equitable power. See Clement v. Clement, 34 Conn. App. 641, 646, 643 A.2d 874 (1994); Roberts v. Roberts, 32 Conn. App. 465, 471, 629 A.2d 1160 (1993); Niles v. Niles, 9 Conn. App. 240, 246, 518 A.2d 932 (1986). Therefore, we must disagree with the plaintiff. The relief the plaintiff seeks is equitable in nature, and laches is an available defense.

       Beyond the issue of taxes, no other evidence was submitted that the defendant detrimentally relied on the overpayments or was led to change his position.

       Because we agree with the plaintiff that no prejudice was established, we do not address the conclusion of the court that the delay was inexcusable.


source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    CONCERNED CITIZENS FOR THE PRESERVATION OF WATERTOWN, INC. v. PLANNING AND ZONING COMMISSION OF THE TOWN OF WATERTOWN
    (AC 29658)
    Gruendel, Harper and Pellegrino, Js.

      Argued September 17
    officially released December 8, 2009

      Kenneth R. Slater, Jr., for the appellant (plaintiff).

      N. Warren Hess III, for the appellee (defendant).
   Opinion

GRUENDEL, J.

The plaintiff, Concerned Citizens for the Preservation of Watertown, Inc., appeals from the judgment of the trial court dismissing its zoning appeal from the decision of the defendant, the planning and zoning commission of the town of Watertown (commission), for lack of subject matter jurisdiction. The plaintiff contends that the court improperly concluded that it was not aggrieved by the commission’s decision. We affirm the judgment of the trial court.

The facts relevant to the resolution of the plaintiffs appeal are as follows. The plaintiff is a Connecticut corporation formed by private property owners and businesses to advocate for zoning policy in Watertown. On May 23, 2006, the plaintiff, in an attempt to curtail the construction of “big box” retail development, filed with the commission a petition to amend the Watertown zoning regulations. That petition proposed, inter alia, that “[a]ll applications for a [sjpecial [pjermit involving the construction or expansion of a development of more than 50 dwelling units, 100 parking spaces, or 20,000 square feet of gross floor area, or any development which, in the [c]ommission’s judgment, would generate high levels of traffic” be required to submit certain studies and reports regarding the impact of the proposed use on both properties within a three mile radius of the development site and the community’s well-being. The petition also proposed establishing a maximum building size of 50,000 square feet. After receiving the petition, the commission scheduled a public hearing for August 2, 2006. That hearing was held on August 2, 2006, and continued to August 16, 2006, when it was concluded. At that time, the plaintiff requested that commission members Gary Martin and James Lukasa-vage recuse themselves from consideration of the petition due to an alleged conflict of interest; Martin and Lukasavage declined to do so. The commission thereafter denied the plaintiffs petition.

From that determination, the plaintiff appealed to the Superior Court pursuant to General Statutes § 8-8 (b). In its complaint, the plaintiff alleged the following with respect to its claim of aggrievement: “The [p]laintiff is aggrieved by the [cjommission’s denial of the [p]etition in one or more of the following ways: a. In accordance with rights conferred upon it by Connecticut law, [the plaintiff] petitioned the [c]ommission to adopt amendments to the [z]oning [regulations but was denied its special, personal, legal right to a fundamentally fair hearing before a commission comprised of public officials having no personal or financial interest in the [p]etition and having no appearance of such personal or financial interest, which right was specially and injuriously affected by the participation of [certain commissioners] in the consideration and decision of the [pjetition. b. [The plaintiff], as the applicant before the [commission, has special, personal and legal rights in the [pjetition which were specially and injuriously affected by the [c]ommission’s denial of the [pjetition. c. [The plaintiff] is an association formed for the purpose of advocating sound zoning policy in . . . Water-town including the policy advocated by the [pjetition and is comprised of members who would have had standing had they appealed in their individual capacity as statutorily and/or classically aggrieved persons whose rights in a fundamentally fair hearing were denied and who have special, personal legal interests in real property or businesses that are specially affected by the denial of the [pjetition and the endorsement of retail development of buildings greater than 50,000 square feet in size.”

In response, the commission argued in a memorandum of law to the court that the plaintiff had not established that it was statutorily or classically aggrieved by the decision of the commission. At a September 26,2007 hearing, the plaintiff abandoned any claim of statutory aggrievement, informing the court that it instead would rely on its claim of classical aggrievement. Following that hearing, the court found that the plaintiff failed to establish that claim and, accordingly, dismissed the appeal. This certified appeal followed.

We begin by noting that “[pjleading and proof of aggrievement are prerequisites to the trial court’s jurisdiction over the subject matter of a plaintiffs appeal. . . . [IJn order to have standing to bring an administrative appeal, a person must be aggrieved. . . . Two broad yet distinct categories of aggrievement exist, classical and statutory. . . . Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share. . . . Second, the party must also show that the agency’s decision has specially and injuriously affected that specific personal or legal interest.” (Citations omitted; internal quotation marks omitted.) Moutinho v. Planning & Zoning Commission, 278 Conn. 660, 664-65, 899 A.2d 26 (2006).

“Aggrievement presents a question of fact for the trial court. . . . The scope of review of a trial court’s factual decision on appeal is limited to a determination of whether it is clearly erroneous in view of the evidence and pleadings. . . . Conclusions are not erroneous unless they violate law, logic or reason or are inconsistent with the subordinate facts. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Id., 665-66. Finally, “[b]ecause aggrievement is a jurisdictional question, and therefore, the key to access to judicial review, the standard for aggrievement is rather strict.” (Internal quotation marks omitted.) Gladysz v. Planning & Zoning Commission, 256 Conn. 249, 257, 773 A.2d 300 (2001).

The plaintiff claims that it is classically aggrieved by the commission’s denial of its petition to amend the Watertown zoning regulations. That contention is undermined by the fact that the court found that “[t]he proposed amendments are not site specific; they apply townwide to all zones and all property in the town.” That finding is supported by the record and not disputed on appeal, as the plaintiff concedes in its appellate brief that the present case involves proposed regulations “of general application.” Thus, the plaintiff is not affected by the commission’s decision any differently than any other property owner in Watertown, with which they share “a general interest such as is the concern of the community as a whole . . . .” (Internal quotation marks omitted.) Schwartz v. Town Plan & Zoning Commission, 168 Conn. 20, 25, 357 A.2d 495 (1975).

In addition, the plaintiff did not present any evidence that the commission’s decision specially and injuriously affected its specific personal or legal interest. As the court noted, the plaintiff does not own real property in Watertown. Moreover, the plaintiff failed to offer any evidence indicating that any of its members owned any real property in Watertown. Although the plaintiff alleged in its complaint that it “is comprised of members who would have had standing had they appealed in their individual capacity as statutorily and/or classically aggrieved persons,” such conclusory statements do not satisfy the appellant’s burden of proving aggrievement. Recently, this court in Wucik v. Planning & Zoning Commission, 113 Conn. App. 502, 967 A.2d 572 (2009), considered a complaint alleging that “[t]he plaintiffs are statutorily or classically aggrieved by the decisions of the [commission].” (Internal quotation marks omitted.) Id., 507. In holding such pleading inadequate, we stated: “Our Supreme Court has held that ‘[t]he mere statement that the appellant is aggrieved, without supporting allegations as to the particular nature of the aggrievement, is insufficient.’ . . . Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 542-43, 833 A.2d 883 (2003); see also Beckish v. Manafort, 175 Conn. 415, 419, 399 A.2d 1274 (1978); Hartford Kosher Caterers, Inc. v. Gazda, 165 Conn. 478, 483, 338 A.2d 497 (1973); Maloney v. Taplin, 154 Conn. 247, 250, 224 A.2d 731 (1966); T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) p. 537 (‘[i]t is necessary to present specific facts demonstrating the claimed aggrievement’). Likewise, our Supreme Court has held that a complaint that ‘alleges only that the plaintiffs are aggrieved as owners of real property in the immediate vicinity’ of property subject to a land use agency determination is insufficient under § 8-8. Hickey v. New London, 153 Conn. 35, 37, 213 A.2d 308 (1965); see also Hendel’s Investors Co. v. Zoning Board of Appeals, 62 Conn. App. 263, 274 — 75, 771 A.2d 182 (2001) (conclusory statements averring that ‘[p]laintiff is aggrieved by the decision of the [defendant’ and ‘[p]laintiff has a specific personal and legal property interest which was specifically and injuriously affected by the action of the [djefendant’ insufficient as a matter of law because not accompanied by adequate factual allegations). Bound by that precedent, we agree with the trial court that the plaintiffs’ allegation of aggrievement ‘is a mere conclusory statement devoid of any specific factual allegations.’ ” Wucik v. Planning & Zoning Commission, supra, 507-508. That logic applies with equal force in the present case.

Despite those patent shortcomings, the plaintiff maintains that it can establish its claim of classical aggrievement in light of the fact that it was the applicant that filed the petition with the commission. It argues that “a person who exercises the statutorily conferred right to petition a commission to adopt or amend a zoning regulation under [General Statutes] § 8-3 (c) has a specific, personal right to have that application brought to public hearing and decided by an impartial panel. Although the proposed zoning regulation may be a regulation of general application for which no person would have standing to challenge on the merits if adopted or denied, an individual’s right to petition is, itself, a specific legal right subject to legal protection.” The plaintiff has provided no legal authority for that proposition.

To the contrary, our Supreme Court has held that “[m] ere status . . . as a party or a participant in a hearing before an administrative agency does not in and of itself constitute aggrievement for the purposes of appellate review.” Hartford Distributors, Inc. v. Liquor Control Commission, 177 Conn. 616, 620, 419 A.2d 346 (1979); see also New England Rehabilitation Hospital of Hartford, Inc. v. Commission on Hospitals & Health Care, 226 Conn. 105, 132, 627 A.2d 1257 (1993); Milford v. Local 1566, 200 Conn. 91, 96, 510 A.2d 177 (1986); Bakelaar v. West Haven, 193 Conn. 59, 66, 475 A.2d 283 (1984); Fox v. Zoning Board of Appeals, 84 Conn. App. 628, 637, 854 A.2d 806 (2004); Olsen v. Inland Wetlands Commission, 6 Conn. App. 715, 718, 507 A.2d 495 (1986). Likewise, this court has observed that “standing to file the zoning application, which is subsequently denied, does not alone give a party the aggrievement necessary to pursue an appeal of that decision in the courts.” Trimar Equities, LLC v. Planning & Zoning Board, 66 Conn. App. 631, 637, 785 A.2d 619 (2001); see also R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 32:5, p. 151 (“[standing to file a zoning application, with no additional interest in the property involved in the application, does not establish aggrievement for a party to take an appeal”).

In rejecting the plaintiffs claim of classical aggrievement, the court expressly relied on the decision of our Supreme Court in Fletcher v. Planning & Zoning Commission, 158 Conn. 497, 264 A.2d 566 (1969). In that case, the trial court, adopting the logic advanced by the plaintiff in the present appeal, concluded that, “under the zoning regulations, the plaintiff had the right, as a property owner, to apply to the commission for a change of zone and that, as a property owner entitled to make such an application, he was aggrieved by the denial of the application.” Id., 502. On appeal, our Supreme Court held that finding clearly erroneous, as “the mere denial of [a zoning] application does not establish aggrievement.” Id. Accordingly, the court ordered the dismissal of the appeal because “the plaintiff had failed to establish aggrievement. ” Id. That precedent is binding on this intermediate appellate body.

Fletcher further is akin to the present case in that the plaintiff in Fletcher alleged that the decision of the defendant planning and zoning commission “was invalid because three of its members were disqualified from participating in it.” Id., 504. That similarity brings us to the plaintiffs final contention that it possesses a specific, personal and legal interest stemming from “the statutory right to petition the zoning commission and the associated rights to a hearing and decision.” Seemingly aware that it cannot demonstrate classical aggrievement under Connecticut law, the plaintiff asks this court to recognize a new form of aggrievement whereby a petitioning party “has standing to vindicate a procedural due process right in an administrative appeal on a petition involving a regulation of general application.” For two reasons, we decline to do so.

First and foremost, the plaintiff has provided no authority for its “procedural aggrievement” proposal. Rather, it merely extrapolates from the general principle that zoning proceedings must be fundamentally fair; see, e.g., Megin v. Zoning Board of Appeals, 106 Conn. App. 602, 608-609, 942 A.2d 511, cert. denied, 289 Conn. 901, 957 A.2d 871 (2008); a right to appellate review whenever that principle allegedly is infringed. Its argument in support thereof is mere allegation, which does not constitute adequate briefing. See, e.g., Avalon Bay Communities, Inc. v. Planning & Zoning Commission, 103 Conn. App. 842, 851 n.7, 930 A.2d 793 (2007); Strobel v. Strobel, 73 Conn. App. 488, 490, 808 A.2d 1138, cert. denied, 262 Conn. 928, 814 A.2d 383 (2002).

Second, the plaintiffs “procedural aggrievement” proposal is untenable in light of Fletcher. Despite a claim that the participation of certain conflicted commission members rendered the zoning decision invalid, which claim plainly implicated the plaintiffs right to a fundamentally fair proceeding, the Supreme Court nevertheless concluded that the Fletcher plaintiff had not established aggrievement. Fletcher v. Planning & Zoning Commission, supra, 158 Conn. 502. As the court in the present case noted, “[b]ecause he was a landowner, the plaintiff in Fletcher had an even stronger argument for aggrievement than the plaintiff in this case.” Accordingly, the court concluded that “[i]n the absence of contrary appellate precedent, [it was] unwilling to make a finding of aggrievement . . . .” We concur with that assessment and refuse, in the absence of any contrary Supreme Court precedent, to further entertain the plaintiffs procedural aggrievement proposal. In view of the evidence and pleadings in the present case, we conclude that the court’s finding that the plaintiff failed to establish that it was aggrieved by the commission’s denial of its petition to amend the Watertown zoning regulations is not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 8-8 (b) provides in relevant part: “[A]ny person aggrieved by any decision of a board, including a decision to approve or deny a site plan pursuant to subsection (g) of section 8-3 or a special permit or special exception pursuant to section 8-3c, may take an appeal to the superior court for the judicial district in which the municipality is located . . . .”


author: PER CURIAM.

text:
    ADZI ADZIOVSKI v. FERIKANA ELEZOVSKI
    (AC 30286)
    Bishop, DiPentima and Peters, Js.
    Argued October 19
    officially released December 8, 2009

      Tanya T. Dorman, for the appellant (plaintiff).

      Robert F. Cohen, with whom was Sarah Ann Cohen, for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Adzi Adziovski, appeals from the marital dissolution judgment awarding joint custody of the parties’ minor child, Ersan, and placing primary residence of the child with the defendant, Feri-kana Elezovski. We dismiss the appeal as moot.

The following facts and procedural history are relevant to our resolution of the plaintiffs appeal. In 2007, the plaintiff filed a marital dissolution complaint in which he sought, inter alia, sole custody of the child, who was bom on January 10, 2004. During the parties’ separation until October, 2007, the child resided primarily with the defendant. On October 16, 2007, however, the defendant was deported to the Republic of Macedonia where she presently resides. Thereafter, the child resided with the plaintiff during the pendency of the action. Therefore, at the time of the judgment on July 25, 2008, the plaintiff and the child were residing in Connecticut, while the defendant was residing in Macedonia. Evidence at trial indicated that both the plaintiff and the defendant had been bom in Macedonia, and, although during their marriage both were living in the United States, neither of the parties was a lawful resident. Their child, however, was bom in this country, and, consequently, he is a citizen of the United States. The marital dissolution judgment required that the child be returned to the plaintiffs care no later than August 20,2008. He now resides with his mother in Macedonia. At oral argument, counsel for the plaintiff informed the court that after filing this appeal, the plaintiff left the United States as well and is currently residing in Macedonia.

The plaintiffs appeal to this court relates to the trial court’s custody order. As noted, at the hearing before this court, the plaintiffs counsel reported that the plaintiff now lives in Macedonia. When asked what practical relief this court could afford the plaintiff, both parties acknowledged that there was none, as both parties and the child now reside in Macedonia and neither party can readily return to the United States in the near future.

With these facts in mind, we address whether the plaintiffs appeal is reviewable by this court. “Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [a] court’s subject matter jurisdiction .... Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ... (2) that the interests of the parties be adverse ... (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant.” (Citation omitted; emphasis in original; internal quotation marks omitted.) In re Jorden R., 293 Conn. 539, 555-56, 979 A.2d 469 (2009).

Concentrating on the fourth factor for justiciability, “[i]t is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. . . . In determining mootness, the dispositive question is whether a successful appeal would benefit the plaintiff or defendant in any way.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., 556. “When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.” (Internal quotation marks omitted.) Loisel v. Rowe, 233 Conn. 370, 378, 660 A.2d 323 (1995).

In this appeal, if the plaintiff were successful, the appropriate relief would be to reverse the judgment and to remand the case for further proceedings. Even if we were to do so, it is exceedingly unlikely that the trial court could further entertain the matter because neither party can reasonably be made available to appear in court to pursue their respective claims on remand. Because both parties and the child presently reside in Macedonia and both parents were previously in this country without lawful permit, return by either in the near term is extremely unlikely. Consequently, because this court cannot afford the parties any practical relief, the appeal is moot.

The appeal is dismissed.

       At trial, there was testimony that the defendant would be unable to apply to travel to the United States for at least ten years as a result of her deportation. There was also testimony that if primary residence of the child were to be awarded to the defendant in Macedonia, the plaintiff would be able to enter Macedonia to visit the child, but he would then be unable to return to the United States due to his undocumented immigration status.

       The defendant came to the United States at the age of three and lived here until her deportation on October 16, 2007.

       Although the record does not reflect when the child relocated to Macedonia, it is clear from counsel’s arguments that both parties and the child presently live in Macedonia.


text:
    FRANCIS D.
      v. COMMISSIONER OF CORRECTION
    (AC 29271)
    Harper, Alvord and Foti, Js.
    Argued September 23
    officially released December 8, 2009

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

      Adam E. Mallei, special deputy assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, former state’s attorney, and Gerard P. Eisenman, senior assistant state’s attorney, for the appellee (respondent).

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

   Opinion

PER CURIAM.

The petitioner, Francis D., appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The petitioner claims that the court abused its discretion when it denied his petition for certification to appeal and improperly rejected his claim that his trial counsel rendered ineffective assistance of counsel. Specifically, the petitioner claims that his trial counsel was ineffective because he failed to investigate and pursue the affirmative defense that at the time the petitioner committed the underlying offense of risk of injury to a child, he lacked substantial capacity as a result of mental disease or defect either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law. We dismiss the appeal.

On November 13, 2000, the jury found the petitioner guilty of two counts of risk of injury to a child. On December 15, 2000, the court imposed a total effective sentence of ten years incarceration, execution suspended after six years, and ten years of probation. The petitioner appealed from the judgment of conviction to this court, which affirmed the judgment of the trial court. State v. Francis D., 75 Conn. App. 1, 815 A.2d 191, cert. denied, 263 Conn. 909, 819 A.2d 842 (2003). On September 11, 2006, the petitioner filed with the habeas court a revised, amended petition for a writ of habeas corpus. Trial was held in the matter on June 5, 2007. The court received testimony from the petitioner, his trial counsel and Andrew W. Meisler, a clinical psychologist, among others. A clinical report, produced by Meisler, was admitted into evidence, as was a similar report that was produced by Robert Tepley, another psychologist. By memorandum of decision issued on September 14, 2007, the court denied the petition and subsequently denied certification to appeal. This appeal followed.

“In a habeas appeal, although this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . . Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits. . . .

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . . For the petitioner to prevail on his claim of ineffective assistance of counsel, he must establish both that his counsel’s performance was deficient and that there is a reasonable probability that, but for the counsel’s mistakes, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Gallimore v. Commissioner of Correction, 112 Conn. App. 478, 481 963 A.2d 653 (2009). Furthermore, “[i]n a habeas corpus proceeding, the petitioner’s burden of proving that a fundamental unfairness had been done is not met by speculation . . . but by demonstrable realities.” (Emphasis added; internal quotation marks omitted.) Crawford v. Commissioner of Correction, 285 Conn. 585, 599, 940 A.2d 789 (2008).

On the basis of our review of the record, we conclude that the court properly determined that trial counsel’s strategy of not pursuing an affirmative defense that, at the time the petitioner committed the offense, he lacked substantial capacity as a result of mental disease or defect either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law, was reasonable under the circumstances. We further conclude that the court properly determined that that strategy was largely successful in that the petitioner was acquitted of the most serious charges lodged against him. See footnote 2 of this opinion. Therefore, we conclude that there is no basis for a finding of deficient performance on the part of defense counsel. The petitioner therefore failed to satisfy the first prong of the Strickland test, which requires that he show (1) that counsel's representation fell below an objective standard of reasonableness and (2) that counsel’s deficient performance prejudiced the defense. We also agree that even had the petitioner managed to overcome that hurdle, there is absolutely no evidence that he was, in any way, prejudiced by counsel's performance. Neither Meisler’s testimony, nor his report, provided a basis for a determination that, at the time of the offense, the petitioner was unable to appreciate the wrongfulness of his acts or to control his conduct due to a mental disease or defect, nor did any other evidence adduced at trial. There is, therefore, no reasonable probability that the outcome of the petitioner’s trial would have been different. See Ancona v. Commissioner of Correction, 100 Conn. App. 283, 290-91, 918 A.2d 283 (finding no prejudice due to lack of credible evidence in support of insanity defense), cert. denied, 282 Conn. 918, 928 A.2d 1099 (2007). The petitioner’s claim concerning a possible insanity defense, therefore, fails to satisfy both prongs of the Strickland test.

We conclude that the petitioner has not demonstrated that the issues raised are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions raised deserve encouragement to proceed further. See Simms v. Warden, supra, 230 Conn. 616. The court, therefore, did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

       The jury also found the petitioner not guilty of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and one count of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A). State v. Francis D., 75 Conn. App. 1, 4, 815 A.2d 191, cert. denied, 263 Conn. 909, 819 A.2d 842 (2003).

       In that opinion, this court set forth the following facts underlying the petitioner’s conviction: “On Saturday, July 17, 1999, the victim, who was then twelve years old, was visiting with her grandparents at their home. During the evening hours, the victim and her cousin, who also was visiting, began watching television in the bedroom of the [petitioner], who is the victim’s uncle. At that time, the [petitioner] was thirty-nine years of age and lived in the victim’s grandparents’ home. Sometime thereafter, the victim’s cousin left the bedroom and went downstairs.
      “Between the hours of 10 and 11p.m., the [petitioner] entered his bedroom and discovered the victim lying in his bed and watching television. The [petitioner] lay down beside the victim and fell asleep. The victim continued watching television, falling asleep sometime thereafter. Between the hours of 11 p.m. and 1 a.m., the victim awoke to find the [petitioner] touching her breasts. As the [petitioner] was doing that, he moved closer to the victim and began digitally penetrating her vagina. The victim unsuccessfully attempted to push the [petitioner] away.
      “When the [petitioner] eventually stopped, the victim moved away from him, remained in bed and fell back to sleep. When the victim awoke the next morning, she felt the [petitioner] fondling and digitally penetrating her vagina. The victim pushed the [petitioner] away and ran from the bedroom. The victim did not immediately report either incident to her mother or to the grandparents on Sunday, July 18,1999. The victim reported the incidents to her mother on Monday, July 19, 1999.
      “Following the victim’s disclosure, the mother took the victim to a hospital for an examination. At the hospital, the victim was met by Detective Thaddeus Walewski, Officer Donald Schuler and a social worker at the hospital’s emergency department. A physical examination of the victim revealed that she had suffered a superficial bruise on one breast. There was, however, no sign of vaginal trauma. Tests performed as part of a sex crimes kit protocol were inconclusive for sexual assault.
      “Two days after first reporting the incident, the victim signed a written statement for the police in which she recounted the attacks of Saturday night, July 17, and Sunday morning, July 18, 1999. On September 16, 1999, the state filed a five count substitute information . . . .” State v. Francis D., 75 Conn. App. 1, 3-4, 815 A.2d 191, cert. denied, 263 Conn. 909, 819 A.2d 842 (2003).

       William R. Schipul, the petitioner’s defense counsel, testified at the habeas trial that he had considered an insanity defense but decided that it would not be the best strategy. Schipul testified that he was concerned that such a strategy would reveal the petitioner’s history of severe alcohol abuse, including a prior conviction for manslaughter with a motor vehicle. See State v. Carter, 198 Conn. 386, 392, 503 A.2d 576 (1986) (“[WJhen insanity is in issue, any and all conduct of the person is admissible in evidence. To this end, the trial judge should permit an unrestricted inquiry into the whole personality of a defendant and should be free in his admission of all possibly relevant evidence. Any evidence of aberrant conduct or action, whether before or after the act charged, is accordingly admissible under the [insanity] plea.” [Internal quotation marks omitted.]). Schipul testified that he thought that attacking the credibility of the victim would avoid the potential problems inherent in employing an insanity defense in the petitioner’s case and would therefore provide a better defense strategy.

       See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).


text:
    Y’ISIAH LOPES v. SHAWN FARMER ET AL.
    (AC 30630)
    Lavine, Beach and Hennessy, Js.
    Submitted on briefs October 19
    officially released December 8, 2009

      John R. Williams filed a brief for the appellant (plaintiff).

      Carmine Perri and Kevin C. Kelly filed a brief for the appellees (named defendant et al.).
   Opinion

PER CURIAM.

In this malicious prosecution action, the plaintiff, Y’Isiah Lopes, appeals from the judgment of the trial court rendered in favor of the defendants, Shawn Farmer and Melissa Lucas, Stratford police officers. On appeal, the plaintiff claims that the court improperly granted the defendants’ motion for summary judgment because the defendants, who had received complaints that the plaintiff was stalking a student from the high school where he was a substitute teacher, purportedly withheld exculpatory information when applying for an arrest warrant for the plaintiff. We affirm the judgment of the trial court.

“Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ” LaPenta v. Bank One, N.A., 101 Conn. App. 730, 736, 924 A.2d 868, cert. denied, 284 Conn. 905, 931 A.2d 264 (2007). Our review of the court’s decision to grant the defendants’ motion for summary judgment is plenary. See Curley v. Kaiser, 112 Conn. App. 213, 220, 962 A.2d 167 (2009).

After having examined the record and the briefs and having considered the arguments of the parties, we are persuaded that the summary judgment rendered in favor of the defendants should be affirmed. See Hotshoe Enterprises, LLC v. Hartford, 284 Conn. 833, 837, 937 A.2d 689 (2008). The court’s thoughtful, well-reasoned decision fully addresses the claim raised on appeal, and we therefore adopt it as a statement of the facts and the applicable law. See Lopes v. Farmer, 51 Conn. Sup. 361, 984 A.2d 807 (2008). No useful purpose would be served by repeating the discussion contained therein. Sansone v. Nationwide Mutual Fire Ins. Co., 62 Conn. App. 526, 528, 771 A.2d 243 (2001).

The judgment is affirmed.

      A default for failure to appear was entered against the defendant Kristy Tryjada. Tryjada is not a party to this appeal. In this opinion, we therefore refer to Farmer and Lucas as the defendants.

       The plaintiff alleged that the charges against him were dismissed.


author: BEACH, J.

text:
    STATE OF CONNECTICUT v. DRAMESE K. FAIR
    (AC 29074)
    Beach, Robinson and Schaller, Js.

      Argued September 11
    officially released December 8, 2009

      Darcy McGraw, special public defender, for the appellant (defendant).

      James A. Killen, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Marc G. Ramia, assistant state’s attorney, for the appellee (state).
   Opinion

BEACH, J.

The defendant, Dramese K. Fair, appeals from the judgment of conviction, rendered after a jury trial, of possession of a hallucinogenic substance other than marijuana in violation of General Statutes § 21a-279 (b) and possession of a hallucinogenic substance other than marijuana within 1500 feet of a school in violation of General Statutes § 21a-279 (d). On appeal, the defendant claims that (1) the evidence was insufficient to sustain his conviction and (2) the court improperly instructed the jury as to constructive possession. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On February 24, 2006, at approximately 8 p.m., the defendant approached a former girlfriend, Kathy Wright, while she was in her vehicle in a Getty Mart gasoline station parking lot located on Kimberly Avenue, New Haven. He requested that Wright give him a ride to Greenwich Avenue. Wright asked the defendant, “[a]re you dirty?” The meaning of the inquiry was to ask whether he was carrying drugs, guns or other contraband. Wright explained that she was concerned because her car was not registered and was bearing a license plate that did not belong to it. The defendant answered that he “wouldn’t get in [her] car like that,” and Wright permitted him to get into the front passenger seat of her vehicle. Wright then proceeded to exit the parking lot toward Greenwich Avenue, without activating her headlights.

On Greenwich Avenue, a police vehicle pulled up behind Wright’s vehicle and signaled her to pull over. As Wright began to pull over, the defendant became very agitated. Wright and the defendant began arguing, and Wright yelled, “[w]hat’s wrong with you?” The defendant responded that he was “dirty.” Wright advised the defendant, “[l]isten, you better run out of my car, you better do something.” Orlando Crespo, a New Haven police officer, approached the driver’s side door, and both Wright and the defendant swung their car doors open. Crespo ordered both Wright and the defendant to remain in the vehicle. On learning from Wright that her vehicle was not registered and had an illegal license plate attached, Crespo requested Wright to exit the vehicle and submit to a patdown by a female officer. The female officer did not find any drugs or weapons on Wright and escorted Wright to the backseat of a police car.

As Crespo approached Wright, Gary Hammill, a New Haven police officer, watched the defendant in the passenger seat. After Wright was escorted away from the vehicle, Crespo moved toward the defendant’s side of the vehicle. Both Crespo and Hammill noticed aluminum packets on the ground outside the passenger side door. The officers also noticed additional aluminum packets in the area between the front passenger seat and the passenger door. In total, twenty-six aluminum packets were found inside and outside the car. A field test was performed on the contents of one of the packets. The field test indicated that the aluminum packets contained phencyclidine, otherwise known as PCP. A state toxicologist later confirmed that the packets contained PCP.

The defendant was placed in handcuffs. A search uncovered no additional ahxminum packets on his person, but it did uncover three cellular telephones and $785 in paper currency, mostly in small denominations. Crespo later testified that the items recovered from the defendant were consistent with those recovered from persons involved in the sale of narcotics.

Wright testified that at the time of the traffic stop, the car was occupied by only her and the defendant. She stated that she had purchased the car eight days earlier and had performed a thorough search of the vehicle at that time. Wright further testified that the defendant had been her only passenger in the vehicle since she had purchased it.

The defendant was charged by way of an amended long form information with possession of a quantity of a hallucinogenic substance other than marijuana, phencyclidine, in violation of § 2 la-279 (b) and possession of a quantity of a hallucinogenic substance other than marijuana within 1500 feet of a school in violation of § 21a-279 (d). The jury found the defendant guilty of both charges. The defendant was sentenced to a term of four years and one day incarceration and three years special parole. This appeal followed.

I

The defendant first claims that the state failed to present sufficient evidence to support his conviction of possession of a hallucinogenic substance other than marijuana and possession of a hallucinogenic substance other than marijuana within 1500 feet of a school. With respect to both crimes, the defendant claims that the evidence introduced at trial was insufficient to prove that he had actual or constructive possession of the PCP found by the police. We disagree.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict. . . .

“[I]t does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . . This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . . because this court has held that a jury’s factual inferences that support a guilty verdict need only be reasonable.” (Citation omitted; internal quotation marks omitted.) State v. Coleman, 114 Conn. App. 722, 727, 971 A.2d 46, cert. denied, 293 Conn. 907, 978 A.2d 1112 (2009).

The defendant asserts that no reasonable jury could have found that he was in possession of the PCP found in the vehicle. “[T]o prove illegal possession of a narcotic substance, it is necessary to establish that the defendant knew the character of the substance, knew of its presence and exercised dominion and control over it. . . . Where . . . the [narcotics were] not found on the defendant’s person, the state must proceed on the theory of constructive possession .... Where the defendant is not in exclusive possession of the premises where the narcotics are found, it may not be inferred that [the defendant] knew of the presence of the narcotics and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference. . . . While mere presence is not enough to support an inference of dominion or control, where there are other pieces of evidence tying the defendant to dominion and control, the [finder of fact is] entitled to consider the fact of [the defendant’s] presence and to draw inferences from that presence and the other circumstances linking [the defendant] to the crime.” (Citation omitted; internal quotation marks omitted.) State v. Martin, 285 Conn. 135, 149-50, 939 A.2d 524, cert. denied, 555 U.S. 859, 129 S. Ct. 133, 172 L. Ed. 2d 101, after remand, 110 Conn. App. 171, 954 A. 2d 256, cert. granted on other grounds, 289 Conn. 944, 959 A.2d 1010 (2008).

Although the defendant did not physically possess the PCP when he was arrested, there was incriminating testimony to support an inference that he constructively possessed the narcotics. Wright, the driver of the vehicle, testified that the defendant said to her that he was “dirty,” which meant that he was carrying drugs or weapons, when she was stopped by the police. She also testified that she had inspected the vehicle prior to purchasing it and that the defendant had been the only passenger in her vehicle between the time when she bought the vehicle and the time she was pulled over by the police.

The defendant also argues that the testimony of Wright was not credible because she was engaged in illegal behavior that led to the police stopping her vehicle. He also argues that the location of the aluminum packets made it just as likely that the drugs belonged to Wright as that they belonged to the defendant. “Whether [a witness’] testimony [is] believable [is] a question solely for the jury. It is . . . the absolute right and responsibility of the jury to weigh conflicting evidence and to determine the credibility of the witnesses.” (Internal quotation marks omitted.) State v. McFarlane, 88 Conn. App. 161, 169, 868 A.2d 130, cert. denied, 273 Conn. 931, 873 A.2d 999 (2005).

The tangible evidence found at the scene also supports an inference that the defendant exercised dominion and control over the packets of narcotics. There were aluminum packets lying on the ground in plain view just outside the passenger side door of the vehicle. Additional packets were found around the area the defendant was sitting. A search of the defendant’s person uncovered three cellular telephones and $785 in cash. On the basis of the cumulative effect of that evidence and the reasonable inferences drawn therefrom, we conclude that the jury reasonably could have found that the defendant was in constructive possession of the narcotics.

II

The defendant next claims that the court’s constructive possession instruction to the jury was inadequate. We disagree.

“Our standard of review regarding properly preserved claims of improper jury instructions is well settled. In reviewing claims of instructional [impropriety], we seek to determine whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions. . . . [T]he charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. ... As long as [the instructions] are correct in law . . . we will not view the instructions as improper. . . . Although [a] request to charge which is relevant to the issues of [a] case and which is an accurate statement of the law must be given ... [a] refusal to charge in the exact words of a request . . . will not constitute error if the requested charge is given in substance. . . . Thus, when the substance of the requested instructions is fairly and substantially included in the trial court’s jury charge, the trial court may properly refuse to give such instructions.” (Citations omitted; internal quotation marks omitted.) State v. McCarthy, 105 Conn. App. 596, 617-18, 939 A.2d 1195, cert. denied, 286 Conn. 913, 944 A.2d 983 (2008).

In his request to charge, the defendant asked that the jury be instructed as follows: “It [cannot] be logically and reasonably presumed that an occupant of a motor vehicle knew of the presence of [contraband] in a vehicle simply on the fact that he was an occupant. Presence alone unilluminated by other facts is insufficient proof of possession.”

The court’s instruction conveyed the same concepts as the charge requested by the defendant. The court first stated that the state had the burden to prove all of the elements of each crime. It then explained the elements of possession and defined both actual and constructive possession. In the explanation of constructive possession, the court informed the jury that the defendant’s mere presence at the scene was not sufficient to find him guilty of possession.

The defendant claims that the court improperly failed to instruct the jury as requested by counsel. He argues that the charge as given by the court did not highlight that his presence in the vehicle alone was not sufficient evidence of possession and “implied that other evidence in the case did supply the necessary proof of constructive possession.” In addition, he contends that the charge as given “effectively imposed a burden on the defendant to supply an innocent explanation for his presence.” We disagree.

After a thorough review of the charge, we conclude that it is not reasonably possible that the jury was misled by the court’s charge because the charge as given included the gravamen of the requested charge. The requested instruction asked the court to charge that (1) knowledge of the presence of drugs cannot be inferred only from presence in the vehicle and that (2) presence in the vehicle, without other facts is insufficient proof of guilt. The court instructed the jury that (1) actual knowledge of the presence of drugs was a required element and (2) mere presence was not enough. The reasonable interpretation of that instruction is that if mere presence is not enough to find the defendant guilty, then other evidence necessarily would be required. Because the instruction that the court gave was essentially the same as the instruction requested by the defendant, we conclude that the court did not improperly instruct the jury on constructive possession.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-279 (b) provides: “Any person who possesses or has under his control any quantity of a hallucinogenic substance other than marijuana or four ounces or more of a cannabis-lype substance, except as authorized in this chapter, for a first offense, may be imprisoned not more than five years or be fined not more than two thousand dollars or be both fined and imprisoned, and for a subsequent offense may be imprisoned not more than ten years or be fined not more than five thousand dollars or be both fined and imprisoned.”

       General Statutes § 21a-279 (d) provides in relevant part: “Any person who violates subsection ... (b) ... of this section in or on, or within one thousand five hundred feet of, the real property comprising a public or private elementary or secondary school and who is not enrolled as a student in such school . . . shall be imprisoned for a term of two years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of subsection . . . (b) . . . of this section.”

       We note initially that the defendant’s challenge to the court’s instruction is properly renewable. “A party may preserve for appeal a claim that a jury instruction was improper either by submitting a written request to charge or by taking an exception to the charge as given.” Pestey v. Cushman, 259 Conn. 345, 372-73, 788 A.2d 496 (2002). Here, the defendant submitted his requested instruction in written form two days prior to the jury charge conference.

       The court instructed the jury in relevant part: “For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt. First, that the defendant knowingly possesses; second, any quantity of a hallucinogenic substance other than marijuana, and in this case the state has alleged the substance to be phencyclidine, commonly referred to as PCP.
      “The term ‘knowingly’ means having an awareness of the nature of one’s own conduct or the awareness of the existence of specified facts or circumstances. Here, it would mean that the state must prove beyond a reasonable doubt that the defendant was aware that he possessed phencyclidine. Possession may be actual or constructive. In a moment, I will define both of these for you.
      “Possession, actual or constructive, may be proven by either direct or circumstantial evidence. Keep in mind that possession of the alleged phency-clidine, not ownership, is all that is required. Actual possession is established if it is shown that the defendant had actual physical possession of the alleged phencyclidine. Constructive possession is established if it is shown that the defendant exercised dominion and control over the alleged phencyclidine and had actual knowledge of its presence.

        “Remember, then, constructive possession requires a showing of two things: control and knowledge. Constructive possession may be exclusive or shared by others; the latter is known as joint possession. Mere presence at the scene of the crime or in the vicinity of criminal activity is insufficient proof by itself that the defendant committed the offense.
      “Control is to be given its ordinary meaning, that is, to say that the defendant is in control of the alleged phencyclidine if it is shown that he exercises a direct control over it.”


author: BISHOP, J.

text:
    J. WILLIAM GAGNE, JR. v. ENRICO VACCARO
    (AC 30427)
    Bishop, Alvord and Dupont, Js.
    Argued October 16
    officially released December 8, 2009

      Eugene A. Skowronski, for the appellant (defendant).

      Peter A. Ventre, for the appellee (plaintiff).
   Opinion

BISHOP, J.

In this foreclosure action, the defendant, Enrico Vaccaro, appeals challenging the trial court’s award of appellate attorney’s fees, pursuant to General Statutes § 52-249, to the plaintiff, J. Wilham Gagne, Jr. On appeal, the defendant claims that § 52-249 does not authorize appellate attorney’s fees, and, even if it does, the amount of fees awarded was unreasonable. Although we conclude that § 52-249 does authorize an award of appellate attorney’s fees, because the court improperly denied the defendant an evidentiary hearing to challenge the reasonableness of the fees, we affirm in part and reverse in part the judgment of the trial court.

The following factual and procedural background is relevant to the resolution of the defendant’s appeal. The plaintiff sought to foreclose a judgment hen on certain property owned by the defendant. On July 26, 2006, the court rendered judgment of strict foreclosure of the plaintiffs hen. The defendant subsequently filed an appeal from the judgment of strict foreclosure, and this court affirmed the judgment of the trial court. See Gagne v. Vaccaro, 107 Conn. App. 905, 945 A.2d 1071 (2008).

On May 28, 2008, the plaintiff filed a motion for appellate attorney’s fees incurred in defending the defendant’s appeal. The plaintiffs motion was accompanied by an affidavit delineating the fees requested. On September 3, 2008, the court granted the motion for appellate attorney’s fees in the amount of $16,980. The court did not issue a memorandum of decision but noted that “no objection was raised as to the reasonableness of the fees requested.” The court subsequently denied the defendant’s motion to reargue and for reconsideration. In doing so, the court stated that the defendant had failed to specify what he was objecting to, in terms of the charges listed in the plaintiffs affidavit of attorney’s fees, and stated that it found the charges reasonable. This appeal followed.

On appeal, the defendant first claims that the court did not have the authority to award appellate attorney’s fees in a foreclosure action pursuant to § 52-249. We disagree.

“The question of whether a particular statute . . . applies to a given state of facts is a question of statutoiy interpretation .... Statutory interpretation presents a question of law for the court. . . . Our review is, therefore, plenary.” (Internal quotation marks omitted.) Russo Roofing, Inc. v. Rottman, 86 Conn. App. 767, 775, 863 A.2d 713 (2005).

Connecticut case law follows the general rule, frequently referred to as the “American Rule,” that attorney’s fees are not allowed to the prevailing party as an element of damages unless such recovery is allowed by statute or contract. Marsh, Day & Calhoun v. Solomon, 204 Conn. 639, 652-53, 529 A.2d 702 (1987). Section 52-249 (a) provides in relevant part: “The plaintiff in any action of foreclosure of a mortgage or lien, upon obtaining judgment of foreclosure, when there has been a hearing as to the form of judgment or the limitation of time for redemption, shall be allowed the same costs, including a reasonable attorney’s fee, as if there had been a hearing on an issue of fact. ...” Section 52-249 (a) has been construed as “succinctly and unambiguously” providing “for the allowance of attorney’s fees in actions for foreclosure of mortgages or liens.” (Internal quotation marks omitted.) Original Grasso Construction Co. v. Shepherd, 70 Conn. App. 404, 418, 799 A.2d 1083, cert. denied, 261 Conn. 932, 806 A.2d 1065 (2002).

Although § 52-249 provides for attorney’s fees in foreclosure actions, it does not specifically provide for appellate attorney’s fees. We find guidance, however, in decisions regarding other statutes that do not specifically provide for appellate attorney’s fees. See, e.g., Traystman, Coric & Keramidas, P.C. v. Daigle, 282 Conn. 418, 922 A.2d 1056 (2007) (appellate attorney’s fees permitted in “action” on consumer contract under General Statutes § 42-150bb); Miller v. Kirshner, 225 Conn. 185, 621 A.2d 1326 (1993) (appellate attorney’s fees allowable under General Statutes § 46b-171 in paternity “suit”); Tracey v. Tracey, 97 Conn. App. 278, 903 A.2d 679 (2006) (appellate attorney’s fees permitted in marital dissolution actions pursuant to General Statutes § 46b-62); Crowther v. Gerber Garment Technology, Inc., 8 Conn. App. 254, 513 A.2d 144 (1986) (appellate attorney’s fees allowable under General Statutes § 31-72 in “civil action” to collect wages); Conservation Commission v. Price, 5 Conn. App. 70, 496 A.2d 982 (1985) (use of term “action” in General Statutes § 22a-44 construed to allow attorney’s fees incurred both at trial and on appeal). Section 52-249 provides for attorney’s fees in a foreclosure “action.” Consistent with the cases cited previously, we construe the provision for attorney’s fees in § 52-249 as extending to attorney’s fees incurred on appeal as well as at the trial level.

The defendant contended in his supplemental objection to the plaintiffs motion for appellate attorney’s fees that the phrase “upon obtaining judgment of foreclosure” contained in § 52-249 indicates that the fees are tied to the time of judgment and, therefore, cannot be interpreted as permitting appellate attorney’s fees. We view that phrase, however, not as a temporal limitation but merely a condition for obtaining such an award. In other words, the plaintiff must obtain a judgment in its favor to be entitled to counsel fees. Accordingly, we conclude that because § 52-249 provides for attorney’s fees in a foreclosure “action” and does not restrict the award to fees incurred at trial, the court had the authority to award appellate attorney’s fees pursuant to § 52-249.

We now turn to the defendant’s second claim, which is that the court improperly determined that the fees claimed by the plaintiff were reasonable. “A trial court’s decision to award attorney’s fees is reviewable for abuse of discretion. . . . [When determining] reasonableness of requested attorney’s fees . . . more than [a] trial court’s mere general knowledge is required for an award of attorney’s fees. . . . The burden of showing reasonableness rests on the party requesting the fees, and there is an undisputed requirement that the reasonableness of attorney’s fees and costs must be proven by an appropriate evidentiary showing. . . . [T]here must be a clearly stated and described factual predicate for the fees sought, apart from the trial court’s general knowledge of what constitutes a reasonable fee. . . . That factual predicate must include a statement of the fees requested and a description of services rendered.” (Citations omitted; internal quotation marks omitted.) Commission on Human Rights & Opportunities v. Sullivan, 285 Conn. 208, 237-38, 939 A.2d 541 (2008).

“[T]he right to litigate fully the reasonableness of attorney’s fees entitles the opposing party to question under oath a billing attorney who has submitted an affidavit in support of the requested fees, in order to challenge the reasonableness of those fees. This rule will ensure that the party opposing the requested fees has available to it the most fair and efficient means of challenging those fees, that is, questioning under oath the very person on whom the court relies in assessing the fees, the billing attorney. It is not a sufficient substitute to limit the opposing party to filing opposing affidavits or calling expert witnesses. Allowing the challenging party this right will also aid the court in making its determination regarding the reasonableness of those fees. It would be inconsistent with the placement of the burden on the requesting party . . . that an opposing party should have the right to litigate fully the issue of reasonableness, to allow the requesting party to present an affidavit by the billing attorney in support of the reasonableness of the requested fees, without allowing the opposing party to test that evidence by questioning the affiant under oath.” Id., 239.

Here, in support of his claim for attorney’s fees, the plaintiff submitted an affidavit, claiming that his attorney spent 84.9 hours on his case, at a rate of $200 per hour. The defendant filed an objection on June 16,2008, in which he challenged only the legal authority for such an award, not the reasonableness of the fees claimed by the plaintiff. On June 24, 2008, however, the court held a hearing on the issue of fees at which the defendant indicated that he was challenging the reasonableness of the fees and sought to examine the plaintiffs counsel as to the fees claimed. The court refused to permit such an examination because the defendant had not raised this claim in his written objection, and the late claim appeared to the court to be a delay tactic by the defendant. The court, however, allowed the defendant to file an additional memorandum of law in opposition to the plaintiffs motion for attorney’s fees in which he could challenge the reasonableness of the fees claimed by the plaintiff. On July 24, 2008, the defendant filed his supplemental objection to the plaintiffs motion for appellate attorney’s fees in which he reiterated the arguments he made in his initial objection and, again, asked for an evidentiary hearing as to the reasonableness of the fees. The court granted the plaintiffs motion for appellate attorney’s fees without further hearing.

On the basis of the court’s ruling in Commission on Human Rights & Opportunities v. Sullivan, supra, 285 Conn. 208, the defendant should have been afforded an evidentiary hearing to challenge the reasonableness of the fees being sought by the plaintiff. Although such a request should have been included in the defendant’s initial objection to the motion for fees, the defendant asked the court for an evidentiary hearing twice prior to the court’s ruling. The denial of those requests deprived the defendant of his right to litigate fully the reasonableness of the fees.

The judgment is reversed with respect to the award of appellate attorney’s fees only, and the case is remanded with direction to conduct an evidentiary hearing as to the reasonableness of the plaintiffs requested attorney’s fees. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The plaintiff argues that because the record does not contain a memorandum of decision or a signed transcript of an oral decision by the court, the record is inadequate for review of this claim. When we are confronted with a question of law, however, and the facts are not disputed, the precise legal analysis undertaken by the trial court is not essential to this court’s review of the issue on appeal. See Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 395-96, 757 A.2d 1074 (2000). Thus, we will review the defendant’s legal claim.


text:
    IN RE GABRIELLE M.

    (AC 30391)
    DiPentima, Gruendel and Alvord, Js.
    Argued October 20
    officially released December 8, 2009

      Traci J. Valery, for the appellant (respondent mother).

      Renee Bevacqua Bollier, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

      Thomas Mitola, for the minor child.

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

   Opinion

PER CURIAM.

The respondent mother appeals from the judgment of the trial court terminating her parental rights with respect to her minor child, Gabrielle. The respondent claims that the court improperly found that (1) the department of children and families (department) had made reasonable efforts to reunify the child with the respondent, (2) she had failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, she could assume a responsible position in the child’s life and (3) the termination of parental rights was in the child’s best interest.

The following facts, found by the court, and procedural history, are relevant to our review of the respondent’s claims. The respondent has a history of serious mental health issues, homelessness, domestic violence, anger management issues and inadequate legal income. The child was bom on October 16,2001. In March, 2006, she was adjudicated neglected but permitted to live with the respondent under six months of protective supervision. In the summer of 2006, however, the respondent hid her whereabouts and the whereabouts of the child from the department. The respondent’s disappearance violated the court-ordered specific steps and, as a result, custody of the child was transferred temporarily to the child’s adult sister. The sister, however, left the child with an unauthorized caretaker, and, on November 7,2006, the department removed the child from the sister’s care. On November 8, 2006, an order of temporary custody entered in favor of the petitioner, the commissioner of children and families, and, on March 20,2007, the child was committed to the petitioner’s care. She was placed in a preadoptive foster home in May, 2007. On November 14, 2007, the petitioner filed the present petition pursuant to General Statutes § 17a-112 to terminate the respondent’s parental rights.

“A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. ... In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights [under § 17a-112 (j)] exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child.” (Internal quotation marks omitted.) In re Zion R., 116 Conn. App. 723, 732-33, 977 A.2d 247 (2009).

Our standard of review on appeal from a termination of parental rights is limited to whether the challenged findings are clearly erroneous. In re Jorden R., 293 Conn. 539, 558, 979 A.2d 469 (2009). “A finding is clearly erroneous when either there is no evidence in the record to support it, or the reviewing court is left with the definite and firm conviction that a mistake has been made. . . . [G]reat weight is given to the judgment of the trial court because of [the trial court’s] opportunity to observe the parties and the evidence. . . . [An appellate court does] not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. . . . [Rather] every reasonable presumption is made in favor of the trial court’s ruling.” (Internal quotation marks omitted.) Id., 558-59.

The respondent first claims that the court improperly found that the department made reasonable efforts to reunite her with her child. In particular, she argues that the department’s suspension of supervised visitation interfered with reunification efforts. She maintains that the department should have sought a second opinion regarding the propriety of continued visitation or attempted to find an alternative supervised visitation facility. We disagree.

“[Reasonable efforts means doing everything reasonable, not everything possible.” (Internal quotation marks omitted.) In re Samantha C., 268 Conn. 614, 632, 847 A. 2d 883 (2004). In this case, the record reflects the following efforts by the department. The department offered the respondent numerous services to facilitate reunification, including supervised visitation. The respondent, however, largely failed to take advantage of these programs. After supervised visits were suspended, the department referred the respondent to several mental health facilities for diagnosis and treatment. The respondent failed to cooperate with treatment providers. She was discharged prematurely by two mental health facilities for noncompliance. Despite multiple psychiatric hospitalizations and the recommendations of her therapist, the respondent continued to deny that she was delusional or psychotic and needed treatment.

Additionally, and contrary to the respondent’s contention, the department did refer the respondent to an alternative visitation facility. Like the Boys and Girls Village, which previously had suspended visitation; see footnote 5 of this opinion; the new facility, R-Kids, would not allow the respondent to begin its parenting program until she obtained clearance from her therapist. The record supports the court’s finding that the department made reasonable efforts to reunify the petitioner with her child.

The respondent next claims that the court improperly determined that she had failed to achieve a sufficient degree of personal rehabilitation pursuant to § 17a-112 (j) (3). She argues that in making its determination, the court gave too much credit to a psychologist’s evaluation and not enough credit to the fact that she recently had obtained an apartment and had begun to receive counseling. Her arguments are without merit. “The psychological testimony from professionals is rightly accorded great weight in termination proceedings.” (Internal quotation marks omitted.) In re Kezia M., 33 Conn. App. 12, 22, 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993). Moreover, “[personal rehabilitation . . . refers to the restoration of a parent to his or her former constructive and useful role as a parent [and] requires the trial court to analyze the [parent’s] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time.” (Internal quotation marks omitted.) In re Zion R., supra, 116 Conn. App. 733. Although the respondent’s recent strides are encouraging, they are not enough. See In re Shyliesh H., 56 Conn. App. 167, 180, 743 A.2d 165 (1999) (“in assessing rehabilitation, the critical issue is not whether the parent has improved her ability to manage her own life, but rather whether she has gained the ability to care for the particular needs of the child at issue”). The trial court’s findings on this point were proper.

Finally, the respondent claims that the court improperly found that termination was in the child’s best interest. Specifically, she takes issue with the court’s determination that permanency, consistency and stability of care necessitated the termination of her parental rights. The respondent argues that she is capable of immediately assuming care of the child and providing her with a stable living environment. Her position is not supported by the record. In contrast, there is extensive evidentiary support for the court’s conclusion that termination is in the best interest of the child.

The judgment is affirmed.

       The court also terminated the parental rights of the child’s father, whose identity is unknown. He has not appealed from the judgment. We therefore refer to the respondent mother as the respondent in this opinion.

       The department believed that the respondent had left the state with the child. The respondent maintained that she was in New Haven but homeless and living in a motel. She said that she was afraid to notify the department of her housing situation for fear of losing custody of her child.

       General Statutes § 17a-101g permits the petitioner to remove a child from unsafe surroundings under a ninety-six hour hold.

       General Statutes § 17a-112 CD provides in relevant part: “The Superior Corut, upon notice and hearing . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that (1) the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent in accordance with subsection (a) of section 17a-lllb, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts ... (2) termination is in the best interest of the child, and (3) . . . (B) the child (i) has been found by the Superior Court ... to have been neglected or uncared for in a prior proceeding . . . and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and 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 . . . .”

       Supervised visitation was suspended after an incident that occurred during a visit at the Boys and Girls Village in November, 2006. At the end of the supervised visit, the respondent refused to let go of her child while screaming that the department had killed one of the child’s older sisters who was committed to its care. The child was distressed by these events, and her therapist from the Boys and Girls Village recommended that visitation with the respondent be suspended until the respondent began mental health treatment, complied with her medication regime and received safety clearance from her treating clinician. The respondent denied that she ever made such statements.

       The respondent also refused to sign the release forms that the department required to assess her progress, if any, and to seek further help on her behalf.

       The respondent had four or five psychiatric hospitalizations from October, 2006, to October, 2008, and was diagnosed as suffering from some form of schizophrenic episodes.

       We also note that the respondent does not challenge the court’s finding by clear and convincing evidence that she is either unable or unwilling to benefit from reunification efforts. See In re Shaiesha O., 93 Conn. App. 42, 47, 887 A.2d 416 (2006) (“Section 17a-112 [j] [1] requires the court to make a finding by clear and convincing evidence in the adjudicatory phase concerning the reasonable efforts made by the department ... to reunify the child with the parent as a prerequisite to terminating parental rights. ... A court need not make that finding, however, if the evidence establishes that the parent is unable or unwitting to benefit from reunification efforts . . . .” [Emphasis added; internal quotation marks omitted.]).

       The respondent had lived in four or five different places between November, 2006, and November, 2007, but obtained an apartment in April, 2008, under section 8 of the National Housing Act, as amended in 1974 and codified at 42 U.S.C. § 1437f. Though the respondent began attending therapy, she did so because it was required, and she continued to deny that she needed treatment.